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For the birth father to give up his parental rights and for the lesbian partner of the birth mother to subsequently try to adopt the child. |
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For the lesbian partner to sue the birth mother and birth father for the right to be recognized as a third parent. |
Their main concern was the possibility of the birth mother dying. That would leave the lesbian partner without any official recognition as a parent to the child. She would would not be able to make decisions on behalf of her child, even though she had been functioning as a parent to the child since his birth. The three adults mutually agreed to take the second approach.
In 2003, the Superior Court of Justice dismissed the case, stating that it did not have the necessary jurisdiction to grant parenthood to a third person. But, on 2007-JAN-02, the Ontario Court of Appeal overturned the lower court ruling and granted parenthood to the partner. Justice Marc Rosenberg, writing on behalf of Chief Justice Roy McMurtry and Justice Jean-Marc Labrosse, ruled that there is a gap in provincial legislation. This enabled the court to exercise its "parens patriae" right to act as the guardian of a minor.
Justice Rosenberg wrote:
"Advances in our appreciation of the value of other types of relationships and in the science of reproductive technology have created gaps in the [Children's Law Reform Act's] legislative scheme. Because of these changes, the parents of a child can be two women or two men."
The partner's lawyer, Peter Jervis, said of his client:
"It's very good news for her, for her son and for her family. She's been the mom of this child since he was born, but this grants legal recognition to her status. ... I strongly suspect that if another case like this came forward, there would be a similar request for the courts to exercise its jurisdiction (of parens patriae)."
He was unable to reach the family by phone, so he sent an Email with the subject "Congratulations, you're a mom."
Because of the ruling, in the unlikely event of the death of the birth mother, their son would not lose both mothers. The media has not reported on the reaction of the three parents. We suspect that they are probably pleased with the increased security and protection that this decision gives to themselves and their son.
No decision has been made yet by the interveners on whether to appeal the ruling.
Criticism from the Alliance for Marriage and Family:
This religiously conservative umbrella group consists of the Institute of Marriage and Family Canada, an organization founded by the fundamentalist Christian group Focus on the Family, along with the Catholic Civil Rights League, REAL Women of Canada, the Evangelical Fellowship of Canada and the Christian Legal Fellowship. They were interveners in the case and are unanimously opposed to the ruling. They feel that this decision would go against the traditional family unit.
David Quist, executive director of the Institute of Marriage and Family Canada, suggests that a royal commission may need to be called to study the future of the family. He said:
"This ruling concerns us. What about grandparents? If there's a divorce and a remarrying, how many parents do we get? Those are questions that are unanswered at this point. ... What we do know from social-science research right now is that children raised by their married biological mom and dad do best, but we also know that's not a fact of life for a lot of kids out there. Let's put in (some policy) that supports the outcomes for the children the best we can." 1
In their most recent eReview, the Institute of Marriage and Family Canada wrote:
"On January 2, 2007, Ontario’s Court of Appeal ruled after years in the courts that a child may have three legal parents, fundamentally altering traditional two parent approaches to raising kids; a decision that raises perplexing implications for the well being of children." 2
Quist's belief about the superior parenting of a married biological mother and father is held by all or essentially all religious conservatives. Studies have universally shown that, on average, children do better when raised by two parents rather than by a single parent. However, most studies which were not conducted by religious conservatives have shown that the genders of the parents do not seem to matter.
Opposition by the Institute for Canadian Values:
The Institute for Canadian Values (ICV) issued a press release on 2007-JAN-03:
"OTTAWA - The Institute for Canadian Values is calling a ruling by the Ontario Court of Appeal that a child can have three parents 'unnecessary' and an act of 'naked judicial activism' not unlike the same Court's 2003 ruling redefining marriage."
" 'Yesterday's decision by the Ontario Court of Appeal that a child can have three parents was an act of naked judicial activism,' said Joseph C. Ben-Ami, Executive Director and Director of Policy Development for the ICV."
"The case involved an Application by the lesbian partner of a child's mother to be recognized as a legal parent despite the fact that the child's father still actively participates in the child's life. Her argument was that, although she is a de facto parent, she had no legal right to make parenting decisions on behalf of the child and may be prevented from exercising her authority should the child's biological mother die or become unable to make decisions on behalf of the child."
"The case was originally dismissed in 2003."
"Although he acknowledged the validity of the concerns raised, Ben-Ami dismissed them as justification for the Court's Ruling."
" 'Disputes regarding who makes legal decisions on behalf of minor children, including disputes between children's actual parents, are adjudicated every day in Canada on a case by case basis in the best interest of the children without the need to change the definition of family,' observed Ben-Ami. 'The unlikely possibility of such a dispute arising at some time in the future between these adults is no justification for this sweeping ruling. The only explanation is that the Court saw this case as an opportunity to entrench so-called alternative family structures in law without submitting the idea to the rigours of the legislative process'." 3 [Punctuation corrected from the original]
Opposition from Chatham Daily News:
The Chatham, ON newspaper urged the provincial government to waste no time to launch a challenge to the Appeal Court decision. They wrote that the decision:
"... has the potential to turn upside down the legal definition of a parent. ... The court has tossed aside the belief that a parent must have a biological link to a child or, in the case of adoption, that those rights are legally transferred from one individual or couple to another. The thought that parental rights under the title of parent can be expanded to as many individuals as have an interest in the child has far reaching implications." 4
An appeal would be to the Supreme Court of Canada. If they accepted the Appeal Court decision, then that decision would apply Canada-wide.
References used:
- "Tim Lai, "Court rules boy has mom, dad and mom," The Toronto Star, 2007-JAN-03, Page A1. Online at: http://www.thestar.com/
- Dave Quist, "Pause and ask why," eReview, Institute of Marriage and Family Canada, 2007-JAN-03.
- "Institute calls Ontario Court of Appeal three parent decision act of 'naked judicial activism'," Press Release, Institute for Canadian Values, 2007-JAN-03.
- "Parental decisio must be appealed," Chatham Daily News. Digest reprinted in Kingston Whig Standard, Kingston ON, 2007-JAN-08, Page 4.
Copyright © 2007 by Ontario
Consultants on Religious Tolerance
Originally posted: 2007-JAN-03
Last update: 2007-JAN-14
Author: B. A. Robinson
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