[/align][/align]A five-year-old Canadian boy can have two mothers and a father, an Ontario court ruled this week in a landmark case that redefines the meaning of family and examines the rights of parents in same-sex relationships.
In a ruling released on Tuesday, the Ontario Court of Appeal said the female partner of the child's biological mother could be legally recognised as the boy's third parent.
The biological father, named on the boy's birth certificate, is a friend of both women and is taking an active role in the child's life.
"It is contrary to (the child's) best interests that he is deprived of the legal recognition of the parentage of one of his mothers," Justice Marc Rosenberg wrote in the ruling, which did not name the three parents or the child.
"Perhaps one of the greatest fears faced by lesbian mothers is the death of the birth mother... Without a declaration of parentage or some other order, the surviving partner would be unable to make decisions for their minor child."
The two women, who have been together since 1990, told the court they did not want to adopt the child because it meant the father would lose his status as a parent.
"It's an important precedent because the legislature has not kept the legislation up to date," said Peter Jervis, one of the lawyers for the applicant, referred to only as "A.A."
"The court has basically said that it would step in to recognise this woman as the mother of her child ... and would treat her equally," said Jervis.
He added that the court found the family to be a very loving one and that A.A. had met all the criteria of being a loving mother.
"She read the bedtime stories, put the Band-Aids on his fingers, cleaned his runny nose, had taken him off to school," said Jervis.
The Alliance for Marriage and Family, a coalition of several groups that promote a traditional family structure, had filed as an intervenor in the case.
"We think there are many good reasons for continuing to uphold the definition of family as two parents," said Joanne McGarry, executive director of the Catholic Civil Rights League, one of the groups represented by the alliance.
"Once you remove it from the realm of nature and the realm of traditional moral and religious teachings, who's going to decide how many parents a child can have? What's so magical about three, maybe there could be more."
McGarry said the Alliance had not decided if it would appeal the decision.
The Institute for Canadian Values, which opposes a 2005 law allowing same-sex marriage in Canada, dismissed the ruling as an act of "naked judicial activism".
"The court saw this case as an opportunity to entrench so-called alternative family structures in law without submitting the idea to the rigours of the legislative process," Executive Director Joseph Ben-Ami said in a statement.
However, Laurel Rothman, Director of Social Reform at the Family Services Association of Toronto, which worked with the applicant's legal counsel during the case, applauded the decision.
"The situation basically recognises the changing face of families in Canada in the beginning of the twenty-first century," said Rothman.
"The law is catching up to the reality of families in modern-day Ontario."
Same-sex marriage has been legal in Ontario since 2003, and across Canada since 2005.
The latest judgement overturned a 2003 ruling by the Ontario Superior Court of Justice in which the judge found that he did not have jurisdiction to declare the woman a mother.
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I think that last sentence says it all. I still don't see what good for the child is accomplished by recognizing a non-blood "relative" as a so-called mother of the child. Mom and dad have always been enough as far as I'm concerned.
Whether people are homosexual parents or not, the child doesn't need a third party acting as a guardian so long as the biological parents are fulfilling his basic needs. But, then again, I believe the parents have every right to arrange things as they see fit, provided that the kid is safe and healthy. It's just the legislating from the bench that really ticks me off. Welcome to the 21st century.
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It still amazes me that this conversation is even taking place across this nation.
About 15 years ago I had the occasion to speak to a lawyer about alternative marriage contracts. This was when insurance companies were using the exemption of the "pre-existing condition" to deny claims to many newly married couples. (That practice as since been made illegal in Arkansas, I don"t know about the rest of the states.)
I was trying to help a person find a way around the pre-existing clause.
The attorney explained that even if an alternate marriage contract was devised that afforded all parties a level of protection and fairness in dispersing property and assuming liabilities from possible medical expenses the state would in all likelihood not enforce the contract because the contract first had to be shown to be beneficial to the state.
He went on to explain that with marriage law this was most certainly the case. He explained that each state decides what marriage contracts the state will accept, there is no national standard. That is why in some states there is what is called "Common Law" marriage. (Live as husband and wife for 7 years and you are married.) Arkansas has Common Law marriage, but some of the surround states do not recognize the common law marriages.
(The law surrounding pre-existing exclusions was still being sorted out at that time and the Common Law marriage contracts seemed to have a little more gray area for working around the exclusions.)
I asked the attorney if a contract could be devised that included Arkansas Common Law marriage that Tennessee would have to recognize at some future point in time.
The attorney explained that first and foremost the contract would have to be shown to be beneficial to the state. Simply being beneficial to the couple was secondary. The attorney explained that this has always been the standard that marriage law has been written by.
Since the topic of same-sex marriage has hit the national scene I have wondered if the attorney was completely off base in what he had explained to me or if we are seeing marriage law being written using a whole new principal for writing that law.
It wasn"t simply enough for the state to be held harmless, for any marriage contract to be recognized/enforced by the state it has to be primarily beneficial to the state.
Of what primary benefit to the state is it to accommodate same sex couples that want to marry?
I can see the benefit to the couple, but where is the benefit to the State?
Thanks
Mr-Pirk
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"Perhaps one of the greatest fears faced by lesbian mothers is the death of the birth mother... Without a declaration of parentage or some other order, the surviving partner would be unable to make decisions for their minor child."
In such a relationship why should the surviving partner have any right to make decisions for a child they had no hand in creating ? It's not her child and therefore not her decisions to make . The right of the father should always take precedence over the surviving partner . Crap like this is yet another log on the fire of reasons why I will never support homo marriages or even civil unions , there's already enough problems with traditional unions for everyone to have to figure out the pervo's problems too .
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Kevin Haendiges
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When I was a student at Iowa, there was a newspaper story on a group of people in Iowa City that called themselves "The Family." It was two bisexual men living with two bisexual women. They were paired off as two official man/wife couples, but besides that everyone considered themselves to be partners with everyone else in the house as well. So, when the lights went out at night, all hell would break loose. The last I heard, one of the women was pregnant. She claimed to know who the father was, but i figured that it could just as easily be the other man or the turkey baster.[:'(]
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