The traditional notion of family is being redefined as social, cultural, and legal norms change to accommodate various family structures.
Whether it be through adoption, surrogacy, or multiple parental family units, defining who is a parent comes with a range of legal complexities.
Why Is Parentage Important?
Parentage is crucial for several reasons, as it defines the legal and emotional relationship between a parent and a child. Here’s why it matters:
- Establishes Rights to the Child: Parentage determines who has the legal rights to make decisions for a child, such as healthcare, education, and upbringing, especially in everyday matters and emergencies
- Establishes Responsibility to the Child: Parentage also imposes responsibilities, including financial support, healthcare, and emotional care, to ensure the child’s well-being.
- Symbolic or Sentimental Reasons: Parentage is important for emotional and identity reasons, helping to solidify family bonds and provide a sense of belonging, especially in non-traditional family structures like adoption, blended families, or same-sex parenting.
Who Can Be or Is Presumed to Be a Parent?
In Canada, who can be or is presumed to be a parent is impacted by both federal and provincial laws, as well as legal precedents that address diverse family structures.
Here’s an overview of who can be or is presumed to be a parent in Canada
Genetically Related Individuals: The person who gives birth is presumed to be the mother, unless proven otherwise (e.g., in surrogacy or paternity disputes). The biological father is presumed to be the father if married to the mother at birth or has acknowledged paternity, but if unmarried, paternity may need legal establishment.
Adoptive parents: Once adoption is complete, adoptive parents are legally recognized as the Childs’ parents, regardless of biological relation. The process transfers parental rights from biological parents or the state to the adoptive parents, with laws varying by province or territory in Canada.
Surrogacy: In surrogacy, legal parentage depends on whether it’s gestational (surrogate carries an embryo from the intended parents or donors) or traditional (surrogate is the biological mother). Intended parents may need legal proceedings, such as a parentage order, to establish their rights, with rules varying by province.
Presumption of Parenthood for Non-Biological Parents (De Facto Parents): In certain cases, a person not biologically related to a child may be presumed as a parent if they’ve assumed a parental role, such as a step-parent or long-term partner. A Courts may recognize them as “de facto” parents if they’ve consistently provided care and support, even without biological or legal ties.
Deceased Spouse with Written Consent: If a spouse passes away but had intended to be a parent and consented in writing, the surviving spouse can apply for a judicial declaration of parentage within 90 days of the child’s birth.
Multiple parental units: Ontario recognizes that a child can have more than 2 parents. For example, when you register your child’s birth, you can list up to 4 parents. To do so, you will need to have all signed a written agreement prior to conception setting out who the parents shall be. Five or more parents can be listed on the birth registration with a court order.
Conclusion:
Understanding parentage is essential for both legal clarity and emotional connection in any family structure.
If you are navigating this journey, understanding the legal rights and processes is essential. It helps protect everyone’s interests and, most importantly, ensures the best outcome for the child. If you have questions about parentage, reach out to our team today.
Author: Alaina Woolfrey with the assistance of Sara Bragaglia, JD candidate with the University of Ottawa, PBSC.
