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.
I suppose my first thought is that when this family breaks up, I want a piece of the ensuing custody dispute. Of course I jest. After all, this is a “loving family” in which the boy (all of four at the time the case started) is ‘thriving”. Come to think of it, all the cases I’ve read in recent years regarding gay marriages, gay adoptions and gay custodial rights involve couples whose love and commitment to each other and their thriving kids is in the stratosphere, and we all know how our no-nonsense judges are suckers for a good love story. These couples never seem to quarrel or doubt, and they always promise to stick together to the end of time, which should be good enough for me. Not at all like those fractious, unstable hetero marriages with their boredom, sexual frustrations and forty percent divorce rates. Indeed, the decisions in these cases often read like happy endings from Harlequin novels. I suppose it’s got something to do with that gay gene we are on the verge of discovering.
Besides, as the judges say, the old laws simply don’t reflect “current society”. That would explain why the litigants in these cases are always accorded the extremely rare privilege of being named by anonymous initials– presumably that gives us all a catchy handle to remember and thank them by. But why so reticent about naming the boy? Kids are almost always named in other family law cases. After all, he’s just won the lottery of life and stands to make some darn good lucre on the talk show rounds. Personally, I think its awfully selfish of them all not to come out of the parental closet to share their joy and help raise our consciousness.
You doubt? C’mon, the court had no choice. It’s been a principle of English common law since time immemorial that laws have to reflect current society or they get tossed out summarily by our appointed, unaccountable judges chosen exclusively from one profession. I think it’s somewhere in the Magna Carta between trial by jury and gender equality. True, it’s always a sticky matter to figure out just what current society is reflecting these days. I confess I haven’t seen a lot of this kind of stuff in the hockey rinks and doughnut shops, but as my kids keep telling me, I’m not cool or in with the programme. No, to really understand what current society is reflecting, you have to be a well-paid high court justice everybody defers to living among the beautiful people in exclusive areas of Toronto.
So, congratulations to the lucky...err..couple, and also to little what’s-his-name. As Mom always used to say, you can never have too many parents making those critical health care decisions for you. And I do apologise for that cheap shot about custody battles. Call it the impulsive black humour of an overstressed lawyer. I have no doubt these folks will continue to love and thrive...love and thrive...love and thrive...whatever. There is no way in the world I would want to be involved in the sordid and tragic fallout from the failure of this heart-warming trailblazer in multi-directional love.
But I just might brush up on my estate litigation.
8 comments:
Real names should be mandatory in court. This is ridiculous as was the anonymous Roe v Wade.
Let's talk about what's really going on here: polygamy. Just as gay adoption was just a way-station on the road to gay marriage, this decision will necessarily lead to legalized polygamy. And not just your father's polygamy, either. Traditional polygamy is just a series of traditional marriages. One woman marries one man, who happens to be married to another woman, and another woman, and another woman. There is no legal relationship between the women. What we're heading for here is a group marriage, where everybody is married to everybody else.
Study your estate law, indeed.
Of course, when the judge says that the greatest terror of the non-biological lesbian mom is the death of the biological mom, he's ... (hmm, shouldn't say a judge is lying) ... misled. The real fear is what will happen when the two moms break-up -- as they almost certainly will.
Peter, you are a master of the sarcastic arts. Well done.
This kid better thrive and demonstrate that he is as happy as any child can possibly be. If he isn't, then it will obviously be due to the mixed messages that a blatantly homophobic society continues to burden him with. This kid will be monitored like a radiation counter outside Chernobyl.
Peter:
All sarcasm aside, is this a valid concern?
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.
Analagously, stepfathers (or stepmothers) don't face this same problem, do they?
Peter:
I'm not pressing on this to make a point, but because I am curious.
Is it legally possible to, through a contract, grant paramount medical decision making authority to the non-biological "mother" instead of the biological grandparents?
Let's say the grandparents are Christian Scientists, but the parents are not. In a M-F marriage, should the biological mother die, the stepfather's decisions would take precedence, right? (The reason I put it this way is because sometimes adults don't arrive at the same decision).
However, if it is a F-F non-marital relationship, would the surviving non-biological mother have any standing at all with respect to the granparents?
No doubt this sort of thing happens very rarely, but far more often than never, and impossible to ascertain in advance.
As for the "dad," I've put him on disregard.
Skipper: The "dilemma" here is completely artificial. From the article:
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.
In other words, the couple could easily have arranged things so that the non-biological mom would, nevertheless, have been a legal mom. But, because a kid can only have two parents, the bio-dad would have been cut-off from all paternal rights and responsibilities. This case is about recognizing three "parents" in law, and has nothing to do, except rhetorically, about not being mean to the nice lesbian.
That's why I said that this case was really about group marriage. Canada now has three "parents" each of whom has rights and responsibilities with respect to the other two. Not only does this put a turbo boost to the decline of western civilization, but just the cost of redoing all the forms is going to be enormous.
Peter:
Good answer, thanks.
David:
It agree with you to the extent this could become about group marriage, but somehow I get the feeling the litigants haven't taken that on board.
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