Ontario’s “new” parentage rules, contained primarily in the Children’s Law Reform Act (“CLRA”) and implemented through the All Families Are Equal Act, have been in force for more than two years, having become effective on January 1, 2017. There have now been several reported decisions that interpret and apply the rules. The decision of L. Madsen J. in M.L. v. J.C., 2017 ONSC 7179 is an important decision in that it highlights a legislative gap in the new rules.

Mark and Jane were friends who agreed to assist one another in conceiving two children. Mark had long wanted to be a father and raise a child. Jane wanted to be a mother with her partner, Samantha, and raise a child together. Mark agreed that his sperm would be used in the conception of both children through assisted reproduction, and each of Jane and Samantha would carry a child. Mark would be the sole parent of one child, such that Jane and Samantha would not be the parents of that child. In other words, the person who carried that child would be a surrogate and Mark would be the intended parent. Jane and Samantha would be the parents of the other child, and Mark would not be a parent of that child. In other words, Mark would be a sperm donor only in relation to that child, and Jane and Samantha would be the intended parents.

Unfortunately, the arrangement did not proceed as planned. Samantha’s attempts to conceive were unsuccessful for the first two years. It then appeared that she had become pregnant. Shortly thereafter, Jane became pregnant. Not long after Jane became pregnant, it was discovered that Samantha was not, in fact, pregnant. With only one child, who would be the parents? The parties could not agree on that question. Mark had understood that he would be the parent of the baby carried by Jane, with Jane and Samantha being the parents of the baby carried by Samantha. By contrast, Jane and Samantha thought that they would the parents of the first baby to be born, with Mark being the parent of the second baby to be born. The parties ultimately needed the assistance of the court to resolve the matter.

The court first considered whether there was a valid surrogacy agreement between Mark and Jane. Under the CLRA, a valid surrogacy agreement must, among other things, be in writing, it must be entered into prior to conception, and all parties must receive independent legal advice. The birth parent must also consent in writing to relinquish parentage rights, seven days or more after the baby is born. None of those requirements were met in this case, and the court did not accept Mark’s argument that there was an oral agreement that ought to be enforced notwithstanding the clear statutory requirement that the surrogacy agreement be in writing. Since there was no surrogacy agreement, the court could not make a declaration of parentage in favour of Mark under the surrogacy provisions of the CLRA (section 10).

In the alternative, Mark sought a declaration that he was the sole parent of the child under the general declaration of parentage rules in section 13 of the CLRA. Jane sought a declaration that Samantha was also a parent of the child, and that Jane, Samantha, and Mark all be listed on the child’s birth registration. The court determined that Jane, as the birth parent, was a parent of the child pursuant to subsection 6(1) of the CLRA. Since Jane did not consent to relinquish her parentage rights, the exception to this rule for surrogates (set out in subsection 6(2) of the CLRA) did not apply. Jane and Samantha were in spousal relationship when the child was conceived through assisted reproduction, and accordingly Samantha was a parent of the child under subsection 8(1) of the CLRA. The court was not prepared to exercise its authority under section 13 of the CLRA to deny either Jane or Samantha their parentage rights.

The court then analyzed Mark’s position. Under the new rules, a person who provides reproductive material for the purpose of conceiving a child through assisted reproduction is not a parent unless the person is otherwise recognized to be a parent under the parentage rules. Under the old declaration of parentage rules, Mark could have asked for a declaration that he was the father of the child. However, the new declaration of parentage rules have special requirements where the declaration would result in there being more than two parents, as it would in this case. One of those requirements is that all of the parents must have consented, prior to conception, to together be the parents of the child. Since that was not the case (i.e. there was no prior agreement that all three persons would be parents together), the court had no jurisdiction to make a declaration of parentage in favour of Mark.

The court ultimately turned to its parens patriae jurisdiction, which can be used to remedy a legislative gap or in situations where it is the only way to meet the paramount objective of the legislation at issue. In this case, the court noted that it could not be the correct outcome for Mark to be denied parentage having provided reproductive material with the intention of being a parent, and having functionally been a loving parent since the child was born. This constituted a legislative gap. In the alternative, denying Mark parentage would be contrary to paramount objective of the All Families Are Equal Act, which was to foster inclusivity and equality. On this basis, a declaration of parentage issued in favour of Jane, Samantha, and Mark.

This case is a cautionary tale that highlights the complexities of Ontario’s new parentage rules, which strive for inclusivity and equality but are not perfect in that regard. For estate planners, it highlights the need for careful consideration in drafting wills and other documents for clients who are attempting to conceive a child through assisted reproduction, particularly where class terms such as “child” and “issue” are used.