Canada: The Three-Parent Case: Family Law In The New Millennium

Last Updated: January 24 2007

Article by Brad Berg, © 2007, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Pro Bono, January 2007

Blakes has undertaken a leadership role in supporting pro bono legal initiatives in Canada and recently represented the Family Service Association of Toronto (FSAT) in a landmark family law case.

On January 2, 2007, the Ontario Court of Appeal released its decision in AA BB CC (No. C39998), the so-called "three-parent" case. The Court ruled that judges in Ontario have the jurisdiction to declare more than two persons to be legal parents of a child.

In that case, the biological mother and biological father were already recognized as legal parents of the child, but the biological mother's same-sex partner was not. She applied for a declaration of legal parentage, with the consent of the other two parents. The trial judge had found that all three people had a relationship of parent and child with their son, and that it would be in the best interests of the child to recognize all three persons as legal parents. However, the trial judge had rejected the application, saying that he had no jurisdiction under the provincial statute (Ontario’s Children’s Law Reform Act), which speaks in terms of only one mother and one father. He said his hands were tied.

The Court of Appeal disagreed, holding that judges have the inherent jurisdiction under the long-established doctrine of parens patriae to assist children in need, and to "fill in the gaps" in legislation when necessary and when in the best interests of a child. The Court of Appeal recognized the many legal benefits of parentage that were being denied to the non-biological mother, including that she was unable to obtain official documents and registrations for her child (such as a passport or hospitalization card, or registration at school). Most importantly, if the birth mother died, the non-biological mother would have no ability to make decisions for their son, not even for medical treatment. The Court also recognized the benefits being denied to the child, including the right to receive his non-biological mother’s property if she died without a will.

Finally, the Court found that there were no other satisfactory avenues open to this family under law. For example, an adoption order would require that one of the biological parents lose legal status in favour of the non-biological mother.

Therefore, the Court of Appeal allowed the appeal, issuing a declaration that the non-biological mother was a legal parent, with the result that this child now has two legal mothers and one legal father. This marks the first time in Canadian history that a child has had more than two parents under law.

The case also opens the door for other "non-traditional families" to consider seeking similar declarations. However, it will still be necessary for every such application in Ontario to be made before a family court judge – it is not possible to obtain declarations by filling out a form or applying over the counter. Judges will grant declarations of parentage only when to do so would be in the best interests of the child, as was the case here.

FSAT is a United Way member agency and one of the largest counselling and community action organizations in Canada. It provides a wide range of services in 24 different languages to families from marginalized and disadvantaged communities, including counselling and education on domestic violence, child poverty and healthy parenting. FSAT intervened in this case in support of the appeal and was represented by Blakes on a pro bono basis, with Bradley Berg and Courtney Harris appearing as counsel.

Blakes provides pro bono legal advice to many worthy organizations on issues including charitable activities, child advocacy, employment, litigation and corporate law. Blakes has also launched a variety of initiatives supportive of equity and diversity as priorities for our Firm.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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