Conversations on adoption, family, parentage and the law

B.C.’s new Family Law Act — coming March 2013

This week, the British  Columbia government announced that the long-awaited new Family Law Act will come into force on March 18, 2013.

What does this mean for parents and parents-to-be?

The new law makes significant changes to the legal language used to describe parenting arrangements, and to how property will be divided when relationships end.  “Custody” and “access” will be no more, replaced with “guardianship”, “parenting responsibilities” and “parenting time.”  Common law couples will now be subject to the same laws in regard to property division as married couples, and there will be a heighened emphasis on helping couples resolve their legal issues outside of court.

Arguably more profound, however, are the fundamental changes the new legislation makes to how families formed through reproductive technologies will be recognized in B.C.

In this area, the legislation provides needed clarity.  The new law expressly provides, for example, that the act of donating sperm will not be enough to make a man a parent.  Only the birth mother and her spouse will be recognized as the child’s parents.  Under section 27 of the Act, the donor will have no parental status, rights or obligations unless the parties enter into a written agreement prior to the birth that recognizes those rights.

Conversely, through the recognition of such agreements, it will now be possible for children in those families to have three legal parents — the birth mother, her spouse, and the biological father. (See my previous post on multi-parent families.)

The new legislation also provides that the biological parent of a child conceived after the parent’s own death can legally be that child’s parent. Essentially, this means that if a person has a child using sperm or ova that had been provided by their deceased spouse before their spouse’s death, both they and their deceased spouse may be recognized as legal parents of the child.  This seemingly esoteric change will have a profound impact on those families affected, by clarifying an uncertain area of the law and allowing the parents involved to give full legal expression to their personal wishes and intentions.



Grandparents, custody and adoption

For many of us, the word “retirement” conjures up images of trips we would like to take, novels not yet read (or written), the luxury of easing into part-time work or starting a home-based business.

My guess is few envision toddlers underfoot, or carpooling teens to soccer games.

Yet when a parent is struggling to raise their child, it is not uncommon for grandparents– often in their 60s or 70s, and often struggling financially themselves– to step forward and fill the breach.  In B.C., more children are being raised by grandparents than in foster care.  In 2010, over 10,000 B.C. households with children were headed by grandparents.

Legal options for grandparents range from informal arrangements to adoption and everything in between, including custody.  Adopting a grandchild severs the legal parent-child relationship, and puts the grandparent legally in the place of the parent.   In many cases, adoption will be inappropriate or viewed by the grandparents as too drastic a step.

When difficulties first arise in a family, grandparents and other family members may not realize that non-parents can apply to court for custody and guardianship of a child.  With a custody order, the grandparent has legal guardianship of the child but does not become their legal parent.  In Canada, non-parents may obtain custody if it is in the child’s best interests.

Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside — Supreme  Court of Canada in  King v. Low [1985] 1 S.C.R. 87

B.C.’s Family Relations Act (s. 35) specifically states that grandparents, other relatives or non-relatives may apply for custody of a child.

Adopting or obtaining an order for custody or guardianship gives grandparents more legal security, but can have other unintended consequences.  In some cases, the financial assistance available to grandparents who care for children through a government-run fostering program such as B.C.’s Extended Family Program is not available to grandparents who adopt or have legal custody or guardianship of their grandchild.

In other cases, grandparents who are unaware of the financial help that is available may feel forced to allow their grandchildren to go into foster care because they can’t afford to care for them.

Grandparents should obtain legal advice and find out what resources are available to them in their jurisdiction before making decisions about how to approach their legal relationship with their grandchild.   In B.C., the Parent Support Services Society offers support and information programs for grandparents raising grandchildren, including legal guides, on-line resources and local support groups in communities throughout Vancouver Island, the Lower Mainland and the Gulf Islands.   They also have a new toll-free Grandparents Raising Grandchildren Support Line — 1-855-474-9777.


Adoption, stepparents and separation: child support when relationships end

Earlier this month, I wrote about the implications a child’s legal status can have on inheritance when a parent dies.  Similarly, a child’s legal relationship to his or her parents can have significant implications when parents separate.

Parents have a legal obligation to support their children.  If a couple separates, the Child Support Guidelines determine who is to pay child support and how much.  Generally speaking, if the children live primarily with one parent, the other parent pays support based on his or her income.  If the parents share parenting time fairly equally, the parent with the higher income is usually required to pay support.

But what if the parent’s child is not legally their child?

Step-parents do not have the same child support obligations as natural or adoptive parents.  If a child is adopted, the legal relationship with the child’s birth parents is severed, and the adoptive parent assumes full legal responsiblities and rights in regard to the child.  In the event a couple adopts a child and then separates, there is no difference in how the law handles the child support issues than there would be if the child had been born to the parents naturally.

Not so with step-parents.   In Canada, if the step-parent is legally married to the child’s parent, the step-parent will be obligated for child support provided he or she stood in the place of a parent (see s. 2(2) of the federal Divorce Act).  If the parties are not legally married, however, only provincial laws apply.  In B.C., this means there are time limits on a step-parent’s obligations.   Under the provincial Family Relations Act— the legislation that applies if the parties are not married– a step-parent will only be obligated to pay child support after separation if they had been contributing to the child’s support for at least one year during the relationship.  In addition, the application for child support must be made within one year of the last time the step-parent contributed to the child’s support.

Married or not, if a step-parent is obligated to pay support, how much they will have to pay and for how long is worked out taking into account the obligation of the child’s natural parent to contribute.

In many situations, these differences between step-parent and legal parent obligations make sense.  But consider scenarios similar to those I mentioned the other week:  families where one of the child’s parents is deceased, and the step-parent has been co-parenting the child for many years.  Or perhaps the child has only ever had one legal parent– the child may have been born to one of the parents through artificial reproductive technology, possibly before the couple began living together.  They may have considered an adoption, or at least a parenting agreement, but never did the paperwork.

If a couple living common law in those circumstances separates and the child’s legal parent delays pursuing child support, that parent could be shocked to discover that the one-year limitation date has passed by the time he or she decides to take legal action.

Unless they have an enforceable agreement with the step-parent that requires them to pay support, the  step-parent may no longer have any support obligation.

Fortunately, in my experience step-parents who have been lovingly involved in the parenting of their step-children will often willingly continue that loving relationship and support the child after separation.  But that is not always the case.  If you are going through a separation, you should obtain legal advice as soon as possible.