For families using reproductive technologies like in-vitro fertilization or surrogacy, it’s welcome news that provinces are beginning to allow more than two parents on a birth certificate. While this can help many families, including LGBTQ2+ parents, it raises other legal questions. Georgia Swan, a Tax and Estate Planner with TD Wealth, joins Kim Parlee to talk about what modern families need to look out for.
Georgia Swan is a tax and estate planner with TD Wealth. She joins us from Barrie, Ontario, to tell us a little more about this. Georgia, always great to have you with us. Let's talk a bit about who we're talking to here because there's some communities, I know, that are going to be more interested in understanding how this works.
- Hi, Kim. Thanks for having me. Yes, we aren't talking about polygamous or polyamory relationships here. What we're talking about is, basically, where people are using reproductive technology in order to have a family-- so surrogacy, sperm donors, egg donors. You would probably see this fairly often in the LGBT2Q+ relationships, where, basically, I-- let's say I'm one-half of a lesbian couple, and my spouse and I want to have a child and we enlist a friend to help us out with that. And maybe I carry the child to term.
In the past, before these laws changed, at least in these three provinces, my spouse would have had to adopt our child in order to be considered their parent. But now, where the three of us in my example enter into an agreement ahead of time, all three of us can actually be put onto the birth certificate of that child as parents. So all three of us can have all the rights, the obligations to the child, and the child, as well, to us.
- And there's-- it's a nice, I'd say, symbolic gesture in terms of it shows all the people that are involved in this. And there's some positive legal aspects to this as well. Is there not?
- Exactly. As I said, it has cut through so much red tape that used to exist before. So my spouse in my example doesn't have to now adopt my child. At the same time, it now legitimizes-- it makes it easier for blended families, for families that are coming together in different ways-- it acknowledges the fact that now our society is creating families in different ways.
Now, it is important to note that in order for this to happen in the provinces that do allow it, all of the parents have to enter into an agreement before the child is conceived, so that everybody knows that they all want to be parents, they all want to contribute to the raising of this child and the care of this child. And that's one of the important elements of this-- that, basically, there-- those agreements and those understandings are in place ahead of time.
- Yeah. You don't just go in and write down names on the birth certificate. You come in, obviously, with that already done, and most do. I do want to talk about the other side, because it does make some issues easier, especially around the ones you just named. But I understand there's some complications around estate planning, those types of things. So what does that-- what happens because of this?
- Yeah. So, while in the realm of family law and the ability to have these arrangements, we have made this monumental jump ahead for these provinces, other areas of law haven't quite caught up. So when we're talking about estate planning, when we're talking about tax law, when we're talking about trusts law, we can see problems.
So, for example, these agreements that are created before the child is conceived come-- include certain rights, obligations, responsibilities. It's so important that all these people then enter into good estate plans, good wills, good powers of attorney for property and personal care, that reflect the obligations that are already in that agreement because where you have this agreement in place, but then, for example, one of these people maybe passes away without a will, there can be problems.
And as well, unfortunately, other areas of law haven't quite caught up to this new way of, I want to say, creating a family. So trust law, which is very particular, very specific about who can contribute to a trust and how trusts work-- there can be complications in that case.
As well, in tax law, while tax law has a recognition of transfers of assets between spouses, in order to acknowledge the shared contribution of spouses to the wealth of the family, we're not talking about three spouses here. We're talking about parents. And where it comes to acknowledging that all of these people are contributing to the care of this child, tax law hasn't quite caught up in the same way. We don't have the same benefits as might exist between spouses. So that's something that people who are in this kind of arrangement need to be aware of and need to get really good advice on.
- So if someone is thinking about this, what should they be considering? Who should they be talking about? What should they be prepared for?
- So first of all, the agreements that need to be created before the child is conceived is a very specialized area of law. You need to go to a lawyer who actually has a good bit of experience in these types of arrangements and drafting these agreements. Then you need to have experienced estate planning, tax planning, people in place.
As well, you have to have put a lot of thought into this. Because, for example, if you want to set up an RESP for the child, who's going to be the subscriber? Who's going to be responsible if one person passes away? What are the custody arrangements? All of that stuff needs to be reviewed in detail with experienced lawyers, with experienced accountants, that have put some thought into these types of arrangements and can direct you and guide you properly.
- And then, of course, start that family and all the joys that come with it. Georgia, thanks so much.
- Thank you. Thanks for having me again, Kim.