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Three Parents Case—Two Be or Not Two Be

Decisions such as this are part of a larger trend, and we should be very concerned.

On January 2nd, 2007, the Ontario Court of Appeal ruled that a child could have more than two parents. The case involved a lesbian couple, who agreed that one of them would be impregnated by a male donor—a mutual friend—who today participates in the child's life. The non-biological mother asked for, and was eventually granted the right to be legally recognized as the child's third parent.

For the first time in law a non-biological parent is given equal standing to the two biological parents, without adoption.

The Canadian Charter of Rights and Freedoms arguments for this case were not allowed at the Court of Appeal, and while this decision is in reference to this specific family, because this is an appeal court decision, it is in effect, precedent setting. Decisions such as this are part of a larger trend, and we should be very concerned.

The trend is that courts and government are slowly redefining the meaning of family and parenthood and this will increasingly affect the roles and responsibilities of parents. We see this in court decisions, in government laws and in our educational system.

What's the big deal?

The non-biological parent in the "Three Parents Case" chose not to adopt because she did not want the father to lose his status as a parent. The family wanted all three adults to be recognized as parents. For the first time in law a non-biological parent is given equal standing to the two biological parents, without adoption. This affects the special status once reserved for biological parents or adoptive parents. Adoption legally transfers the rights of the biological parent to the adoptive parent. Adoption is an option we affirm, especially with 22,000 children in Canada waiting to be adopted. The Three Parents Case differs from adoption in that rather than transferring rights of parenthood, the Court of Appeal actually added an additional parent to the child's parental relationships.

Why the concern? The gradual changes to marriage, family and parenthood are being done piecemeal without sufficient forethought to the implication for children, for parents and for social policy. In the Three Parents Case, additional rights were granted to a third parent with the consent of the two biological parents. With this precedent, in the future, will one need the agreement of both biological parents to give parental rights to a third parent? Or a fourth or a fifth? If it is "in the interests of the child" can the courts add another parent to the relationship irrespective of what either parent might think?

The effect of this Court of Appeal decision is that the definition of family is radically changed, without sufficient thought being given to the long-term impact on children or our society. It was this same court, the Ontario Court of Appeal that gave its precedent-setting ruling, which changed the definition of marriage to allow for same-sex marriages. Within two years, it trumped that decision by changing not only the definition of marriage, but what constitutes a family, by adding a third parent.

With this court decision anyone who has an interest in the child may now be able to apply to be recognized as a parent. Say, for example, two married parents decide to divorce. They then get remarried. Can the child now have four parents instead of two? And what happens, as it so often does, when one or both of those couples divorce and remarry? Can that child have six parents? These scenarios are not unreasonable.

Does this open the door to accepting polygamous marriages? Under the current laws it is hard to imagine that polygamy will not be granted legal recognition eventually by the courts. How many parents can children have in these kinds of relationships? Some people might argue that it is crazy to suggest such arguments, but even during the debates on C-38, the marriage bill, the issue was raised as a distinct possibility.

Human rights tribunals and courts are already making decisions that may run contrary to parents' wishes. Take public education as an example. In B.C. a gay couple won the right to require the teaching that homosexuality is normative as part of the mandatory curriculum. Whereas previously parents could withdraw their children from classes that might be viewed as offensive, or from teaching that directly contradicts religious belief, it is feared that an opt-out provision will not be given for these classes. Where there was once sex education in our schools, there is now indoctrination with state-sanctioning, even if it is against the will of the parent.

One might now be asking, How did all of this happen? How are these decisions being made?

Most of these cases are being decided by the courts without public input. The Ontario Court of Appeal looked at one family and made a decision for them, which affects us all (it is interesting that the government of Ontario chose not to defend its own law either in the original court case, or before the Court of Appeal). A gay couple in B.C. won a human rights complaint and their victory impacts all families in B.C. Even Bill C-38, which was a government Bill, had its beginnings with a Supreme Court reference (following refusal by the government to appeal the decisions in other same-sex marriage cases nearly two years earlier), which decided what would be put into the Bill.

Courts do have an important role to play in deciding the best interests of the child in a specific situation. The difficulty comes if these decisions become precedent setting for situations that may be dissimilar to the case that was heard. In the Three Parents Case, what might be in the best interest of this particular child, as ruled by the Court, might not be in the best interests of society generally.

Even the original trial Judge in this case stated concern for children. Mr. Justice Aston noted "Quite apart from social policy implications, the potential to create or exacerbate custody and access litigation should not be ignored." Aston said there is the need to 'be concerned about the best interests of other children not before the court.'

It appears that governments have lost the will to make decisions that affect our society and are instead giving these decisions over to the courts. Without public input, without public debate, without full openness (because courts can impose publication bans), new public policies are court-imposed on us.

The courts do not have the ability to look at the larger issues; they examine just the facts of the case before them. The Ontario Court of Appeal looked at this one family and decided that it would be in their best interests to have the non-biological mother legally recognized. It didn't look at how this would affect society.

The pattern of raising children in a loving home with their mom and dad has demonstrated the best effects; in society, these are the children who do best. Other child-rearing arrangements, generally speaking, even with the best intentions, do not have the same outcomes. Children of divorce fare worse. Children in common-law marriages are most likely to be raised by a single-parent by the time they are ten-years-old. There is increasing anecdotal evidence that children of sperm donors feel like they are only half a person. Children in gay households are speaking up now on how they were detrimentally affected in their childhood.

As a colleague of mine stated when quoting an old axiom, "Hard cases make bad law." It is time the government, and institutions that have the best interests of the family at heart, engage in serious study to determine the effects that hard cases and bad law have had on our families.

Douglas Cryer is the director of public policy for The Evangelical Fellowship of Canada.




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