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Quick Facts on Parental Recognition: Lesbian Couples (+/- male donor)

1.     Known Donor

“Any person having an interest may apply to a court for a declaration that a male person is recognized in law to be the father of a child or that a female person is the mother of a child”
(Children’s Law Reform Act 1990, s. 4(1), emphasis added).

Courts have relied on this clause in particular to infer that parentage, as represented in law, may only refer to one person of each sex, to the exclusion of all others. However, there are a number of recent developments in Ontario in which alternative forms of parentage have been recognized either on a child’s birth certificate or through a court-issued declaration of parentage.

Where a woman conceives a child using the sperm of a known donor/biological father, there are two options for registering the child’s birth: a) the donor/biological father is included on the birth registration as the second parent; or b) the second parent on the birth registration is left blank, legally recognizing only one parent (the biological mother). Where the donor/biological father is known, a second, non-biological parent cannot be included on the birth registration. Legally, only two people can register a child’s birth. A minimum of seven (7) days after the registration of the child’s birth, a petition may be filed to change who is legally recognized as the child’s parents. There are two options for changing the recognition of parentage:

a.     Two Parents

No sooner than seven (7) days after the child’s birth, an adoption order may be filed to have the third, non-biological parent recognized (Child and Family Services Act 1990, s. 137(3)). Under this adoption scheme, only two people may be recognized as the child’s parents at any one time. The implication is that short of a court declaration (see below), three parents may not be legally recognized through regular channels for adoption and birth/parental registration. The moment an adoption order is approved, all other parents cease to be recognized as parents, unless they are the spouse of the new adoptive parent (e.g. the biological mother remains a parent when her spouse adopts the child). Where the desired outcome is the recognition of a lesbian couple as the sole parents of a child, the donor/biological father must cede their parental rights in order for the adoption order to be approved for the third, non-biological parent. A new birth certificate may then be issued for the child, recognizing the lesbian couple as the child’s parents.

Note that an adoptive parent is obliged to comply with certain requirements and processes, such as a criminal record check and fees ranging from $1000 – $2000. Furthermore, as it is not legal to register a child’s birth with the last name of a non-parent, non-biological partners are barred from sharing their name with their children at birth (where that name differs from that of the biological mother/father), unless they petition to change the child’s name after an adoption has been approved. This includes the option of providing the child with a hyphenated name, incorporating that of both intended parents.

b.     Three Parents

Typically, only two people can be recognized as the legal parents of a child at any one time. However, in a 2007 Ontario Court of Appeals case, Rosenberg J. A. ruled that the law as it currently stands provides no recognition for three parent LGBTQ families, and thereby has the effect of treating such families with discrimination. In his view, there are “gaps” in public policy and legislation that do not represent the realities of LGBTQ families (A.A v. B.B. 2007, (ONCA 2)). Nonetheless, the law has yet to be amended.

As a result of this case, there is now a precedent in Ontario for recognizing three parents of a child under very particular circumstances:

a)      A biological mother has conceived a child using sperm from a known donor, and

b)      The known donor does not wish to cede his parental rights and recognition; and

c)       The biological mother has a partner who also wishes to be recognized as the child’s parent; and

d)      The biological mother and biological father both agree to recognize the biological mother’s partner as the child’s third parent.

Under these circumstances, the three parents may apply to a court for a declaration of parentage for the third, non-biological parent. Such applications are assessed on a case-by-case basis, and are subject to the prerogative of the court. The entire legal process may cost approximately $4,000.

 

2.     Unknown Donor

As of January 2, 2007, if a lesbian couple in Ontario conceives a child with the sperm of an anonymous, unknown donor, both women may list their names on the child’s birth registration, and thereby have their parentage recognized on the child’s birth certificate. No further action is necessary.

 

3.     Single Parent (Mother)

Whether a biological mother has used a known or unknown donor to conceive a child, she has the option of not including the donor/biological father on the child’s birth registration and, subsequently, on the child’s birth certificate. In this case, she would be the only legally recognized parent of the child.