The concept of the family has changed and evolved considerably in Canada in recent years. Many families in Alberta stray from the traditional idea of a nuclear family including a mother, a father, and their biological children. People are increasingly using assisted reproductive methods to become parents, such as in-vitro fertilization or surrogacy (with or without the use of donated reproductive materials), which may impact the number of people who identify as a child’s parent.
LGBTQ2IA+ families are also changing the way we define parents and families in Alberta and across Canada. There are many families that don’t fit into the way we’ve traditionally defined the concept. Some may include more than two people who are considered to be a child’s parent, for example. However, there are still limitations on the legal definition of a parent which harken back to the days of society’s more traditional understanding of what makes a family. Below, we take a look at the state of parentage in Alberta, and how it can impact certain situations, such as polyamorous families or parents who use assisted reproductive methods such as surrogacy.
Parentage in Alberta is defined under the provincial Family Law Act. In 2010, several amendments were made with the passing of the Family Law Statutes Amendment Act, 2010. By default, a child’s parents will be considered, from a legal standpoint, to be the child’s birth mother and biological father. In cases in which a child is adopted or conceived through the use of assisted reproductive services, the legislation allows for the designation of those other than the birth parent or biological parent to be legally designated as a child’s parent.
However, there are still limitations in the province that can impact non-traditional families. For example, Alberta currently does not allow for more than two parents to be listed on a child’s birth certificate. For families that practice polyamory or other families where three or more people may fill the role of a child’s parent, this can pose a significant barrier. Other provinces have seen court decisions that allowed for such situations to be legally recognized on a child’s birth certificate. For example, a court in Newfoundland allowed three non-married adults in a polyamorous relationship to be listed as a child’s parents. Earlier this year, a judge in British Columbia made a similar ruling.
Alberta does have some flexibility in that the government has moved away from language that strictly references a “mother” and “father” and includes “person who gave birth to a child” and “co-parent”, which is more inclusive for families made up of transgender or non-binary parents, and/or same-sex parents.
In Alberta, a birth mother, or the person who gives birth to a child, will be considered to be a legal parent of a child they give birth to, unless and until they choose to relinquish their parental rights through adoption, or in favour of the intended parents if the birth parent acted as a surrogate. In the case of surrogacy, the intended parents may file an application for a declaration of parentage. The following people can bring such an application:
In cases where neither intended parent provided reproductive material for the pregnancy, the intended parents will be required to apply to adopt the child, rather than request a declaration of parentage.
The province makes distinctions between various surrogacy situations when determining who can be declared a parent, upon application to a court:
Parentage is not automatically assigned to intended parents in a surrogacy situation in Alberta upon the birth of a child. Nor is the process managed through a simplified administrative procedure. Intended parents who wish to be declared legal parents of a child conceived through surrogacy must still seek a court order before their parentage will be considered legally valid.
Bringing a child into the world should be a joyous experience free of stressful legal disputes. At Mincher Koeman, our Calgary family law lawyers protect the rights of clients expanding their families through various assisted reproductive processes. We have extensive experience in all areas of family law, including the drafting and reviewing of custom agreements designed to clarify the expectations of each party involved from the start and avoid future conflict. Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.
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