Who is a parent? Not a simple question!

• Author: Laskoski, Stephanie

If anything could be said about the law, it is slow to change. Our social structure continues to evolve at a faster pace than the law, which is creating difficulties in society and the courts. We are seeing impacts on individuals and couples who are having children in non-traditional ways as the definition of what constitutes a parent from a legal perspective is loaded with confusion. Developments in technology and social relationships, and at times, a combination of the two, have resulted in legal uncertainty. This has led to a much-needed reanalysis of legal parenthood.

Should we be relying on traditional legal assumptions that parenthood only comes into effect at birth? Does parenthood need to be confined to people who are married or in a relationship with the birth mother? Can there be more than two parents in a family?

Legal parentage is assigned at birth by statute, and this legislation also determines who can be listed on the actual birth certificate. Each province and territory has a Vital Statistics Act which governs the registrations. Once information has been recorded on a birth certificate, it is very difficult to change. Although this might have been satisfactory decades ago, many non-biological parents are finding themselves concerned with the invisibility of their status when it is not recognized legally.

While traditional models of parentage remain relatively consistent, changes in family structures are starting to challenge what most consider to be simple: the mother is the person that gave birth to the child, and the father is whoever was in a conjugal relationship with the mother at the time of the birth. However, with the rise of Assisted Reproduction Technologies, the simplicity of defining who is the mother or the father has become increasingly complicated.

There are many legal options that allow participation as a parent in a family. One of these mechanisms is that a person can stand in loco parentis to a child. This means that a person can have parent-like obligations and responsibilities to the child, but it is not the same legal status that biological parents have. The difference is that the in loco parentis relationship can be broken, which might threaten the best interests of the child by potentially creating an unstable family circumstance.

When determining parentage, the courts typically look to what is in the best interests of the child. Although this has remained at the heart of the debate, other issues come...