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Family Law Act

[SBC 2011] CHAPTER 25

Part 3 — Parentage

Division 1 — General Matters

Interpretation

20  (1) In this Part:

"assisted reproduction" means a method of conceiving a child other than by sexual intercourse;

"birth mother" means the person who gives birth to, or is delivered of, a child, regardless of whether her human reproductive material was used in the child's conception;

"donor" means a person who, for the purposes of assisted reproduction other than for the person's own reproductive use, provides

(a) his or her own human reproductive material, from which a child is conceived, or

(b) an embryo created through the use of his or her human reproductive material;

"embryo" means a human organism during the first 56 days of its development following fertilization or creation, excluding any time during which its development has been suspended, and includes any cell derived from such an organism that is used for the purpose of creating a human being;

"human reproductive material" means a sperm, an ovum or another human cell or human gene, and includes a part of any of them;

"intended parent" or "intended parents" means a person who intends, or 2 persons who are married or in a marriage-like relationship who intend, to be a parent of a child and, for that purpose, the person makes or the 2 persons make an agreement with another person before the child is conceived that

(a) the other person will be the birth mother of a child conceived through assisted reproduction, and

(b) the person, or the 2 persons, will be the child's parent or parents on the child's birth, regardless of whether that person's or those persons' human reproductive material was used in the child's conception.

(2) A child born as a result of assisted reproduction is deemed to have been conceived on the day the human reproductive material or embryo was implanted in the birth mother.

Void and voidable marriages

21  (1) For the purposes of this Part, if

(a) 2 persons go through a form of marriage to each other, with at least one of them doing so in good faith,

(b) the 2 persons live together during the marriage, and

(c) the marriage is void,

the 2 persons are deemed to have been married during the period they were living together, and the marriage is deemed to have ended when the persons stopped living together.

(2) For the purposes of this Part, if a voidable marriage is declared a nullity, the persons who went through the form of marriage are deemed to be married until the date of the declaratory order of nullity.

Effect of Part

22  This Part does not affect a disposition of property under an enactment or instrument before the date this section comes into force.

Division 2 — Determining Parentage

Parentage to be determined by this Part

23  (1) For all purposes of the law of British Columbia,

(a) a person is the child of his or her parents,

(b) a child's parent is the person determined under this Part to be the child's parent, and

(c) the relationship of parent and child and kindred relationships flowing from that relationship must be as determined under this Part.

(2) For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship to another person by birth, blood or marriage, the reference must be read as a reference to, and read to include, a person who comes within the description because of the relationship of parent and child as determined under this Part.

Donor not automatically parent

24  (1) If a child is born as a result of assisted reproduction, a donor who provided human reproductive material or an embryo for the assisted reproduction of the child

(a) is not, by reason only of the donation, the child's parent,

(b) may not be declared by a court, by reason only of the donation, to be the child's parent, and

(c) is the child's parent only if determined, under this Part, to be the child's parent.

(2) For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship to another person by birth, blood or marriage, the reference must not be read as a reference to, nor read to include, a person who is a donor unless the person comes within the description because of the relationship of parent and child as determined under this Part.

Parentage if adoption

25  If a child is adopted, sections 26 to 30 of this Act do not apply and the child's parents are as set out in the Adoption Act.

Parentage if no assisted reproduction

26  (1) On the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and the child's biological father.

(2) For the purposes of this section, a male person is presumed, unless the contrary is proved or subsection (3) applies, to be a child's biological father in any of the following circumstances:

(a) he was married to the child's birth mother on the day of the child's birth;

(b) he was married to the child's birth mother and, within 300 days before the child's birth, the marriage was ended

(i)   by his death,

(ii)   by a judgment of divorce, or

(iii)   as referred to in section 21 [void and voidable marriages];

(c) he married the child's birth mother after the child's birth and acknowledges that he is the father;

(d) he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the day of, the child's birth;

(e) he, along with the child's birth mother, has acknowledged that he is the child's father by having signed a statement under section 3 of the Vital Statistics Act;

(f) he has acknowledged that he is the child's father by having signed an agreement under section 20 of the Child Paternity and Support Act, R.S.B.C. 1979, c. 49.

(3) If more than one person may be presumed to be a child's biological father, no presumption of paternity may be made.

Parentage if assisted reproduction

27  (1) This section applies if

(a) a child is conceived through assisted reproduction, regardless of who provided the human reproductive material or embryo used for the assisted reproduction, and

(b) section 29 [parentage if surrogacy arrangement] does not apply.

(2) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (1), the child's birth mother is the child's parent.

(3) Subject to section 28 [parentage if assisted reproduction after death], in addition to the child's birth mother, a person who was married to, or in a marriage-like relationship with, the child's birth mother when the child was conceived is also the child's parent unless there is proof that, before the child was conceived, the person

(a) did not consent to be the child's parent, or

(b) withdrew the consent to be the child's parent.

Parentage if assisted reproduction after death

28  (1) This section applies if

(a) a child is conceived through assisted reproduction,

(b) the person who provided the human reproductive material or embryo used in the child's conception

(i)   did so for that person's own reproductive use, and

(ii)   died before the child's conception, and

(c) there is proof that the person

(i)   gave written consent to the use of the human reproductive material or embryo, after that person's death, by a person who was married to, or in a marriage-like relationship with, the deceased person when that person died,

(ii)   gave written consent to be the parent of a child conceived after the person's death, and

(iii)   did not withdraw the consent referred to in subparagraph (i) or (ii) before the person's death.

(2) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (1), the child's parents are

(a) the deceased person, and

(b) regardless of whether he or she also provided human reproductive material or the embryo used for the assisted reproduction, the person who was married to, or in a marriage-like relationship with, the deceased person when that person died.

Parentage if surrogacy arrangement

29  (1) In this section, "surrogate" means a birth mother who is a party to an agreement described in subsection (2).

(2) This section applies if,

(a) before a child is conceived through assisted reproduction, a written agreement is made between a potential surrogate and an intended parent or the intended parents, and

(b) the agreement provides that the potential surrogate will be the birth mother of a child conceived through assisted reproduction and that, on the child's birth,

(i)   the surrogate will not be a parent of the child,

(ii)   the surrogate will surrender the child to the intended parent or intended parents, and

(iii)   the intended parent or intended parents will be the child's parent or parents.

(3) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (2), a person who is an intended parent under the agreement is the child's parent if all of the following conditions are met:

(a) before the child is conceived, no party to the agreement withdraws from the agreement;

(b) after the child's birth,

(i)   the surrogate gives written consent to surrender the child to an intended parent or the intended parents, and

(ii)   an intended parent or the intended parents take the child into his or her, or their, care.

(4) For the purposes of the consent required under subsection (3) (b) (i), the Supreme Court may waive the consent if the surrogate

(a) is deceased or incapable of giving consent, or

(b) cannot be located after reasonable efforts to locate her have been made.

(5) If an intended parent dies, or the intended parents die, after the child is conceived, the deceased intended parent is, or intended parents are, the child's parent or parents if the surrogate gives written consent to surrender the child to the personal representative or other person acting in the place of the deceased intended parent or intended parents.

(6) An agreement under subsection (2) to act as a surrogate or to surrender a child is not consent for the purposes of subsection (3) (b) (i) or (5), but may be used as evidence of the parties' intentions with respect to the child's parentage if a dispute arises after the child's birth.

(7) Despite subsection (2) (a), the child's parents are the deceased person and the intended parent if

(a) the circumstances set out in section 28 (1) [parentage if assisted reproduction after death] apply,

(b) before a child is conceived through assisted reproduction, a written agreement is made between a potential surrogate and a person who was married to, or in a marriage-like relationship, with the deceased person, and

(c) subsections (2) (b) and (3) (a) and (b) apply.

Parentage if other arrangement

30  (1) This section applies if there is a written agreement that

(a) is made before a child is conceived through assisted reproduction,

(b) is made between

(i)   an intended parent or the intended parents and a potential birth mother who agrees to be a parent together with the intended parent or intended parents, or

(ii)   the potential birth mother, a person who is married to or in a marriage-like relationship with the potential birth mother, and a donor who agrees to be a parent together with the potential birth mother and a person married to or in a marriage-like relationship with the potential birth mother, and

(c) provides that

(i)   the potential birth mother will be the birth mother of a child conceived through assisted reproduction, and

(ii)   on the child's birth, the parties to the agreement will be the parents of the child.

(2) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (1), the child's parents are the parties to the agreement.

(3) If an agreement described in subsection (1) is made but, before a child is conceived, a party withdraws from the agreement or dies, the agreement is deemed to be revoked.

Orders declaring parentage

31  (1) Subject to subsection (5), if there is a dispute or any uncertainty as to whether a person is or is not a parent under this Part, either of the following, on application, may make an order declaring whether a person is a child's parent:

(a) the Supreme Court;

(b) if such an order is necessary to determine another family law dispute over which the Provincial Court has jurisdiction, the Provincial Court.

(2) If an application is made under subsection (1), the following persons must be served with notice of the application:

(a) the child, if the child is 16 years of age or older;

(b) each guardian of the child;

(c) each adult person with whom the child usually resides and who generally has care of the child;

(d) each person, known to the applicant, who claims or is alleged to be a parent of the child;

(e) any other person to whom the court considers it appropriate to provide notice, including a child under 16 years of age.

(3) To the extent possible, an order under this section must give effect to the rules respecting the determination of parentage set out under this Part.

(4) The court may make an order under this section despite the death of the child or person who is the subject of the application, or both.

(5) An application may not be made respecting a child who has been adopted.

New evidence

32  (1) This section applies if evidence becomes available that was not available at the time an application for a declaration of parentage under section 31 [orders declaring parentage] was heard.

(2) On application, a court may confirm or set aside an order made under section 31, or make a new order under that section.

(3) The setting aside of an order under subsection (2) of this section does not affect

(a) rights or duties that have already been exercised, or

(b) property interests that have already been distributed.

Parentage tests

33  (1) In this section, "parentage tests" are tests used to identify inheritable characteristics, and include

(a) human leukocyte antigen tests,

(b) tests of the deoxyribonucleic acid (DNA), and

(c) any other test the court considers appropriate.

(2) On application by a party to a proceeding under this Part,

(a) the Supreme Court, or

(b) if necessary for the purposes of making an order under section 31 [orders declaring parentage], the Provincial Court,

may order a person, including a child, to have a tissue sample or blood sample, or both, taken by a medical practitioner or other qualified person for the purpose of conducting parentage tests.

(3) An order under subsection (2) of this section may require a party to pay all or part of the cost of the parentage tests.

(4) If a person named in an order under subsection (2) of this section fails to comply with the order, the court may draw from that failure any inference that the court considers appropriate.

Division 3 — Orders Made Outside British Columbia

Definitions

34  In this Division:

"extraprovincial declaratory order" means an order of an extraprovincial tribunal that declares whether a person is a child's parent;

"extraprovincial tribunal" means a court or tribunal, outside British Columbia, having authority to make orders declaring whether a person is a child's parent.

Recognition of Canadian extraprovincial declaratory orders

35  (1) Subject to subsection (3), a court must recognize an extraprovincial declaratory order made in Canada.

(2) On recognition by a court, an extraprovincial declaratory order made in Canada has the same effect as if it were an order made under section 31 [orders declaring parentage].

(3) A court may decline to recognize an extraprovincial declaratory order made in Canada and make an order under section 31, if

(a) evidence becomes available that was not available during the proceeding at which the extraprovincial declaratory order was made, or

(b) the court is satisfied that the extraprovincial declaratory order was obtained by fraud or duress.

Recognition of non-Canadian extraprovincial declaratory orders

36  (1) Subject to subsection (3), a court must recognize an extraprovincial declaratory order made outside Canada if, at the time the extraprovincial declaratory order or the application for the order was made, the child or at least one of the child's parents

(a) was habitually resident in the jurisdiction of the extraprovincial tribunal, or

(b) had a real and substantial connection with the jurisdiction of the extraprovincial tribunal.

(2) On recognition by a court, an extraprovincial declaratory order made outside Canada has the same effect as if it were an order made under section 31 [orders declaring parentage].

(3) A court may decline to recognize an extraprovincial declaratory order made outside Canada and make an order under section 31, if

(a) evidence becomes available that was not available during the proceeding at which the extraprovincial declaratory order was made,

(b) the court is satisfied that the extraprovincial declaratory order was obtained by fraud or duress, or

(c) the extraprovincial declaratory order is contrary to public policy.

Contents  |  Part 1  |  Part 2  |  Part 3  |  Part 4  |  Part 5  |  Part 6  |  Part 7  |  Part 8  |  Part 9  |  Part 10  |  Part 11  |  Part 12  |  Part 13  |  Part 14