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Best Interests of the Child: Final Decision in the "Non-Parent" Case

A travesty of justice that could have affected children across the nation has been averted.

The Supreme Court of Canada has made a decision deserving of celebration. The decision stops one approach of the advancing litigation that seems daily to be tearing at the fabric of the Canadian family. The court has upheld the best interests of the child above the contractual rights of adults in what has been described as a "bizarre" family law case from Alberta.

John wanted no legal obligations … toward Jane's child; and Jane agreed—in writing.

The "Non-Parent case" concerned a woman in a cohabiting relationship with a man who decided she wanted to be a mother. Her cohabitee was not interested in parenting … but was interested in continuing their relationship. The couple decided that the solution to both their desires was for her, "Jane Doe," to pursue artificial insemination and enter into a contract with him, "John Doe," that absolved him from parental responsibility. The idea being that Jane would become a single parent and John, with no parental responsibilities, would continue in his conjugal relationship with her. As the decision of the Alberta Court of Appeal categorically stated, John Doe "did not wish to father a child, to stand in the place of a parent, act as a guardian, or support a child." John wanted no legal obligations, during the relationship or upon break-up, toward Jane's child; and Jane agreed—in writing.

The Alberta Court of Appeal decided the non-parent contract was not valid as it was in direct contradiction to the Alberta Family Law Act. The court found that, sperm donor or not, if John was going to live in a relationship of interdependence with Jane and if Jane's child remained in the same household, then John would be in the position of a parent to the child. He might be a good parent or a poor parent but he would be a parent. The court also noted that, should the relationship end, legal obligations toward the child are for the child's interests, which could not be contracted away by the parents and, accordingly, there was no state interference in regard to the contractual rights of Jane or John.

In requesting the case be heard by the Supreme Court of Canada, Jane's lawyer stated that her "appeal raises the unanswered question of the role of private choice and contract in designating parental roles."

Medical advances in solutions to fertility problems may continue. But, the court has drawn the line at the use of artificial procreation technology to create a single parent family within a two-adult joint-household.

By rejecting the request for an appeal the Supreme Court of Canada has reinforced:

• judicial accountability for the best interests of the child when family law litigation comes before the courts;
• the continuing nature of the parental responsibilities of adults living in the same home as the child; and
• respect for the jurisdiction of the elected legislature in determining the status of the family on behalf of their constituents.

What could easily have been a travesty of justice impacting children across the nation has been averted by considering the best interests of the child rather than the wishes of the adults.

Congratulations Supreme Court of Canada. Congratulations Canada. Congratulations government and people of Alberta.

Don Hutchinson is General Legal Counsel for The Evangelical Fellowship of Canada.




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