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Posts from the ‘DNA & Paternity’ Category

All Parents Are Equal Act, 2016 Now In Force – Surrogacy Arrangements Impacted

All Parents Are Equal Act, 2016 Now In Force – Surrogacy Arrangements Impacted

Several months ago, I wrote a series of pieces including: Ontario Government Introduces Bill to Strengthen the Legal Status of All Parents, New Surrogacy and Parenting Declaration Laws Upcoming in Ontario, and New Proposed Law Clarifies Parentage, Surrogacy Rights, and Rights Arising from Assisted Reproduction about the All Parents Are Equal Act, 2016.

That Act is now in force, effective January 1, 2017 and (among several other things) amends the Ontario Children’s Law Reform Act to change the former practice around surrogacy arrangements. That former practice called for a court to make a declaration – on the parties’ consent – as to the child’s parentage after birth, and required the parties to file a formal court application to obtain it.

Since obtaining the court declaration was the more costly portion of the former multi-stage process for legally recognizing “parent” status in surrogacy arrangements, the elimination of this steps may come as a welcome change.

However, the Act’s more streamlined is not without its detractors. With the elimination of the need for a court declaration in some circumstances, the safeguards have been moved to the front end of the process, before the child is conceived and born. Now, up to four intended parents of a child born to a surrogate will be recognized without a court order if the following conditions are met:

  • The surrogate and the intended parent(s) received independent legal advice and entered into a written pre-conception surrogacy agreement.
  • The surrogate provided written consent to give up her parental status both before conception and seven days after the birth of the child.

(That seven days is a “cooling off” period, to ensure that the written consent by the surrogate is validly given).

Since in routine cases there will no longer be any court oversight of the process, it will be left to the parties themselves, with the help of their lawyers, to ensure that they meet the requirements of the Act, and that when the time comes, the surrogate gives her consent to relinquish the child.

What do you think of these new changes? Are they an improvement?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Appeal Court Affirms No Claim for Emotional Harm Arising from Birth of Unwanted Child

Appeal Court Affirms No Claim for Emotional Harm Arising from Birth of Unwanted Child

An unusual case arising from a man’s lawsuit over a baby he didn’t want has now been heard by the Ontario Court of Appeal.

As I reported here, the facts involved a man and woman who had a brief romantic fling in 2014, lasting less than two months. After going on a few dates, they had unprotected sex on several occasions. Although it was not strictly proven before the court, the man recalled his understanding, from various things the woman said, that she was taking birth control pills and did not intend to conceive a child.

But a few weeks after their short relationship ended, the man, in his early 40s, found out that the woman, in her early 30s, was pregnant. She went on to give birth, at which time it was confirmed that the man was the father.

The man, who was a budding doctor, sued the woman in civil court for over $4 million, claiming her fraudulent misrepresentation had deprived him of the choice of when and with whom to share the responsibility of parenthood. The court framed his cause of action in these words:

Although it was not presented in this way, the claim can be viewed as a tort claim for involuntary parenthood made by one parent against the other. It is clear that the alleged damages do not relate to a physical or recognized psychiatric illness. In essence, the damages consist of the [man’s] emotional upset, broken dreams, possible disruption to his lifestyle and career, and a potential reduction in future earnings, all of which are said to flow from the birth of a child he did not want. Although the claim is not for the direct costs associated with raising the child, all of the damages claimed by the [man] are the result of consequences flowing from the unwanted birth of a child, albeit unwanted only by the father.

(And it’s important to note that the man was suing for emotional harm of the non-pathological variety only; he was not suing for physical harm or for monetary damages, such as for any undesired child support obligations he may have. On that latter point, a separate Family Law suit, disputing his obligation to pay child support based on the woman’s alleged fraud and deceit, was also underway and would be heard separately).

The lower court, in striking out the man’s claim, held that his allegations disclosed no reasonable, legally-recognized cause of action, because a claim for fraudulent misrepresentation – which is a tort in Canadian law – was aimed at compensating the man for any financial damages, not emotional ones. In other words, the man was trying to claim for the types of damages that were simply not actionable through a fraud claim.

In its recent decision, the Ontario Court of Appeal agreed, adding that the woman’s alleged lie as to her being on birth control – even if it was proved that she told it – was not enough to form the basis of the man’s claim for emotional injury. Plus, any harm the man suffered was not tantamount to a “personal injury” in the traditional legal sense.

Do you think the original decision – now affirmed on appeal – was correctly decided? What are your thoughts?

For the full text of the decision, see:

PP v DD, 2017 ONCA 180 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

 

 

 

New Surrogacy and Parenting Declaration Laws Upcoming in Ontario

all-families-are-equal-act

New Surrogacy and Parenting Declaration Laws Upcoming in Ontario

Last week I wrote about the province’s new Bill 28, The All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016. This new legislation, which is at the Third Reading stage and thus likely to pass into valid law soon, makes several changes to existing statutes that govern the intricacies of parentage.

Specifically, it amends the Children’s Law Reform Act, (by establishing new surrogacy and parenting declaration rules) and the Change of Name Act and the Vital Statistics Act (relating to name changes and birth registrations, respectively).

Here are a few more of those upcoming changes:

Surrogacy

• There are new rules relating to surrogacy situations, including the provisions dealing with the agreement that governs the parties’ relationship, and various provisions relating to the surrogate providing her consent.

• The Bill also gives surrogates a seven-day “cooling off” period before the intended parent of the child take custody.

Parenting Declarations

• Specific provisions deal with the ability to apply for a court-ordered declaration that a person is or is not a parent of a child.

• In this regard, the making of a declaration is subject to the court’s considerations relating to the best interests of the child.

• Such a declaration can also be set aside in the right circumstances; otherwise, it is recognized for all purposes, and is deemed to be effective from the date of the child’s birth.

Other

The new Bill also amends the Vital Statistics Act and the Change of Names Act, to bring it in line with the various changes relating to determining and declaring parentage in assorted circumstances, including assistant reproductive technology. The amendments relate to document name changes and birth registrations.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

New Proposed Law Clarifies Parentage, Surrogacy Rights, and Rights Arising from Assisted Reproduction

surrogacy

New Proposed Law Clarifies Parentage, Surrogacy Rights, and Rights Arising from Assisted Reproduction

The province’s new Bill 28, the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 proposes some important government-initiated changes designed to provide “greater clarity to parenting laws in Ontario”. As for November 2, 2016, the Bill has been ordered for Third Reading, which means it’s one step closer to being enacted into a law.

The Bill makes various changes to existing legislation, most notably the Children’s Law Reform Act where it sets out new rules of “parentage” for the purposes of all Ontario laws; it also clarifies the interplay of those new laws with existing ones. In particular, new provisions are aimed specifically at rights relating to children born through assisted reproduction, as follows:

• The mere fact that a person provides reproductive materials (i.e. sperm or an ovum) or an embryo for use in assisted reproduction is not in itself sufficient to make that person a parent (except of course where those items are provided for the person’s own reproductive use).

• A child’s birth parent, meaning the person who gives birth to the child, is considered a parent of the child; the only exception is a surrogate (who under normal circumstances is not considered to be the child’s parent).

• If the child is conceived without assisted reproduction, then the child’s biological father is also considered to be a parent, although this is subject to rebuttable presumptions (expressly set out in the new law) as to how the biological father may be determined. There are special rules for insemination by a sperm donor.

• If a child is conceived through sexual intercourse, then the person who provided sperm is also a parent of the child. Rebuttable presumptions are set out respecting how that person may be determined; the biological parents may agree in advance in writing that the person providing the sperm does not intend to be a parent of the child.

• A birth parent’s spouse at the time a child is conceived – either through assisted reproduction or through insemination by a sperm donor – is presumed to be a parent of the child. This is also subject to a rebuttable presumption, and there are also exceptions.

• A birth parent may entered into a pre-conception parentage agreement, involving one or more persons, in which they agree together to be the parents of a child who has not yet been conceived. To be valid, the agreement must involve no more than four parties.

In an upcoming Blog I will detail the other new changes that the proposed Bill would make in connection with surrogacy, parenting declarations, and other corollary changes to legislation.

What are your thoughts on this new legislation? Are these necessary changes in modern society?

For the full text of the bill, see:

http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=4176

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Woman Sues Sperm Donor (and Friend) for Child Support

Man holding sterile sample Container bottle for medical analysis.

Woman Sues Sperm Donor (and Friend) for Child Support

Decades ago in 1991, two friends and medical school classmates had made each other a promise: the man, who was gay, promised to donate his sperm to the woman so that she could eventually undergo in vitro fertilization to become a mother.

Even though they went their separate ways after medical school, this is precisely what happened more than 15 years ago, when the woman called upon the man to provide a sperm donation which she used to conceive two children. In 2002, they both signed an agreement giving the mother full custody, as well as decision-making rights over the children’s education and health care. They also agreed that the man would stay in touch and remain somewhat involved in the children’s lives – effectively as a “spuncle,” which is the slang term used in fertility law circles to denote such sperm donor arrangements.

In turn, the mother agreed that she would not look to the man for “any financial support”.

But since making that agreement the mother, now a medical doctor, apparently changed her mind: she is now suing the man for child support, relying on Ontario legislation that currently allows known sperm donors (and egg donors, for that matter) to be held liable in the right cases.

Under that law, any interested person can apply to a court for a declaration that a male person is legally recognized as the father of a child; once made, such order is recognized “for all purposes”, including potential imposition of child support obligations.

However, the issue under contention was whether the man’s role should include a financial support obligation for the two children, not based merely on his biological connection but also on his lifelong involvement in the now-teenaged children’s lives.

For example, over the years he had e-mailed them, introduced them to his extended family, and paid for their trips to Europe and Disneyland. His own parents treated them like their grandchildren. Moreover, the man gave the mother $22,000 to help with costs, with part of that money going into Registered Education Savings Plans for each child. The mother claimed this was all evidence of his intent to treat the children as his own.

Incidentally, the mother currently earned almost $250,000 as a gynecologist, obstetrician and university professor; the man earned just under $280,000 in Europe working for the World Bank. If the woman’s pending is successful in her child support claim, the man would be liable for four years of retroactive child support for both children, plus some of the cost of their post-secondary education and other costs.

This is an unusual case in which a known sperm donor has been sued for child support. The case has yet to be heard in the Ontario Courts.

What are your views on this situation? Should the mother succeed in her child support claim?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Do Sperm Cells Constitute “Property” Subject to Division After Separation?

sperm

Do Sperm Cells Constitute “Property” Subject to Division After Separation?

Here’s a new one: In a recent British Columbia case called M. (J.C.) v. A. (A.N.), the court was asked to consider the interesting issue of whether 13 sperm straws (which are the vials containing a sperm donation), were “property” in the context of a Family Law case involving a separated couple.

During their 8-year relationship, the female same-sex partners had each given birth to one child apiece, with the children having been conceived through therapeutic insemination with sperm from the same donor.

When the couple later separated, they entered into a separation agreement which dealt with child custody and support. It also purported to deal with division of their joint property; however, the division of the sperm straws, which were being stored at a fertility clinic, was inadvertently overlooked. Each sperm straw had cost about $250, and had been donated by a donor who had “retired from the program” and was no longer giving donations.

When one of the ex-partners later entered into a new relationship, she wanted to have a second child using the remaining sperm straws that were stored at the clinic. (This would ensure that her second child was biologically related to the first one). She offered to pay her first spouse $250 each for half of the sperm straws. The first spouse, however, preferred to have them destroyed.

This is when the matter came before the court for a ruling.

The court was asked to decide whether the sperm straws were “property”, and whether the best interests of the existing children, plus any future offspring from the same donor, should be considered in determining what should be done with them.

The court considered a selection of cases from around the world, illustrating how the courts of different jurisdictions had treated the important legal and ethical issues that arise from dealing with the ownership of items such as semen samples, embryos, sperm, corpses, human body parts, and other substances that are “generated by the human body.”

Ultimately – and while noting that “the court is ill-equipped to handle moral and philosophical arguments – it ruled that the 13 sperm straws were indeed “property”, and that they should be divided equally between the former partners. However, the best interests of the children that had already been born from the particular donor’s sperm straws, as well as any future children that might be born, were not part of the consideration. Trying to analyze (and potentially place limits on) the use to which a couple could use the sperms straws would be “borderline discriminatory”. Moreover, identifying the best interests of a child yet unborn would be merely speculation.

For the full text of the decision, see:

M. (J.C.) v. A. (A.N.), 2012 BCSC 584 http://canlii.ca/t/fr3z5

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at http://www.russellalexander.com/practice/family-property-division-and-sharing/

Who’s Your Baby Daddy?

Who’s Your Baby Daddy?

The Ontario Court has not allowed George Dryden to continue his suit against his own family members for alledgedly cutting him out of an inhereitence.

Amongst other claims Mr. Dryden has alleged that he is the a child of John Diefenbaker, Canada’s 13th Prime Minister.

The Court determined that the family’s decision to keep Mr Dryden’s lineage a secret did not give him the right to sue. The Court stated:

“There is no duty on parents to disclose the identity of a child’s natural parents and correspondingly the child does not have a legal right to know the identity of their natural parents,”

Justice Beth Allen wrote in her judgment:

“The court is loathe to interfere with or to disturb parental decisions on what information should or should not be disclosed to their children.”

It appears from initial news reports that Mr. Dryden was not satisfied with this result and intends to pursue the matter further.

To review the Court’s decision, reference Dryden v. Dryden, 2011 ONSC 7060 (CanLII) http://bit.ly/rzmDj1

Court Orders Paternity Test in Bid to Disinherit Child

Court Orders Paternity Test in Bid to Disinherit Child

In the recent Ontario Court decision of Proulx v. Kelly the Court  grappled with an interesting paternity question arising from an estates matter. The deceased had died without a will, and his only sibling (a sister) had applied to be the administrator of the estate. She wanted to prevent a young woman named Shauna – who claimed to be the deceased’s daughter – from inheriting anything from him. The deceased had been married to Shauna’s mother at the time she was born, but they divorced long ago.

The issue was whether DNA testing could or should be ordered by a court. (Apparently there was some DNA evidence still available from the deceased that could be tested.)

The matter arose under a little-used section of the Children’s Law Reform Act (“CLRA”) which allows anyone to apply to a court for a declaration that a particular male person is the father of a child, or that a particular female person is the mother. There is also a provision that allows anyone involved in a civil proceeding (such as this estates dispute) to apply to get the court’s permission to obtain blood or DNA tests, which can then be used as evidence.

However, the CLRA also contains a “presumption of paternity” section, which presumes paternity of any male who:

• Is married to the mother of a child at the time the child is born;

• Is married to the mother but has died or divorced her within 300 days of the birth;

• Is married the mother after the birth and acknowledges he is the father;

• Was living with the mother in a “relationship of some permanence” at the time of birth, or else stopped living with her within 300 days of the child’s birth;

• Took steps to certify his status as father under the Vital Statistics Act or other similar Canadian legislation; or

• Is recognized as the father by a Canadian court.

The issue was whether, for someone who satisfied any of these criteria, the presumption of paternity had to be rebutted before a court could order DNA testing.

In this case, the deceased had met at least a few of the tests: not only was he married to Shauna’s mother when she was born, but he was also listed as her father on the Statement of Live Birth. However, he never actually signed that document.

On the other hand, there was ample reason to question the deceased’s paternity of Shauna. For example:

• He never recognized Shauna as his natural daughter to his family;

• He told his sister that Shauna was not his;

• He wrote in a journal that he was resentful at Shauna’s mother because “she cheated on me with no sex protection”;

• Other witnesses gave evidence that both before and after Shauna’s birth, he and the mother fought regularly;

• There was never a child support order made for him to pay support for Shauna, and no evidence that support was ever paid by him on a regular basis;

• He saw Shauna infrequently, and almost not at all in her teenage years; and

• His sister attested to the fact that he never recognized Shauna as his daughter.

In any event, from a legal sense the court found that it could order the DNA testing without the deceased having to rebut the “presumption of paternity” provided for by the CLRA. Instead, the court had the authority to order DNA testing any time paternity was in question.

Moreover, on the merits the court found that DNA testing was warranted here, and granted leave. In doing so, it took particular note of the fact that there was almost a complete lack of evidence from the one person who would know Shauna’s paternity – the mother. It also observed that DNA testing was a minimally-invasive procedure that would cleanly bring an end to the dispute over the estate once and for all.

See the full text of the Court’s decision in Proulx v. Kelly, 2010 ONSC 5817 (CanLII) at http://bit.ly/gzVrII

Further information on family law and related issues is also available on our main website www.russellalexander.com