CANADA Law and Practice Contributed by: Shannon Beddoe, Annabelle Lim and Susannah Mungall, McCarthy Hansen & Company LLP
See 1.7 Adoption for adoptive parents. 1.5 Relevance of Marriage at Point of Conception or Birth See 1.3 Requirements for Fathers ; in most provinces, the father will be presumed to be the legal parent of the child and will automatically obtain decision-mak - ing responsibility if married to the mother at the point of conception or birth. 1.6 Same-Sex Relationships In Canada, the law applies equally to parents in a same-sex relationship and parents in an opposite-sex relationship. 1.7 Adoption Adoption is regulated provincially rather than federally. Adoptive parents must first obtain an adoption order under the relevant provincial legislation. For instance: • Alberta – Section 70 of the Child, Youth and Family Enhancement Act (for the adoption of adult chil - dren, Section 2 of the Adult Adoption Act); • British Columbia – Section 29 of the Adoption Act; and • Ontario – Section 199 of the Child, Youth and Fam - ily Services Act. Generally, in Alberta, British Columbia, Manitoba, and Saskatchewan, an adoption made according to the law of another jurisdiction is treated as if it had been made under the law of that province. Requirements to become an adoptive parent include: • being at least 18 years of age; • demonstrating the ability to provide a stable and nurturing home environment; • undergoing a thorough assessment process con - ducted by adoption agencies or authorities involv - ing criminal record checks and medical examina - tions; and • providing references to attest to one’s suitability as an adoptive parent. Once a person becomes an adoptive parent, they automatically assume decision-making responsibility for the child.
• the nature or existence of the child’s relationship with the absent biological parent. The non-genetic person will also need to show that it is in the child’s best interests for decision-making responsibility to be awarded to them. Provincial Legislation Provincial legislation governs unmarried spouses and married spouses who are separated but not divorc - ing/divorced. Therefore, the rules for a non-genetic parent to obtain decision-making responsibility vary by province. In some provinces, such as British Columbia, the key question is whether a non-genetic parent is already a legal parent or guardian. If a non-genetic parent is already legally recognised as a parent or guardian, decision-making responsibility automatically flows. Legal recognition of the non-genetic parent’s status may first be required before any allocation of decision- making responsibility. In other provinces, like Ontario, there is no require - ment that someone be a parent to be given decision- making responsibility. Anyone may apply to the court for decision-making responsibility, and the court will merely consider the child’s best interests. A biological connection is generally treated as relevant but not decisive, especially in cases where the non- genetic parent has clearly acted in a parental role. As in all cases, the non-genetic parent must satisfy the court that awarding them decision-making responsi - bility is in the child’s best interests. Surrogacy/Assisted Reproductive Technology In Canada, parentage in assisted reproduction cases is a matter of provincial law. Each province has its own statutory framework to establish parentage in assisted reproduction arrangements, which allows for intended parents to be recognised as the child’s legal parents from birth or shortly after birth. Once parentage is legally established, decision-mak - ing responsibility follows the ordinary parental frame - work in that province rather than being treated as a special exception.
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