Parent-Child Relationships

Parent-Child Relationships Introduction Susan Boyd, “Gendering Legal Parenthood: Bio-Genetic Ties, Intentionality and Responsibility” (2007) 25:1 Windsor YB Access Just 63, pp 63-73 + conclusion; Thinking about ways to move forward in the field of legal parenthood must be attentive to gender and power differentials and to social relations around parenting. • Women and men are differentially situated in relation to parenthood, even now that motherhood and fatherhood are fragmented into various possible components. • In order to take such differences into account, analysis, legal frameworks, and dispute resolution must carefully consider the social context and circumstances of each parenting dispute. In the context of parenting by single women and lesbians, who are also situated on the less powerful segment of the continuum, we might suggest that the social bonds between mothers and their children should be privileged in relation to the genetic ties of a sperm donor – who carries the heavy cultural power of a father. • Whilst in some circumstances the sperm donor would be intentionally included in a family circle by lesbian mothers, a system could be structured whereby the hurdle to the donor being recognized as a legal parent was higher than for a lesbian co-mother. • Drawing on the tradition of Black women caring for other women’s children, the genetic tie could be seen as “a bond, among others, that forms the basis of a more important relationship developed in love and caring. • This second view will guide us to a more just vision of the family” – one that emphasizes responsibilities rather than rights. An approach that gives some weight to the intentions of a birth mother – particularly one who intends to parent without the influence of a man – might also enable what has been called the radical potential of insemination – that it destroys the centrality of the (hetero)sexed couple and re-centres women. • This ‘thick’ concept of intentionality is worthy of further exploration – so long as it can be detached from its roots in a liberal individualism that strips intention of its social, political, and gendered contexts. Angela Campbell, “Conceiving Parents through Law” (2007) 21 International Journal of Law, Policy and the Family 242, pp 242-248 - This article considers the way in which law attributes parental status in circumstances involving assisted reproduction it examines whether and how law recognizes the relationships that a child forms with the adults who surround her when that child was conceived through the use of donated gametes (sperm or ova) or through surrogacy. - The third part highlights particular factors that have driven these assessments of parental status, namely, biological connections, the intentions of those who participate in a conception arrangement, and social relationships formed with the children produced from such arrangements. - Within law’s parables, though, the location of parenthood can be arduous; a child’s parents often are not readily apparent or identifiable, given law’s multiple portrayals of parent – child relationships and the diverse factors law emphasizes in determining whether a formal parent – child connection exists. Long legal history of recognition of adoption as parent-child despite lack of biology - Recognition of parental status through adoption has deep legal roots; although formally recognized and regulated in Canada since the latter part of the 19th century, adoption has been practised for thousands of years, having been traced as far back as the Babylonian Code and then Roman law Determining filiation is still linked to concepts of natural filial relationships, even when ART - At the same time, it would be a mistake to assume that genetic realities have no bearing upon parental status. The rules of fi liation are set up with a view to mimicking ‘ natural ’ fi lial relationships even where, in reality, a biological link between adult and child might not exist Table 1. Permutations of Conceptual Arrangements - Recipient of Reproductive Material or Services Contributed Reproductive Material or Services (from Campbell article) 1. Single woman may conceive with … a) donated sperm alone to fertilize recipient’s own egg; she carries the embryo b) donated sperm to fertilize recipient’s own egg; surrogate carries embryo (surrogate has no genetic connection) c) donated sperm to fertilize donated egg; recipient carries the embryo d) donated sperm to fertilize donated egg (from someone other than surrogate); surrogate carries embryo (surrogate has no genetic connection) e) donated sperm to fertilize surrogate’s egg; surrogate carries embryo (surrogate has genetic connection) 2. Single man may conceive with … a) surrogate’s eggs; surrogate carries embryo (surrogate has a genetic connection) b) donated egg; embryo created with recipient’s sperm is carried by surrogate who is someone other than egg donor (surrogate has no genetic connection) c) donated sperm to inseminate surrogate (surrogate has a genetic connection) d) donated sperm to fertilize donated egg; surrogate carries embryo (surrogate has no genetic connection) 3. Heterosexual couple may conceive with … a) their own sperm and eggs; female partner carries embryo b) donated sperm (used to fertilized female partner’s egg); female partner carries embryo c) donated egg (male partner’s sperm used to fertilize); female partner carries embryo d) donated sperm to fertilize donated egg; female partner carries embryo e) donated sperm to fertilize donated egg; surrogate (someone other than egg donor) carries embryo (surrogate has no genetic connection) f) donated sperm to inseminate surrogate (surrogate has a genetic connection) g) male partner’s sperm used to inseminate surrogate (surrogate has a genetic connection) 4. Female partners may conceive with … a) donated sperm to inseminate 1 partner; that partner carries embryo b) donated sperm to fertilize the egg of one partner; other partner carries embryo c) donated sperm to fertilize the egg of one partner; surrogate carries embryo (surrogate has no genetic connection) d) donated sperm used to fertilize donated egg; embryo is carried by 1 partner e) donated sperm used to fertilized donated egg; embryo is carried by surrogate (surrogate is someone other than egg donor, and has no genetic connection) f) donated sperm used to inseminate surrogate (surrogate has a genetic connection) 5. Male partners may conceive with … Options are the same as in block 2, above, pertaining to a single man. Brenda Cossman, “Parenting Beyond the Nuclear Family: Doe v Alberta” (2007-2008) 45 Alta L Rev 501, Introduction, Part IV + conclusion are mandatory, the rest is option but I recommend reading it if you can) Doe v Alberta 2005 ABQB 885 Facts: cohab, unmarried. Jane professional, wanted kid. John didn’t want kid. Jane had kid on her own through ART with unknown sperm donor. Born Aug 2005. Used express written agreement to assign parental responsibilities to Jane only, John not father, no parental rights or obligations. Sought court declaration that they could have this agreement. Issue: Could John be found to be a parent despite not being biological or adoptive parent, and not having intention to parent? Decision: ABQB dimissed application. Reasons: 1. Per FLA s 48 he could be found to “stand in the place of a parent if he is the spouse of the mother and has demonstrated a settled intention to treat the child as his own child • Factors to determining settled intention listed in 48(2): attitude to parent, caregiving, disciplining, financial support, and intention • If found to stand in place of parent, would incur child support obligations 2. Would only determine “in the future” should the issue arise. • Applicants could not make agreement in advance to not find him a parent in future. • Intention was relevant but not determinative • No family law agreements are binding and could be changed by court 3. Not allowing couple to make agreement in advance re not being parent did not violate s 7 of charter Appealed, Court of appeal also dismissed claim. - John Doe could be found to be father in future The settled intention of john and jane to remain in close relationship thrust john into the role of parent to this child. The responsibility flowed from the decision to stay with Jane. Therefore he chose to become a parent. John not deprived of ability to order his rights and obligations towards the child as he saw fit. Doe v Alberta captures many of the contemporary challenges to the way which we live in families - We need to consider the liberty rights of single parents, the role of intention in legal parentage, and the role of contract in setting out those intentions. Raises questions about the recognition of alternative families - Challenges the dominance of the nuclear hetero family - Assumption of father in john doe is based on this dominant view of family - Same sex challenges have broadened the legal vision of family - 3 parent cases challenge nuclear family Raises the question of intention in the determination of parentage. - A person who gets involved with a parent may become a parent themselves - Like in ART / surrogacy, if the intentions are well set out, prior to conception, then they should be respected in court Makes us question what makes a person a parent - Is a father simply a person in a sexual relationship with a mother? - What if it was a brother or gay uncle or friend? Would they be a father? - What if John ignored the child? Or if he cared for the child? Parentage – General Rules BC Vital Statistics Act, RSBC 1996, c 479 1 “assisted reproduction”, “parent”, “birth” 2 duty to give notice of birth - Same as 111-112 CCQ “attestation of birth”, S2 VSA Alberta 3 reporting birth, esp 3(1) and 3(1.1) can be completed by mother / father, or “parents” of child 6 registrar must register birth if notice received within one year and is sufficient truth 7 after one year, birth registration must have statement and affidavit BC FLA – Parentage 20 definitions "assisted reproduction" means a method of conceiving a child other than by sexual intercourse; "birth mother" means the person who gives birth to, or is delivered of, a child, regardless of whether her human reproductive material was used in the child's conception; "donor" means a person who, for the purposes of assisted reproduction other than for the person's own reproductive use, provides (a) his or her own human reproductive material, from which a child is conceived, or (b) an embryo created through the use of his or her human reproductive material; "embryo" means a human organism during the first 56 days of its development following fertilization or creation, excluding any time during which its development has been suspended, and includes any cell derived from such an organism that is used for the purpose of creating a human being; "human reproductive material" means a sperm, an ovum or another human cell or human gene, and includes a part of any of them; "intended parent" or "intended parents" means a person who intends, or 2 persons who are married or in a marriage-like relationship who intend, to be a parent of a child and, for that purpose, the person makes or the 2 persons make an agreement with another person before the child is conceived that (a) the other person will be the birth mother of a child conceived through assisted reproduction, and (b) the person, or the 2 persons, will be the child's parent or parents on the child's birth, regardless of whether that person's or those persons' human reproductive material was used in the child's conception. 23(1)(a) person is child of his or her parents 24(1)(a) donor not automatically parent (b) may not be declared parent (c) unless determined to be parent under this Act BC FLA – Parentage if no AR 26 (1) On the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and the child's biological father. 26(2) Presumption of parentage if: (a) married to the child's birth mother on the day of the child's birth; (b) was married within 300 days before, (c) married after and acknowledges that he is the father; (d) living with child's birth mother within 300 days before (e) he and birth mother acknowledged that he is the child's father (f) he has acknowledged that he is the child's father 26 (3) If more than one person may be presumed to be a child's biological father, no presumption of paternity may be made. 30 Multiparenty - Up to 3 parties can agree to be parents by agmt before conception Alberta Vital Stats Act 1(a) Birth is a complete expulsion from the mother, not duration of pregnancy, with signs of life 1(o) Minister responsible for VSA Alberta 2 Notice of birth, signed by deliverer and submitted (same as BC) 3 Registration of birth signed by birth mother, or other parent if incapable, within 10 days Alberta Family Law Act, SA 2003, c F-4.5 5.1(1) definitions 7 Rules of parentage 7(1) A person is the child of his or her parents. 7(3) The relationship of parent and child, and the kindred relationships flowing from that relationship, shall be determined 7(4) Donor who does not intend to parent is not a parent 7(5) Spouse of surrogate is not parent of child born through AR 7(6) All distinctions between the status of a child born inside marriage and a child born outside marriage are abolished. 8 Presumption of parentage — biological father 8(1) Unless proven on BOP, a male person is presumed to be the biological father of a child IF (a) he was married her at time of birth, (b) he was married 300 days before the birth (c) he married after the child’s birth and has acknowledged that he is the father; (d) he cohabited for at least 12 months during which child was born and he has acknowledged that he is the father; (e) he cohabited with the birth mother for at least 12 months and the cohabitation ended less than 300 days before birth (f) he is registered as the parent of the child at the joint request of himself and the birth mother under the VSA or other leg (g) he has been found by a court of competent jurisdiction in Canada to be the father of the child for any purpose. 8(2) If presumption suggests more than one male person might be the father of a child, no presumption may be made. 8(3) Subsection (1) does not apply in the case of a child born as a result of assisted reproduction. Assisted reproduction 8.1(2) If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by a male person only, the parents of the child are (a) the birth mother and man (b) if surrogate, not a mother – would be the male and the person he was married to or who consented to be a co-parent 8.1(3) If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by a female person only, the parents of the child are (a) the birth mother and person married to or consented to be parent (b) if surrogate, and not mother, then the intended mother and person married to or consented to be parent, (c) just intended mother 8.1(4) If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by both a male person and a female person, the parents of the child are (a) the birth mother and the male person; (b) if the birth mother is a surrogate and not a parent and the male person and female person are each declared to be a parent, the male person and the female person; 8.1(5) If a child is born as a result of assisted reproduction without the use of human reproductive material or an embryo the parents of the child are the birth mother and a person who (a) was married to or in a conjugal relationship of interdependence of some permanence with the birth mother at the time of the child’s conception, and (b) consented to be a parent of a child born as a result of assisted reproduction and did not withdraw that consent before the child’s conception. Surrogacy 8.2(1) (a) a surrogate is not a parent of a child born to the surrogate as a result of assisted reproduction, and (b) a person whose human reproductive material or embryo was provided for use in the assisted reproduction is a parent of that child. 8.2(3) If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by both a male person referred to in subsection (1)(b) and a female person referred to in subsection (1)(b), only the surrogate, the male person or the female person may make an application under subsection (1). 8.2(8) Any agreement under which a surrogate agrees to give birth to a child for the purpose of relinquishing that child to a person (a) is not enforceable, (b) may not be used as evidence of consent of the surrogate under subsection (6)(b), and (c) may be used as evidence of consent for the purposes of section 8.1(2)(b)(ii) or (3)(b)(ii). Blood tests, etc. 15(1) On the request of a party to an application under this Part or Part 3 or on its own motion, the court may make an order granting permission to obtain blood tests, DNA tests or any other tests that the court considers appropriate from any person named in the order and to submit the results in evidence. Ontario Parentage CLRA 1(2) deemed to be spouse if living in conjugal relationship, until no longer doing so marriage is void 4(1) A person is the child of their parents 5 Donor not parent 6(1) A birth mother is presumed to be a parent 7(1) CONCEPTION THROUGH SEX = PARENT 7(2) Presumption of parentage if: person was birth parents spouse at time of birth, or 300 days before birth, or has been found or acknowledge to be parent same as BC IF CONCEIVED THROUGH INTERCOURSE 7(3) No presumption of parentage if more than 1 person same as BC 7(4) and 7(5) Sperm donor not parent 9(1) Multiparenty - Up to 4 parties can agree to be parents by agmt before conception Quebec CCQ. 1. Filiation by blood 1.1 Filiation of children born through assisted procreation (3rd party donor) 2. Adoption (use for surrogacy) PROOF 538 parental project– 1 woman (not 1 man) or a couple intending to become parents, requires 3rd party who contributes genetic material 543 adoption needs to be 1) lawful and 2) in best interest of child 523 Act of birth 538.1: Act and Possession needed for proof 555 special consent adoption ▪ You can designate the adopter 524 Uninterrupted possession of status (care of child) – Determined in case law - starts from birth, 18-24 months of caring for the child 538.2(1) Donor does not equal parent BUT 538.2(2) If procreation occurs through sexual intercourse, even in the paradigm of a parental project, the donor has 1 year to make a claim of parentage – biology trump the rights of other 538.3 presumption of parentage (not paternity) applies to de jure spouses (male or female) 525 Presumption of paternity (de jure – marriage or civil union) not de facto CL 526 Voluntary acknowledgement only binds a person making a declaration, not needed for our purposes 539.1 mother and 2nd mother à 2nd mother is assumed to be the “father” in any law that refers to “father” 2 parents only (can be 2 moms or hetero) ▪ Often the intended mother or the second dad will generall established through special consent to adoption 530 If act of birth and possession of status match, no one can contest the filiation of the child, despite any new evidence or DNA etc. 530(1) no claim of parentage 530(2) no contesting 540 Liability of someone who withdraws from parental project after birth (you are responsible financially, but not obligated to take care of child) because no biological ties you cant make them liable any other way 535.1 DNA testing - court can ask for DNA 535.1(4) negative presumption – court can draw the inference that a man who refuses the DNA test is likely the father 541 Surrogacy agreements are null, not enforceable in law Filiation of the child is established through filiation by blood (father if he contributed genetic material) and filiation by adoption (using 555 special consent to adoption Compare 113 + 114 CCQ “only mother and father may declare filiation of a child” no other person can declare filiation CCQ 107. CIVIL STATUS The only acts of civil status are acts of birth, acts of marriage or civil union and acts of death. 111-112. AT BIRTH, NEED THE ATTESTATION OF BIRTH DOCUMENT – identifies child, signed by accoucheur. Used to register child. 113-121 30 days to complete the Declaration of Birth. If married, you can declare the other parent. If you are not, each parent fills out forms. Can include same sex parents. Attestation and Declaration MUST MATCH. 522. FILIATION All children whose filiation is established have the same rights and obligations, regardless of their circumstances of birth. • • • In 1980 this title used to differentiate between filiation by blood and by adoption In 1994 it was moved to be an opener of the whole book on filiation as had ART for heterosexual couples added In 2002 it was changed so that there are 3 types of filiation, organized into chapter: o 1 Blood § established through 4 modes: • act of birth 523 • uninterrupted possession of status 523(2) + 524 • presumption of paternity 525 only applies to married fathers – rebuttable within one year • voluntary acknowledgement 526 (don’t have to know this in detail) § actions relating to filiation • if act of birth and possession are matching, you cannot contest filiation o 1.1 Assisted Procreation o 2 Adoption Parentage – Assisted Reproduction and Surrogacy Pratten case – donor rights to privacy from children • • Successful journalist, conceived by anonymous donor, knew very little about her genetic father Got injunction for remainder of files (most had been destroyed) o Anonymity o Secrecy o Identifying and non-identifying o Reasons BCSC: found process for adult opted children to find out their biological parent information was discrimination under the Charter under 5(1) – allowed to find out information about donor BCCA: not allowed to find out information. Must protect donor rights. Children do not have a constitutional right to know their origin in Cdn law SCC: leave to appeal denied Para 46 test for positive rights s7 argument (never previously recognized in law) • state deprives the right to life liberty security, contrary to principle of fundamental justice Para 52 principle of fundamental justice Ø [52] It is significant that the right “to know one’s past” was found not to be a principle of fundamental justice within s. 7 of the Charter in Marchand v. Ontario 2007 ONCA 787, 288 D.L.R. (4th) 762 aff’g (2006), 81 O.R. (3d) 172 (S.C.J.), leave ref’d [2008] 1 S.C.R. In that case, Ms. Marchand, an adoptee, wanted to know the identity of her biological father. Ø The man named by Ms.Marchand’s biological mother as her father on the original birth registration denied paternity and refused to consent to the disclosure of his name. In an effort to gain access to that information, Ms. Marchand challenged the legislation denying her access on the basis that it violated her rights to liberty and security of the person under s. 7 of the Charter. That challenge was rejected by a judge of the Ontario Superior Court of Justice and Ms. Marchand appealed. In dismissing that appeal, the Court of Appeal (at para. 12) agreed with the following statement by the judge that the denial of access did not engage a principle of fundamental justice: A principle of fundamental justice must fulfil the following criteria: 1. It must be a legal principle that provides meaningful content for the s.7 guarantee while avoiding adjudication of public policy matters; 2. There must be a significant societal consensus that the principle is “vital or fundamental to our societal notion of justice”; and 3. The principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. NOTES: • Today, a woman seeking donor insemination in B.C. can obtain detailed social and medical information on the donor, even if the donation is anonymous, government lawyers noted. • Adopted children born in B.C. have been able to learn the identity of their biological parents since 1996, when the province changed the law to allow children to access such information. MDR v Ontario (Deputy Registrar General), 2006 CanLII 19053 – 2 Mothers can register under Ontario VSA § § § Challenge against VSA Ontario in 2006 to be able to register their children as two mothers Comparison of lesbian parents who planned a pregnancy using ART with heterosexual non-biological fathers who planned a pregnancy with ART Only differentiation between groups was sex – male/female vs female/female. § The court concluded that the birth registry provisions of the Vital Statistics Act infringed the applicants' section 15 Charter right to be protected against discrimination based on sex. § Those provisions were not saved by s. 1 of the Charter and were declared invalid. The Applicants seeks to protect their children in the event of death, incapacity or separation. They want presumptive proof of parentage, the benefit of appearing on the Statement of Live Birth. § Appellants asked for “the mother” and “the father” to be interpreted as “the parent(s)” instead of assessed by sex. § The use of “mother” and “father” created a gap for families that had not been contemplated by the legislation writers at the time it was written – created by legislation so neeed to be fixed by legislation. § It was not intentional by legislators to purposefully leave out lesbian co-mothers. § 115 “Applying the Oakes test, I concluded that the government failed to offer evidence to establish that the objective of prompt and accurate registration of birth particulars and of the exclusion of lesbian co-mothers to further this purpose are pressing and substantial. Furthermore, the exclusion of lesbian co-mothers from the VSA is not rationally connected to that purpose, minimally impairing, or proportionate to the serious harm faced by lesbian co-mothers due to exclusion”. 28 The Applicants argue that the term "father" in the VSA should be read as a plural and gender neutral term in order to include lesbian co-mothers. The interpretation of "father", they argue, is consistent with the purpose of the statute, which is recording social parentage. "Mother", "father" and "parent" are broad legal concepts that are not simply concerned with biology. There are a number of other Ontario statutes, including the CLRA, that recognize social parentage 32 The purpose of the VSA is to record the child's birth and to create a record of parentage. A record of parentage is important to affirm the parent-child relationship. Often the biological parents are the same as the social parents. However, there is nothing in the text or context of the VSA to suggest that parentage is restricted to biological/genetic parentage. The VSA should be interpreted in "such fair, large and liberal a construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit." (s. 10 Interpretation Act). The notion of parentage should be interpreted broadly, to include not only biological parents, but also social parents 35 Although the purpose of the VSA includes recording social parentage when it furthers important social values, a textual analysis reveals that parents are restricted to one mother and one father: a maximum of two parents per child. As a result, statutory interpretation is not the proper tool for granting the co-mother Applicants status as "mothers". An examination of par patriae is therefore necessary. 56 Including non-biological parents in situations where they clearly intend to parent the child would fall under a purpose of the VSA. Where the genetic father is unknown, for example an unknown sperm donor, there is no reason for him to think that he is doing anything wrong; it is common sense to view the non-biological father in such a situation as "the father". 58 The terms "mother", "father", and "parent" are not defined in the VSA. These are broad terms that at first blush can refer to either biological parents or social parents 72 Although a purpose of the VSA includes social parentage, only one woman and one man shall be listed. Biological particulars are one piece of information that are gathered, although not exclusively. This purpose is balanced with the need to promote other important social values, including the equality of all children in Ontario and privacy of families. 80 The parens patriae jurisdiction is, as I have said, founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the "best interest" of the protected person, or again, for his or her "benefit" or welfare. 86 According to the government, there is a legislative gap when a situation is not contemplated by legislation, not when a deliberate policy choice is made in drafting legislation. The government argues that the legislature did contemplate the circumstances of non-biological parents in drafting the VSA and excluded them noneth 102 conclude that the potential "gap" in the CLRA is that it does not provide for a declaration of parentage of two parents of the same sex 103 If I am wrong and the government intended to exclude lesbian co-mothers from declarations of parentage, which are about social rather than biological parentage, then the government had a discriminatory intent. King v Low, [1985] 1 SCR 87 - gave baby up for adoption, lost rights to baby • Aboriginal woman gave child up for adoption as family wouldn’t support her having a child out of marriage. • Adoptive parents also aboriginal. • Signs adoption consent, relinquishes to adoptive parents. • A few days later she wants to change her mind. Her family states they will support her in parenting. Tries to get child back. • Judge stated she was unfit as she had given up child at first. Ultimately child stayed with adoptive parents. Buist v Greaves, 1997 OJ No 2646 – 2nd mother declaration of parentage not granted, even though intended parent • • • • • • Greaves is a lawyer, sleeps with her law students. Judge calls her a perverted adult. Buist and Greaves plan a child together through AI, relationship broke up Buist wanted declaration of parentage but was not granted. Court only recognized her as an important relationship in child’s life Sole custody to birth parent. Same case had happened in 1994 Low v Low with a heterosexual couple however in that case the noninvolved father was granted parentage status. Recognition of lesbian mothers: • Ontario very recent only (2006 for spousal support but not parentage) • Quebec 2002 • BC 2013 o In a well-functioning family prior to these dates, 2 mothers could deal with legal hurdles by using the recognized parent for legal issues o In a non-functioning / break up family, the non-gestational parent had NO legal rights, no matter the intention at time of conception, the parenting relationships, etc. Their intention was not respected and their relationships with child were not recognized in the law. Alberta v Doe ALBERTA CA • Woman planned to be single mother, her male partner did not want a baby, they lived together. She got pregnant through AR, they had agreement not to co-parent, Court of Appeal in Alberta decided that it was not possible to be a single parent in the circumstance because there was a male figure in the household. Parenting in law is not the same as parenting in day to day life • Law is a normative role in constructing relationships, but cannot describe the actual relationships parents and child have together • Establishing parenting in law is assessing best interests of the child • You have to have access to the child in order to build a relationship with the child Surrogacy and Comparative Provincial Law How surrogacy is regulated at the provincial level § § Federal laws don’t deal with parentage. But they regulate the criminal powers 91(27) and marriage and divorce 91(26) Provinces deal with parentage 92(13) property and civil rights • No uniformity between provinces • Some similarities but also important differences! • Different approaches to specific rules tells us about the underlying principles of parent-child relationships in each province Assisted Human Reproduction Act, SC 2004, c 2 ss 3, 7, 8, 10 S 3 provides definitions for ovum, sperm, embryo and in vitro embryo (Donor) surrogate mother means a female person who — with the intention of surrendering the child at birth to a donor or another person — carries an embryo or foetus that was conceived by means of an assisted reproduction procedure and derived from the genes of a donor or donors. (mère porteuse) S 6(1) no payment to surrogate S 6(2) no acting as intermediary or arrange surrogacy S 6(3) no payment to intermediaries S 6(4) minimum age for surrogate 21+ S 7 prohibits commercialization S 7(1) no person shall purchase offer to purchase or advertise for the purchase of sperm or ova from a donor or a person acting on behalf of a donor S 7(2) no person, shall (a) purchase offer to purchase or advertise for the purchase of an in vitro embryo or (b) sell offer for sale or advertise for sale an in vitro embryo S 7(3) other reproductive material S 7(4) exchanges included S 8 use of reproductive material w/o consent ** SEE ALSO REGULATIONS for CONSENT ** S 8(1) No person shall make use of human reproductive material for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its use for that purpose. S 9 no gametes from person <18 S 12 NOT IN FORCE payment S 8.2 FLA Alta 8.2(1) Application may be made that surrogate is not a parent of child born of AR 8.2(2) surrogate, intendended parent, or spouse of intended parent may make application 8.2(6) court will make the declaration if satisfied that child was born as result of AR by donor gametes or ambryo provided by intended parent 8.2(7) person(s) declared parent by declaration is a parent for all purposes from time of birth Ss 6(2), 10, 11 CLRA. 6(1) birth parent is parent by law 6(2) EXCEPT when parentage relinquished by surrogate or declaration of court 10(2) Surrogacy agreement in effect if (1) surrogate and one or more persons enter into agreement before child is conceived (2) Surrogate and intended parent get legal advice before entering agreement (3) no more than 4 intended parents (4) 4 child conceived through AR (not IC) FLA BC Surrogacy 20 definitions 23(1)(a) person is child of his or her parents 24(1) rules re donors (a) donor not automatically parent (b) may not be declared parent (c) unless determined to be parent 27 (1) parentage if AR rules applies IF: (a) AR, (b) no surrogacy, no sex 27 (2) child born through AR - child’s birth mother is the child’s parent 27 (3) spouse of child’s birth mother also parent unless (a) did not consent or (b) withdrew consent 29(1) surrogate is birth mother who is party to an agreement 29(2) agreement is (a) written, before child is conceived through AR, between surrogate and intended parent(s) and (b) includes: that birth mother is not parent, will surrender the child to intended parent(s), and that intended parent(s) will be the childs parents 29(3) on birth, intended parent(s) are the parents if: (a) no party withdraws before child conceived (b) at birth, birth mother surrenders child and IP takes into their care 31 orders declaring parentage Arts 538-542 CCQ. 538 parental project– 1 woman (not 1 man) or a couple intending to become parents, requires 3rd party who contributes genetic material 538.1: Act and Possession needed for proof 538.2(1) Donor does not equal parent BUT 538.2(2) If procreation occurs through sexual intercourse, even in the paradigm of a parental project, the donor has 1 year to make a claim o trump the rights of other 538.3 presumption of parentage (not paternity) applies to de jure spouses (male or female) 539.1 mother and 2nd mother à 2nd mother is assumed to be the “father” in any law that refers to “father” 2 parents only (can be 2 moms or hetero) 540 Liability of someone who withdraws from parental project after birth (you are responsible financially, but not obligated to take care of because no biological ties you cant make them liable any other way 541 Surrogacy agreements are null, not enforceable in law Filiation of the child is established through filiation by blood (father if he contributed genetic material) and filiation by adoption (using 555 adoption In Ontario Quebec and BC, being a donor does not give you rights of a parent 538.2 CCQ, s 24 BCFLA, s 5 CLRA Adoption 1445, 2014 QCCA 1162 * Used s 555 CCQ for special consent adop/surrogate • Gestational surrogate: heterosexual couple, donor egg, father’s sperm, friend carrying child o Filiation of father not contested o Filiation of second parent (mother, intended, no genetic tie) – what is her status? o Friend was paid something for being a surrogate and for agreeing to consent to the spouse adopting the child o Paid $2000 for the egg, $9000 for the surrogate expenses, not enough receipts o Question was it altruistic surrogacy or commercial surrogacy? • Parties wanted to use special consent adoption to have A listed as mother o Birth certificate, B was listed as father, C was listed as mother o If not using special consent, must use general consent adoption – you don’t have a choice over who gets to adopt the child Trial o judge was concerned that the surrogate and egg donor had been paid • o • did not allow the special consent for adoption as the consent was vitiated by the illegal payment; therefore, they had to use traditional adoption process Appeal o They appealed wanting to use special consent process. o Concern: is it in the best interest of the child to not be adopted by the parents who are raising them? o Issue around payment – Appeal judge felt a) regulation around payment was not yet in force b) the expenses were reasonable c) lack of receipts reasonable given the circumstances of stress in life, wouldn’t have met evidentiary threshold anyways d) payment or no payment should not have an impact on S 541 – that contracts are null – so remuneration is not a part of the issue at hand. o Decision – it isn’t about the contract, its about filiation of the child. § Granted S 555 CCQ special consent to adoption to another member of the family (ie non genetic intended mother) § Appeal allowed. Special consent adoption of A as mother was allowed. § C (surrogate) now had no status – which was the intention of all parties § o Agreements are not enforceable – but question is does the contract have an effect on the filiation of the child? § S 541 CCQ Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null. You cannot contract around the status of the person or filiation. o What is the scope of 541 CCQ? If its against public order it is null anyways so why is it there? § Scope is unclear. Heated issue in Quebec civil law § Tensions in scholarly conceptions – child is not a subject to the contract so cannot be penalized by the actions or agreements of the parents § ... the nullity of surrogacy contracts must be upheld. Nullity has the effect of completely eliminating the binding nature of the contract. In so doing, it allows significant uncertainties as to the effectiveness of the agreement to exist, thus dissuading the parties. By giving birth, the surrogate becomes the child's mother. She may then refuse to perform the contract and keep the child without exposing herself to sanctions. Conversely, the intended parents, or at least the intended mother, may never be compelled to comply with their undertaking and to recognize the child or consent to its adoption. Thus, nullity plays a preventive role, not merely by refusing to condone the practice but by discouraging it to protect what have been called the a priori interests of the child. o Didn’t rely on “filiation of children born of AR” only used filiation of children born by blood o Its not because there is a contract that the whole point of the agreement is neutralized. The CCQ doesn’t actually state that people can’t agree on intention of parentage, just the contract itself is null. Family Law Act (Re), 2016 BCSC 598 Facts: Verbal agreement with surrogate, had used for 1st child also. Used surro egg, father sperm, gave to IPs Issue: can she give up right to child when they didn’t have a written agreement in place per s 29? Decision: Yes! The intention is more important than the exact wording of the legislation Adoption and Child Protection History and context of adoption, and stats - Aimed to be a mechanism of child protection - Targets: unmarried mothers, apprehended Aboriginal children - Created a fiction of legitimacy: Adoption was mostly kept secret, children didn’t know they were adopted, tried to meet a “normative family” standard - Children weren’t given the same rights – were considered illegitimate, could face differential treatment BC FLA Parentage if adoption 25 If a child is adopted, sections 26 to 30 of this Act do not apply and the child's parents are as set out in the Adoption Act. ADOPTION ACT [RSBC 1996] CHAPTER 5 1 (1) "aboriginal child" means a child (a) who is registered under the Indian Act (Canada), (b) who has a biological parent who is registered under the Indian Act (Canada), (b.1) who is a Nisga'a child, (b.2) who is a treaty first nation child, (c) who is under 12 years of age and has a biological parent who (i) is of aboriginal ancestry, and (ii) considers himself or herself to be aboriginal, or (d) who is 12 years of age or older, of aboriginal ancestry and considers himself or herself to be aboriginal; "aboriginal community" means an aboriginal community designated by the minister; "administrator" means the chief executive officer of an adoption agency or another officer of an adoption agency designated by the agency for the purposes of this Act; "adoption agency" means a society licensed in accordance with the regulations; "birth mother" means the person who gives birth to, or is delivered of, a child, regardless of whether her human reproductive material was used in the child's conception, unless the person is a surrogate within the meaning of section 29 of the Family Law Act; "caregiver" means a person with whom a child is placed by a director or an administrator and who, by agreement with the director or the administrator, is authorized to carry out the rights and responsibilities, under the agreement, of the director or the administrator; "child" means an unmarried person under 19 years of age; "Convention" means the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption; "court" means the Supreme Court of British Columbia; "designated representative", when used in relation to the Nisga'a Lisims Government, an Indian band, an aboriginal community or a treaty first nation, means a representative designated in accordance with the regulations; "direct placement" means the action of a parent or other guardian of a child placing the child for adoption with one or 2 adults, none of whom is a relative of the child; "director" means a person designated as a director of adoption under section 76.1 (1) (a) and the Provincial director; "director of child protection" means a director designated under s 91 of the Child, Family and Community Service Act; "extraprovincial agency" means an official or agency located outside British Columbia and having substantially similar powers as a director in respect of guardianship; "Indian band" means a band as defined in the Indian Act (Canada) and includes a band council; "openness agreement" means an agreement made under section 59; "parents' registry" means the registry referred to in section 10; "post-placement report" means a report to court prepared by a director or an adoption agency; "Provincial director" means the person designated as the Provincial director under section 76.1 (1) (b); "registrar general" has the same meaning as in the Vital Statistics Act; "relative" means a person related to another by birth or adoption; "treaty first nation", in relation to a treaty first nation child, means the treaty first nation of which the child is a treaty first nation child. Purpose of the Adoption Act 2 The purpose of this Act is to provide for new and permanent family ties through adoption, giving paramount consideration in every respect to the child's best interests. Best interests of the child 3(1) All relevant factors must be considered in determining the child's best interests, including for example: (a) the child's safety; (b) the child's physical and emotional needs and level of development; (c) the importance of continuity in the child's care; (d) the importance to the child's development of having a positive relationship with a parent and a secure place as a member of a family; (e) the quality of the relationship the child has with a parent or other individual and the effect of maintaining that relationship; (f) the child's cultural, racial, linguistic and religious heritage; (g) the child's views; (h) the effect on the child if there is delay in making a decision. 3(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests. Residency requirements for applicants 29(3) must be a resident of BC to apply to adopt Principles applicable to all adoptions 35(1) court may make adoption order if (a) child has resided with applicant 6 mos (b) in child’s best interest to be adopted Placement and non-placement adoption “[63] The Act appears to have one set of provisions that govern circumstances where a child is placed for adoption by authorized persons or an agency and another overlapping set of provisions that govern circumstances where the child has not been placed for adoption. I shall refer to these as “placement adoptions” and “non-placement adoptions” respectively. [...]” MM v TB 2017 BCCA 296 at 63 LOCAL INFANT - Voluntary placement - Used agency - Child born in BC - Birth parent chooses and approves the placement of child with prospective adoptive family - Young baby, decided usually in pregnacy - Some level of openness in this adoption kind, some contact with birth family is possible depending on the order of the court etc INFANTS ACT Who can consent to adoption of children >12 - <19? - Infants Act sets out duties and obligations of guardians in decision making on adoption of these children Continuing Custody Order - Made by a judge in best interest’s of child - Ministry is permanent guardian of the child - Happens in extreme cases - Effect is the loss of all parental and guardianship rights by the parents Who can place a child, with whom and what are the different types of placement Placement vs direct placement (private adoption) MM v TB, 2017 BCCA 296 [67] The Act does not define “placement”. It does define “direct placement” as “the action of a parent or other guardian of a child placing a child for adoption with one or 2 adults, none of whom is a relative of the child.” Private adoption – parents place child with non-kin other family, not through director [68] The term “placement for adoption” has been interpreted by the Ontario courts as the physical placement of the child with the prospective adoptive parent(s) for the clear and intentional purpose of adoption[...] Under our statute, the term “placement” is always used in the context of “for adoption”. In M.S.H., the Court stated that there can be no room for speculation as to the intention of the parties. I agree. Every step of the adoption process must be clear and unambiguous where placement for adoption is a key aspect of a plan for a permanent arrangement that is in the best interests of the child.” 4(1) child can be placed by (a) director (MCFD) (b) adoption agency (c) parent/guardian by direct placement (d) parent placed with a relative Consents to adoption (dispensing and revoking) who and how 13(1) Consent must be provided by: (a) the child, if 12 years + (b) the child's parents (c) the child's guardians. 13(2) Consent of a biological father who is not presumed to be the child's biological father is not required unless he: (a) acknowledges that he is the child's father, and (b) is named by the child's birth mother as the child's father. 13(3) Birth Parent consent not mandatory if child is in the continuing custody of a director of child protection, or a director of child protection is the child's personal guardian under Infants Act, the only consents required are (a) the director of child protection's consent, and (b) the child's consent, if the child is 12 years of age or over. 13(4) Birth Parent consent not mandatory If a child who has been adopted is to be adopted again, the consent of a person who became a parent at the time of the previous adoption is required, instead of the consent of a person who ceased to have any parental rights and responsibilities at that time. Birth mother's consent 14 Birth mother cannot consent to adoption until child is 10 days old Form of consent 16 (1) must be on proper form occurs in Supreme Court of BC Child's consent Under 7 no consent or child view needed 30 and 32 between 7-12 child’s views heard and considered, but their consent not required and s 211 of FLA – requirements as to the contents of the report on the child’s view 13 12 and over requires child’s consent Court dispenses consent 17 In some situations the court may decide that consent if: (a) person not capable of consenting (b) not able to reach the person to give consent (c) person has abandoned, deserted, child, is not capable of caring for child, or has not made reasonable efforts to meet obligations to the child LINK TO child protection, adequacy or fitness of parents, reasonable standard = fact based assessment A court is denying parental rights in this case, there is a strict test where the parents aren’t asked about their consent to adoption - For more on best interest of the child: S 3 Adoption Act Revoking consent ss 18-22 Adoption Act Who? Birth mother or court When: depends (who) How: in wiritng and received within specified time period 18 Revocation of consents before placement 18(1) BEFORE child placed - a person who consented may revoke consent in writing, and received by director of agency 18 (2) if revoked, must alert anyone else who consented to the adoption 18 (3) if revoked, must return child to person who consented to adoption then revoked ASAP 19 Revocation of consent within 30 days of birth 19 (1) birth mother can revoke consent within 30 days if (a) in writing and (b) received by director or agency 19 (2) if revoked, must alert adoptive parents right away 19 (3) if revoked, must return child to birth mother ASAP 20 A child (<19) can revoke their consent – does not need to be in writing – can be at any time. (However remember consent is only necessary for a child over 12, but between 7-12 the voice of the child needs to be considered). ** Fact based analysis, considered in light of all circumstances 22 Court can revoke consent after placement 22 (1) after placement, court can only revoke consent in accordance with s 19 20 or 21 dispensing means you don’t have to ask for parents consent revoking means you are disallowing a parents consent Adoption order - Applies to placement and non-placement adoptions (almost all that happen in BC 35 (1) Court can made adoption order after post-placement report if (a) child has been with family for 6 mos and (b) its in best interest of the child 35 (3) Court can alter or dispense with the residency requirement after considering recommendation of agency Effect of Adoption order 37 (1)(a) Child is no longer that of the birth parents, but is now child of the adoptive parent 37 (1)(b) Adoptive parent is the parent of the child 37 (1)(c) Parents cease to have any rights or obligations including child support with respect to the child 37 (2) EXCEPTION 2nd parent adoption wherein the parent doesn’t lose the rights, just ADDS a new parent joint with first parent 38 (1) Contact and access stop – BUT 38 (2) Court may determine some contact is ok, in the child’s best interest 37 (6) Property interest continue BUT general understanding is no inheritance anymore 37 (7) Aboriginal rights continue, status not affected by adoption MM v TB, 2017 BCCA 296 – leave to appeal to SCC was dismissed in Feb 2018 * Ab child heritage / Adoption Facts: • • • Trial: • The appellant is birth mother of a 10 yr old Aboriginal child who was legally adopted by the respondents. The maternal grandmother became guardian shortly after birth, left him in the care of the respondents for respite care when he was 14 months old and for full-time care when the child was 20 months old. The child has lived with the respondents continuously since then. In Aug 2011, respondents obtained custody and guardianship of child and thereafter applied to adopt child. Judge granted the adoption order, finding that it was in the child’s best interest. CA Appeal: • The birth mother appeals the adoption order on the basis that the trial judge erred in law by failing to properly weigh s. 3(2) of the Adoption Act, which requires the judge to consider the importance of preserving the child’s Aboriginal heritage and cultural identity as a factor contributing to his best interests. Held: Appeal dismissed. Reasons: The judge did not err in interpreting s. 3(2) of the Act. This is ONE factor in the Best Interest assessment. • The child’s Aboriginal heritage and cultural identity must be considered by the trial judge, but it is just one of several other factors listed in s. 3(1) Best Interests of Child that must also be considered in determining the • • paramount consideration under s. 2 of whether an adoption order is in the best interests of the child “in every respect”. In this case, the child had a strong emotional bond with the respondents’ family, including his two siblings, would likely suffer traumatic harm in the short term and lasting emotional harm in the long term if removed from their family, and wanted to stay with the respondents with whom he identified as his mother and father, “forever”. The judge properly weighed the evidence and did not err in her consideration of s. 3(2) in determining that it was in the best interests of the child to make the adoption order. Confirms the possibility of a non-placement adoption in BC Para 62 and on describes the AA scheme in BC [15] With respect, I am unable to agree with the birth mother’s interpretation of s. 3(2) of the Act. First, in determining whether an adoption order should be made, a child’s Aboriginal heritage and cultural identity does not attract a “super-weight” over the other factors. Neither do the words in s. 3(2), nor the context of the Act, allow for an expanded interpretation beyond the plain meaning of the text of the provision. Second, I am of the view that the judge’s consideration of s. 3(2) raises a question of mixed fact and law for which the standard of review is deferential. Last, even if the birth mother’s interpretation of s. 3(2) were to be accepted, the evidence establishes that the adoptive parents have done everything they could reasonably have done to ensure that the child learns about, participates in, and appreciates the significance of his Aboriginal heritage and culture. The evidence is clear that the child knows about his particular Band and First Nation, and speaks with pride about being Aboriginal Racine v Woods (Mossman excerpts) Use statutory rules in each province – don’t assume de facto adoption exists in other provinces other than where this case came form Law focusses on child’s best interest, s. 3(1) of the AA, not the interest of those who gave birth - Indian child, two other child were with their father Mother had alcohol issues, couldn’t care for child Child apprehended at 6 wks of age Mother consented to becoming ward of child welfare for one year Mother remarried, had other 2 kids with her, child was returned Foster parents wanted child back, had concerns about how being raised Child came and went from mother to foster parents when mother unable to care Then mother demanded child back and fosters said no Mother tried to abduct child from school Trial: Mother applied for custody (dismissed) and fosters applied to adopt (granted) CA: adoption overturned, made ward of court, gave custody to fosters. Concerned re cutting off ab heritage SCC: appeal allowed, adoption reinstated - CA judges had put “entirely different interpretations on the evidence from that of the trial judge”, which was not their role! - Nothing improper about fosters acting as if de facto adoption had occurred, child was abandoned w/ them - Finding of abandonment however not necessary for trial judge’s decision - S 103(2) dispenses with parental consent in the case of de facto adoption - A child is not a chattel in which parents have a proprietary interest – they are human and are owed serious obligations - Inter-racial adoption is an accepted phenomenon in our pluralistic society - Most important is two loving parents! In Both Racine and MM v TB • Values are in high conflict • Child’s best interests at play, decisions need to be made • No second parent involved – Would it have been different in other cases? Indigenous Foundations Arts UBC “Sixties Scoop” – 1961-1980s Term refers to the mass removal of Aboriginal children from their families into the child welfare system, in most cases without their families or bands Impacts of the Sixties Scoop - Children growing up in conditions of suppressed identity and abuse tend eventually to experience psychological and emotional problems. For many apprehended children, the roots of these problems did not emerge until later in life when they learned birth family or their heritage. Social work professor Raven Sinclair describes these experiences as creating “tremendous othe development of a strong and healthy sense of identity for the transracial adoptee. ” Feelings of not belonging in either Euro-Canadian society or in Aboriginal society can also create barriers to reaching socio-economic equity. Multiple Parentage BC - S 30 FLA Parentage if other arrangement 30(1) ONLY IF ASSISTED REPRODUCTION (NO SEX) Applies if: 30(1) written agreement (a) made before child conceived b) made between IP and birth mother who agree to be a parent together, spouse of birth mother, donor who wants to parent Generally a conjugal couple (intended parents) + 1 30(2) once child is born, the parents are the parties to the agreement Just use Declaration of Birth form to name all the parents (up to 5), declaration by court up to 5 using FLA s 31 30(3) if a part withdraws before child is conceived, agreement is revoked ONTARIO - S 9-11 CLRA 9(1) pre conception parentage agreement 9(2) Section applies if pre-conception parentage agreement in place: 9(2)(a) only up to 4 parties to the agreement 9(2)(b) Intended birth mother is not a surrogate and is party to the agreement 9(2)(c) can include sexual intercourse, the “donor” must be party to the agreement though! Meaning must be parent 9(2)(d) if through AR or donor insemination, the spouse of the birth parents is part of the agreement AA v BB * Expanded understanding of parentage, 2nd mother declared 3rd parent of child Still important today: • Lesbian couple + donor, all wanted to be involved in parenting • Expanded understanding of parentage • Confirmed the importance of declaration of parentage • Happened just after MDR v Ontairo • Second mother was declared as parent of child Facts: A and C had been in a stable same-sex union since 1990. In 1999, they decided to start a family with the assistance of their friend B who would remain involved in his life. A, B and C all wished to have A's motherhood recognized to give her all the rights and obligations of a custodial parent. A and C did not apply for an adoption order because, if they did so, B would lose his status as the child's parent under the Child and Family Services Act, R.S.O. 1990, c. C.11. Instead, A brought an application for a declaration that she was the child's mother. Trial: Application dismissed. Judge would have granted the order sought but found that he did not have jurisdiction to do so, either under the Children's Law Reform Act ("CLRA") or through exercise of the court's inherent parens patriae jurisdiction. Appeal: Application successful. Reasons: 1. 2. Found application judge had not erred in interpretation of CLRA only permitting single father and single mother. However, The court's inherent parens patriae jurisdiction may be applied to a) rescue a child in danger or b) to bridge a legislative gap. A legislative gap existed in this case. The purpose of the CLRA was to declare that all children have equal status. The gap was not intended and should be fixed. Discussion: • At the time, equality of status meant recognizing the equality of children born inside and outside of marriage. The legislature had in mind traditional unions between one mother and one father. It did not legislate in relation to other types of relationships because those relationships and the advent of reproductive technology were beyond the vision of the Law Reform Commission and the Legislature of the day. • Present social conditions and attitudes have changed. Advances in our appreciation of the value of other types of relationships and in the science of reproductive technology have created gaps in the CLRA's legislative scheme. Because of these changes, the parents of a child can be two women or two men. They are as much the child's parents as adopting parents or "natural" parents. • The CLRA, however, does not recognize these forms of parenting and thus the children of these relationships are deprived of the equality of status that declarations of parentage provide. It was contrary to D's best interests that he was deprived of the legal recognition of the parentage of one of his mothers. There was no other way to fill this deficiency except through the exercise of the parens patriae jurisdiction. The legislative gap was not deliberate. There was no doubt that the legislature did not foresee the possibility of declarations of parentage for two women. The gap in the legislation was revealed by changing social conditions and medical knowledge. • There was nothing in the legislative history of the CLRA to suggest that the legislature made a deliberate policy choice to exclude the children of lesbian mothers from the advantages of equality of status accorded to other children under the Act. A was entitled to a declaration that she was the child's mother. Step-Parents - Standing in place of a parent CREATES obligations but does not create formal status of parents In loco parentis Divorce Act s 2(2) “child of the marriage” For the purposes of the definition child of the marriage in subsection (1), a child of two spouses or former spouses includes (a) any child for whom they both stand in the place of parents; and (b) any child of whom one is the parent and for whom the other stands in the place of a parent. FLA ss 146, 147(4), 147(5) - 146 "child" < 19 years of age or older but unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians; - "guardian" does not include a guardian (a)who is not a parent, and (b)whose only parental responsibility is respecting the child's legal and financial interests; - "parent" includes a stepparent, if the stepparent has a duty to provide for the child under s 147 (4) [duty to provide support for child]; - "stepparent" spouse of the child's parent and lived with the child's parent and the child during their life. Step-parent Case Law Ratios: - Once a person is found to “stand in the place of a parent” they cannot unilaterally terminate the relationship to avoid responsibility for support Shaw v Arndt 2016 BCCA 78 - Broad interpretation – reflects te purpose of the DA to represent best interests of the child and lasting parental relationships Chartier v Chartier [19991] 1 SCR 24 - Test if person stands in place of parent is dependent on the nature of the relationship btwn parent and child, including but not limited to: Chartier v Chartier: i. Whether the child participates in the family as would a bio child ii. Whether the person provides financially for the child iii. Whether the person disciplines the child as a parent iv. Whether they represent to the child, family, or beyond that the person is a parent to the child v. The nature or existence of the childs relationship with the absent bio parent - An unsatisfactory relationship or absence of relationship between stepparent and child does not terminate their obligation to pay child support Shaw v Arndt (or breakdown of relationship Chartier v Chartier) Existence of a parental relationship is determined at the time the family was functioning as a unit, not after separation Chartier v Chartier Shaw v. Arndt [2016] B.C.J. No. 298 (BCCA) * Step-parent liable to support child when bio parent can’t • Stepchild going to university, stepparent needed to pay for it (even though he was attending at a slow pace) • A stepparent may be liable to support the child when the biological parent is unable to or unable to do so fully • The quality of the parent-child relationship becomes relevant only in the most egregious circumstances otherwise it should have no bearing on the need to pay child support Chartier v Chartier 1999 SCC * step parent not in loco parentis if second bio parent in child life * cannot unilaterally withdraw from role as parent • If the biological parent has an active role in the child’s life, this militates against a finding of in loco parentis. But what if they are a 3rd parent? 4th? Facts: The respondent played an active role in caring for and was a father-figure for his wife’s daughter from a previous relationship. The parties discussed, but did not proceed with, the husband’s adoption of the child but amended her birth registration to indicate, falsely, that the husband was the child’s natural father and to change her name to his. In a consent judgment in proceedings under The Family Maintenance Act, the husband acknowledged the child as a child of the marriage and was granted access to her. The judgment, however, was silent as to her maintenance. In subsequent divorce proceedings, a request was made for a declaration that the husband stood in the place of a parent to the child. The husband contested the claim. An interim order ordered him to pay monthly support for the child, suspended his access until a further order of the court and ordered a report concerning access. That report recorded the husband’s desire to sever his relationship with the child. Trial: Husband had repudiated his parental relationship with the child and was not obligated to pay support for her. CA: dismissed the wife’s appeal for support for the child. SCC: At issue here is under what circumstances, if any, can an adult who is or has been in the place of a parent pursuant to s. 2 of the Divorce Act withdraw from that position. • • • A person cannot unilaterally withdraw from a relationship in which he or she stands in the place of a parent. The existence of the parental relationship under s. 2(2) of the Divorce Act must, however, be determined as of the time the family functioned as a unit The test for whether or not a person stands in the place of a parent should not be determined exclusively from the perspective of the child o Attention must be given to the representations of the step-parent, independently of the child’s response. o A determination of whether a person stands in the place of a parent must take into account all relevant factors, viewed objectively. o The court must determine the nature of the relationship and do so by looking at a number of factors, including intention (formal expressions and inference from actions) § The following factors should be considered in this assessment: § Intention: both those expressed formally and inferred from conduct. § A step parent cannot contract out of an in loco parentis relationship from the onset. § Participation in the extended family: does the child participate in the extended family in the same way as would a biological child? § Financial support: Does the stepparent provide financially for the child? § Discipline: Does the person discipline the child? § Holding out: Does the person represent to the child/the family/the world, either explicitly or implicitly, that he or she is responsible as a parent to the child? § Role of biological parent: What is the nature or existence of the child’s relationship with the non-custodial biological parent? Once it is shown that the child is to be considered, in fact, a child of the marriage, the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act . o The step-parent, at this point, not only incur obligations. o He or she also acquires certain rights, such as the right to apply eventually for custody or access. Not every adult-child relationship will be determined to be one where the adult stands in the place of a parent. - Every case must be determined on its own facts and from the evidence and it must be established that the adult acted so as to stand in the place of a parent to the child. The concern that a child might collect support from both the biological parent and the step-parent was not a valid one. • The contribution to be paid by the biological parent should be assessed independently of the obligations of the step-parent. The obligations of parents for a child are all joint and several. • The obligation to support a child arises as soon as that child is determined to be “a child of the marriage”.