Helping you grow your family

Families come in all shapes and sizes. Adoption, reproductive technology and surrogacy are rapidly developing areas of family law that are often closely related to fertility. More often than most people realize, potential parents look to these options to help them achieve their dream of raising a child. Nelligan O’Brien Payne’s experienced family lawyers understand how important growing your family is to you, and can provide you with the legal services you need to help make it happen.

Adoption

Adoption provides a legal means for another family to permanently take on the responsibility of caring for and raising a child. In Canada, provincial legislation regulates adoption. There are several ways to adopt in Ontario, which are all governed by the Ministry of Children and Youth Services. These are adoption by a relative or family member, public adoption through the Children’s Aid Societies (CAS) of Ontario, private adoption through an adoption practitioner or agency, and international adoption.

In Ontario, an applicant must be 18 years of age or older to adopt, unless special circumstances exist.  Where a child is placed by a society, agency or licensee, a home study report or assessment must be conducted, and the placement must be approved by a Director appointed under the Child and Family Services Act. Canadian law makes it an offence to give, receive, or agree to a payment or reward of any kind in connection with a child’s adoption. Legal fees are exempt from these requirements. The penalty for a violation can be up to a $25,000 fine and three years of imprisonment.

Written consents by various individuals affected by the adoption are required before an adoption can be made. Consent is generally required from a child’s parents or guardians, as well as the child if they are seven years of age or older. A parent cannot give consent for adoption before a child is seven days old. The spouse of the applicant must also consent to adoption. There is a 21 day statutory cooling period during which consent can be withdrawn. Where this period has passed, and a child has not yet been placed for adoption, parental consent can still be withdrawn with court approval where it is in the child’s best interests.

To finalize an adoption, a court will make an order for the adoption based on the best interests, protection and well-being of the child. An adoption order, once issued, is final and the applicant becomes the parent of the adopted child. Orders of access to the birth family are generally terminated upon placement, however access orders made prior to a relative or family adoption will survive an adoption order. An openness order can also be made by the court for the purpose of facilitating communication or maintaining a relationship between the child and a birth parent or another person with whom the child had a significant relationship or emotional tie.

In some cases, adopted children and birth parents may want to attempt contact after an adoption is completed. In Ontario, documents filed in support of an application for adoption are generally confidential, but identifying information may be disclosed if there are compelling reasons, or disclosure is necessary for the safety, health or wellbeing of a child. When an adopted child reaches 18 years of age or older, the child or the child’s birth parents may apply to receive a copy of the birth registration and other records. However, records may not be disclosed if a no-contact declaration has been filed by a birth parent or an adopted person who does not wish to be contacted.

Reproductive Technologies and Surrogacy

Canadians are increasingly turning to reproductive technologies like artificial insemination; in-vitro fertilization (IVO); sperm, egg and embryo freezing or donation; as well as surrogacy to assist in achieving pregnancy. Rapid advances in these technologies however, have created gaps in the relevant provincial laws regulating them. Complex legal issues can arise, such as the anonymity and rights of gamete donors, the disposition of unused stored gametes or embryos in the event of a separation or death, as well as custody and disputes between different types of parents. As a result, these gaps are often filled through contractual arrangements between parties as well as through declarations of parentage. These contracts are not formally recognized within family or child custody law, and there is inconsistency over how a parent and child relationship or a family is defined. Courts generally address these issues on a case by case basis taking into account the terms of the contract and the best interests of the child.

It is important to know that Canadian law makes it illegal to purchase sperm or eggs from a donor, as well as the use of gametes provided by a donor under the age of 18. The law also prohibits the purchase and sale of embryos or any other reproductive material. Failure to abide by these provisions could result in a maximum fine of $500,000, a maximum prison sentence of ten years, or both.

Surrogacy is an arrangement where a woman agrees to become pregnant for the purpose of giving birth to a child for others to raise, where they choose or are unable to have children on their own. This might occur where an individual or couple experiences infertility, or in a same-sex relationship. There are several different types of surrogacy, and surrogacy agreements are complex, raising a considerable number of legal issues. To start with, it is important to know that while it is legal to enter into a Surrogacy agreement in Ontario, it is illegal to provide payment, offer payment or advertise payment for the services of a surrogate. Canadian law also requires that a surrogate must be at least 21 years old. A violation could result in a maximum fine of $500,000, a maximum prison sentence of ten years, or both.

Although you cannot pay a surrogate for her services, potential parents can reimburse the surrogate for expenses incurred as a result of the surrogacy. This may include the cost of maternity clothing, travel expenses, or out of pocket medical expenses. It is important to clarifying what expenses will and will not be reimbursed through the terms of your surrogacy agreement. Your surrogacy agreement should also clearly outline each party’s expectations before, during and after the birth of the baby. These include things like custody and access arrangements, who will name the child, instructions for the surrogate to follow during pregnancy, and who will make medical decisions during labour and immediately upon the child’s birth.

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