Parental definition to change in Alberta family law

Last Updated: Tuesday, November 2, 2010 | 9:59 AM MT

CBC News

 

The government of Alberta wants to update the definition of parenthood to make sure child support orders can be enforced in cases where children are born using assisted reproduction.

 

Under the proposed legislation, a woman would be considered the mother even if her baby was born from donor eggs and in a donor womb — so long as her partner's sperm was used in the pregnancy, and she consents to the classification.

 

The reform is needed because advances in reproductive technology have created a situation where courts use different standards to determine who should be considered a child's parent, said Avery McNary, director of legislative reform for Alberta Justice.

 

"One court will say, 'let's look at the best interest of the child. And another court will say, 'let's look at the genetic connection to the parent.' Another court will say 'let's look not just at the genetic connection but the biological connection.'," she said.

 

"And then you get all these different rules and you can't predict who's going to be the parent of the child."

 

Bill 22, the Family Law Statutes Amendment Act, would make changes to three existing laws:

 

•The Family Law Act would be updated to clarify parentage rules for children born using assisted reproduction. The status of illegitimacy would also be removed from the act.

•The Maintenance Enforcement Act would be amended to "enhance administrative fairness" and boost the ability of officials to collect outstanding funds.

•And the Interjurisdictional Support Orders Act would be changed to "make orders between Albertans and parties in other jurisdictions easier to enforce," the province said in a release.

 

If the bill passes, Alberta would be the only province with such legislation, McNary said.

Related: Top court dismisses Calgary woman's parental responsibility appeal

Albertan wants Supreme Court to hear parental rights case
Last Updated: Tuesday, June 12, 2007 | 4:46 PM MT
The Canadian Press
An Alberta woman has asked the Supreme Court of Canada to rule on a case that could have sweeping implications on the rights of single parents to make decisions about their families and relationships.

The woman, known as Jane Doe, wants to absolve her common-law husband of legal obligations to her child and has sought leave to appeal her case to the high court.

She became pregnant by artificial insemination with another man's sperm. The common-law couple signed a pre-parenting agreement stating that the husband, John Doe, would not be considered the child's father.

Their identities are protected by a publication ban.

Last February, the Alberta Court of Appeal ruled against the agreement, saying that John Doe will inevitably act in the role of father since he will be living with the child.

The mother contends that the Alberta ruling failed to recognize her charter rights to make fundamental choices on behalf of her child.

"The existence and scope of a parental liberty right under Section 7 of the charter is of importance to all families, particularly those families which may not fall within the traditional concept of the one-female-and-one-male-parent family," wrote her lawyer, Ronald Robinson, in documents filed with the Supreme Court.

"The current uncertainty in the law … impedes the ability of parents, including single parents by choice, to make decisions of fundamental importance, and structure their family circumstances without the threat of state-assisted interference in those rights."

Alberta Crown lawyers have filed documents arguing against having the high court hear the appeal, which centres on Alberta's Family Law Act.

The Crown contends the case is not about the constitutional rights of single parents and that Jane Doe is not a single parent by choice because she lives with a male partner.

"This case is about a woman who decided to have a child while residing with a male partner and who continues to reside with her partner and her child," say the documents.

"There is no evidence that the relationship between the applicant and her partner as it involves the child is common among Canadians. Nor are the rights that the applicant alleges to have charter protection [or] commonly sought by mothers or fathers across Canada."

In the Appeal Court ruling in February, Justice Ronald Berger said the fact that Jane and John Doe remain together demonstrates his intention to act in the role of father.

"Can it seriously be contended that he will ignore the child when it cries? When it needs to be fed? When it stumbles? When the soother needs to be replaced? When the diaper needs to be changed?" Berger asked.

Neither Robinson nor Crown lawyers would comment on the leave-to-appeal application.

But legal and constitutional experts say the case could have sweeping implications for Canadians and they hope the Supreme Court will hear the appeal.

Brenda Cossman, a family law professor at the University of Toronto, said the 2001 census listed 1.3 million Canadian families as being headed by single parents, the majority of them women. 

Related: Albertan wants Supreme Court to hear parental rights case

Albertan wants Supreme Court to hear parental rights case
Last Updated: Tuesday, June 12, 2007 | 4:46 PM MT
The Canadian Press

An Alberta woman has asked the Supreme Court of Canada to rule on a case that could have sweeping implications on the rights of single parents to make decisions about their families and relationships.

The woman, known as Jane Doe, wants to absolve her common-law husband of legal obligations to her child and has sought leave to appeal her case to the high court.

She became pregnant by artificial insemination with another man's sperm. The common-law couple signed a pre-parenting agreement stating that the husband, John Doe, would not be considered the child's father.

Their identities are protected by a publication ban.

Last February, the Alberta Court of Appeal ruled against the agreement, saying that John Doe will inevitably act in the role of father since he will be living with the child.

The mother contends that the Alberta ruling failed to recognize her charter rights to make fundamental choices on behalf of her child.

"The existence and scope of a parental liberty right under Section 7 of the charter is of importance to all families, particularly those families which may not fall within the traditional concept of the one-female-and-one-male-parent family," wrote her lawyer, Ronald Robinson, in documents filed with the Supreme Court.

"The current uncertainty in the law … impedes the ability of parents, including single parents by choice, to make decisions of fundamental importance, and structure their family circumstances without the threat of state-assisted interference in those rights."

Alberta Crown lawyers have filed documents arguing against having the high court hear the appeal, which centres on Alberta's Family Law Act.

The Crown contends the case is not about the constitutional rights of single parents and that Jane Doe is not a single parent by choice because she lives with a male partner.

"This case is about a woman who decided to have a child while residing with a male partner and who continues to reside with her partner and her child," say the documents.

"There is no evidence that the relationship between the applicant and her partner as it involves the child is common among Canadians. Nor are the rights that the applicant alleges to have charter protection [or] commonly sought by mothers or fathers across Canada."

In the Appeal Court ruling in February, Justice Ronald Berger said the fact that Jane and John Doe remain together demonstrates his intention to act in the role of father.

"Can it seriously be contended that he will ignore the child when it cries? When it needs to be fed? When it stumbles? When the soother needs to be replaced? When the diaper needs to be changed?" Berger asked.

Neither Robinson nor Crown lawyers would comment on the leave-to-appeal application.

But legal and constitutional experts say the case could have sweeping implications for Canadians and they hope the Supreme Court will hear the appeal.

Brenda Cossman, a family law professor at the University of Toronto, said the 2001 census listed 1.3 million Canadian families as being headed by single parents, the majority of them women.