CANADA Law and Practice Contributed by: Shannon Beddoe, Annabelle Lim and Susannah Mungall, McCarthy Hansen & Company LLP
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility In Canada, the federal Divorce Act governs decision- making responsibility over children for individuals who are married and divorcing/divorced. Provincial legis - lation governs decision-making responsibility for all other couples. Under Section 2 (1) of the Divorce Act, the authority to make decisions for a child is referred to as “decision- making responsibility” and includes responsibility for making significant decisions in relation to the child’s health, education, culture, language, religion, spiritual - ity, and significant extracurricular activities. Equivalent provisions are contained in provincial leg - islation. For instance: • Alberta: “decision-making responsibility” as set out in Section 21 (6) of Alberta’s Family Law Act; • British Columbia: “parental responsibilities” as set out in Section 41 of BC’s Family Law Act; • Ontario: “decision-making responsibility” as set out in Section 18 (1) of Ontario’s Children’s Law Reform Act; and • Quebec: “parental authority” as set out in Article 600 of the Civil Code of Quebec. Note that “decision-making responsibility” was previ - ously referred to as “custody” prior to amendments to the Divorce Act in 2021. 1.2 Requirements for Birth Mothers In Canada, a birth mother is generally automatically recognised as a parent and does not need to meet any additional requirements to obtain decision-making responsibility. An important exception is surrogacy. See 1.4 Require-
province. In general, a male person will be presumed to be a legal parent in the following circumstances: • He is listed on the child’s birth certificate. • He was married to the birth parent at the time of the child’s birth. • He was living in a marriage-like relationship with the birth parent before and at the time of the child’s birth. • A court order recognises him as the child’s parent. In some provinces, a father may also have to prove guardianship in addition to parentage to obtain deci - sion-making responsibility. Parents are generally, but not always, guardians. For example, in Alberta and British Columbia, a father who is not already a guard - ian may need to satisfy guardianship criteria by prov - ing he regularly cares for the child or intends to do so. In Manitoba, if the parents never cohabited after the child’s birth, the parent with whom the child resides is the only parent with decision-making responsibility (Section 36 of the Manitoba Family Law Act). 1.4 Requirements for Non-Genetic Parents Federal Legislation – The Divorce Act The Divorce Act, which governs spouses who are divorced or divorcing, requires a non-genetic parent to demonstrate that he or she “stands in the place of a parent or intends to stand in the place of a parent” to obtain decision-making responsibility (Section 16.1 (1) (b)). This may include a stepparent or a relative, such as a grandparent, who has played a parental role in the child’s life. Courts will consider the following factors in determin - ing if someone stands in the place of a parent ( Chartier v Chartier , [1999] 1 S.C.R. 242): • whether the child participates in the extended fam - ily in the same way as would a biological child; • whether the person provides financially for the child (depending on ability to pay); • whether the person disciplines the child as a par - ent; • whether the person represents to the child, the family, the world (either explicitly or implicitly), that he or she is responsible as a parent to the child; and
ments for Non-Genetic Parents . 1.3 Requirements for Fathers
A father’s rights and responsibilities, including deci - sion-making responsibility, flow from his parentage status. The process for establishing paternity varies by
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