As previously discussed in a prior WEL Blog “Who’s your daddy? Proposed changes to Ontario laws regarding parentage,”  the Ontario Legislature has recently made significant changes to the Children’s Law Reform Act , the Succession Law Reform Act  and 38 other Ontario Acts through the passing of Bill 28, the All Families Are Equal Act (the “Act”). Bill 28 was introduced to ensure the equal treatment of all parents and children in the province of Ontario. It was also a direct response to a number of court challenges, developments in reproductive technology, as well as societal changes to the notion of what constitutes a “modern Canadian family”. As a cautionary note, lawyers practicing in Ontario should be aware that certain aspects of the Act were designed to apply retroactively.
The Act received Royal Assent on December 5, 2016 and officially came into force on January 1, 2017. The Act recognized the legal status of all parents, whether they are LGBTQ2+ or heterosexual, and whether their children were conceived with or without reproductive assistance. The Act amended various pieces of legislation to use gender neutral terminology and marks the first time Ontario’s parentage laws have been updated since 1978.
The Act made a number of changes to the Children’s Law Reform Act including:
- The elimination of the assumption that a child has no more than two parents;
- The term “parent” replaces the terms “mother” and “father”;
- All references to persons being “natural parents” of a child and to persons being related “by blood” are now removed;
- Four people can now agree, in writing, to be the parents of a child;
- Up to four “intended parents” can now agree to enter into a “surrogacy agreement” with a surrogate, who agrees to relinquish entitlement to parentage after the child is seven days old;
- A child’s birth parent is now a parent unless that person is a surrogate and is determined not to be a parent;
- The person whose sperm resulted in conception through sexual intercourse is a parent unless the parties agreed in writing in advance that that person does not intend to be a parent; and
- The spouse of a birth parent of a child conceived through assisted reproduction/sperm donation is presumed to be a parent.
From an estate administration perspective, the All Families Are Equal Act has also made significant amendment to the Succession Law Reform Act (“SLRA”) which governs testate and intestate succession in Ontario. The definition of “child” and “issue” within the SLRA has subsequently been expanded to now include a child who is conceived and born alive after the parent’s death, provided certain conditions are met. The specified conditions are set out in a new subsection 1.1 entitled “Posthumous conception conditions”. One of the conditions is that the person who, at the time of the death of the deceased person was his or her spouse, must provide written notice to the Estate Registrar for Ontario that the person may use reproductive material, or an embryo to attempt to conceive, through assisted reproduction and with or without a surrogate, a child in relation to which the deceased person intended to be a parent. Written notice must be provided no later than six months after the deceased person’s death. Another condition is that the posthumously-conceived child must be born no later than the third anniversary of the deceased person’s death (unless otherwise specified by the Superior Court of Justice by way of an order).
Section 47(10) of the SLRA, which governs intestate succession to descendants posthumously conceived, has also been amended to provide that descendants and relatives of the deceased conceived and born alive after the death of the deceased shall inherit as if they had been born in the lifetime of the deceased and had survived him or her, subject to the conditions set out in subsection 1.1. As per section 47(11) of the SLRA, this right of a descendant or relative begins on the day he or she is born. Additionally, Sections 57 and 59 of the SLRA regarding dependant support have also been amended, so that an applicant for dependant support can now include a child of the deceased who was conceived and born alive after the death of the deceased, if the application is made no later than six months after the death of the deceased.
The All Families Are Equal Act marks an important step in the right direction for Ontario, as legislation that explicitly addresses conception through assisted reproductive technologies and third party arrangements has finally been passed. This shift towards inclusiveness and ensured equality, regardless of one’s sexual orientation or reproductive capacity, addresses legal discrimination based on family status. As such, many parents and children with “non-traditional” family structures or family building processes are now protected.