Lorne MacLean, QC was the one of first BC parentage lawyers in Canada to deal with a Canadian frozen embryo dispute. He was successful as Juanita Nott’s BC parentage lawyers representative in protecting frozen embryos from being destroyed pending trial. Our BC parentage lawyers deal with cutting edge assisted human reproduction disputes as well as complex high net worth family cases. As the founder of our BC parentage lawyers team, Mr MacLean regularly handles the most difficult and high profile cases in the Supreme Court, the Court of Appeal and the Supreme Court of Canada. If you have a “I’m all in” case you deserve the opportunity to meet with us to get the best representation you can. We handle Assisted Human Reproduction disputes, paternity test disputes, parentage declaration and guardianship appointment and removal disputes. Call us toll free across BC at 1-877-602-9900 we act all across Bc and into Alberta and other provinces on select cases.
What does a declaration of parentage mean? While we query whether a person who is a parent has all the rights set out in the most recent case if they are not found to also be a guardian, the recent BC Supreme Court case sets out some basic principles if their is no guardianship dispute under the Family Law Act:
[41] The court’s jurisdiction to grant declarations of parentage was also acknowledged in B.A.N. v. J.H., 2008 BCSC 808, following Rypkema. The facts in B.A.N. were substantially the same as found here. The male of a heterosexual couple contributed sperm to create an embryo from donated eggs that was then carried to term by a surrogate, pursuant to an agreement.
[42] While Part 3 is intended to be comprehensive, the FLA contemplates that these provisions may not capture every potential scenario situation in this ever-evolving world of human reproduction. In that respect, s. 31 of the FLA confirms the court’s continuing (but now statutory) jurisdiction to make declarations of parentage:
31(1) Subject to subsection (5), if there is a dispute or any uncertainty as to whether a person is or is not a parent under this Part, either of the following, on application, may make an order declaring whether a person is a child’s parent:
(a) the Supreme Court;
(b) if such an order is necessary to determine another family law dispute over which the Provincial Court has jurisdiction, the Provincial Court.
…
(3) To the extent possible, an order under this section must give effect to the rules respecting the determination of parentage set out under this Part.
…
[43] However, the court must find that there is either a “dispute” or “uncertainty” regarding a person’s parentage before exercising this statutory jurisdiction. I am not aware of any prior court decisions that have applied this provision.
[44] In this case, I accept that there is some uncertainty in relation to D.D. and M.L.’s parentage of É, arising from Quebec law, and the requirement of a court order to have D.D. and M.L.’s parentage recognized in that province. It appears that if the petitioners were residing in British Columbia, no such declaration would be necessary.
[45] D.D. and M.L. have also referred to the benefits of declarations of parentage, as accepted by the Court in A.A. v. B.B., 2007 ONCA 2, at para. 14, which I would adopt and summarize as follows:
- it is a life-long immutable declaration of status;
- it allows the parent to fully participate in the child’s life;
- it determines lineage;
- it will determine other kindred relationships;
- the declared parent may obtain important personal and identifying documentation for the child, such as a social insurance number, a health card, airline tickets and passports;
- it may determine Canadian citizenship;
- it will establish a parent’s right to register the child in school;
- the declared parent has to consent to any future adoption;
- it will allow that parent to assert rights as such under applicable legislation; and
- it will allow that child to assert rights as such under applicable legislation, including perhaps those arising upon an intestacy.
[46] These benefits clearly go beyond those obtained by the issuance of a British Columbia birth certificate. Importantly, these benefits are enjoyed not only by the intended parents, but also extend to the child. It is trite to state that the legislative intent under the FLA, and the intent of this Court when applying its provisions, is ensuring that a child’s best interests are paramount.
[47] In my view, it is, therefore, appropriate to grant the declaration of parentage so as to allow D.D. and M.L., and importantly É, these significant benefits. This declaration will allow D.D., M.L. and É to function more fully as a legal family unit in their home province of Quebec.
[48] The remaining question relates to the declaration sought as to non-parentage of E.M. Section 29 of the FLA does not expressly address her status. In my view, s. 31 provides the jurisdictional basis upon which to make such a declaration.
[49] I would respectfully adopt the comments of the Court in M.D. v. L.L. (2008), 90 O.R. (3d) 127, at paras. 48-68 (S.C.J.). Justice Nelson noted that there are sound reasons for the granting of such a declaration in terms of clarifying who is, and who is not, a parent:
[55] A declaration of parentage pursuant to s. 4 of the CLRA [Children’s Law Reform Act, R.S.O. 1990, c. C.12] is a judgment in rem, recognized for all purposes by the world: Sayer v. Rollin, [1980] O.J. No. 613, 16 R.F.L. (2d) 289 (C.A.), at para. 5. What additional benefit is there in a declaration of non-parentage when combined with a s. 4 declaration? The declaration of non-parentage is, it seems to me, simply a clarification of status for the genetic parents, the surrogate mother and her spouse, vis-à-vis their respective relationships towards the child. Where there are two persons with potential claims to be the child’s mother, a declaration that one of them is the child’s mother might not preclude the other from also being that child’s mother. Thus, a declaration of non-maternity would clarify the status of the interested parties in a manner that is worthy of judicial determination
[67] It is in the best interests of the child that this court issue a declaration that the child’s surrogate mother, who is without genetic link to the child, is not that child’s mother. As noted above, at para. 37, the Ontario Court of Appeal has discussed the benefits and importance of a declaration of parenthood. In my opinion, there is no doubt that it is additionally in the best interests of the child to remove any ambiguity about who the child’s mother is, where the circumstances of the child’s birth and the operation of a statute combine to produce such ambiguity.
See also A.W.M. v. T.N.S., 2014 ONSC 5420, at paras. 33-35.
Our BC parentage lawyers are ready to assist in any frozen embryo dispute, paternity dispute or BC parentage lawyers dispute. Contact us early on in the dispute to prevent problems.
