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These days, cohabiting is common, as is the breakdown of marriage, and some people are left wondering if they need to get a court order recognizing them as a parent. Often, it is not necessary because the rules of parentage, as set out by the Alberta Family Law Act, set out the factors to be considered that will automatically result in the designation of someone as a parent. As such, it is often more helpful to review these factors and ensure that if you are filing a court application, you include relevant information to have a Judge conclude that you are a parent based on the details provided, such as by setting out that you were married to the birth mother at the time of the child’s birth (See Rule 8(1)(a) below). Pursuant to the Alberta Family Law Act and the Rules of parentage 7(1): 7(1) For all purposes of the law of Alberta, a person is the child of his or her parents. (2) The following persons are the parents of a child: (a) unless clause (b) or (c) applies, his or her birth mother and biological father; (b) if the child was born as a result of assisted reproduction, a person identified under section 8.1 to be a parent of the child; (c) a person specified as a parent of the child in an adoption order made or recognized under the Child, Youth and Family Enhancement Act. (3) The relationship of parent and child, and the kindred relationships flowing from that relationship, shall be determined in accordance with this Part. (4) A person who donates human reproductive material or an embryo for use in assisted reproduction without the intention of using the material or embryo for his or her own reproductive use is not, by reason only of the donation, a parent of a child born as a result. (5) A person who was married to or in a conjugal relationship of interdependence of some permanence with a surrogate at the time of the child’s conception is not a parent of the child born as a result of the assisted reproduction. (6) All distinctions between the status of a child born inside marriage and a child born outside marriage are abolished. 2003 cF-4.5 s7;2010 c16 s1 Presumption of parentage — biological father 8(1) For the purposes of section 7(2)(a), unless the contrary is proven on a balance of probabilities, a male person is presumed to be the biological father of a child and is recognized in law to be a parent of a child in any of the following circumstances: (a) he was married to the birth mother at the time of the child’s birth; (b) he was married to the birth mother by a marriage that within 300 days before the birth of the child ended by (i) death, (ii) decree of nullity, or (iii) judgment of divorce; (c) he married the birth mother after the child’s birth and has acknowledged that he is the father; (d) he cohabited with the birth mother for at least 12 consecutive months during which time the child was born and he has acknowledged that he is the father; (e) he cohabited with the birth mother for at least 12 consecutive months and the period of cohabitation ended less than 300 days before the birth of the child; (f) he is registered as the parent of the child at the joint request of himself and the birth mother under the Vital Statistics Act or under similar legislation in a province or territory other than Alberta; (g) he has been found by a court of competent jurisdiction in Canada to be the father of the child for any purpose. (2) Where circumstances exist that give rise to a presumption under subsection (1) that more than one male person might be the father of a child, no presumption as to parentage may be made. (3) Subsection (1) does not apply in the case of a child born as a result of assisted reproduction. 2003 cF-4.5 s8;2010 c16 s1(8);2010 c16 s1(8) If, after reviewing these factors, you are still uncertain whether you will be deemed to be a parent - you are welcome to consult one of our family experts for more information. Jenna Walsh Jenna Walsh is an Associate Lawyer at Rowanoak Law who practices Family Law.
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In Alberta, the Divorce Act of Canada is a Canadian statute which governs divorce, custody, child access, child support and spousal support across all Canada, while the Matrimonial Property Act is an Alberta statute that governs division of land, bank accounts, investments, pensions, RIFs, RRSPs, RESPs and other assets, generally for Alberta residents, either upon the granting of a divorce judgment or at a separate time which may be coupled with divorce proceedings. Often separation of the parties as man and wife occurs a significant time before either an agreement is signed between the parties dividing matrimonial assets, or a Trial is held to order division of property. Although the law has usually held that division of property should be decided at Trial, in recent times there has been a debate in legal circles as to whether some property acquired by either the husband or the wife after separation of the parties, but before a Divorce Judgment is granted, should be included in the division of property. In the case of Rands v Rands [2011] A.J. No. 1197 the court divided pension interests at the date of separation, not at the date of Trial. The rationale of the court was that pension assets differed in situations of long separations prior to Trial because ongoing contributions by one spouse during employment may continue during the separation while the other spouse makes no contributions. This means that any increase in value of the pension after separation is attributable only to the continuing contributions of the employed spouse. The same judge in Zama v. Vanderzwaag [2016) A.J. No. 1367 divided RRSPs, a TFSA, and shares at the date of separation, ruling that the increased value of those assets after separation should attribute only to the husband. However, a subsequent case Smith v. Smith [2015] A.J. No.1410, while referring to the Rands decision, declined to divide as of separation because there was not a significant difference in the value of pensions between the date of separation and the date of Trial. At this time the law remains that in general assets will be divided at the time of Trial. This means that spouses who acquire assets after separation, but before Trial, may be accountable for division of those assets. This is additional to assets acquired during their marriage and while they lived together." Jim MacSween Jim is a Partner with Rowanoak Law Office LLP. |
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