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Mom & mom & dad

Court decision ignores the important stuff

Does a court ruling giving three people — a lesbian couple and a sperm donor — parental rights for a London, Ontario five-year-old finally blow the door off the heterosexual nuclear family in this country?

While rightwingers accuse the Ontario Court Of Appeal of putting kids at risk in its Jan 2 decision, queer activists say the ruling doesn’t go far enough — the court should have changed the law.

The three-judge panel overturned a 2003 lower court ruling, when Justice David Aston ruled that allowing more than two parents “might open the floodgates to similar claims from step-parents or members of the child’s extended family.”

The appeal court disagreed, prompting Justice Marc Rosenberg to write: “It is contrary to [the child’s] best interests that he is deprived of the legal recognition of the parentage of one of his mothers…. Perhaps one of the greatest fears faced by lesbian mothers is the death of the birth mother…. Without a declaration of parentage or some other order, the surviving partner would be unable to make decisions for their minor child.”

In the case, a biological mother was asking that her longtime female partner be recognized as an equal parent, without taking away the parental rights of the sperm donor, who continues to be active in the child’s life. Same-sex couples in the same situation often have the nonbiological parent adopt the child — but that means removing one of the biological parents from the equation.

Although the Court Of Appeal has made it possible to recognize more than two adults as parents, it did so by exercising its discretionary ability to grant parentage, not by ordering a rewrite of the existing law, the Children’s Law Reform Act (CLRA). It did not consider arguments based on the Charter Of Human Rights And Freedoms, arguments that would have raised the stakes of the ruling.

The CLRA, which was written in the late 1970s, uses the words “the mother” and “the father” to define parental status.

“To me [the statute] is offensive and it has to be changed,” says Joanna Radbord, a lawyer who was involved in the case as an intervener, representing another lesbian couple struggling with the legalities of parenthood. Radbord says she doubts the province will act on this nudge by the Court Of Appeal.

“They don’t have the political stomach to deal with anything in a far-reaching comprehensive equality-minded way. But I hope they prove me wrong,” says Radbord.

Parentage covers all kinds of things: determining lineage; a child’s ability to inherit an estate without a will; the ability to obtain an OHIP card, social insurance number, passport or airline tickets for the child; Canadian citizenship for the child if the parent is Canadian; and rights under the Education Act and the Health Care Consent Act.

Though the concerns of the three parents were pragmatic, rightwingers have lined up to decry the mere idea of it. The Alliance For Marriage And Family — composed of the Catholic Civil Rights League, REAL Women Of Canada, the Evangelical Fellowship, Focus On The Family and the Christian Legal Fellowship — sought leave to intervene in this case.

“[This decision] treats three parents as a unit; family has been redefined. I happen to be a stepparent so I understand the difference between that role and the role of the biological mother. I do not share the same privileges as the biological mother,” says Ruth Ross, executive director of the Christian Legal Fellowship. “We felt that the Children’s Law Reform Act had in mind the biological origins of children as the formative construct… in considering parental provisions.”

But the decision suggests it’s outdated.

“The CLRA was progressive legislation, but it was a product of its time,” Rosenberg wrote. “It was intended to deal with the specific problem of the incidents of illegitimacy — the need to ‘remove, as far as the law is capable of doing so, a stigma which has been cast on children who in the nature of things cannot be said to bear responsibility for it.’ The possibility of legally and socially recognized same-sex unions and the implications of advances in reproductive technology were not on the radar scheme.”

Ross worries that multiparent families will start coming out of the woodwork.

“It may open a door to the possibility of more than three parents. What prevents the wife of the biological dad in this case of applying to be a parent? What is the limit? Ultimately we are concerned about the impact upon children.”

Bruce Ryder, a professor of law at Osgoode Hall, says this decision may indeed open up the possibility of families of increasingly varied sizes and structures. But he says these families exist already, even if they’re not yet recognized in law.

“I think the definition of family legally is constantly evolving. This is an important step in that legal evolution,” says Ryder, who doesn’t see why more than three parents shouldn’t be legally recognized.

“We have a real patchwork situation where some laws are flexible and inclusive such as custody and access, while others like the CLRA aren’t. When nontraditional families run up against those restrictive definitions, negative consequences can ensue for the well-being of their families.”