Protecting Parenting Rights

In Ontario, the Children’s Law Reform Act contains various rules and presumptions of parentage. These rules and presumptions apply in the absence of a written agreement setting out different parenting intentions.

Pre-conception parentage agreements are one way of protecting parenting rights. A pre-conception parentage agreement is a written agreement between two to four parties in which they agree to be, together, the parents of a child yet to be conceived.

Surrogacy agreements are another way of protecting parenting rights. A surrogacy agreement is a written agreement between a woman acting as a surrogate and up to four persons who intend to be the legal parents of the child to be carried by the surrogate, wherein the surrogate agrees to not be a parent and the other parties agree to be the parents of the child born. The parties must enter into a surrogacy agreement before the child is conceived, and they must each receive independent legal advice before entering into the agreement.  Notably, the child cannot be conceived by sexual intercourse, but must be conceived through some other means of assisted reproduction.

Pursuant to the Children’s Law Reform Act, in Ontario a surrogacy agreement is unenforceable in law, but it may be used as evidence of an intended parent’s intention to be a parent and a surrogate’s intention to not be a parent of the child.

The court can also make declarations of parentage. After a child is born, any person having an interest may apply to the court for a declaration that a person is or is not a parent of the child. If a surrogacy agreement is entered into in which there are more than four intended parents of a child, any party to the agreement may apply to the court for a declaration of parentage respecting a child contemplated by the agreement.  Depending on the circumstances, there can be strict timelines by which a person will have to seek a declaration of parentage, failing which the claim may be rejected by the Court.  As a result, anyone considering seeking a declaration of parentage should seek legal advice as quickly as possible.

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