In a case that’s part alphabet soup, part Charter challenge and part scare tactics, the Ontario Court Of Appeal will hear arguments this month about the rights of a child to have more than two parents.
AA, the appellant in the case, applied for parental recognition shortly after the birth of DD, her lesbian partner’s biological child in February 2001. The child’s birth mother, CC, and the biological father through artificial insemination, BB, did not oppose her application.
But Family Court Justice David Aston ruled in 2003 that under the Children’s Law Reform Act (CLRA) he could not grant declarations of parentage in favour of two mothers.
But in another recent birth registry case brought by four lesbian couples, called the Rutherford case, Justice Paul Rivard granted the right for each woman to be named as a parent. He stayed the decision for a year to allow the province to develop the appropriate legislation/paperwork.
In the Rutherford case all children were conceived by artificial insemination with nonactive donors. But the London case adds a new twist — the sperm donor wants to be recognized as a noncustodial parent. That means recognizing three legal parents.
“Our case says you can have two mothers who have recognition,” says Joanna Radbord, a lawyer on the Rutherford case, which is intervening in the appeal. “It makes no rational sense if it is possible to have two mothers at law, why you should deny recognition if those mothers want to involve the donor as a father as well.”
A declaration of parentage is simply the legal declaration of an adult’s status in relationship to the child, she says.
Radbord says a declaration of parenthood gives a nonbiological parent the right to make decisions about a child’s health, schooling and the like, as well as providing rights and protections for the child in cases of separation or death.
Several rightwing Christian groups fear that this will be another instance of “activist judges” setting aside the rights of the child in favour of parents — and queer ones at that.
The Alliance For Marriage And Family, composed of the Evangelical Fellowship Of Canada, the Catholic Civil Rights League, the Christian Legal Fellowship, Focus On The Family and REAL Women Of Canada, has received intervener status in the case.
They are arguing that the original court’s decision — disallowing another woman’s name on the birth registry — should stand and are trying to block the Rutherford applicants from intervening in the case, since their participation makes it easier for a Charter challenge, which could end up at the Supreme Court Of Canada.
The alliance is also arguing that deciding in favour of AA, BB and CC would mean any combination of people could say that they want parental rights to a child.
“The appellant’s argument is premised on the fact that both her and the respondents consent to the granting of this declaration,” reads their factum. “It may be possible though that, in other cases, a child’s parents do not consent to another person seeking such a declaration. If the court were to grant the appellant the declaration she seeks, two-parent families, regardless of their sexual orientation, could be open to litigation by other parties seeking maternal or parental rights.”
Radbord argues that joint custody orders already exist whereby multiple parents are entitled to have some level of parental recognition, for example, in cases of divorce and remarriage. She thinks the opposition is less about anarchy in relationships, more about “heterosexism and a fixation on having nuclear families.”