All Families Are Equal Act: Interview with Michelle Flowerday

In December 2016 the Ontario Government passed Bill 28, the All Families are Equal Act (AFEA). This Act dramatically changes the definition of a family, in order to ensure that all families are treated equally by recognizing and clarifying the legal status of parents, whether LGBTQ2+ or straight, and whether their children were conceived with or without assistance. I interviewed Michelle Flowerday, a Toronto-based family and fertility lawyer, about how Bill 28 will change the landscape for families in Ontario who are hoping to conceive through the use of assisted reproduction.

Q. Thanks so much for being here, Michelle. To start off, how would you say the All Families are Equal Act has changed the legal definition of a family?

A. We now have a much more inclusive definition of family, which reflects the reality for many families in Ontario. To be more specific, it is now possible, in cases of assisted reproduction, for up to four parents to have legal recognition with all rights and obligations that come with that. That includes rights around custody and access, medical decisions, day to day parenting decisions, as well as the responsibility to support the child financially, which includes child support, if the relationship between the parents ends.

Q. What does that mean in practice for families trying to conceive with a known donor or surrogate?

A. Before people take any steps toward conception, it’s important that they understand what they need to do to make sure the legal outcome reflects their intentions.

In cases with known donors, both the prospective parent(s) and the known donor need to be clear on the legal process to ensure that the people they intend to be the parents are recognized as the parents. This means it is very important to be aware of whether a pre-conception agreement is necessary, and what needs to be included in that agreement.

For the people involved who are intending to be legal parents, they will need to meet the definition of who is a parent. It is also important for people to be clear about how the conception will take place, and what agreements they need to make to ensure that the people who intend to be parents are legally recognized as parents, without having to go to court.

Q. What happens in cases where there is a known sperm donor?

A. In the new Act, the legal default in the case of a known sperm donor is that the donor is not a parent if sperm is provided without sexual intercourse taking place. However, in cases where sperm donation happens through sexual intercourse, there must be a pre-conception agreement signed by the donor and the parent(s) before conception happens.

Q. What about in cases of surrogacy?

A. In cases of surrogacy, the process of clarifying who is a parent and who is not a parent is more complicated. In that case, there are four steps that must be met: 1) everyone involved must receive legal advice before a surrogacy agreement is signed; 2) there must be a formal agreement before conception happens; 3) the child must be conceived through assisted reproduction, not through sexual intercourse; and 4) the surrogate must give written consent to give up their parental status before conception happens and also at least 7 days after the birth. If the people take these four steps, they will be able to take advantage of the Act and become legal parents without having to go through a court process.

Q. Another thing that this Act has changed is that it is now possible to have up to four parents recognized in cases of assisted reproduction. What should people know about getting legal recognition for more that two parents?

A. If people are intending to parent with up to four parents, it is very important to have a co-parenting agreement that is signed by everyone who is seeking legal recognition as a parent before conception happens. In cases where there is no surrogate, the birth parent must be one of the people signing the agreement. If there is a surrogate involved, there can be up to four people who are not birth parents, as long as there is a formal surrogacy agreement.

As for what needs to be in the co-parenting agreement, it can be simple or very complicated, and is very personal to people entering into the agreement. Some people create an entire parenting plan including their parenting philosophy and how they plan to parent together. Other people go with a very simple agreement that just recognizes them all as equal parents.

Q. What kinds of things might people want to talk about when they are making a co-parenting agreement?

A. As I mentioned, it can be very simple, and can just acknowledge they are all equal parents. That being said, it can be helpful to talk about some of the details of how they will parent together. For example, if there will be multiple homes, when will the child or children be in each home? What is the schedule. How will the parents interact and communicate about parenting decisions? What does family life look like? What happens if some of the parents separate or have new partners? What is important to each of them as parenting principles or philosophies?

Q. What do you think the All Families Are Equal Act will mean for people who are going through divorce or fighting over custody and access with a known donor in the picture?

A. In situations where a relationship with a known donor has conflict, the legislation will be immensely helpful. It clearly defines a donor as not being a parent, as long as everyone has met the criteria laid out in the Act. At the same time, it’s one thing to agree that a known donor is not a parent, and another thing to live that reality. If over time the donor takes on the roles and responsibilities of a parent, the donor could gain parental status over time. It’s important that parents and donors follow the terms of their agreement, and that their intentions actually play out in reality. For example, if an agreement is made between a known donor and two parents, but then over time the child forms parental relationship with the donor, for example similar to a step-parent, that creates a situation where the donor may have legal rights and responsibilities in the case of a legal dispute. It is fine if the donor has the relationship of an uncle or close friend, as long as there are clear boundaries that the donor is not a parent. It’s when the donor takes on a caretaking role or is consulted on decisions that it can complicate the legal status.

Q. It is probably still too early to really know this, but how do you think this will change divorce proceedings when there are multiple parents involved?

A. I think mediators, lawyers and courts will be challenged to come up with arrangements that meet best interest of the children. There’s not a lot of research about how children function in more than two homes. That being said, I have faith that parents can arrive at arrangements that can meet children’s best interests as long as that is everyone’s primary goal. It’s important for people to know that no matter how detailed a pre-conception co-parenting agreement is, it’s not possible to determine custody and access before a child is born, so there is some risk. If people are planning to start a family with multiple parents, they need to turn their minds to the possibility that things don’t work out, and that the child will have multiple homes. Presuming there are four parents who all have equal status, that may mean that the children’s time is divided between all four parents. Now courts tend to find that children should have equal access to both parents, so the question is in these cases will they say there should be equal access to all parents? It’s hard to say at this point. It raises issues like where the child will live and go to school. Are there primary parent(s)? What happens with extended family, for example multiple sets of grandparents? Becoming a parent is a huge decision no matter what, but it becomes more complex the more people who are involved.

Q. What should people who are hoping to conceive with the help of a known donor or surrogate be aware of and do to prepare?

A. Prospective parents need to know the things they have to do to make sure that the people they intend to be the parents are recognized as the legal parents after birth. This includes knowing what method of conception will be used, and whether or not an agreement with legal advice is required before conception. It’s best if people do the research before they start trying to conceive. There is lots of information available online. There is also the LGBTQ Parenting Network. And of course it’s always a good idea to consult with a lawyer who knows fertility law. I want to make sure that people know it is possible to make the family you want to make. The legislation is flexible; people just need to know the steps to get there. And it would be good if people have the difficult conversations that need to be had before conception happens. It may be helpful for people to have talked about what they are hoping for, their philosophy of parenting, and how parenting decisions will be made. It would also be good if people turned their minds to what happens if things don’t go as planned.

Q. Is there anything else you think people should know about the All Families Are Equal Act?

A. One of the biggest decisions you can make in your life is who you choose to parent with. It’s an important decision no matter what the relationship looks like. That’s why it’s so important that people talk about what they are doing before they do it. Parenting with one other person is complex, and adding in more people makes it that much more complicated, That being said, these situations absolutely do work, and it is absolutely possible to have the family you want. It’s just about planning ahead.

Thanks so much Michelle Flowerday for sharing your knowledge with us!

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Brook Thorndycraft Conflict Resolution Services
Brook Thorndycraft
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