Planning a family is an exciting prospect.
Written by Kendra Landry, Articling Student
For queer couples and non-traditional families, however, this often involves additional legal considerations and processes. Though family law was historically predicated on heteronormative family structures, it has begun to evolve to better support queer relationships and queer families. Moreover, it attempts to recognize the changing nature of family structures more generally.
In recent years, queer people have started turning to lawyers and courts to recognize marriages, organize living arrangements, and make parenting plans. The law now recognizes non-heteronormative family structures, albeit with some difficulty. Though some legal barriers may remain for queer couples and families (especially if the family strays too far from two-parent conventional norms), Ontario family law does have some tools available that can play a helpful and significant role in queer family planning. Proper advanced planning, however, is key.
Parentage, Adoption, and Parenting Orders
Proper planning is most important in determining the legal parentage of a child. Parentage (which differs from decision-making responsibilities and parenting time, as discussed below) has a significant impact on the lives of children. It influences their inheritances, determines their lineage, and dictates their citizenship.
Historically, courts only granted legal parentage to the birth mother and father – or to the adoptive parents, if the child has been adopted. This meant that many queer or same-sex parents were left with no choice but to adopt their own children or seek court declarations confirming their parentage. However, Ontario law now recognizes a vast array of family structures without the need to seek an adoption or declaration of parentage. In January of 2017, the All Families are Equal Act (Parentage and Related Registrations Statute Law Amendment) expanded the scope of legal parentage. Now, parentage is not solely predicated on biology and other archaic presumptions, but rather on who intended to be a parent at the time of conception. In turn, same sex couples and queer families are no longer expected to adopt their own children; children can now have two or more legal parents of varying gender identities and sexual orientations.
In family planning, the most important consideration is shared intention prior to conception. The individuals seeking legal parentage must have shared a common intention to be the child’s parents at the time of the child’s conception; all individuals intending to be legal parents must have explicitly intended to be parents of the child together. This intention can be proven through written parentage agreements entered into by all parents prior to conception. It can also be addressed through a declaration of parentage after the child’s birth – with the consent of all intended parents, or with sufficient evidence to prove the joint intention if there is any objection. Notably, in Ontario, a declaration of parentage must be requested through the court before the child’s first birthday. Moreover, any declaration of parentage must be in the child’s best interests.
Some individuals, however, may enter a child’s life after the time of conception, but act (or intend to act) as a parent to the child. It must be understood that they cannot apply to the court for a declaration of parentage. In the circumstances where there is a post-conception change of intention, families who wish to do so can seek to clarify parentage through the adoption process (provided that all existing legal parents give their consent).
Moreover, as family structures continue to become increasingly fluid and diversified, the law also recognizes that the lack of legal parentage status does not detract from the positive role that all parents (legal or non-legal) can play in a child’s life. Ontario law recognizes that the question of who should be involved in a child’s life, and to what extent, is not determined by who is and is not a legal parent. As a result, non-legal parents can still apply to the court for parenting orders to provide for decision-making responsibilities, parenting time, and contact with children. These core parenting rights and obligations are not determined by legal parentage, but rather on what is in the child’s best interests.
Donor and Surrogacy Agreements
Intentionality is also central to queer family planning; donor and surrogacy agreements are important documents that speak to the parents’ intentions when utilizing reproductive technologies to help create or grow a family. Advances in reproductive technologies and public policy have increased access to donated genetic material and surrogacy arrangements. With these scientific advances comes several issues that must be addressed prior to any donation or surrogacy arrangement, including rights and entitlements to the donated material, rights and entitlement to any embryos created from donated material, access to health information, questions of anonymity, disputes over legal parentage, etc. Donor and surrogacy agreements guide the parties and the courts when issues arise and can help quell any uncertainties or gaps in the law.
It’s important to mention that the Assisted Human Reproduction Act prohibits paying for surrogacy in Canada. It also prohibits the sale of gametes, embryos, and all other reproductive material. Donor and surrogacy agreements in Canada are not contracts of sale. Instead, they can address parties’ expectations and wishes, outline custody and access arrangements, include instructions for the donor/surrogate, and decide who will make medical decisions. For more on fertility law, donation, and surrogacy, see our website here.
Intentionality in advanced family planning can help queer and non-traditional families have positive experiences with the legal system. Though the system is slow to adapt to the needs of our diverse society, a host of new options are available to queer people planning their families. This is something worth celebrating, during Capital Pride and every day.
Nelligan Law continues to champion and support the queer community. Please contact our family law group and fertility law team if you have inquiries about donor or surrogacy agreements, parentage agreements, or other legal family planning needs.
This week, we celebrate queer love and queer parenting. Happy Pride!