Equality for Three Parents
Appeal court decision recognizes the changing shape of families
By Gamiela Fereg
When Courtney Harris and her husband decided to get married, it wasn’t difficult finding a minister. When the couple was ready to have children, no one protested their right to do so because, as a married man and woman, they were perceived as deserving that right. Today, they are proud parents of two children and although Courtney’s path has been rather traditional, she always knew and respected that all family formations do not follow the same structure.
In addition to being a wife and mother, Harris was one of the attorney’s on the Blakes, Cassels & Graydon legal team that represented FSA Toronto in a groundbreaking parenting case last fall. The three-parent case, known officially as AA vs. BB and CC, was heard by the Appeal Court of Ontario, and the judgment in favour of the appellant legally recognized three parents for one child for the first time in Canada.
AA and CC are a lesbian couple who decided to include a child in their family. To do so without assistance would be biologically impossible and BB, a male friend of the couple, agreed to be their sperm donor. The three also agreed that he would play a role in the child’s life as the biological father. AA, who has now been a mother to their child for five years, wanted to be legally recognized as the child’s parent without negating either biological parent’s legal status. Prior to the ruling, this was not possible.
“I saw a strong equality challenge there,” says Harris, who has always been interested in same-sex rights. “[The case] spoke to me of a potential to recognize other families—so it wasn’t just same-sex, it was also the potential to recognize other family formations that I thought would be valuable.”
FSA Toronto’s decision to intervene on the side of the parents in this case was based on our view that as family structures become more diverse, family law should recognize that there are many loving, nurturing configurations of family. On behalf of FSA Toronto, the Blakes, Cassels & Graydon team argued that the Children’s Law Reform Act could have been interpreted in a way that would allow the non-biological mother to be considered one of the child’s legal parents.
FSA Toronto’s involvement in the case reflected the agency’s definition of family. We believe that not allowing AA to be recognized legally as the mother of a child who has always considered her as such was not fair to their family or to any other families that are not considered traditional. “AA has done every single thing that I have done as a mother and she doesn’t get to be called a mom,” says Harris, when describing her frustration with the legal situation. The two women had more in common than one would realize at first glance. “AA and CC and I talked about being mothers and the challenges that we face because we are also working mothers.” All three loved and took care of their children and families in the same way, but only two were considered mothers under the law.
The child in this case has always recognized three parents, so the outcome will have no effect on the family’s daily life. Following the ruling, however, both mothers and the father will share the same parenting rights. AA is now able to conduct such parenting activities as registering her child for a passport, making critical healthcare decisions or maintaining custody of the child in the event of the biological mother’s death. “What this case does is tell the outside world that it has to recognize the three parents,” says Harris.
As our communities become more diverse, how we demonstrate the values of equality that Canadians hold dear will be tested. FSA Toronto is committed to ensuring that no one is excluded from the rights and freedoms afforded us under the Canadian Charter. Although the Ontario Supreme Court ruling didn’t use the Charter to strike down the legislation that had made it difficult for this family to legally be recognized, they have given judges in Ontario the opportunity to act in the best interest of a child in future.
Harris is optimistic that we can count on our family law judges to do what’s best for each child in each case. “They are experienced and they do see many forms of families come before them.” As most people would agree, the best thing for any child will always be to live in a home where there is unconditional love. He or she should be nurtured and cared for in every way by their family, regardless of its structure.
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