Legal News - D's 3 parents: ABC's of family law updated

January 3, 2021

D's 3 parents: ABC's of family law updated
Children of same-sex marriages can have 3rd parent

By Kevin Bourassa and Joe Varnell

Yesterday, in a unanimous decision written by Justice Marc Rosenberg on behalf of Chief Justice Roy McMurtry and Justice Jean-Marc Labrosse, the Ontario Court of Appeal chose to exercise it's lawful jurisdiction to fill a legislative gap and extend a child's parentage to three individuals: the biological mother and father as well as the mother's lesbian partner.

“Present social conditions and attitudes have changed,” the court said in its decision. “Advances in our appreciation of the value of other types of relationships and in the science of reproductive technology have created gaps in the … legislative scheme. Because of these changes the parents of a child can be two women or two men. They are as much the child’s parents as adopting parents or “natural” parents. [Legislation], however, does not recognize these forms of parenting and thus the children of these relationships are deprived of the equality of status that declarations of parentage provide.”

The case revolved around five-year-old “D.D.” who has three parents: his biological father (B.B.) and biological mother (C.C.) and C.C.’s lesbian partner (AA).

“In 1999,” the decision explains, AA and C.C. “decided to start a family with the assistance of their friend B.B. The two women would be the primary caregivers of the child, but they believed it would be in the child’s best interests that B.B. remain involved in the child’s life. DD was born in 2001. He refers to AA and C.C. as his mothers.”

"The child is a bright, healthy, happy individual who is obviously thriving in a loving family that meets his every need," The January 2 decision quotes from a lower court. "The applicant has been a daily and consistent presence in his life. She is fully committed to a parental role. She has the support of the two biological parents who themselves recognize her equal status with them."

AA wanted a declaration that she is a mother of DD This could have been accomplished through adoption (in Ontario, it has been possible since the 1990’s for two women or two men to be listed as parents on the birth certificate of a child, long before these same-sex couples had the right to be married).

However, if AA adopted DD to become a parent for DD, the child’s father, B.B., would lose his status as parent, according to s. 158(2) of the Child and Family Services Act, R.S.O. 1990, c. C.11. That section states: “For all purposes of law, as of the date of the making of an adoption order … (b) the adopted child ceases to be the child of the person who was his or her parent before the adoption order was made and that person ceases to be the parent of the adopted child, except where the person is the spouse of the adoptive parent.”

The father of DD is actively engaged in the child’s life, visiting twice a week. The lesbian couple wished for the child to grow up knowing his father as a legal parent. But AA, B.B. and C.C. also wanted AA’s “motherhood recognized to give her all the rights and obligations of a custodial parent.”

Legal recognition of her relationship with her son would also determine other kindred relationships, outlined in the judgment:

• The declaration of parentage is a lifelong immutable declaration of status;
• It allows the parent to fully participate in the child’s life;
• The declared parent has to consent to any future adoption;
• The declaration determines lineage;
• The declaration ensures that the child will inherit on intestacy;
• The declared parent may obtain an OHIP card (hospital insurance), a social insurance number, airline tickets and passports for the child;
• The child of a Canadian citizen is a Canadian citizen, even if born outside of Canada;
• The declared parent may register the child in school; and
• The declared parent may assert her rights under various laws, such as the Health Care Consent Act, 1996.

“Perhaps one of the greatest fears faced by lesbian mothers is the death of the birth mother,” said the Court of Appeal. “Without a declaration of parentage or some other order, the surviving partner would be unable to make decisions for their minor child, such as critical decisions about health care.”

The Attorney General for Ontario did not defend the discriminatory legislation.

However a group of extremists and faith-based bigots fought against the interests of the child and the family, under the misnomer “the Alliance for Marriage and Family”. These religious fanatics and ideologues attempting to undermine Canadian justice and equality included the usual suspects: the Evangelical Fellowship of Canada, Focus on the Family Canada, REAL Women Canada, the Catholic Civil Rights League and Christian Legal Fellowship.

Chief Justice Roy McMurtry was Attorney General for Ontario, when the Children's Law Reform Act was passed in 1978. Yesterday his court sent a message to Ontario and beyond, saying once again, as he did in our marriage case, that our governments need to update legislation to recognize and protect families like D.D.'s:

“It is contrary to DD’s best interests that he is deprived of the legal recognition of the parentage of one of his mothers … [but] as indicated, AA and C.C. cannot apply for an adoption order without depriving DD of the parentage of B.B., which would not be in DD’s best interests.”