Three parents vs. one child?

• Author: McKay-Panos, Linda
• Position: Human Rights Law - Same sex family

In January 2007, the Ontario Court of Appeal ruled that a child in a same-sex family could have three parents. This decision has sparked a great deal of discussion about the implications for family law. On the one hand, many parents are delighted that there is the possibility of legal recognition for the social relationship that actually exists in their families. Family law has not necessarily kept pace with developments in families, especially when a child is a product of assisted reproductive technology. On the other hand, some people are concerned about the implications of the ruling for traditional families, and about the consequences of potential multiple parents making claims to custody when a relationship breaks down. It is helpful to keep in mind that in cases about parental rights, the critical emphasis must always be placed upon what is in the best interest of the child in that particular case.

The case is known as A.A. v. B.B.. B.B. is the biological father, C.C. is the biological mother, A.A. is her same-sex partner, and D.D. is the five-year-old who lives with A.A. and C.C.. A.A. and C.C. have been in a stable, same-sex relationship since 1990. In 2001, they started a family with the assistance of male friend, B.B.. The three adults decided that the two women would be the primary caregivers, and that it was in D.D.'s best interest that B.B. remain involved in the child's life. There is no conflict regarding the nature of the parent/child relationships. In same-sex relationships, the non-biological partner often adopts the child in order to obtain parental status vis-a-vis the child. However, under current family law principles, if C.C. were to adopt D.D., B.B. would lose all parental status. This is the case in any adoption, whereby new legal relationships are created and former ones are severed. This consequence did not suit the situation, as the mothers did not wish to cause B.B. to lose his parental status. Hence, they applied to the Court for a declaration that A.A. was a parent to D.D., in addition to B.B. and C.C..

One of the intervenors in the case and the Office of the Children's Lawyer for Ontario summarized the legal consequences of being officially recognized as a parent (at para 14):

* The declaration of parentage is a lifelong immutable declaration of status;

* It allows the parent to fully participate in the child's life;

* The declared parent has to consent to any future adoption;

* The declaration determines...