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.
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
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
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
"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
An appeal would be to the Supreme Court of Canada.
If they accepted the Appeal Court decision, then that decision would apply
"Tim Lai, "Court rules boy has mom, dad and mom," The Toronto Star,
2007-JAN-03, Page A1. Online at:
- 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,
- "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