Courts Should Recognize Third Parent
Post date: October 11, 2006
by Laurel Rothman
Should a child who has three loving and involved parents be allowed to have each one of those parents recognized by law? That is a question that Chief Justice Roy McMurtry, Mr. Justice Marc Rosenberg and Mr. Justice Jean-Marc Labrosse of the Ontario Court of Appeal face following a case last week. The judges' decision could have groundbreaking, far-reaching positive implications for many families across the province.
The appellant, known to the court as AA, is the non-biological mother within a same-sex couple who decided to become parents. They did so with the help of a sperm donor who is a friend. The three made a mutual commitment that the couple would be the primary custodial and decision-making parents while the biological father would also have an active role in the child's upbringing.
AA, with the support of her partner and the biological father, has asked the court to give her legal recognition as her child's mother, without terminating the parental relationship of either of the child's biological parents. Currently, under law only the two biological parents are recognized as the child's parents. Should the appeal be successful, for the first time in Canada a child would have three legal parents.
By all accounts, the child in question is being loved and nurtured by three fully engaged parents. It is an enviable situation in a province where children's aid societies receive 160,000 calls each year reporting child abuse and neglect, and approximately 9,000 children are under permanent care of the Crown.
This family offers a strong and stable foundation for the child. AA and her partner deliberately chose to have a baby and AA has fulfilled the role of parent in every way imaginable. The child loves her and has known her and her partner as mom all his life. The lower court judge who heard the case acknowledged that it would be in the best interest of the child to declare AA to be his parent, but denied the request on the grounds that the Children's Law Reform Act (CLRA) only allows for two parents.
At Family Service Association of Toronto, we support the appellant's request. We believe a family is two or more people, whether living together or apart, related by blood, marriage, adoption or commitment to care for one another. This definition has been developed from experience gained over 92 years of service to Toronto communities. It reflects the thousands of families we see every year and our mission to strengthen families and individuals in just and supportive communities.
When the laws designed to protect children and support families serve neither the best interests of a child nor his family, it is a judicial imperative to re-examine them in the context of today's families. Just as the term"legitimate" and"illegitimate" no longer apply to children under Ontario law, it behooves our jurists to examine the CLRA and ensure that decisions made under its mantle fulfill the spirit as much as the word of the law.
A favourable ruling by the appeal court judges would bring Ontario family law in step with the diversity of families today and would support many children whose lives actively involve more than two loving parents. Our society benefits from strong families, whatever their configuration, and our laws should support them. That is why Family Service Association of Toronto made statements to the court in support of this family and the appellant as an Intervener in the case.
In all, counsel for five parties made statements supporting the appellant. Yet there are those who oppose recognizing this family and the myriad other families facing a similar situation. Ironically, these opposing organizations do so on the grounds that they are defending the notion of family. On the contrary, the narrow view of family that certain special interest groups are defending does little to support real families or protect children. Rather, it creates a dynamic of belonging or exclusion that is hurtful to children. Opposing AA's appeal does not preserve a specific family ideal, it simply denies the legitimacy of families that fall outside a distinctly exclusionary definition. It dishonours many productive, supportive and loving families in this province and in so doing, does an injustice to the importance of family as a cornerstone of our society.
Legally recognizing AA and others in her situation will enable them to completely fulfill the parenting responsibilities they welcomed by choosing to have and raised children. Currently they can be denied parental activities such as registering a child for school, obtaining legal documents or, in more unfortunate circumstances, admitting a child to a hospital and being afforded family visitation rights. From the child's perspective, with legal recognition of their family, they can care for an ailing parent or be a beneficiary of the parent's estate without being challenged.
The laws that pertain to families should serve the best interest of children and parents by reflecting the realities of families today. In this case, the best interest of the child is to have the woman he knows and loves as his mother recognized as such by law. We hope that the justices of the Court of Appeal take this opportunity to give this family the legal recognition it deserves.
Laurel Rothman is Director of the Social Reform unit at FSA Toronto.
