Eighteenth century jurist William Blackstone said “the law is the embodiment of the moral sentiment of the people”. The result in the “three parents” case from the Ontario Court of Appeal tells us much about modern Canadian morality.
On January 2, 2007, the Ontario Court of Appeal released its decision in A.A. v. B.B. and C.C. The woman identified only as “A.A.” is in a long-term relationship with another woman, identified as “C.C.”. C.C. bore a son (“D.D.”) with the assistance of their male friend (creatively identified as “B.B.”). D.D. was born in 2001 and refers to A.A. and C.C. as his mothers. Under Ontario’s Children’s Law Reform Act (the “Act”), D.D.’s biological parents (B.B. and C.C.) are recognized as his parents. A.A. was not and sought a declaration from the Court that she is D.D.’s mother, despite the fact that she has no biological ties to D.D. and has not adopted him.
Adoption was not an option because this would require B.B. (the biological father) to terminate his parental status. Both B.B. and C.C. supported the declaration sought.
The difficulty was that the Act does not expressly permit the possibility of a child having more than two parents. The judge who initially heard the application concluded that he did not have the jurisdiction to make the order sought because the Act did not allow it. He concluded that finding that D.D. had three parents would be in his best interests, but accepted that the Ontario legislature intentionally permitted only two parents. He was also concerned about the potential in future cases if more than two people could seek parental status; for example in the case of stepparents or members of a child’s extended family.
The Court of Appeal was more creative in how it handled the application. While accepting that “it is apparent that the Act contemplates only one mother and one father” (para. 22), the Court of Appeal assumed a “broader discretion under the impact of changing social conditions (para. 30) and that “advances in reproductive technology require[s] re-examination of the most basic questions or who is a biological parent” (para. 33).
Essentially, the Court of Appeal held that the Act is outdated: while its original purpose of protecting the equal status of all children (whether born inside and outside of wedlock) remains applicable, it should be extended to modern realities where a child can have two fathers or two mothers (or perhaps in some future case, two fathers and two mothers). As such, the Court, in its role as the general superintendent of the best interests of children, could fill the legislative gap by permitting the application and allowing three parents.
In the battles over same-sex marriage, religious and other traditional voices raised the point that once the opposite gender requirement of marriage is removed, there is little remaining justification to limit a marriage to two people. The “three parent” case is not directly about marriage, but it is very much about the meaning of a “family”.
For the benefit of innocent children, Canada long ago abandoned any distinction between children born inside and outside of wedlock. We have also discarded the necessity of finding fault in order to grant a divorce. We now recognize that marriage in not confined to two members of the opposite sex. In Ontario, families can also now be broader and include more than two parents. Where this may end is anyone’s guess.
In may well benefit “D.D.” to have a number of loving and caring adults in his life. It is probably in his best interests that his biological father remains involved and has parental responsibilities. In that sense, this decision acknowledges the reality of D.D.’s life.
What is troublesome is that the Court has rewritten the Ontario legislation. There is little analysis about what impact this revision may have in the future. While it may well be used to benefit children, it also opens the opportunity (as identified by the judge at the original hearing) to applications for parental rights by those who may not fit into a post-modern family structure with the same degree of consent and approval of the biological parents. To this extent, a proper democratic debate would have been beneficial.
While it may take a village to raise a child, a broad discussion as to whether this further departure from the special legal status of the traditional family will ultimately be good for our society would certainly be beneficial and enlightening. While that sort of discussion always comes with the risk of emotive attacks by each side, it is a shame that this ruling may avoid it entirely.
Kevin L. Boonstra is a partner in the law firm Kuhn LLP, with offices in Vancouver and Abbotsford. This article is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other law matters, please contact us at 604-864-8877.