ALL FAMILIES ARE EQUAL ACT: HOW DID WE GET HERE?

Parenthood has historically been viewed as a convention that is incongruous with the Lesbian Gay Bisexual Transgender Queer Plus (“LGBTQ+”) community, yet an increasing number of LGBTQ+ couples are broadening their relationships to include parenthood. Up until the recent legislative reform, which led to the All Families Are Equal Act ("AFAEA"), LGBTQ+ parent families outpaced legal definitions. This organically transpired as the laws in Ontario represented an outdated ideology that families consist solely of heterosexual couples raising biologically related children. As this change continues to become more prevalent through assisted reproduction and gestational surrogacy, social norms regarding parenthood, gender identity, and trans-inclusivity will continue to evolve as well. The traditional definition of “family,” that of a two-parent household, no longer correlates to the lived experience of many LGBTQ+ families in modern society.[i]

BACKGROUND: PARENTAGE POLICY IN ONTARIO

Parentage policy, which is determined by provincial legislatures, refers to “the rules concerning the procedures and eligibility requirements used to determine legal parenthood for children born through assisted conception or surrogacy.”[ii] Previous laws made traditional assumptions about families that allowed for the potential exclusion of LGBTQ+ families. However, with the growing number of LGBTQ+ families in conjunction with the diverse means and use of assisted reproduction, these assumptions have come under scrutiny and have been subject to a number of judicial challenges. [iii]

In Rutherford v. Ontario[iv] the Applicants were same-sex parents whose children were conceived through anonymous donor insemination. The Applicants sought to include the particulars of both parents on their child's Statement of Live Birth. The Vital Statistics Act (the "VSA") made this impossible as it only allowed the listing of one mother and one father. As a result, they brought an Application claiming that they were entitled to the registration of accurate particulars of their families under the VSA and a declaration of parentage pursuant to the Children's Law Reform Act, (the "CLRA"). The Applicants urged the court to use a modern interpretation of both statutes to accomplish these ends. In the alternative, they asked the Court to exercise its parens patriae jurisdiction to protect the best interests of children born into families with same-sex parents. Further to this, they submitted that if the statutes did not allow for the relief sought, the VSA would be unconstitutional as it violated ss. 7 and 15 of the Canadian Charter of Rights and Freedoms (the "Charter").[v]

The guarantees of life, liberty, and the security of a person afforded by s. 7 are not to be taken lightly. Equality under the law, as well as equal protection and benefit of the law afforded by s. 15, make it clear that everyonemust have the same access to the law. The existing legal status quo was prejudicial to the Applicants given that biological fathers of children conceived through reproductive technology were permitted to have their names listed on Statement of Live Birth, but by the same Act, this right did not extend to non-biological parents. Therefore, the Applicants were denied the equal benefit of the law when they were denied presumptive proof of parentage. Same-sex co-mothers who planned pregnancy with a spouse using reproductive technology were excluded by the language of s. 9[vi] of the VSA. The provisions in the VSA were discriminatory on the basis of sex and sexual orientation.

 

Justice Rivard found that Ontario's policy was discriminatory on the basis of their sex and sexual orientation, and the discrimination could not be justified as a reasonable limit under s. 1 of the Charter. Justice Rivard suspended the declaration of invalidity for one year, giving the government the opportunity to respond:

"There is no reason those non-biological mothers should have to ask permission to recognize the physical necessity of their relationships with their own children. Thus, they are not merely seeking accommodation in this case through a separate scheme of parental recognition. They are arguing that the institution of parentage must be challenged, in order that their experiences can be part of that institution. They do not want a concession to the difference, but a reconceptualization in light of their needs and experiences of what is normal in our society." [vii]

A few months later, in A.A. v B.B[viii]A.A. and her same-sex partner C.C. had been in a same-sex union since 1990 and decided to start a family with the assistance of their friend B.B. All parties had agreed the two women would be the primary caregivers of the child, and that it would be in the child's best interest if B.B. stayed involved. A.A, who was not the birth mother, wanted to be recognized as the child's second mother but did not wish to proceed by way of adoption, which would efface B.B.

The Application judge found that he did not have jurisdiction to make the declaration sought, either under the CLRA or through the exercise of the court's inherent parens patriae jurisdiction. He dismissed the application. No constitutional argument was made before him. On appeal, the Appellant repeated the same arguments but raised constitutional concerns. She alleged a violation of her rights to equality and fundamental justice under s. 7 and 15 of the Charter.[ix] 

"One of the greatest fears faced by lesbian mothers is the death of the birth mother.  Without a declaration of parentage or some other Order, the surviving partner would be unable to make decisions for their minor child, such as critical decisions about health care." [x] 

The task before the court was to figure out whether it had jurisdiction, either under the CLRA or its inherent parens patriae jurisdiction, to grant the declaration, thus effectively recognizing three legal parents to a child. Justice Rosenberg responded to this issue in the affirmative. He agreed with the application judge's finding only in part, which was that the CLRA, and in particular s. 4(1), [xi]  allowed the court to make a declaration in favour of one male person as the father and one female person as the mother. Since the child already had one mother, the application judge had no jurisdiction under s. 4(1) to make an order in favour of A.A. that she too was the mother of the child. [xii] 

"Present social conditions and attitudes have changed. Advances in our appreciation of the value of other types of relationships and in the science of reproductive technology have created gaps in the CLRA's legislative scheme.  Because of these changes, the parents of a child can be two women or two men.  They are as much the child’s parents as adopting parents or “natural” parents. The CLRA, however, does not recognize these forms of parenting and thus the children of these relationships are deprived of the equality of status that declarations of parentage provide." [xiii] 

Justice Rosenberg ruled that the CLRA failed to acknowledge LGBTQ+ families and those who use assisted reproduction. The court was forced instead to rely on its parens patriae jurisdiction to advance the child's best interests, by recognizing that the child had three parents. [xiv] He granted the appeal and declared the non-birth mother as the child's third parent. At this juncture, it was not clear whether this decision would extend beyond the facts of the case, or whether all future three-parent families would need to litigate for a similar status. [xv]

In response, the Ontario provincial legislature "took no meaningful steps to correct its outdated, discriminatory approach to parentage," explained Joanna Radbord. Ms. Radbord is a leading Constitutional and Family Law lawyer and legal activist. [xvi]  In fact, the provincial government responded with the bare minimum by only modifying the regulation attached to the VSA. The new regulation allowed the woman giving birth and the "other parent" to register a child's birth, where the father was unknown, or the birth occurred through assisted conception. The legislation did not respond to the concept of three or more parent families as seen in A.A v B.B. This lack of progressive action by the provincial legislature ensured that the matter would return to court in the future, requiring judicial remedy. [xvii] 

PROGRESSIVE ACTION: TEN YEARS LATER

Joanna Radbord and Jennifer Mathers McHenry worked with Cheri Di Novo, a Member of Provincial Parliament (MPP) for Parkdale-High Park, to introduce a private member's Bill in the fall of 2015; Bill 137, Cy and Ruby's Act(Parental Recognition). They sought to transform Ontario's parentage regime by introducing massive changes that would encompass surrogacy, assisted reproduction, and three-or-more-parent families. [xviii]  The Bill passed second reading with all-party support but was not sent to Standing Committee, which may make further recommendations as a standard bill passing procedure. “'Unwilling to wait any longer, on April 8, 2016, I commenced an Application on behalf of 21 LGBTQ+ parents in Grand v. Ontario[xix], seeking a declaration of constitutional invalidity in relation to discriminatory provisions of the CLRA and VSA,'” explained Radbord. [xx]

In Grand,[xxi] Justice Chiappetta, on consent, struck down the CLRA as unconstitutional having to violate section 15 of the Charter for failing to provide equal recognition and the equal benefit and protection of the law to all children, without regards to their parents' sexual orientation, gender identity, use of assisted reproduction, or family composition.[xxii] The declaration of invalidity was suspended for nine months. It was agreed upon by the parties that Madeleine Meilleur, the Attorney General for Ontario, would introduce a Bill to remedy the discrimination.

Despite the above-mentioned, Justice Chiappetta failed to initiate a more comprehensive jurisprudential analysis that could conclusively discern why the laws were discriminatory, nor did she employ a section 1 Oakes test[xxiii] to determine what might constitute a reasonable limit. In fact, the Charter finding was one paragraph long. By contrast, the Minutes of Settlement contained a detailed statement of issues and specific principles that would inform and guide the Attorney General. [xxiv]  However, these principles were not judicial declarations of Charter violations per se; they were merely agreed upon by the parties to adjourn the constitutional challenge. [xxv]  

Watershed moments in litigation regarding equality and equal rights that led to legislative reform came with an abundance of support from high-stake interest groups, interveners of all categories and many, many amici curiae. This is clearly evident if one considers the long list of those involved in landmark decisions such as Trinity Western University v. Law Society of Upper Canada[xxvi], A.A v B.B[xxvii]Rutherford v. Ontario (Deputy Registrar General)[xxviii]re Reference Same-Sex Marriage Act[xxix], M. v H[xxx], Egan v Canada[xxxi], and Andrews v. Law Society of British Columbia[xxxii]However, the Grand decision, which led to legislative reform, was the result of a small group of skilled practitioners united by a common goal. Through their drive, determination, and tireless advocacy for equality they successfully initiated policy change.

Ontario's Standing Committee on Social Policy heard various presentations on the AFAEA. During the hearing, there was tactical coordination and considerable legal knowledge among those witnesses who supported the goals of the legislation.[xxxiii] The witnesses included but were not limited to individuals such as Jennifer Mathers-McHenry, Kirsti Mathers-McHenry, and Joanna Radbord, lawyers and architects of Cy and Ruby’s Act; Sara Cohen, Cindy Wasser, and Shirley Eve Levitan, Fertility Law lawyers; Rachel Epstein, a program coordinator at the LGBTQ+ Parenting Network, an LGBTQ+ advocacy group, and the applicant in Rutherford; Dr. Donna McDonagh and Dr. Carolyn Fitzgerald, applicants in Grand; Cheryl Appell, representing the Ontario Adoption Association; and Dara Roth Edney, a social worker and mother to a child conceived through surrogacy. [xxxiv]

This coordination was a result of working relationships between many of the witnesses and Cheri DiNovo on Cy and Ruby’s Act. DiNovo acknowledged a number of people “who really were the stalwarts and who had really been fighting for this for the last decade.” [xxxv] These witnesses had strong knowledge of jurisprudence and the law; six mentioned Rutherford specifically, several had been involved in parentage litigation, and several had helped craft Cy and Ruby’s Act.[xxxvi]

ALL FAMILIES ARE EQUAL ACT: GAME-CHANGER

Bill 28, also known as Cy and Ruby's Act (Parental Recognition), unanimously passed third reading and received Royal Assent on December 5, 2016, coming into force on January 1, 2017. It was the first time Ontario Parentage Laws were updated since 1978. The AFAEA amends several existing Acts, including the CLRA and the SLRA. The AFAEA drew heavily from the principles agreed to by the parties in the Minutes of Settlement in Grand.[xxxvii] The Act makes a significant positive difference to children and parents in the Province, "a world leader in parental recognition" says Radbord. [xxxviii]

The legislation highlights a few important departures such as parentage no longer being defined through relationships by blood or adoption. The new law of parentage is primarily interested in pre-conception intention. Gone are the days of requiring a court order for more than two individuals to be recognized as parents of a child; up to four people are now able to make this proclamation legally. Intended parents no longer need declarations of parentage following surrogacy. Gender-neutral language is used with respect to the registration of births. Blood or legal relationship is no longer a factor in determining best interests under section 24(3).

By updating the conditions of parentage to create a presumptive exclusion of a person who provides reproductive material or an embryo, as well as a surrogate who waves their entitlement to parenthood, sections 4-6 of the AFAEA are a vital addition to the CLRA. The significance stems from the term “parent” replacing the term “mother” and “father.” Section 7 of the AFAEA adds to the CLRA by introducing conditions which presumptively render an individual the parent of the child. For example, a legally married spouse is a de facto parent under the new law by virtue of being married to the birth parent. The concept of a “pre-conception agreement” is also introduced in Section 9 of the AFAEA, which allows prospective parents to define their parental status within a mutually shared agreement.

Sections 10-11 of the AFAEA add to the CLRA by changing existing laws to include surrogacy agreements. Up to four intended parents can now agree to enter into a “surrogacy agreement” with a surrogate, who may agree to relinquish entitlement to parentage after the child is seven days old. Section 71(1-5) of the AFAEA amends the definition of “child,” “issue,” “parent,” and “spouse” found in section 1(1) of the Succession Law Reform Act ("SLRA"), to include children conceived posthumously via assisted reproduction. Posthumously conceived children are children conceived after the death of the intended parent. Section 71 (6-10) of the AFAEA details conditions under which a posthumously born infant may be legally recognized as the child of the deceased. Under certain conditions, the posthumously born child would have an opportunity to bring an application for support as a dependent of a deceased parent’s estate if this situation arose.

CONCLUDING THOUGHTS

The political climate which led to the AFAEA serves as another marker on the timeline of the struggle for equality for the LGBTQ+ community, but it will not be the last. The social context within which LGBTQ+ parents are raising children in Ontario has shifted dramatically in recent decades. Thus, logic dictates that laws and legislation too has called for change. This change must continue in order to keep pace and reflect the realities of families in 2019. The law is meant to serve the society that it represents and without equal application of it, the LGBTQ+ community’s ongoing struggle for equality will unjustly suffer.  

The above timeline, including court cases and changes to legislation, has been met with resistance from the far-right, as well as religious and conservative groups. Despite the resistance, Ontario has become the third province to reinvent its parentage regime following Alberta and British Columbia. The success in Ontario should be a lesson for the remaining provinces that may require an exemplary course of action to challenge their respective provincial parentage laws rooted in outdated heteronormative policies.[xxxix] Thus far, it is reassuring that Premier Doug Ford’s government has not repealed the Act, which was introduced and supported by the Liberal government. For those in opposition of the changes that have emanated from this Act, the LGBTQ+ community would vehemently argue that the Act is here to stay. This sentiment was best captured by Cheri DiNovo when she spoke to Charles McVety (a religious opponent):  

"I would hope, really, Mr. McVety, because I have been debating you for at least a decade of my life—going on 20 years now—that finally, finally—your children are here because God forbid—literally—that they should have children who are LGBTQ+… I would hope that the love that you spread would extend to everyone, without judgment. That goes for same-sex marriage, which I know I’ve debated you on. You lost that one, sir. You’re going to lose this one too." [xl]   

[i] Snow, D. 2017, Litigating Parentage: "Equality Rights, LGBTQ Mobilization and Ontario's All Families Are Equal Act" Canadian Journal of Law and Society, Volume 32, 3, p. 330

[ii] See xi

[iii] See. xii

[iv] [2006] 81 O.R. (3d) 81.

[v] Legal Rights 7. "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice" and Equality Rights 15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[vi] Certification of birth 9. (1) The mother and father, or either of them, in such circumstances as may be prescribed, or such other person as may be prescribed, shall certify the birth in Ontario of a child in the manner, within the time and to the person prescribed by the regulations. 1994, c. 27, s. 102 (5).

[vii] See. xvi at para 192.

[viii] See. iv

[ix] See. xviii

[x] See. xviii at para 15.

[xi] Paternity and maternity declarations 4. (1) Any person having an interest may apply to a court for a declaration that a male person is recognized in law to be the father of a child or that a female person is the mother of a child.

[xii] See. iv

[xiii] See. iv at para 35

[xiv] Radbord, Joanna. (2016) "The Birth of Bill 28: Reconceptualising Parentage in Ontario. Prepared for Law Society of Ontario The Six-Minute/ Family Law Summit.

[xv] See. i at p. 333

[xvi] See. xxiv

[xvii] See i at p. 334

[xviii] See i at p.334

[xix] Grand et al. v. Ontario (Attorney General) [2016] ONSC 3434 (Interim Order and Endorsement of May 25, 2016)

[xx] See xxiv at p.2

[xxi] [2016] ONSC 3434

[xxii] See xxxii and see also Radbord 2016.

[xxiii] R. v. Oakes, [1986] 1 SCR 103. The Oakes test is a legal test created by the Supreme Court of Canada in the case R v Oakes (1986). R v Oakes provided the Court with the opportunity to interpret the wording of section 1 of the Charter and to explain how section 1 would apply to a case.

[xxiv] See i at p.  335-337

[xxv] See xxvi

[xxvi] [2018] SCC 32, 2018 SCC 33

[xxvii] [2007] O.N.C.A. 2

[xxviii] [2006] 81 O.R. (3d) 81.

[xxix] [2004] 3 SCR 698, 2004 SCC 79

[xxx] [1996] 2218 (ON CA) 31 O.R. (3d) 417, [1996] O.J. No. 4419

[xxxi] The Egan case was made into a Historica Canada Heritage Minute earlier this year. The Minute shares the story of the case’s protagonist, Jim Egan, and his fight for equality in spousal rights.

[xxxii] [1989] 1 SCR 143, 1989 CanLII 2 (SCC)

[xxxiii] See. i p. 336

[1989] 1 SCR 143, 1989 CanLII 2 (SCC)

[xxxiv] See i at p 340.

[xxxv] Ontario 2016e, 1905

[xxxvi]Ontario 2016b, SP-4, 7, 14, 20, 22; 2016c, SP-38

[xxxvii] See xxic at p.3

[xxxviii] Radbord, Joanna. (2016) "The Birth of Bill 28: Reconceptualising Parentage in Ontario. Prepared for Law Society of Ontario The Six-Minute/ Family Law Summit

[xxxix] Interview with Mr. Dave Snow, March 11, 2019

[xl] (Ontario 2016b, SP-33)

 

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