Uniform Child Status Act

April 1992

Court

1. (1) In Section 5 to 8 "court" means (insert name of court to have jurisdiction).

Director

(2) In this Act "director" manes the Director of Vital Statistics.

Void and voidable marriage

(3) For the purpose of section 9 and 11 to 11.6

(a) where a man and woman go through a form of marriage with each other with at least one of them doing so in good faith and they cohabit and the marriage is void, they shall be deemed to be married during the time they cohabit, and

(b)where a voidable marriage is decreed a nullity, the man and woman shall be deemed to be married until the date of the decree of nullity.

Person is child of natural parents

2. (1) Subject to subsection (2) and sections 11 to 11.6, for all purposes of the law of (enacting jurisdiction) a person is the child of his natural parents, and this status as their child is independent of whether he is born inside or outside marriage.

Effects of adoption

(2) Where an adoption order has been made, sections __________of the _________ Act apply and the child is independent of whether he is born inside or outside marriage.

NOTE: THE BLANKS IN THIS SUBSECTION ARE TO BE FILLED IN WITH REFERENCE TO THE ENACTING JURISDICTION'S ADOPTION LEGISLATION AND ITS PROVISIONS RESPECTING TERMINATION OF RELATIONSHIPS WITH NATURAL PARENTS AND RECOGNITION OF FOREIGN ADOPTIONS.

Kindred relationships

(3) Kindred relationships shall be determined according to the relationships described in subsection (1) or (2) and sections 11 to 11.6.

Abolition of distinction

(4) Any distinction between the status of a child born inside marriage and a child born outside marriage is abolished and the relationship of parent and child and kindred relationships flowing from that relationship shall be determined in accordance with this section and sections 11 to 11.6.

Construction of instruments and enactments

3. For the purpose of construing an instrument or enactment, a reference to a person or group or class of persons described in terms of relationship to another person by blood or marriage shall be construed to refer to and include a person who comes within the description by reason of te relationship of parent and child as determined under sections 2 and 11 to 11.6.

Application

4. This Act applies to an enactment before, on or after the day this Act comes into force and to an instrument made on or after the day this Act comes into force, but it does not affect

(a) an instrument made before this Act comes into force; or

(b) a disposition of property made before this Act comes into force.

Declaration

5. (1) Any person having an interest may apply to court for a declaratory order that a person is or is not in law the mother of a child.

Order

(2) Where the court finds on the balance of probabilities that a person is or is not the mother of a child, the court may make a declaratory order to that effect.

Declaration

6. (1) Any person having an interest may apply to the court for a declaratory order that a person is or is not in law the father of a child.

Order

(2) Where the court finds on the balance of probabilities that a person is or is not the father of a child, the court may make a declaratory order to that effect.

One presumption

(3) Where the court finds that a presumption of paternity under section 9 applies, the court shall make a declaratory order confirming that the paternity is recognized in law unless it is established on the balance or probabilities that the presumed father is not the father of the child.

Conflicting presumptions

(4) Where circumstances exist that give rise under section 9 to conflicting presumptions as to the paternity of a child and the court finds on the balance of probabilities that a person is the father of a child, the court may make a declaratory order to that effect.

No order if father or child dead

(5) A declaratory order that a person is in law the father of a child shall not be made under this section unless the father and the child whose relationship is sought to be established are living.

Exception if presumption

(6) Notwithstanding subsection (5), where only the father or the child is living, a declaratory order that a male person is in law the father of a child may be made under this section if circumstances exist that give rise to a presumption of paternity under section 9.

Blood tests

7. (1) On the application of a party to a proceeding under section 5 or 6 the court may, subject to conditions it considers appropriate, give the party leave to obtain blood tests of person named by the court and to submit the results in evidence.

Incapacity

(2) Where a person named by the court is not capable of consenting to having a blood test taken, the consent shall be deemed to be sufficient.

(a) where the person is a minor of the age of 16 years or more, if the minor consents,

(b) where the person is a minor under the age of 16 years, if the person having the charge of minor consents, and

(c) where the person is not capable of consenting for any reason other than minority, if the person having his charge consents and a medical practitioner certifies that the giving of a blood sample would not be prejudicial to his proper care and treatment.

Inference from refusal

(3) Where a person named by the court refuses to submit to a blood test the court may draw any inference it considers appropriate.

Order to be recognized

8. (1) Subject to this section, a declaratory order made under section 5 or 6 shall be recognized for all purposes.

New evidence

(2) Where a declaratory order has been made under section 5 or 6 and evidence that was not available at the previous hearing becomes available, the court may, on application, discharge the order.

Effects of new order

(3) Where an order is discharged under subsection (2),

(a) rights and duties which have ben exercised and observed; and

(b) interests in property which have been distributed as a result of the order before its discharge, are not affected.

Presumption of paternity

9. Unless the contrary is proved on the balance of probabilities, a person shall be presumed to be the father of a child in one or more of the following circumstances:

(a) he was married to the mother by a marriage at the time of the child's birth;

(b) he was married to the mother by a marriage that was terminated by

(i) death or judgment of nullity that occurred, or

(ii) divorce where the decree nisis was granted within 300 days, or a longer period the court may allow, before the birth of the child;

(c) he married the mother after the child's birth and acknowledges that he is the father;

(d) he and the mother have acknowledge in writing that he is the father of the child;

(e) he was cohabiting with the mother in a relationship of some permanence at the time of the child's birth or the child was born within 300 days, or longer period the court may allow, after the cohabitation ceased;

(f) he has been found or recognized by a court to be the father of the child.

Order to be filed with director

10. (1) The registrar or clerk of every court in (enacting jurisdiction) shall file in the office of the director a statement respecting each order or judgment of the court which makes a finding of parentage or that is based on a recognition of parentage.

Acknowledgements to be filed with director

(2) A written acknowledgement of paternity referred to in section 9 may be filed in the office of the director.

Inspection of filings

(3) On application and on satisfying the director that the information is not to be used for an unlawful or improper purpose, any person may inspect and obtain from the director a certified copy of

(a) a statement or acknowledgement filed under this section,

(b) a statutory declaration filed under section 3(6) of the Uniform Vital Statistics Act, or

(c) a request filed under section 3(8) of the Uniform Vital Statistics Act.

Director need not amend

(4) Subject to subsection (5), the director is not required to amend the register of births in relation to a statement or acknowledgement filed under this section.

Director shall amend

(5) On receipt of a statement under subsection (1) in relation to a declaratory order made under section 5 or 6, the director shall, in accordance with section 39 of the Uniform Vital Statistics Act, amend the register of births accordingly.

Interpretation, "Assisted conception"

11. In sections 11.1 to 11.6, "assisted conception" means a conception resulting

(a) by means other than sexual intercourse, or

(b) by removal and implantation of an embryo after sexual intercourse

Limitation on procedure

11.1. No person other than a duly qualified medical practitioner shall carry out a procedure on a woman that results in or is intended to result in an assisted conception.

Rebuttal of presumption

11.2. Notwithstanding section 6(3), for a child born before or after this section comes into force as a result of an assisted conception, a presumption of paternity pursuant to section 9 may be rebutted only by proof that

(a) the presumed father

(i) is not the genetic father of the child, and

(ii) did not consent, or before conception withdrew his consent, to be the father of any child born as a result of the assisted conception; or

(b) where the sperm of the presumed father was used in the assisted conception,

(i) he did not consent, or before conception withdrew his consent, to be the father of any child born as a result of the assisted conception, and

(ii) the child was not conceived as a result of sexual intercourse between the mother and him.

Maternity

11.3 A woman who gives birth to a child before or after the coming into force of this section is deemed to be the mother of the child whether the woman is or is not the genetic mother of the child.

Non-parental status

11.4 (1) A woman whose egg is used in an assisted conception and who does not give birth to the child conceived using her egg is deemed not to be the mother of the child.

(2) A man whose sperm is used in an assisted conception and who is not presumed to be the father of a child pursuant to section 9 is deemed not to be the father of the child.

Prohibition re dealing in eggs, sperm or embryos

11.5 (1) No person shall, directly or indirectly, buy, sell or otherwise deal in human eggs, sperm or embryos.

(2) A person who contravenes this section is guilty of an offence and liable on summary conviction to a fine of not more than $100,000, to imprisonment for not more than one year or to both.

(3) This section does not prohibit a person from giving or receiving reimbursement for reasonable expense necessarily incurred in donating her own eggs or his own sperm.

Prescribed records

11.6 (1) Every duly qualified medical practitioner who carries out procedures that are intended to result in an assisted conception shall maintain, in the form and manner prescribed in the regulations, records indicating the donor and recipient of every egg or sperm used in the assisted conception procedures.

(2) Every duly qualified medical practitioner who carries out procedures that are intended to result in assisted conceptions shall submit information within the knowledge of the practitioner with respect to

(a) assisted conceptions that result from procedures carried out by the practitioner,

(b) births resulting from assisted conceptions that result from procedures carried out by the practitioner, and

(c) procedures carried out by the practitioner that are intended to result in assisted conception, where the practitioner does not know whether conception was or was not achieved.

(3) Every duly qualified medical practitioner shall submit information within the knowledge of the practitioner with respect to births of children delivered by the practitioner that result from assisted conceptions.

(4) The information mentioned in subsection (2) or (3) is to be submitted to the agency designated in the regulations in the form and manner and at the times prescribed in the regulations.

(5) The agency that receives information pursuant to subsection (4)

(a) shall maintain a permanent registry of the information, and

(b) shall not disclose or communicate the information except in accordance with the terms and conditions prescribed in the regulations.

(6) The Lieutenant Governor in Council [or other regulation making authority in the jurisdiction] may make regulations prescribing any matter or thing that is required or authorized by this section to be prescribed in regulations.

Consequential Amendments

The Uniform Legitimacy Act should be repealed.

The Uniform Vital Statistics Act should be amended as follows:

(1) (1) Section 3(3), by striking out "an illegitimate child" and substituting "a child born outside marriage".

(2) Section 5(1), by striking out "Where a child is legitimated by the intermarriage of his parents subsequent to his birth," and substituting "Where after the birth of a child his parents marry each other."

(3) Section 5(1)(b), by striking out "as to the legitimation".

(4) Section 32(2), repeal.

NOTE: ENACTING JURISDICTIONS SHOULD CHECK RELEVANT STATUTES AND AMEND THEM ACCORDINGLY TO ENSURE COMPATIBILITY WITH THIS ACT.

The Uniform Child Status Act is amended by adding thereto the following sections:

(As adopted by the Conference: See 1981 Proceedings, page 72)
Recognition of Extra-Provincial
Determination of Paternity

Interpretation

12. In sections 13 to 22,

(a) "extra-provincial declaratory order" means an order in the nature of a declaratory order provided for in section 6 but made by a court outside of (enacting jurisdiction);

(b) "extra-provincial finding of paternity" means judicial finding of paternity that is made incidentally in the determination of another issue by a court outside of (enacting jurisdiction) and that is not an extra-provincial declaratory order.

Recognition of orders elsewhere in Canada

13. An extra-provincial declaratory order that is made in Canada shall be recognized and have the same effect as if made in (enacting jurisdiction).

Recognition of orders made outside Canada

14. An extra-provincial declaratory order that was made outside Canada shall be recognized and have the same effect as if made in (enacting jurisdiction) if,

(a) at the time the proceeding was commenced or the order was made, either parent was domiciled,

(i) in the territorial jurisdiction of the court making the order, or

(ii) in a territorial jurisdiction in which the order is recognized;

(b) the court that made the order would have had jurisdiction to do so under the rules that are applicable in (enacting jurisdiction)

(c) the child was habitually resident in the territorial jurisdiction of the court making the order at the time the proceeding was commenced or the order was made; or

(d) the child or either parent had a real and substantial connection with the territorial jurisdiction in which the order was made at the time the proceeding was commenced or the order was made.

Exceptions

15. A court may decline to recognize an extra-provincial declaratory order and may make a declaratory order under this Act where,

(a) new evidence that was not available at the hearing becomes available; or

(b) the court is satisfied that the extra-provincial declaratory order was obtained by fraud or duress.

Filing with director

16. (1) A copy of an extra-provincial declaratory order, certified under the seal of the court that made it, may be filed in the office of the director but where the extra-provincial declaratory order is made outside of Canada, the copy shall be accompanied by,

(a) the opinion of a lawyer that the declaratory order is entitled to recognition under the law of (enacting jurisdiction);

(b) a sworn statement by a lawyer or public official in the extra-provincial territorial jurisdiction as to the effect of the declaratory order; and

(c) such translation, verified by affidavit, as the director requires.

Amendment of record

(2) Upon filing of an extra-provincial declaratory order under this section, the director shall, in accordance with section 39 of the Uniform Vital Statistics Act, amend the register of births accordingly, but where the extra-provincial declaratory order contradicts paternity found by an order already filed, the director shall restore the amended record as if unaffected by it or previous orders.

Liability of director

(3) The director is not liable for any consequences resulting from filing under this section material that is apparently regular on its face.

Evidence

17. A copy of an extra-provincial declaratory order, certified under the seal of the court that made it, is admissible in evidence without proof of the signatures or office of any person executing the certificate.

Findings of paternity elsewhere in Canada

18. An extra-provincial finding of paternity that is made in Canada shall be recognized and have the same effects as if made in (enacting jurisdiction) under the same circumstances.

Findings of paternity outside Canada

19. An extra-provincial finding of paternity that is made outside Canada by a court that has jurisdiction to determine the matter in which the finding was made as determined by the conflict of laws rules of (enacting jurisdiction) shall be recognized and have the same effect as if made in (enacting jurisdiction) under the same circumstances.

Evidence

20. A copy of an order or judgment in which an extra-provincial finding of paternity is made, certified under the seal of the court that made it, is admissible in evidence without proof of the signature of office of any person executing the certificate.

Presumption here conflicting findings

21. There shall be no presumption of paternity under section 9(f) where contradictory findings of paternity exist, whether extra-provincial or otherwise.

Application

22. Sections 12 to 21 apply to extra-provincial declaratory orders and extra-provincial findings of paternity whether made before or after sections 12 to 21 come into force.