Same-sex families in some canadian provinces still face discrimination challenges.

• Author: McKay-Panos, Linda

Across Canada we have seen many developments in GLBT rights in the past few years. With the legal recognition of same-sex marriage, we might have thought that true equality for same-sex families had been reached. However, some of our provincial family laws have not kept up to these legal changes. In particular, in some provinces, when married gay or lesbian partners have a child, the non-birth parent(s) must legally adopt the child before they have any status as parents. The example given in discussion surrounding a recent Ontario case, Grand v (Ontario) Attorney General, 2016 ONSC 3434, follows.

Two married women partners are at the hospital. One partner, Djos, is haemorrhaging after giving birth. The child was conceived with sperm donated by a family friend. Grand, the non-biological mother, is struck with the horrible thought that the child is not legally hers, as she is required under law to adopt the child first. Also, the current vital statistics legislation will not permit her to be listed as a parent. This means that if something terrible were to happen to her wife, the child could not legally go home with Grand. Fortunately, Djos survives, and Grand hires a lawyer to help with the adoption of the baby a few weeks later.

Compare the situation of a married heterosexual couple--also conceiving through the use of assisted conception (sperm donor). Under existing law in some provinces, the male partner is presumed to be the child's parent, and is able to be recorded as a parent under vital statistics law. He is no more of a biological parent than is Grand. Yet, he does not have to adopt the child in order to be considered the child's parent. Thus, while same-sex parties have equal marriage rights, they do not have equal parenting rights.

In 2006 several couples challenged this situation in Ontario in MDR v Ontario (Deputy Registrar General, (2006), 81 OR (3d) 81 (SCJ)("MDR"). Lesbian parents whose children were conceived through reproductive technology sought to have the names of both mothers listed on the Statement of Live Birth under the Ontario Vital Statistics Act RSO 1990. The existing Vital Statistics Act only permitted the listing of one mother and one father. At the same time, non-biological fathers of children conceived through reproductive technology were permitted to have their names listed as parents on the Statement of Live Birth. The Court noted that the only solution for lesbian co-mothers was to proceed to adopt the...