Children born to married parents and those born outside marriage have equal legal status and rights. In determining matters such as a child’s right to maintenance or to inherit from a parent or relative, it does not matter if the child’s parents were married or not.
How is parentage determined?
The Family Maintenance Act includes provisions to determine parentage of a child.
The Family Maintenance Act including recent amendments provides that:
- Where a child is conceived through sexual intercourse, the birth parent and the other parent with a biological connection to the child will be recognized as the child’s parents.
- Where a child is adopted their adoptive parents are the child’s parents
- Where a child is conceived through assisted reproduction:
- Families using assisted reproduction not involving a surrogate - the birth parent and the spouse or partner of the birth parent will be recognized as the child’s parents
- Families using assisted reproduction involving surrogacy – The Family Maintenance Act sets out clear criteria for a surrogacy agreement between intended parents and a surrogate to protect the rights of parties and children, and enable a streamlined court application for a declaratory order to remove the surrogate as a named parent and name the intended parents as the child’s legal parents. The surrogate and the intended parents must obtain independent legal advice before signing the agreement. Where the specific requirements set out in The Family Maintenance Act are met, the court must declare the intended parents to be the legal parents. The Vital Statistics Branch must then amend the child’s birth registration to reflect the names of the intended parents as the legal parents
Declarations of Parentage (General)
In addition to the special provisions allowing an application to be made to court for a parentage order in surrogacy cases (see above) The Family Maintenance Act also includes general provisions that allow an application to be made for a declaration of parentage or non-parentage in other situations.
For example, a parent may wish to have a person legally declared to be the other parent, so their child may have the right to support from the other parent and the right to inherit from them. In other circumstances, a person may want to have the court declare them to be a child’s parent, so they can apply for a parenting order (custody or access).
The Act sets out certain circumstances where it is presumed that a person is the parent of a child. These are:
- they were married to or was in a marriage-like relationship with the child’s birth parent when the child was born
- they were married to the birth parent and the marriage ended within 300 days before the child was born
- they were in a marriage-like relationship with the child’s birth parent and the relationship ended within 300 days before the child’s birth
- they married the birth parent after the child‘s birth and acknowledged that they are a parent
- they and the birth parent have acknowledged in writing that they are a parent of the child
- they have been found by a court to be the child’s parent
If any of these circumstances (presumptions of parentage) apply, the court will make an order declaring the person to be the parent of the child, unless the person proves to the court that they are not a parent. If none of the presumptions of parentage apply, the person seeking the declaration must prove that the person is a parent of the child. Parentage tests (identifying inheritable characteristics) may be helpful to decide a child‘s parentage.
What happens if we live in different places?
In cases where the parties live in different jurisdictions and an application for child support is made under The Inter-jurisdictional Support Orders Act of Manitoba, the court may make a determination of parentage for the purpose of the child support proceeding only. In such cases, the child‘s registration of birth will not be amended to reflect the determination of parentage made by the court.
For more information about a determination of parentage for an application under The Inter-jurisdictional Support Orders Act, please contact:
Family Law Section, Legal Services Branch
1230-405 Broadway Winnipeg, Manitoba R3C 3L6