On March 18, 2013, British Columbia’s new Family Law Act came into force, replacing the former Family Relations Act. The Family Law Act seeks to legislate presumptive rules around parentage in a society where the structure of the family is moving further and further away from the traditional married, heterosexual parental unit. As families are becoming generally more complicated, so is the law.

Understanding the Changing Family Landscape

Where a child is born in a heterosexual relationship where the parents are married, the father is presumed to be the father. Once presumed to be the father, the onus lies on him to make an application for a paternity test to prove otherwise.

Where a child is born to parents as a result of a donor, such as a same sex couple who utilizes assisted reproduction to have a child, the two same sex partners are the parents of the child and the donor is not. This principle also applies to heterosexual couples who access assisted reproduction as well.

Where a child is born to a surrogate on behalf of another couple, the intended parents of the child and not the surrogate will be the parents of the child only if the surrogate gives permission in writing to both the parentage and after the child is born gives written permission to surrender of the child into the care of the intended parents.

Paternity Under the New Legislation

Oddly, the new legislation provides that a father is presumed to be the natural parent of a child if he was married to the mother within 300 days of the child’s birth. In most normal circumstances, a divorce requires the parties to live separate and apart for one year prior to an order for divorce being granted. Assuming an average human gestation period is 259 - 294 days, theoretically, a man may have left his marriage a full 624 to 659 days prior to his former wife having a child and still could be placed in a situation where the onus is on him to prove that he is not the father.

Contact Paine Edmonds LLP in Vancouver if you have legal concerns about assisted reproduction or other family law issues. You can request a free consultation.