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.

 

 

Adoption, step-parents and inheritance: why you need a Will

In B.C. if a parent dies without a will,  any property falling into their estate is divided between their spouse and children.  If they don’t have a spouse, the children receive it all.

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

The courts have held that a step-child who was  not adopted by the deceased parent will not inherit in these circumstances.  (If you are looking for it in the legislation, it’s called the distribution of an “intestate estate”– where there is no will, the deceased’s parent’s estate is divided between the deceased’s spouse and lineal descendents.  See Part 10 of the Estate Administration Act).

This can have serious implications for families who are waiting for adoption or parentage paperwork to complete, or who have taken a child into their lives but have not taken legal steps to formalize the parent-child relationship.

Consider these scenarios:

A couple marry when one of them is widowed and already has a child.  The step-parent is intimately involved in the raising of that child and considers herself a mother to him;

A woman fosters a boy who then remains part of the family into adulthood.  She considers him a son, but no adoption application is ever made;

A same-sex couple have a child through surrogacy.  One of the men provides the sperm and is named as the child’s father on the birth certificate.  Both of the fathers consider themselves equal parents, but aside from an agreement with the surrogate no other paperwork is done.

In each of these cases,  if the parents die without wills that properly address this issue, these children could be left with nothing– regardless of what the parent may have wanted.   In some circumstances, the child or other family members may have to decide whether or not to pursue potentially expensive and emotionally divisive litigation.

When it comes to estates law, being a parent in act and spirit is not enough.  Even written agreements about parentage may not be enough.

What can address the problem is thoughtful estate planning.   Parents can specify in their wills exactly who is to benefit from their estate and what they are to receive, and, if necessary, document why they are making these decisions. They can also consider using beneficiary designations on life insurance, RRSPs and other plans to ensure their wishes are met.  Estate planning is important for everyone who has children, but it is particularly critical for families in these circumstances.

If you have any doubt as to whether your existing will meets the needs of you and your children, get legal advice.

 

Multi-parent families: in BC, some children may soon have three legally recognized parents

You don’t really understand human nature unless you know why a child on a merry-go-round will wave at his parents every time around – and why his parents will always wave back.  ~William D. Tammeus

For many, these memorable words by Pulitzer Prize winning journalist William D. Tammeus evoke images of a conventional mom and pop family at the summer fair.  The reality, of course, is that an individual needn’t fit the traditional definition of “parent” to have that profound parental connection to a child.

Blended families and close extended family relationships are increasingly common. It takes a village, the saying goes, and often a small village is indeed involved in raising a child—step-parents, grandparents, partners, aunts, uncles, friends, siblings.  No matter how many family members might be waving to her on the merry-go-round, however, traditionally a child has not been able to have more than two legally recognized parents.   British Columbia’s Law and Equity Act (s. 61) states that, subject to the Family Relations Act and the Adoption Act, a person is considered to be the child of his or her “natural parents”.

This began to shift in Ontario in 2007, when the province’s Court of Appeal found that a child born to a lesbian couple through artificial insemination had three legal parents—the birth mother, her same-sex spouse, and the biological father, who donated the sperm (A.A. v. B.B. and C.C.)    Response to the decision was as out-spoken and varied as it was predictable.

Now British Columbia is poised to formally recognize the reality of three parent families, with the introduction of the new Family Law Act. When the Act comes into force, which is expected sometime over the next year, children born through assisted reproductive technology will be able to have three legally recognized parents, provided all of the parents involved agree in writing before the child is born.  Without such an agreement, only the birth mother and her spouse or partner will be recognized as the child’s parents.  These changes will bring needed clarity and flexiblity to the laws governing family relationships.

But in the meantime, there is no such clarity.  The fact you wave every time your child goes around the merry-go-round may make you a parent in spirit, but not in law.  As I discussed in a previous post, parents of children born through reproductive technologies often have to resort to the courts to obtain an order formally confirming their status and severing any rights of the donor.  If your family is considering using assisted reproductive technology, be sure to get legal advice on the specifics of your situation and the laws in your jursdiction.

 

 

Children born of assisted reproductive technologies– rights to information

Parents considering the use of assisted reproductive technology to form their families face a daunting range of questions.  A critical one is considering what information will be available to their children about their genetic origins.

Some parents using sperm donation, for example,  deliberately chose a donor known to their family, someone they hope will have a connection with their child and who can help answer questions they or their child may have regarding her family and medical history.  Others have preferred as much anonymity as possible, protective of their family’s privacy and wanting to avoid the possibility of future contact from their child’s genetic father.  At the same time, donors of genetic material often want assurance that their donation will remain anonymous and that they will not be contacted in future or face any possibility, no matter how remote, of an obligation to the child.

Recently, the children affected by these decisions are being given a voice in the debate.    New in-vitro fertilization program guidelines issued by the Alberta College of Physicians and Surgeons last month  were critiqued in the media for falling short in their failure to require that the identity and medical history of donors be recorded and preserved.

Without such a requirement, a child’s right to information about his or her origins is rendered moot, because the information may not exist.  Records may have been destroyed or never kept in the first place.

That was the issue before the BC Supreme Court last year, when the court mandated this province to establish a system that will give children born through assisted reproductive technologies the same access to information about their biological origins as is provided for adopted children under the provincial Adoption Act.   The decision (Pratten v. British Columbia) heralded the end of anonymous sperm donation in British Columbia.  It is currently under appeal.

While children’s rights to information about their biological origins must be addressed, concerns arise that would-be donors of reproductive material may now have second thoughts about donating at all, out of fear they may later be contacted or found to have some form of legal obligation.  Parents who use reproductive technologies also need certainty about their parental status.   In B.C., pending changes to the law should put some of those concerns to rest.    As discussed here earlier, when the new Family Law Act comes into force the only legally recognized parents of a child born through assisted reproductive technology will be the mother who gives birth to the child and her married or common-law spouse.  Unless the parties agree otherwise before the child is conceived, a donor will have no legal status as a parent.

Legally speaking, what does it mean to be a parent? The question facing parents using assisted reproductive technology

What, legally, does it mean to be a parent?

The majority of people with kids don’t think about that much. We know we are parents. We think we know what it means.

But for parents going through an adoption process or who are building their family with the help of surrogacy or other reproductive technologies, parenting itself might seem like the easy part. Obtaining legal recognition as their child’s parents can be much more complicated.

If you adopt a child, or have a child through surrogacy or assisted reproductive technology, you likely need a court order to confirm your legal standing as parent of your child. It could be an adoption order, or a declaration of parentage. Depending on the circumstances, even being named as a parent or co-parent on your child’s birth certificate may not be enough. Bizarrely, in some situations this can be the case even if you are the genetic parent of your child. A court order is important not just to confirm your standing as a parent, but to provide certainty that other people involved in the process of your child’s birth—such as a sperm donor— don’t later come forward and seek that standing.

The rules are different in different provinces, and are changing all the time. In British Columbia, new legislation is in the works that will make it clear that the fact someone donates reproductive material is not enough to make that person a parent of the children resulting from that donation. Only the birth mother and the birth mother’s married or common-law spouse will be deemed to be parents– unless the parties involved agree otherwise through a written agreement before the child is conceived.

This is just one of many changes the new Family Law Act( Bill 16) has in store for British Columbians planning to have children through adoption or assisted reproductive technologies. The Act is not yet in force, but when it is, it promises some needed certainty for parents. Stay tuned.