Bringing Family Law into the 21st Century: Amendments to the Children’s Law Reform Act

We are living in a rapidly changing world, impacting the lives of individuals and families and re-shaping society. The complex issues we face test the boundaries of the family and the legal system. We need to understand new constellations of families, accept an expanding definition of ‘parent’, and consider moral and legal issues as they arise. These social changes pose a challenge to the legal system to keep up with the times.

This article reviews two of the bills passed during the Fall 2016 sitting of the 41st session of the Ontario Legislature. These two bills amended the Children’s Law Reform Act (CLRA), and will have a direct impact on how the legal system relates to families.

Bill 28 — The “All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016” — ensures all families are treated equally by recognizing and clarifying the legal status of parents, whether LGBTQ2+ or straight, and whether their children were conceived with or without assistance.

Bill 34 — The “Children’s Law Reform Amendment Act (Recognizing Relationships with Grandparents), 2016” — clarifies grandparents have the ability to seek an order for access to their grandchild(ren). The amendments also ensure the courts remain focused on the best interests of the children involved in any access dispute.

Bill 28: Redefining Parentage

In 2015, MPP Cheri DiNovo tabled a similar bill. It was a private member’s bill, Bill 137, known as Cy and Ruby’s Act. This bill was named after the children of one of nine LGBTQ2+ families involved in a Charter challenge, Grand v. Ontario, which called for legal recognition of same-sex families in Ontario.

Bill 28 became effective as law on December 5th, 2016. In particular, there are a number of reasons why Bill 28 is important for LGBTQ2+ families. First, Bill 28 repeals and replaces Parts I and II of the CLRA, and clarifies who is considered a parent in situations where the child is conceived through reproductive technology, or with the help of a known donor or surrogate, as follows:

  • The person who gave birth is the parent of the child (birth parent), except when the person who gave birth is a surrogate (s.6).
  • The spouse of the birth parent who conceived using assisted reproduction is the parent of the child, unless that person did not consent to be a parent (s.8).
  • A person who provides reproductive material (sperm or egg) or an embryo is not the child’s parent, unless that person is determined to be the child’s parent based on a pre-conception parentage agreement (s.7).
  • A surrogate is not the child’s parent as long as all parties have entered into a written pre-conception surrogacy agreement, have received independent legal advice, and the surrogate consents in writing to give up parental status before conception and again 7 days after birth (s.10).

Prior to this bill, a non-biologically connected parent was required to seek a formal adoption or parental declaration to be legally recognized as a child’s parent. In cases where no adoption or declaration was sought, many non-biological parents have lived with the perception and fear they may not be recognized as equal parents in a parentage or custody dispute with the donor or surrogate, in the event of the death of the birth parent, or in cases of separation and divorce.

Second, Bill 28 provides a framework for legal recognition of parentage for up to four parents. This may often involve the birth parent and his or her spouse, as well as a known donor and his or her spouse. In some situations, this may involve the birth parent along with one or more unrelated adults who have signed a pre-conception agreement (s.9) to enter into a parenting relationship together.

Third, Bill 28 uses gender-neutral terminology, replacing “mother” and “father” with “parent” and “birth parent”. Its gender-neutral language psychologically and legally recognizes same-sex families, and families in which there is a transgender birth parent.

Finally, the bill changes the definition of a parent and a relative in several other acts, including the Family Law Act, to reflect the changes to kinship that Bill 28 entails. For example, the parents of a child’s parent are the child’s grandparents, irrespective of a biological connection.

These changes will have major implications for divorce and separation, which are beyond the scope of this article.

Bill 34: Grandparents’ Rights

Since 2005, grandparents in Ontario have tried to have the existing CLRA amended to create a pathway for grandparent access rights. Six (6) successive bills, proposed by bi-partisan members of the Provincial Legislature, never reached third reading for approval. Six other provinces, including Quebec, have legislation that allows for grandchild and grandparent access.

Alienated Grandparents Anonymous (AGA) worked actively on these issues in Ottawa and Toronto. The AGA brought to the foreground various aspects of the dynamics of grandchild alienation. AGA estimates that alienation of grandparents affects approximately 300,000 children and 100,000 grandparents in Ontario.

On November 3, 2016, MPP Michael Mantha presented a private member’s bill, Bill 34, to amend the Children’s Law Reform Act with respect to the relationship between a child and the child’s grandparents. It became effective as amended law on December 8, 2016.

In Ontario, s.21 of the CLRA permits people other than the parents of a child to make an application for custody of or access to a child. No special status was granted to grandparents. In order to be successful, a grandparent had to establish that his or her application was in the best interest of the child. Bill 34 amended subclause 24 (2) (a) (i) to expressly provide that, in determining a custody or access application, the court must consider the relationship between the child and each parent and grandparent.

Disputes related to custody and access issues between parents and grandparents are always unpleasant, multilayered and complex. One of the factors in considering a child’s best interests under s. 24 (2)(h) of the CLRA is any familial relationship between the child and each person who is a party to the custody application.

It will be interesting to see whether the courts will be asked to more frequently interpret grandparents as “parent” in terms of having responsibility for the support of children (per s. 33 (1) of the Family Law Act) where they have demonstrated a settled intention to treat them as their own. Conversely, it will be interesting to see if it will hear claims from grandparents for support of the children in their care.

Bill 34 may encourage dialogue between grandparents and their children rather than steering families towards litigation. As a result of these amendments, mediation stands out as the better alternative solution to litigation.

Taken together, Bill 28 and Bill 34 make substantial changes to the Children’s Law Reform Act, updating Ontario law to reflect the expanded definitions of family, and considering other complex issues they face.

Co-authored by:

Archana Medhekar, B.Sc., LL.M. is a Certified Family Law Specialist and Accredited Family Mediator, practising family law in Toronto, Ontario. You can reach her by e-mail at: Archana is also a member of our AFCC-O Newsletter Committee.

Brook Thorndycraft, M.A., B.Ed., Acc.F.M. is an Accredited Family Mediator and Conflict Coach, practising in Toronto, Ontario.  You can reach her by e-mail at:  Brook is also a member of our AFCC-O Newsletter Committee.

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