On November 9th, the Manitoba Court of Queen’s Bench declared that the current definition of “parent” and related provisions in Manitoba’s Family Maintenance Act[1]violate the equality rights guaranteed under the Canadian Charter of Rights and Freedoms.[2]This declaration is the result of public interest law groups arguing that these provisions fail to adequately recognize non-biological parentage through assisted reproduction, and as result, that many LGBTQ parents are excluded from accessing the benefits of the Act.

Although this issue was going to be contested by the Province in court, Manitoba’s Attorney General eventually agreed to the claim prior to the hearing, and the declaration was issued following their consent. As a result of the agreed upon Charter violation, the Court ordered the challenged definition and provisions invalid for one year to provide the Province with enough time to make changes to the Act that would avoid this unconstitutional exclusion of non-biological parents.

At this point, it is too early to determine exactly what the new provisions will look like, but it will certainly reflect a broader approach as seen in other provinces. For example, Nova Scotia’s Parenting and Support Act considers the intention of the potential parent to treat a child as their own,[3] rather than solely relying on a biological connection to the child or an adoption order, to demonstrate parentage.

Although it will be some time before Manitoba finalizes these changes, the positive effect of this declaration will be felt immediately. In fact, Manitoba courts can now grant parenting orders for non-biological parents, without the previously necessary DNA evidence required as support. This is a big win for LGBTQ families and equality in Manitoba and Canada as a whole.

Lawyers at BOYNECLARKE LLP can help you navigate these legal issues. To speak with a  lawyer about Fertility Law issues, contact Terrance G. Sheppard at tsheppard@boyneclarke.ca. 

[1] The Family Maintenance Act, CCSM c F20, ss 1 “parent”, 19(1), 20(1) and 23/

[2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 15(1).

[3] Parenting and Support Act, RSNS 1989, c 160, s 2(i)(ii).