DD has two mommies - and a dad

A recent Ontario Court of Appeal judgment has awarded parental status to the same-sex partner of a child’s mother, giving her the same rights as the child’s biological parents and recognizing the right of a child to have three legal parents.

The case involved a same-sex couple, known only as AA and CC who, after 11 years together, had a child with the assistance of their friend BB, in 2001. Two years later, AA, the non-biological mother of the child, DD, applied to the court for a declaration that she was also his mother.

However, Ontario Superior Court Justice David R. Aston ruled that he did not have jurisdiction to make the declaration, either under the Children’s Law Reform Act (CLRA), or through the court’s parens patriae jurisdiction. Thus he dismissed the application.

In its Jan. 2 judgment, the Court of Appeal did note, however, that the Superior Court judge would have made the declaration if he thought he had jurisdiction, as he noted that “the child is a bright, healthy, happy individual who is obviously thriving in a loving family that meets his every need. 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.”

The appellant took the case to the Court of Appeal and also raised constitutional issues for the first time at the appeal level, “alleging violation of her rights to equality and fundamental justice under ss. 15 and 7 of the Canadian Charter of Rights and Freedoms.”

The court allowed the appeal and issued a declaration that the appellant is also the mother of DD. However, writing for the majority, Justice Marc Rosenberg chose not to address the Charter claims, noting that “I have concluded that this court’s parens patriae jurisdiction is available to give the appellant the remedy she seeks. Therefore, no miscarriage of justice will ensue to these litigants if this court does not decide the Charter issues.

In the result, I would decline to address the Charter issues in this case. The Charter claims under ss. 7 and 15, which would have broad implications beyond the facts of this particular case, can be dealt with in another case on the basis of a proper record.”

Jennifer Mathers of Lerners LLP, a lawyer for AA, tells Law Times “the declaration of parentage does have very symbolic and practical implications and it is wonderful that it has been made available both to this family and to others.”
The court also exercised its parens patriae jurisdiction (the role of the state to protect the interests of the child) in the case to fill a gap in the CLRA legislation.

“Present social conditions and attitudes have changed. Advances in our appreciation of the value of other types of relationships and in the science of reproductive technology have created gaps in the CLRA’s 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.

The CLRA, 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. In my view, this is as much a gap as the gap found in Beson [v. Newfoundland (Director of Child Welfare), 1981], where adopting
parents were deprived of a right of appeal.”

The decision noted that: “it is contrary to DD’s best interests that he is deprived of the legal recognition of the parentage of one of his mothers. There is no other way to fill this deficiency except through the exercise of the parens patriae jurisdiction. As indicated, AA and CC cannot apply for an adoption order without depriving DD of the parentage of BB, which would not be in DD’s best interests.”

Grant Gold, a family law lawyer with Goodman and Carr, tells Law Times: “I think that this [decision] recognizes the changing state of families in Canada and hopefully throughout the world. I think you’re going to find family law lawyers liking this decision.”

He adds that the ruling will potentially have some impact on child support if a couple were to split up.
“Potentially you are going to have the woman that the child doesn’t live with paying child support and the father paying child support, so I think it may have some child support implications,” says Gold.

Mathers says the most important aspect of the decision is that different family structures are capable of being recognized by the law and that “all children have access to equal protection and recognition of the law and all families have recourse of that.”

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