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"How Many Parents Do You Have?"

Where was the Attorney General's office when it was needed? When a gap in legislation suggested a third parent could be registered, only four Christian organizations intervened.


If you wanted to know about a young person's family, in the past you would have asked them questions like, "How many brothers and sisters do you have?" or "How many kids do you want to have when you get married?"

Ethicists have long dealt with the question, "Just because we can, does it mean its right to do it?"

The Supreme Court of Canada may change that. They have received requests for permission to appeal two court cases where the judges' decisions could add a third question: "How many parents do you have?"

In the "Three Parents Case," just the nickname given this case seems to imply an answer to the question, the Ontario Court of Appeal reversed the decision of a lower court and ordered that a third person be registered as the legal parent of a child. In this case the biological mother of the child is living in a cohabiting relationship with another woman. The biological father, who is also the father of three other children, is a friend of the women and would like to continue to have a relationship with the child. Ontario law, as passed by the provincial legislature, only provides for two parents to be legally registered in regard to a child. The Court of Appeal found that there was an unintended "gap" in the legislation through which this family arrangement would fall if the court did not intervene, using its inherent jurisdiction to fill the gap they found.

Three years had passed between the decision at the trial level and the hearing by the Court of Appeal. During the three year period, the government of Ontario evidently saw no need to change the legislation concerning family status and took no steps to do so. Yet, the government did not send a representative to the Court of Appeal to stand up for the law. The Evangelical Fellowship of Canada (EFC), as part of the Alliance for Marriage and Family (AMF), intervened in this case and has asked the Supreme Court of Canada to review the decision of the Court of Appeal. Apart from the AMF, there was no other request to get involved in the case to present a position on behalf of "family" or the Ontario legislation dealing with parental status.

The organizations that came together to form the AMF (Catholic Civil Rights League, Christian Legal Fellowship, Focus on the Family Canada, REAL Women and the EFC) have a valuable contribution to make in regard to the public policy and judicial understanding of "family."

Absent from the courtroom, however, was any representation from the Attorney General of Ontario, the public official responsible for defending provincial legislation. There is a hue and cry from many that the courts are too active in regard to public policy issues, but perhaps we should ask where our elected government leaders are when legislation that is supported by public opinion is challenged?

In the "Non-Parent Case," another interesting moniker, a woman in a cohabiting relationship with a man decided to have a child. He did not want a child, but they agreed to continue their relationship and the couple developed a contract under which the woman would pursue artificial insemination by an unknown donor and the man would not have any parental rights or responsibilities. Wanting to assess the legality of the agreement, the couple took the case to court. In this instance, the judges said you can't contract out of family law legislation. In essence, if the man remains in the household with the child he will have an influence on that child as either a good father or a poor father. The Alberta Court of Appeal refused to adopt the Ontario Court of Appeal's approach of using the court's inherent authority to find a "gap" in the legislation. Such a gap could have allowed the court to make a decision contrary to the position expressed in Alberta's family law legislation. It would be remiss not to give credit to the Attorney General of Alberta for defending the legislation as implemented by the elected representatives of the people of Alberta.

These decisions appear to be two sides of the same "family" coin. In one, the court stepped into the public policy arena, altering public and social policy by the use of its inherent jurisdiction. In the other, the court stepped back in deference to elected representatives on the matter of public policy decision making. Both are now sitting in the stack of requests made to the Supreme Court of Canada.

Some claim advances in reproductive technology that resulted in the birth of these two children into non-traditional family arrangements are sufficient to require and justify a change in how society regards "family." One Ontario lawyer has argued that we should all be allowed to define family as we see fit, that there should not be a societal norm or an expectation of family structure resembling what has been described as "the traditional heterosexual family."

Ethicists have long dealt with the question, "Just because we can, does it mean its right to do it?" This is the question now sitting in the two files waiting for decision from the Supreme Court of Canada. Shouldn't those files better be found on the desks of our political leaders? Aren't they deserving of a full and public study of the impact such decisions would have on the social fabric of Canadian society—particularly the impact on children who are the most affected by the outcome of these battles for adult rights—and the effect such changes might have on public policy and legislation?

It used to be these issues were decided by our elected representatives, following full and public study, and put to the electorate with candidates declaring themselves "for" or "against." These types of issues were not sent to our highest court, placing judges in the unenviable position of reaching past the law to decide on matters of social and public policy. The current reality is the Supreme Court of Canada will be making a decision on both cases. Even a decision not to hear the appeal of a case reinforces the decision of the respective Court of Appeal. The public has an interest in the outcome and should be represented—by the elected government responsible for the legislation and by groups like the EFC who present a vital position on issues about which they have expertise.

Don Hutchinson is a husband and father and general legal counsel for The Evangelical Fellowship of Canada.

 

 
 
 
 

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