In M. (A.W.) v. S. (T.N.), 2014 ONSC 5420, Mr. Justice Henderson granted an application brought by two married men to be declared a child’s fathers, and to have the surrogate to be declared not to be the child’s mother.
The fathers had arranged with the surrogate to carry the child to term. The egg of an anonymous third party donor was fertilized with the sperm of one of the fathers and was implanted in the surrogate.
All parties were self-represented in this matter. Prior to the pregnancy, they had signed a comprehensive surrogacy agreement and were all still willing to abide by the contract. The surrogate agreed to an order declaring that she is not the child’s mother. The parties just wanted to have their intentions recognized by the government.
The statement of live birth had not been signed and the child’s birth had not yet been registered, as the parties wanted to have the issue of parentage resolved first. The child had been cared for by the applicants since her birth.
The Children’s Law Reform Act, which sets out a number of presumptions as to when a person is considered a “father” under the law did not apply to these circumstances. The presumptions contemplate situations where there is one mother and one father.
Justice Henderson considered the facts, and stated, “In these changing times, court decisions on parentage focus less on the biological connection between child and parent and more on the substance of the relationship.” He granted an order declaring both applicants to be the child’s father, and an order declaring that the surrogate was not her mother.
He referred to the Ontario Court of Appeal case, A. (A.) v. B. (B.), 2007 ONCA 2 (Ont. C.A.), where the court states:
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.
The Court of Appeal found that the gap in the legislation was not intentional, and that the court could use its inherent jurisdiction to fill that gap, so that the child was treated fairly. The intention of the CLRA was to afford children equal status. At the time that it was drafted, according to the court there was no foresight that there could be declarations of parentage for two people of the same gender, but that was a product of the social conditions and medical knowledge at the time.
However, the A. (A.) v. B. (B.) case was decided in 2007. In late 2014, there was still no change to the CLRA, such that in this case, a same-sex married couple had to apply to the court for a declaration of parentage in order to file normal paperwork following a child’s birth. This seems an unnecessary obstacle.
At this stage, the issue is not a surprise. The Ontario Government needs to amend the Children’s Law Reform Act to reflect the social and medical realities of today.