Child Custody and Access (DA); Parentage, Guardianship and Contact (FLA) - Paternity and Parentage

Part 3 of the FLA provides a comprehensive framework for determining parentage of children for all purposes of BC Law, with the exception of the Adoption Act.  They will be relevant to birth registration under the Vital Statistics Act, to guardianship and parenting provisions of the FLA and also to issues of inheritance.  The provisions specifically address children conceived through assisted reproduction.

 

Conception Without Assisted Reproduction

 

Section 26(1) of the FLA sets out that the parents of a child are presumed to be the birth mother and the biological father.  The presumption of paternity for male persons is set out at s. 26(2).  If more than one person can be presumed to be the biological father by reference to the factors set out at s. 26(2), then there is no presumption of who is the biological father.

 

In the event that there is a dispute or uncertainty as to whether a person is or is not a parent, the court may make a declaration of parentage under s. 31(1) of the FLASection 33(2) allows the court to order a person, including a child, to provide a tissue sample or a blood sample for the purpose of conducting parentage tests.  The Supreme Court may make a declaration of parentage under any circumstances, while the Provincial Court may only made a determination of parentage where it is necessary to resolve a dispute in its own jurisdiction.

 

Conception With Assisted Reproduction

 

Parentage where there is assisted reproduction is considered in sections 27 – 30.  These sections represent a shift away from biology as the determinant of legal parentage toward social and intentional parentage.  The focus is on the birth mother, and the person who is married to, or in a marriage like relationship with her.  Section 27 sets out the general rule for determining parentage.  A child’s parents are the birth mother and the person married to or in a marriage like relationship with the birth mother at the time of conception.

 

Section 28 deals with assisted reproduction after the death of one of the parties who provided the reproductive material but died before conception.  Section 29 deals with situations where a surrogate is used and section 30 considers circumstances where parties have made agreements regarding parentage prior to the conception of the child.