In an effort to recognize same sex couples as well as the increasing use of assisted reproduction, the Ontario government has put forth a number of proposed amendments to Ontario statutes in Bill 137, An Act to amend the Children's Law Reform Act, the Vital Statistics and other Acts with respect to parental recognition, also known as Cy and Ruby's Act (Parental Recognition), 2015 ("Bill 137"). As its title suggests, Bill 137 makes significant changes to the Children's Law Reform Act (the "CLRA"), and corresponding changes to the Vital Statistics Act and the Change of Name Act.
Bill 137 makes changes to the wording of the CLRA to accommodate for non-traditional families. For example the words "mother" and "father" are changed to "parent" or "parents". The amendments also provide for situations in which a child may have more than two parents. Perhaps the largest change being made to the CLRA is the move away from defining parentage by a child's DNA. Instead Bill 137 amends the CLRA to define a set of rules to determine parentage of a child.
Under section 8(1) of the CLRA, a donor of genetic material is not a parent merely by the donation of genetic material. A person who is a non-birth parent is presumed to be a parent of a child if that person meets a number of criteria. For example, the person has been living in a "marriage-like relationship" or the person is married to the child's birth parent within a certain period proximate to the child's birth or the person marries the child's parent at some time later but "acknowledges parentage of the child".
The Bill 137 amendments to the CLRA also establish the requirements for agreements identifying parentage. Bill 137 sets out three scenarios in which parentage agreements may be entered into as follows:
- Section 8(2) addresses situations where the birth parent wishes to be a parent of the child. The birth parent and other parent or parents can enter into an agreement to identify the parentage of the child so long as the agreement is entered into before the child is conceived and it is not revoked.
- Section 8(3) addresses situations where there is a surrogacy arrangement between the birth parent and the parents of the child in which the birth parent does not intended to act as a parent of the child once the child is born. Again the agreement has to be entered into prior to when the child is conceived and the agreement cannot be revoked prior to conception. The birth parent in this case also has to give consent after the child's birth to surrender the child to the person or persons that will be the child's parent or parents as per the agreement.
- Section 8(5) addresses situations where a child is conceived using a person's genetic material after that person's death. In order for the deceased person to be considered a parent of the child there must be written consent from the deceased person to use their genetic material after their death and there must also be written consent from the deceased person to be the parent of such a child conceived and born after their death.
From an estate planning perspective, it is very important to note the Succession Law Reform Act (the "SLRA"), the current legislation governing inheritance, is not included in Bill 137. The current definition of "issue" in the SLRA under section 1(1), "includes a descendant conceived before and born alive after the person's death". Similarly, the definition of "child" in the SLRA under section 1(1), "includes a child conceived before and born alive after the parent's death". This means that the modified definition of a parent as proposed in the CLRA under Bill 137 is not reflected in the definition of "issue" or "child" in the SLRA. Therefore, practically speaking, if you are not genetically related to your child, then they may be your child for the purposes of the CLRA, but if you die intestate, they will not be your child in accordance with intestate succession rules and will not be entitled to a portion of your estate. Similarly if you have contributed your genetic material only for the purposes of assisted reproduction and you die without a will, your estate may still be subject to claims from children who were born with your genetic material.
There are also no changes in the SLRA to address whether a child both conceived and born after the death of the person to which he/she is genetically related is to be considered an heir on intestacy. Based on the definition of "child" as highlighted above, if a person died intestate, any children conceived and born after their death using their genetic material would not be entitled to receive any portion of their estate. This creates ambiguity, especially if the deceased parent explicitly acknowledged children born after their death as their children under section 8(5) of the CLRA.
While it may seem easy to amend the SLRA to simply reflect the new definitions in the CLRA, additional questions need to be considered prior to making any changes. For example, if the SLRA is amended to reflect the new provisions of the CLRA does the estate trustee have to wait a certain period of time before an intestate person's estate is distributed to ensure they will have no further children or, similar to resolving tax obligations, should a holdback be put in place for any unconceived and unborn children? What if the deceased did not explicitly acknowledge that children conceived after their death and born of their genetic material should be their children? Are there public policy considerations that need to be taken into account when examining these provisions such as fairness between minor children who share genetic material? It is likely these questions and more will keep legislators busy for the foreseeable future, but if you have a concern that your children may not be considered your children for the purposes of the SLRA or if you may have children who you do not consider as part of your family the best way to protect your estate and family in these unique situations is to speak to your lawyer and ensure you have the proper estate planning in place.
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