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The Evolution of Family

Aida A. Rafie

Partner

Tel:       403.692.5207
Email:  arafie@vogel-llp.ca

In our ever changing society, the definition of family is developing every day. Alternative parenting situations have created their own sets of legal challenges and in Quebec, a Court of Appeal decision has recently addressed one of them.

In May 2018, Quebec’s lower court made an order that the name of a non-biological parent be removed from a child’s birth certificate and replaced with the name of the sperm donor of the child. The child’s parents were a lesbian couple who had split up, with one of them transitioning from female to male. The sperm donor had a written agreement with the couple after the child’s birth that the donor would play an active part in the life of the child, but not in a co-parent role. It was the sperm donor who had made the request to the lower court that the non-biological/birth transitioned parent’s name be removed and his own name be added.

In August 2019, the Court of Appeal overturned this decision by the lower court, finding that the sperm donor’s motivation for wanting his name on the child’s birth certificate was mainly due to the fact that the non-birth parent was transitioning from female to male and the child would thus have two father figures in its life. The higher court made clear here that the fact that the non-biological parent had transitioned should not have an effect on his legal status as a parent.  The sperm donor’s name was removed from the birth certificate.

While this recent Quebec case is not precedent setting as it involved a dispute regarding the determination of a second parent, what it does bring up again is the fact that social norms when it comes to family composition are changing and provinces need to catch up with same. In Ontario, the courts precedent in 2007 allowing three or more parents to be listed on a birth certificate and in British Columbia a law was passed in 2013 also allowing same.

Currently in Alberta, only two parents can be recorded on a child’s birth record, the person who gave birth and a co-parent. The co-parent can be the biological parent of the child, the spouse of the person who gave birth to the child, or the adult interdependent partner of the person who gave birth to the child. When a child is conceived by assisted reproduction, the spouse or partner is the co-parent when: they were married or in a conjugal relationship with the person who gave birth to the child at the time of the assisted conception; or they consented in advance of conception to being a co-parent of the child and did not withdraw that consent before the child was conceived.

2019-12-17T11:48:58-07:00December 23rd, 2019|

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