M.A.M. et al. v. T.A.M. et al., (2015) 438 N.B.R.(2d) 372 (FD)

Judge:d'Entremont, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:June 04, 2015
Jurisdiction:New Brunswick
Citations:(2015), 438 N.B.R.(2d) 372 (FD);2015 NBQB 145
 
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M.A.M. v. T.A.M. (2015), 438 N.B.R.(2d) 372 (FD);

    438 R.N.-B.(2e) 372; 1141 A.P.R. 372

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. AU.005

Renvoi temp.: [2015] N.B.R.(2d) TBEd. AU.005

In The Matter Of The Application Of M.A.M. and J.H.F. with respect to a declaration of parentage of the children, M.J.F. and A.J.F., born [xxx], 2011, pursuant to the Family Services Act, the Assisted Human Reproduction Act and the Assisted Human Reproduction (Section 8 Consent) Regulations

M.A.M. and J.H.F. (applicants) v. T.A.M., S.D. and Anonymous Donor (respondents)

(FDM-294-12; 2015 NBQB 145; 2015 NBBR 145)

Indexed As: M.A.M. et al. v. T.A.M. et al.

Répertorié: M.A.M. et al. v. T.A.M. et al.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Moncton

d'Entremont, J.

July 8, 2015.

Summary:

Résumé:

A married couple (M.A.M. and J.H.F.), who could not conceive a child, hired a surrogate mother (T.A.M.). The couple and T.A.M. and her common law partner (S.D.) had a contractual arrangement. T.A.M. was implanted with ova donated by an anonymous donor which were fertilized with J.H.F.'s semen. T.A.M. gave birth to twins. M.A.M. and J.H.F. cared for the children since birth. The birth certificates of the children, issued by the Registrar General of Vital Statistics (N.B.), listed J.H.F. as their father, and T.A.M., the surrogate, as their mother. M.A.M. and J.H.F. applied for a declaration that they be recognized as the natural parents of the children and a declaration that T.A.M. and S.D. were not the natural parents. The application was unopposed.

The New Brunswick Court of Queen's Bench, Family Division, declared that M.A.M. and J.H.F. were the children's mother and father. The court declared that T.A.M. and S.D. were not the parents.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Infants - Topic 25

General - Definitions - Parent - A married couple (M.A.M. and J.H.F.) entered into contracts with a surrogate mother and her common law partner - The surrogate mother was implanted with anonymously donated ova which were fertilized with J.H.F.'s semen - Twins were born and were cared for by the married couple since birth - The children's birth certificates listed J.H.F. as their father and the surrogate as their mother - The married couple applied for a declaration that they be recognized as the natural parents - The application was unopposed - The New Brunswick Court of Queen's Bench, Family Division, noted that Part VI (Parentage of Children) in the Family Services Act (FSA) had some legislative gaps - However, given that the applicants were the intended and social parents, there was a parent and child relationship, and it was in the children's best interests, based on s. 100(1) of the FSA, the court declared the married couple to be the mother and father of the twins and the surrogate and her common law partner not to be the parents.

Infants - Topic 808

Parents of - General - Gestational carriage agreements or surrogate parent agreements - [See Infants - Topic 25 ].

Infants - Topic 822

Parents of - Birth registration - Rights of parents - [See Infants - Topic 25 ].

Cases Noticed:

B.A.N. et al. v. J.H., [2008] B.C.T.C. Uned. 465; 2008 BCSC 808, refd to. [para. 21].

A.A. v. B.B. et al. (2007), 220 O.A.C. 115; 278 D.L.R.(4th) 519 (C.A.), refd to. [para. 23].

A.W.M. v. T.N.S., [2014] O.J. No. 5793 (Sup. Ct.), refd to. [para. 25].

Statutes Noticed:

Assisted Human Reproduction Act, S.C., 2004, c. 2, sect. 8 [para. 19].

Assisted Human Reproduction Act Regulations (Can.), Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137, sect. 3(a) [para. 20].

Assisted Human Reproduction (Section 8 Consent) Regulations - see Assisted Human Reproduction Act Regulations (Can.).

Family Services Act, S.N.B., 2003, c. F-2.2, sect. 1, sect. 100(1) [para. 18].

Counsel:

Avocats:

Jocelyne Léger-Nowlan, on behalf of M.A.M. and J.A.F.;

T.A.M. and S.D., per se;

Anonymous Donor, did not appear;

The Registrar of Vital Statistics, did not appear.

This matter was heard on June 4, 2015, in Moncton, N.B., before d'Entremont, J., of the New Brunswick Court of Queen's Bench, Family Division, who delivered the following decision on July 8, 2015.

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