Ontario appeals court rules boy can have two moms
Published Tuesday, January 2, 2007 10:49PM EST
TORONTO - An Ontario boy can legally have two mothers and a father, the province's highest court ruled Tuesday.
The same-sex partner of the child's biological mother went to court seeking to also be declared a mother of the boy.
After hearing arguments in 2003, Superior Court Justice David Aston dismissed the application saying he didn't have the jurisdiction to rule in the case.
Court was told the child has three parents: his biological father and mother (identified in court documents as B.B. and C.C., respectively) and C.C.'s partner, the appellant A.A.
A.A. and C.C. have been in a stable same-sex union since 1990. In 1999, they decided to start a family with the assistance of their friend B.B.
The two women would be the primary caregivers of the child, but they believed it would be in the child's best interests that B.B. remain involved in the child's life.
The boy refers to A.A. and C.C. as his mothers.
Aston indicated that had he thought he had jurisdiction, he would have made ruled that A.A. was also the boy's mother.
"The child is a bright, healthy, happy individual who is obviously thriving in a loving family that meets his every need," the decision reads.
"The applicant has been a daily and consistent presence in his life. She is fully committed to a parental role. She has the support of the two biological parents who themselves recognize her equal status with them."
A.A. and C.C. did not apply for an adoption order because, if they did so, B.B. would lose his status under the Child and Family Services Act.
"Perhaps one of the greatest fears faced by lesbian mothers is the death of the birth mother," the appeal court heard. "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."
The Children's Law Reform Act does not reflect current society, the appeal court judges ruled.
"There is no doubt that the Legislature did not foresee for the possibility of declarations of parentage for two women, but that is a product of the social conditions and medical knowledge at the time," they wrote. "The Legislature did not turn its mind to that possibility, so that over 30 years later the gap in the legislation has been revealed."
As a result, the statute does not provide for the best interests of the child in this case, the judges said.
"The Act does not deal with, nor contemplate, the disadvantages that a child born into a relationship of two mothers, two fathers or as in this case two mothers and one father might suffer."
The Attorney General for Ontario did not chose to intervene to support the legislation, the ruling noted.