The courts have sided – for the time being at least – with the queer single daddies and mommies out there. The Ontario Superior Court Of Justice found that it was unfair for a Toronto gay father to have to pay the full cost of the legal wrangling he had to go through to register as the sole parent of his newborn child last year.
Kevin Durkee is set to get $4,000 from the province’s Registrar General, after he had to spend double that amount taking the matter to court in April. He won his case and earlier this month Judge JS O’Neill wrote that the Vital Statistics Act – the legislation that, among other things, outlines who can, and by omission who cannot, register a birth – was to blame.
“We should be getting it all back,” Durkee says, referring to the other half of the more than $8,000 legal fees he incurred during this case.
“It comes back to the fundamental issue that there’s a double standard for those families that don’t fall perfectly into the bundle [of one mother and one father per child].”
Durkee fathered his daughter Taylor via an anonymous egg donor and a surrogate mother. When Taylor was born last spring, he was trying to fill out her birth registration form when he realized something was wrong: He was required to list Taylor’s anonymous biological mother on the forms.
At the heart of the issue is the fact that the Vital Statistics Act, introduced in 1990, hasn’t kept pace with new reproductive technologies that have emerged in recent years. As a result, Ontario has been operating with a birth registration system that essentially excludes new families like Durkee’s that aren’t comprised of the traditional biological mom and dad parenting duo.
This decision is tantamount to saying to the Ontario government that it can’t shirk the responsibility of ensuring that all families are treated fairly, regardless of their idiosyncrasies, says Kelly D Jordan, who worked on Durkee’s case, alongside Alex Finlayson.
“The case is an acknowledgement that the present registration system for births discriminates against various families,” Jordan says. “We hope that [it] demonstrates to the Ontario government that the legislation needs to be amended to reflect the diversity of families.”
Even after explaining his situation to the Registrar General’s office, Durkee was denied the right to register himself as Taylor’s sole biological parent. He was told that the only option for him was to adopt Taylor. “I thought, ‘I have to adopt my own biological daughter? That just doesn’t make sense.'”
Because birth registration forms do not recognize nonbiological parents, same-sex couples in the past have had to resort to having the nonbiologically-related other half adopt their partner’s child in order for them to be legally recognized as a parent.
“I was very very frustrated,” Durkee says. “I’d spent my whole life thinking about becoming a dad and here I was having to jump over a huge hurdle to do something that’s just in my heart.”
Until the Vital Statistics Act is amended and brought up to speed to reflect today’s varieties of new parents, there’s not much anyone can do but keep jumping. The Office Of The Registrar General, which controls the birth registration system in Ontario, declined to comment on the decision. The department won’t comment on the case until the one-month period allowed for appeals is complete, according to Judi Rosenberg, spokesperson for the Ministry Of Consumer And Business Services.
This case could be the first in a line of many similar cases in the future, speculates Jordan. If subsequent cases are similarly successful, it might put more pressure on the government to take action and update the legislation rather than to keep paying out complainants’ legal fees.
However much this might make things easier for tomorrow’s parents, Durkee says it still doesn’t make things right. “There’s a great many of us out there trying to be moms and dads,” he says. “It’s about time we celebrate those parents that are making a difference.”
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