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What rights do same-sex parents have under the law?

Though the law has evolved when it comes to same-sex marriage, same-sex adoption and same-sex parents in Canada, there are still some problems that LGBT parents are forced to deal with when it comes to their right to be a parent.

Though the courts, often through charter challenges, have upheld same-sex marriage and adoption not all provinces have updated their laws. Anyone who wants to become a parent whether through adoption or assisted reproduction has to consult his or her provincial family law statute and legislation.

Same-sex adoption rights

Before May 1995, same-sex couples could not bring joint applications for adopting a child in Canada. An Ontario judge struck down a provision of the Ontario Family Law Act that set this out, because it was a Charter violation.

After Ontario made it legal to bring joint applications, British Columbia, Alberta and Nova Scotia followed suit. Most provinces in Canada now have the same rights for same-sex couples as heterosexual couples when it comes to adopting a child.

One obstacle a same-sex couple may face is if the couple plans to adopt a child overseas. Some countries forbid international adoption by same-sex couples.

What are the rights of same-sex couples if conception was assisted?

This issue has been a little trickier than same-sex adoption rights, because provincial laws often dictate who can and cannot be registered as the birth parent. 

If two women have a child, the non-birth giving mother technically has no rights under the law until she either outright adopts the child or get a declaration of parentage, which is both time consuming and an expensive process. Under the law, the sperm donor’s rights over the child still outrank the non-birth mother.

Under the All Families Are Equal Act, Ontario introduced a new way for parents who use assisted reproduction or a surrogate to have their parentage legally recognized. The Act also allows for the naming of up to four parents for children when they are born without having to go to court to do so.

One of the provinces that allows for same-sex parents to be recognized is British Columbia, which allows up to four names to be on the birth registration of the baby.

It is also likely that provincial legislation that still doesn’t allow for same-sex parent recognition on birth certificates will eventually be challenged in court.

If you are same-sex parents and are having difficulty in being recognized as the legal parent of a child or children, you should consult a lawyer.

Read more:

Adoption FAQs

Ontario - All Families Are Equal Act