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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.

For example, Ontario has come under fire for not allowing the same parental rights to the wife of a woman who has given birth.

That is due to issues with birth registration, which lists the names of the legal parents of a child. In Ontario, birth registration as parents is a given for heterosexual couples but not same-sex couples, because the definition of parent is still largely that of one man and one woman.

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.

The Ontario government has promised that legislation will be introduced in that will get rid of this problem, as it will give both same-sex parents recognition by allowing them to be inscribed on the birth certificate.

As of 2016, Ontario is lagging behind four other provinces that have already enacted legislation that recognizes both same-sex parents as legal parents, regardless of whether the child was adopted or the child was conceived through assisted reproduction.

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

Same Sex Spousal and Family Rights in Canada