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On January 1, 2017 Ontario enacted the All Families Are Equal Act (the “Act”). The legislation amends several existing Acts, including the Children’s Law Reform Act, to establish new rules related to parentage, with the goal to ensure equal treatment for all parents, no matter their sexual orientation, capacity to reproduce or the number of parents in a child’s life. The existing legislation prior to the enactment of the Act failed to address conception through assisted reproductive technologies or third-party arrangements. The Act recognizes that the traditional “family unit” has evolved and changed in our society.

Highlights of the Amendments to the Children’s Law Reform Act

The All Families Are Equal Act redefines the provisions of the Children’s Law Reform Act (the “CLRA”) dealing with parentage. The new provisions are found in sections 4 to 15.

Sections 4 to 6 of the CLRA, provide presumptive exclusions so that a person that provides reproductive material, an embryo as well as a surrogate who waives their entitlement to parenthood will not be recognized in law to be a parent of the child.

Section 7 of the CLRA sets out a number of circumstances which presumptively render an individual the parent of a child, for example the presumption that if you are the spouse of the birth parent, and in a conjugal relationship with the birth parent within 300 days of the birth of child, etc., the presumption is that you are that child’s parent.

Section 8 of the CLRA codifies the presumption that the parent’s spouse is deemed the child’s parent, even if conceived by assisted reproduction with another.

The new concept of a “pre-conception parentage agreement” is provided for in section 9 of the CLRA. The option for two or more parties to enter into a written agreement together to be the parent of a child still yet to be conceived is new for persons wanting to clarify the parental status of the child prior to its birth, where the parental arrangements may be complex, including artificial insemination, surrogacy, etc.

Sections 10 and 11 render surrogacy agreements unenforceable. While surrogacy agreements are not legally binding they may be used as evidence of the intended parent’s intention to be a parent of the child in the agreement and the surrogate’s intention not to be a parent to that child.

These changes to the Children’s Law Reform Act will have significant impact upon family law and especially same sex couples when they are reproducing. This legislation will assist in recognizing both parties as parents without having to obtain a declaration of parentage from the court or an adoption order.

Andrea Cooley is a lawyer practicing in all areas of family law including property division, child support, spousal support, custody, access, divorce, marriage contracts, and surrogacy. If you have any questions about this article or any other family law matter, please contact Andrea to schedule a consultation where you can discuss your matter. Andrea can be reached via email or by phone at 519.660.7782.

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