Article written by Kim Brown
Last November, Ontario made a big change to its parentage laws when it passed Bill 28, the All Families Are Equal Act. Bill 28 attempts to ensure equal recognition for all parents, regardless of if they are LGBTQ or heterosexual.
Prior to the bill, some same-sex parents did not have legal rights and responsibilities – such as custody, access or support – and would have to adopt their child to be considered a legal parent and obtain those rights. Today, up to four people can be listed on a child’s birth certificate without having to seek permission from a court provided that all parties enter into a written pre-conception agreement to be parents of the child together. The birth parent is required to be one of the parties to the agreement.
This is the first time Ontario’s parentage laws have been updated since 1978, and the change has been largely viewed as positive. But there are many hypothetical situations that could arise, and Ontario’s Family Law Act is not currently designed to deal with those hypotheticals.
While Bill 28 clearly states that a written pre-conception agreement must be signed by all parties, there is no mention of a parenting plan. Parents should know where the baby will be raised, who will get to make the final decision about whether the baby will be breastfed or given formula, etc. Furthermore, it is not clear what will happen should multiparent families not be able to agree on important decisions about education or healthcare. Like two parent families, multiparent families may share similar views and values when it comes to raising children, but consider how often two guardians disagree about what’s best for their child. Making big and small decisions could be further complicated when there are three or four parents involved.
Then there is the question of what will happen should one or both parties separate or get divorced. Determining custody and access would be possible – but it will be challenging to create a plan that accommodates four parents and the child’s best interests. Similarly, deciding how much support each parent is obligated to pay should each parent care for the child for an equal amount of time would be challenging, and would need to be determined on a case-by-case basis. Would there be one primary caregiver? What happens if three or more parents get into an argument about access?
The All Families Are Equal Act has relieved a lot of stress and uncertainly for many same-sex couples who encounter numerous barriers while trying to become parents, and better serves the needs of modern families in Ontario. However, as parentage laws continue to evolve, the Family Law Act may also need to be adjusted if and when multiparent families encounter some of these issues.