With the recent passage of the All Families Are Equal Act in Ontario, the law of parentage has been simplified and updated. Parentage no longer relies upon archaic presumptions.
Who is a parent?
This is now set out in sections 6 to 10 of the Children’s Law Reform Act, as follows:
(1) A birth parent is automatically presumed to be a parent, unless she is a surrogate. Note that the Act does not presume that this is a woman. The Act refers to a person who gives birth rather than use a gender.
(2) A person who provides sperm through sex is presumed to be a parent, unless there is a written sperm donor agreement that was entered into prior to conception. In other words, if you are a sperm donor and donating sperm through sex, make sure that there is a written agreement in place before you donate.
(3) The spouse of a birth parent, unless the child was born through assisted reproductive technology and the spouse did not consent to the procedure prior to the child’s conception.
(4) A person who signs the child’s birth registration is a parent.
Who is NOT a parent?
(1) A sperm donor.
(2) An egg donor.
(3) An embryo donor.
(4) A surrogate, provided that there was a surrogacy agreement entered into prior to conception, with independent legal advice, and provided that all parties consent 7 days after the birth of the child.
Declaration of parentage
Under the All Families Are Equal Act, it is no longer necessary to obtain a declaration of parentage in most cases now where a child is born due to assisted reproductive technology. It is now a simple matter of filling out the forms once a child is born.
Up to 4 people can be acknowledged as parents so long as they have entered into a written agreement about this prior to conception. So, for instance, a gay couple and a lesbian couple may all be parents to the same child.
One can still obtain declarations of parentage if needed. One can also obtain declarations of non-parentage.
Due to recent amendments, under sections 10(3) and 10(3.1) of the Vital Statistics Act in Ontario, the parents may choose any surname for a child – that is, they need not use one of their surnames. There are special rules if the parents cannot agree on a surname.
When one is filling out the forms for this, one can identify as either the mother, father, or simply parent.
Parents from Jurisdictions Outside Canada
Note that just because Ontario recognizes you as a parent, that does not mean that you will be recognized as a parent outside of Canada. You will need to check the laws of your jurisdiction with a local lawyer. If your jurisdiction does not recognize as a parent, you may well need ot adopt your own child, even though Ontario does recognize you as the child’s parent.