TORONTO, ON—A court decision allowing a child to have three legal parents has given new urgency to recent calls by faith-based organizations that Parliament reclaim the initiative for setting social policy in Canada—and especially as it affects the family.
“We think this case shows better than most cases how mistaken it is to have social policies set by court rulings rather than by legislators,” says Joanne McGarry, executive director of the Catholic Civil Rights League (CCRL).
Last month, the Ontario Court of Appeal allowed a five-year-old boy to have two mothers—his biological mother plus her lesbian partner. His father, a family friend who remains part of his son’s life, supported the application.
The unanimous ruling by the three-member panel effectively rewrites Ontario’s Children’s Law Reform Act by closing what the judges called a “legislative gap” that could not have been anticipated when the law was passed over 30 years ago.
Back then, they say, “The possibility of legally and socially recognized same-sex unions and the implications of advances in reproductive technology were not on the radar screen.”
The applicants claim this arrangement is in the best interests of children by giving them the added security of a third parent. Social conservatives strongly disagree.
By lifting the cap on how many parents a child can have, Dave Quist, executive director of the Institute of Marriage and Family Canada (IMFC), says the ruling opens the door to all sorts of future court challenges that can only weaken the family.
What will happen, he wonders, if more than two parents separate? “Then it gets really murky....Who has custody rights? Who has financial obligations and things like that? If [they] join up with somebody else and they ask for legal status, where does it end?”
It is even possible, adds Don Hutchinson, general legal counsel for the Evangelical Fellowship of Canada (EFC), that a married woman who gave birth as a surrogate, the infertile couple who wanted a baby, and the couple who donated the sperm and eggs used to conceive the baby could all claim in court to be that child’s legal parents.
Six parent potential
“Now we have a potential situation for six parents...which creates a huge legal wrangle,” he says, “but also: what happens to this child?”
Hutchinson also believes the ruling makes the eventual legalization of polygamy a “real possibility in Canadian society.”
“What part of three parents is not polygamy?” asks Joseph Ben-Ami, executive director of the Institute for Canadian Values (ICV).
Given the potential fallout from this precedent-setting decision, social conservatives believe Canada is overdue for an in-depth look at the state of the family. “Let’s hit the pause button,” says Quist. “Let’s look at the research to see what it’s really telling us.”
“How many parents can a child have? We haven’t even really had that discussion in society,” says McGarry.
Prior to the recent vote by MPs on whether to reopen the marriage debate, the EFC, the ICV and others had called for a delay pending an in-depth study of the issue. After the motion was defeated, the IMFC began calling for a royal commission on the family.
“The three-parent case...waves the flag that says we need that right now,” says Quist.
The ICV is now on board. “We expect [a royal commission] would look at the issue of family relationships, the whole area of adoptions, tax policy, possibly touch on education issues, etc., etc., and then come back with a series of recommendations for policy adjustments or legislative reform,” says Ben-Ami.
So far, the CCRL and the EFC remain neutral to the idea. “It may well be [the best way to proceed],” says Hutchinson. “We’re just not narrowing things down to one option.”
Ben-Ami says he plans shortly to formally ask the government to create this royal commission.
“When we look at projects that impact the environment, we actually do comprehensive environmental impact assessments... We should be doing the same thing when it comes to... the family,” he says. “It’s not a social conservative argument. It’s just a question of sound government practices.”
