Ontario's Court of Appeal has allowed a five-year-old child to legally have three parents - whilst admitting that the state's legislation on custody, the Children's Law Reform Act, has fallen behind current societal practices and values. The Court ruled that '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'.
The case is likely to set a strong precedent in Canada for many other gay and lesbian parents wishing to gain equal legal status to that of the biological parent.
The child has been raised jointly by its biological mother and her lesbian partner, who have been together since 1990. They chose to call upon the help of a close male friend to act as a sperm donor to enable the couple to have a child, and decided that it would be in the child's best interests for its biological father to be involved in its upbringing. If the child was adopted, the sperm donor would lose his legal status as the child's father, under Ontario's Child and Family Services Act. The biological mother and father are both registered as legal parents on the birth certificate, and the two women are considered to be the child's guardians.
The applicant mother's lawyer, Mr Jervis, said his client 'has been a mom since this little boy was born. She's read him stories, changed his diapers, patched up his runny nose, and put Band Aids on his fingers, and done all the things mothers do equally with his biological mother. And she's now his legal mom'. The family raised concerns about the custodial consequences that may arise if the biological mother died or practical matters during an emergency if the biological mother was not present. The father's lawyer, Mr Mamo, commented that 'It's not an academic issue; it's very much a practical issue', adding 'if the biological parent is away, and the child gets sick and they have to go to the hospital, and the doctor wants the parent to sign a consent, there has to be the ability to do that'.
Opponents of the decision have raised concerns about the ruling. Joseph Ben-Ami, the executive director of the Institute for Canadian Values, criticised the Court for carrying out 'naked judicial activism' and the Evangelical Fellowship of Canada has commented that the ruling will send 'a definite ripple effect' throughout society. Other commentators have highlighted the complexities of a possible three-way custodial battle. The decision may still