Three parents & a baby

Three’s a crowd, according to the Children’s Law Reform Act. A London, Ontario judge has decided that he can’t recognize three adults – a lesbian couple and their long-time male friend – as all being parents to a two-year-old boy. The man is the biological father of the child and actively involved in his upbringing.

“The child is a bright, healthy, happy individual who is obviously thriving in a loving family that meets his every need. I am prepared to make the declaration sought if there is jurisdiction to do so,” states Justice David Aston in his written decision, issued Apr 11. But he goes on to say that the Children’s Law Reform Act doesn’t give him that authority.

The couple, who cannot be named due to a publication ban, appeared in family court this winter, asking that the non-biological mother be recognized as a parent, in addition to the two biological parents of the two-year-old boy. Bio parents get recognized by default.

Alternatively, the couple could have asked that the non-biological mother be made a legal parent, at the cost of ousting the biological father from his legal role, in which case they would likely would have been successful in their case. The trick was legally acknowledging the third parent.

“If this application is granted, it seems to me the door is wide open to step-parents, extended family and others to claim parental status in less harmonious circumstances. If a child can have three parents, why not four or six or a dozen?” states Aston. “Quite apart from social policy implications, the potential to create or exacerbate custody and access litigation should not be ignored.”

But when a couple splits, it’s common for courts to add an individual as a guardian of a child. The case is unique in that the couple is still together – and plans to stay together.

“This case is about defining the roles and responsibilities of adults in a child’s life,” says Grace Kerr, the lawyer representing the family. “This is done very commonly following relationship breakdowns…. In asking the court to make rulings that are done commonly after a breakdown in a relationship we are essentially saying, ‘Why wait?'”

Kerr gives the example of stepfamilies where more than two adults have legal rights and responsibility for a child’s well being.

The case might not have become so complicated if it hadn’t been for a consortium of rightwing religious groups that attempted to shoulder their way into the family court case. The Alliance For Marriage And Family, representing member groups the Evangelical Fellowship Of Canada, REAL Women Of Canada, Focus On The Family, Catholic Civil Rights League and the Canadian Family Action Coalition, applied for intervenor status as a friend to the court. But now their application has been dismissed along with the case at large.

The alliance’s lawyer Michael Menear was not available for an interview. (Menear was the lawyer for the Church Of God in a 2001 court case in Alymer, defending the rights of parents to spank their children. In that case he was arguing that the state stay out of private matters.) But a press release from the alliance states: “At the present, Canadian legislation (including the Children’s Law Reform Act) is based on social policy that recognizes two parents in the raising and development of children. This social construct conforms to biological reality.

“In the present case, the alliance is concerned that the present parties in the proceeding (ie the three parents) acted in concert to present one view and to make one presentation…. The alliance does not feel that significant legal change with important social policy implications should occur in such a summary fashion.”

The parents are disappointed.

“We are heartbroken that, in his honour’s view, our laws cannot reflect the truth of our son’s life,” says the child’s non-biological mother in response to the decision. “It is even more heartbreaking that our application to the courts elicited such hateful attacks. Ironically, it was our hope that this declaration would have gone a long way to reassure our little boy that he lives in a community where differences do not give rise to invisibility or hatred.”

The family is now considering whether or not to appeal the ruling.