The case of M.R.R. v. J.M.[1] highlights the changes to the definition of a parent under the recent amendments to the Children’s Law Reform Act[2] (the “CLRA”), and the consequence for the legal rights of the parties involved.
Facts
M.R.R. (the “Applicant”) wanted to have a child. The Applicant tried conceiving by way of artificial insemination approximately 7 times, but when those attempts failed, she enlisted the help J.M. (the “Respondent”) in late 2013. The Respondent agreed to help the Applicant conceive a child the old fashioned way – through sexual intercourse.
The Applicant and the Respondent had been romantically involved for a few years, and remained friends after their relationship ended in 2009. The Respondent already had three children from other relationships and did not want another child, and so both parties agreed that while the Respondent would donate his sperm, he would not be the legal parent of any child the pair conceived.
The arrangement bore fruit, and the Applicant gave birth to J.R.R. on December 14, 2014. The relationship between the parties had become increasingly distant after J.R.R. was conceived. The Respondent would occasionally ask about the health of the unborn child and the Applicant, and, as the due date approached, whether the Applicant had given birth. The Respondent was vacationing in Cuba when J.R.R. was born.
The Respondent confided in his sister and his best friend that he had fathered a child with the Applicant. The Respondent would occasionally ask the Applicant for pictures of J.R.R. and expressed a desire to see the child. Eventually, the Respondent’s wife found out about the child in April 2015, and according to the Applicant, began to stalk the Applicant and her child. This brought an end to the previously cordial relationship between the Applicant and Respondent.
In September 2015, the Applicant arranged for her lawyer to draw up a contract that reflected the original agreement between the parties: that the Respondent was not the child’s legal parent in any sense (the “Parental Contract”). The Respondent delayed in signing the contract, but eventually signed it on November 7, 2015. Prior to his signing, the Applicant informed the Respondent that she should be seeking child support.
Subsequently, the Applicant brought an application for child support on December 10, 2015.
Position of the Parties
The Applicant’s evidence was that she and the Respondent resumed a casual romantic relationship at the time J.R.R. was conceived, and so the case should not be distinguished from that of a child born of any other casual relationship. The Applicant argued that she had withdrawn her offer of the Parental Contract before the Respondent signed it, and that it was in any event unenforceable pursuant to ss. 33 and/or 56 of the Family Law Act.[3] Specifically, s.33(4) allows the court to set aside a waiver of dependant’s support in a domestic contract, while s. 56(1.1) allows the court to disregard any provision of a domestic contract where the court finds such provision unreasonable with regard to the child support guidelines.
The Respondent, meanwhile, brought a motion for a declaration that J.R.R. was not his legal child or, in the alternative, that the terms of the Parental Contract should be enforced. The Respondent argued that, pursuant to the agreement between the parties, he was in effect no more than a sperm donor. As such, he argued that he should have the same legal status as an anonymous sperm donor and therefore should not be responsible for the provision of child support.
The Law
Jurisprudence
The law with respect to the determination of parentage and parental rights has changed significantly in recent jurisprudence. Recent cases, as stated by Fryer J. in her decision, “demonstrate the court’s efforts to address advances in reproductive science but, perhaps more importantly, changing societal norms.”[4]
In A. (A.) v. B. (B.),[5] the court provided several consequences of a determination of parentage or non-parentage. In the context of estates law, a declaration of parentage is important because it determines lineage, as well as who can inherit on an intestacy.
In the case of Raft v. Shortt,[6] the court first addressed the issue of a declaration of non-parentage, which did not have a specific statutory basis at the time. The court held that the broad discretion granted under s. 97 of the Courts of Justice Act[7] empowered the court to make a declaration of non-parentage.
Recently, due to the rise of “non-traditional families” (an inadequate but pervasive term), cases about determinations of parentage have focused less on DNA and more on the nature of the relationships between the parties involved. As Henderson J. stated in M. (A.W.) v. S. (T.N.), “[in] these changing times, court decisions on parentage focus less on the biological connection between a child and parent and more on the substance of the relationship.” [8]
The primary movers behind the changes in the legal definition of who is and isn’t a legal parent is largely the result of cases brought by homosexual parents who wanted to have their diverse family structures recognized. After a successful constitutional challenge brought by several of these families, the Ontario government enacted the All Families are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016[9] in order to amend the CLRA to reflect a variety of family structures.
Legislation
The amendments to the CLRA altered several definitions and presumptions of parenthood, prioritizing the intentions of the parties and the recognition of advances in reproductive science. Most relevant to the case at hand, the CLRA states that:
Person is child of parents
4 (1) A person is the child of his or her parents.
…
Other biological parent, if sexual intercourse
7 (1) The person whose sperm resulted in the conception of a child conceived through sexual intercourse is, and shall be recognized in law to be, a parent of the child.
…
Non-application, insemination by a sperm donor
(4) This section is deemed not to apply to a person whose sperm is used to conceive a child through sexual intercourse if, before the child is conceived, the person and the intended birth parent agree in writing that the person does not intend to be a parent of the child.
Same, sperm donor not a parent
(5) A person to whom subsection (4) applies is not, and shall not be recognized in law to be, a parent of a child conceived in the circumstances set out in that subsection.
…
Declaration of parentage, general
13 (1) At any time after a child is born, any person having an interest may apply to the court for a declaration that a person is or is not a parent of the child.
Essentially, while the CLRA maintains a presumption that the biological parent of a child conceived through sexual intercourse is the legal parent of that child, it allows for sexual intercourse to be considered sperm donation for the purposes of determining legal parentage, so long as there is a prior written agreement between the parties. The CLRA also provides a specific statutory provision empowering the courts to make a declaration of non-parentage.
Analysis
Interestingly, while Fryer J. ultimately granted a declaration of non-parentage to the Respondent and dismissed the Applicant’s application, she held that the Respondent was presumed to be J.R.R.’s legal parent under s. 4(1) and that the conditions for the s. 7(4) exclusion had not been met in this case.
While the Applicant and Respondent had eventually signed a contract declaring that the Respondent was not a legal parent of J.R.R., the agreement was not put in writing prior to conception. Justice Fryer emphasized the need for a written agreement given the seriousness of the consequences of a waiver of parental rights, and also stressed that “[d]ecisions as to whether or not to be a parent to a child are far better reached in a dispassionate setting rather than in the emotional place following the conception and birth of the child.”[10]
However, despite finding that the Parental Contract was insufficient to meet the conditions under s. 7(4), Fryer J. found that the prior intention of the parties was sufficiently clear to grant a declaration of non-parentage under the broad discretion granted by s. 13(1). In so finding, Fryer J. held that while the Respondent had asked the Applicant for pictures of J.R.R. and stated that he was J.R.R.’s father, he never acted contrary to the prior agreement between the parties that he was not the child’s legal father, i.e., he never attempted to assert his parental rights with respect to J.R.R. Additionally, prior to seeking child support from the Respondent, the Applicant had consistently referenced the agreement between the parties that the Respondent was not the child’s legal father, and had repeatedly stated her intention to raise J.R.R. as a single parent.
Moreover, Fryer J. emphasized that the best interests of child was not specifically a criteria for a declaration under s. 13(1), and that in any event, a loss of a source of financial support for a child is not necessarily contrary to a child’s best interests based on the purpose of the CLRA. The amendments to the CLRA were intended to allow parents to create an intentional family structure, based on their specific circumstances, in order to provide a legal and stable family unit for a child. The importance of this stable family unit goes beyond mere financial concerns: “Children benefit from having a secure and certain family unit made up of one or more loving and committed parents regardless of how the child was conceived.”[11]
Conclusion
The case of M.R.R. v. J.M. provides insight into how the courts will utilize the amendments to the CLRA to determine legal parentage. In line with previous case law, the court prioritized the intentions of the parties rather than biological realities in granting a declaration of non-parentage to the Respondent.
This case therefore emphasizes the importance of entering into a written agreement with respect to legal parentage before a child is conceived, especially given the intense emotions that accompany the conception and birth of a child. Any person considering conceiving a child through sperm donation or surrogacy should receive independent legal advice and fully consider the right and obligation they are giving up or acquiring in entering into such an agreement. Ultimately, it is in the best interest of any child that no protracted and expensive legal battle results from their being brought into the world.
—
[1]2017 ONSC 2655 [Indexed as R. (M.R.) v. M. (J.)].
[2] R.S.O. 1990, c. C.12.
[3] R.S.O. 1990, c. F.3.
[4] Supra note 1, at 45.
[5] 2007 ONCA 2, [2007] O.J. No. 2, at 14.
[6] (1986), 54 O.R. (2d) 768, [1986] O.J. No. 492.
[7] R.S.O. 1990, c. C.43.
[8] 2014 ONSC 5420, [2014] O.J. No. 5793, at 24.
[9] S.O. 2016, c. 23.
[10] Supra note 1, at 164.
[11] Ibid, at 165.
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Written by: WEL Partners
Posted on: January 10, 2018
Categories: Commentary
The case of M.R.R. v. J.M.[1] highlights the changes to the definition of a parent under the recent amendments to the Children’s Law Reform Act[2] (the “CLRA”), and the consequence for the legal rights of the parties involved.
Facts
M.R.R. (the “Applicant”) wanted to have a child. The Applicant tried conceiving by way of artificial insemination approximately 7 times, but when those attempts failed, she enlisted the help J.M. (the “Respondent”) in late 2013. The Respondent agreed to help the Applicant conceive a child the old fashioned way – through sexual intercourse.
The Applicant and the Respondent had been romantically involved for a few years, and remained friends after their relationship ended in 2009. The Respondent already had three children from other relationships and did not want another child, and so both parties agreed that while the Respondent would donate his sperm, he would not be the legal parent of any child the pair conceived.
The arrangement bore fruit, and the Applicant gave birth to J.R.R. on December 14, 2014. The relationship between the parties had become increasingly distant after J.R.R. was conceived. The Respondent would occasionally ask about the health of the unborn child and the Applicant, and, as the due date approached, whether the Applicant had given birth. The Respondent was vacationing in Cuba when J.R.R. was born.
The Respondent confided in his sister and his best friend that he had fathered a child with the Applicant. The Respondent would occasionally ask the Applicant for pictures of J.R.R. and expressed a desire to see the child. Eventually, the Respondent’s wife found out about the child in April 2015, and according to the Applicant, began to stalk the Applicant and her child. This brought an end to the previously cordial relationship between the Applicant and Respondent.
In September 2015, the Applicant arranged for her lawyer to draw up a contract that reflected the original agreement between the parties: that the Respondent was not the child’s legal parent in any sense (the “Parental Contract”). The Respondent delayed in signing the contract, but eventually signed it on November 7, 2015. Prior to his signing, the Applicant informed the Respondent that she should be seeking child support.
Subsequently, the Applicant brought an application for child support on December 10, 2015.
Position of the Parties
The Applicant’s evidence was that she and the Respondent resumed a casual romantic relationship at the time J.R.R. was conceived, and so the case should not be distinguished from that of a child born of any other casual relationship. The Applicant argued that she had withdrawn her offer of the Parental Contract before the Respondent signed it, and that it was in any event unenforceable pursuant to ss. 33 and/or 56 of the Family Law Act.[3] Specifically, s.33(4) allows the court to set aside a waiver of dependant’s support in a domestic contract, while s. 56(1.1) allows the court to disregard any provision of a domestic contract where the court finds such provision unreasonable with regard to the child support guidelines.
The Respondent, meanwhile, brought a motion for a declaration that J.R.R. was not his legal child or, in the alternative, that the terms of the Parental Contract should be enforced. The Respondent argued that, pursuant to the agreement between the parties, he was in effect no more than a sperm donor. As such, he argued that he should have the same legal status as an anonymous sperm donor and therefore should not be responsible for the provision of child support.
The Law
Jurisprudence
The law with respect to the determination of parentage and parental rights has changed significantly in recent jurisprudence. Recent cases, as stated by Fryer J. in her decision, “demonstrate the court’s efforts to address advances in reproductive science but, perhaps more importantly, changing societal norms.”[4]
In A. (A.) v. B. (B.),[5] the court provided several consequences of a determination of parentage or non-parentage. In the context of estates law, a declaration of parentage is important because it determines lineage, as well as who can inherit on an intestacy.
In the case of Raft v. Shortt,[6] the court first addressed the issue of a declaration of non-parentage, which did not have a specific statutory basis at the time. The court held that the broad discretion granted under s. 97 of the Courts of Justice Act[7] empowered the court to make a declaration of non-parentage.
Recently, due to the rise of “non-traditional families” (an inadequate but pervasive term), cases about determinations of parentage have focused less on DNA and more on the nature of the relationships between the parties involved. As Henderson J. stated in M. (A.W.) v. S. (T.N.), “[in] these changing times, court decisions on parentage focus less on the biological connection between a child and parent and more on the substance of the relationship.” [8]
The primary movers behind the changes in the legal definition of who is and isn’t a legal parent is largely the result of cases brought by homosexual parents who wanted to have their diverse family structures recognized. After a successful constitutional challenge brought by several of these families, the Ontario government enacted the All Families are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016[9] in order to amend the CLRA to reflect a variety of family structures.
Legislation
The amendments to the CLRA altered several definitions and presumptions of parenthood, prioritizing the intentions of the parties and the recognition of advances in reproductive science. Most relevant to the case at hand, the CLRA states that:
Person is child of parents
4 (1) A person is the child of his or her parents.
…
Other biological parent, if sexual intercourse
7 (1) The person whose sperm resulted in the conception of a child conceived through sexual intercourse is, and shall be recognized in law to be, a parent of the child.
…
Non-application, insemination by a sperm donor
(4) This section is deemed not to apply to a person whose sperm is used to conceive a child through sexual intercourse if, before the child is conceived, the person and the intended birth parent agree in writing that the person does not intend to be a parent of the child.
Same, sperm donor not a parent
(5) A person to whom subsection (4) applies is not, and shall not be recognized in law to be, a parent of a child conceived in the circumstances set out in that subsection.
…
Declaration of parentage, general
13 (1) At any time after a child is born, any person having an interest may apply to the court for a declaration that a person is or is not a parent of the child.
Essentially, while the CLRA maintains a presumption that the biological parent of a child conceived through sexual intercourse is the legal parent of that child, it allows for sexual intercourse to be considered sperm donation for the purposes of determining legal parentage, so long as there is a prior written agreement between the parties. The CLRA also provides a specific statutory provision empowering the courts to make a declaration of non-parentage.
Analysis
Interestingly, while Fryer J. ultimately granted a declaration of non-parentage to the Respondent and dismissed the Applicant’s application, she held that the Respondent was presumed to be J.R.R.’s legal parent under s. 4(1) and that the conditions for the s. 7(4) exclusion had not been met in this case.
While the Applicant and Respondent had eventually signed a contract declaring that the Respondent was not a legal parent of J.R.R., the agreement was not put in writing prior to conception. Justice Fryer emphasized the need for a written agreement given the seriousness of the consequences of a waiver of parental rights, and also stressed that “[d]ecisions as to whether or not to be a parent to a child are far better reached in a dispassionate setting rather than in the emotional place following the conception and birth of the child.”[10]
However, despite finding that the Parental Contract was insufficient to meet the conditions under s. 7(4), Fryer J. found that the prior intention of the parties was sufficiently clear to grant a declaration of non-parentage under the broad discretion granted by s. 13(1). In so finding, Fryer J. held that while the Respondent had asked the Applicant for pictures of J.R.R. and stated that he was J.R.R.’s father, he never acted contrary to the prior agreement between the parties that he was not the child’s legal father, i.e., he never attempted to assert his parental rights with respect to J.R.R. Additionally, prior to seeking child support from the Respondent, the Applicant had consistently referenced the agreement between the parties that the Respondent was not the child’s legal father, and had repeatedly stated her intention to raise J.R.R. as a single parent.
Moreover, Fryer J. emphasized that the best interests of child was not specifically a criteria for a declaration under s. 13(1), and that in any event, a loss of a source of financial support for a child is not necessarily contrary to a child’s best interests based on the purpose of the CLRA. The amendments to the CLRA were intended to allow parents to create an intentional family structure, based on their specific circumstances, in order to provide a legal and stable family unit for a child. The importance of this stable family unit goes beyond mere financial concerns: “Children benefit from having a secure and certain family unit made up of one or more loving and committed parents regardless of how the child was conceived.”[11]
Conclusion
The case of M.R.R. v. J.M. provides insight into how the courts will utilize the amendments to the CLRA to determine legal parentage. In line with previous case law, the court prioritized the intentions of the parties rather than biological realities in granting a declaration of non-parentage to the Respondent.
This case therefore emphasizes the importance of entering into a written agreement with respect to legal parentage before a child is conceived, especially given the intense emotions that accompany the conception and birth of a child. Any person considering conceiving a child through sperm donation or surrogacy should receive independent legal advice and fully consider the right and obligation they are giving up or acquiring in entering into such an agreement. Ultimately, it is in the best interest of any child that no protracted and expensive legal battle results from their being brought into the world.
—
[1]2017 ONSC 2655 [Indexed as R. (M.R.) v. M. (J.)].
[2] R.S.O. 1990, c. C.12.
[3] R.S.O. 1990, c. F.3.
[4] Supra note 1, at 45.
[5] 2007 ONCA 2, [2007] O.J. No. 2, at 14.
[6] (1986), 54 O.R. (2d) 768, [1986] O.J. No. 492.
[7] R.S.O. 1990, c. C.43.
[8] 2014 ONSC 5420, [2014] O.J. No. 5793, at 24.
[9] S.O. 2016, c. 23.
[10] Supra note 1, at 164.
[11] Ibid, at 165.
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