Gay man confirmed as legal father of girl even

though his former partner is her biological parent

In a ruling that illustrates the vexing question of who and what is a parent, Alberta's Court of Appeal
has upheld the decision to declare a gay man the legal father of a 10-year-old girl, even though it
was his former partner who inseminated the child's mother.
The man, known as Mr. H to protect the girl's identity, raised her with his partner Mr. R for the first
three years of her life, and it was only a discriminatory part of Alberta's family law that denied him --
and any other non-biological father who is not married to the mother -- the legal status of "parentage
based on intent," a common feature of adoption, surrogacy, and other kinds of non-biological
parenting.
The girl lives with Mr. R, her guardian, and this new decision has no effect on her custody
arrangements, though it gives Mr. H standing to challenge them.
It also imposes responsibilities. Nicholas Bala, a family and children's law expert at Queen's
University Faculty of Law, said the decision reflects and reinforces two legal trends: one to give
greater recognition to "social or psychological" parents and the other to pin down the baffling new
realities of reproductive technology, in which the old categories of mother and father no longer
always fit.
In this, courts have gone where legislatures fear to tread.
"Legislation is lagging the Charter litigation," Prof. Bala said, to such a degree that provincial law "is
not reflective of current realities," so people are forced to go to court.
"It would have been helpful to have an agreement at birth, but legislation didn't allow for it," he said.
The decision to name Mr. H her legal father, upheld by Alberta's top court last week, follows the
acrimonious breakup of the men's marriage-like relationship, which upended an arrangement they
had with the mother, Ms. D, and her lesbian partner, Ms. C.
Born in May 2003, the girl lived with the men, calling elliot rodger retribution them Papa and Daddy,
and the women had regular contact. Under their arrangement, a second child was conceived, a boy,
who is being raised by the women.
When the men separated in 2006, Mr. R and Ms. D drew up a new agreement in which they were
both guardians, with Mr. R having primary custody.
Initially, they denied access to Mr. H, who applied to the court for parental contact, which was
denied after discussion of his HIV positive status, his "irrational and emotional" behaviour
following the breakup, and the fear that the girl would be confused if forced to see him. On appeal,
he won access pending trial, but the relationship with Mr. R worsened. Since 2007, the lower court
judge wrote, Mr. H's relationship with the child has been "virtually non-existent."
A trial took place in 2009, with the result that the child legally had only a mother, Ms. D, who did not
have primary custody. The next year, Mr. R., who had continued to raise the child, became her legal
guardian with Mr. H's consent.
'It would have been helpful to have an agreement at birth, but legislation didn't allow for it'
Mr. H then challenged the province's Family Law Act which, as a judge found, "bases male
parentage on the existence of a spousal or common-law relationship with the birth mother; an
occurrence that will never be realized in a same-sex relationship."
His victory marks the latest, though not likely the last, in a long line of controversial legal cases
about the nature of parenthood, which has shifted according to advances in both science and
culture.
Among the lifelong rights and obligations that come with parentage are that a Canadian parent may
confer citizenship regardless of where the child is born; a parent must consent to any future
adoption; and a parent may register a child in school or obtain documentation, such as a passport or
health card, on behalf of the child.
In the 1970s, legislatures across Canada moved to abolish the notion of illegitimacy. From then on, a
person's status as a child of their parents did not depend on being born into wedlock. Likewise, the
legal presumption that the husband of the mother is the father of the child has fallen out of favour,
as it fails in the case of surrogacy.
Birth certificates are routinely changed in all provinces, to correct mistakes or reflect adoptions, and
declarations of parentage are relatively common, but are usually about paternity. Declarations about
maternity are very rare, but have happened. In 2011, for example, a Saskatchewan judge ruled that
a woman who gave birth to a baby girl is not actually the child's mother, because she carried it as a
surrogate and surrendered all parental rights at birth.
In 2002, an Ontario judge likewise declared a gestational carrier was not the mother of a child,
largely because the carrier gave her consent to the arrangement.
In 2000, a Manitoba judge ruled in the case of a woman who was a gestational carrier for her sister-
in-law's ovum, fertilized with her brother's sperm. The judge refused to declare the sister-in-law to
be the mother of the as yet unborn child, and declined to make an order about paternity to avoid the
uncomfortable outcome of siblings being listed as parents.
And in 2007, the Ontario Court of Appeal elliot rodger retribution declared a child to have three
parents under the law: Her biological father and mother, and her mother's same-sex partner, all of
whom were actively involved in the child's life.
National Post
jbrean@nationalpost.com
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