Ontario's plan to change 'family' definition is positive for parents
Ontario took a welcome step forward when Premier Kathleen Wynne told gay rights group EGALE that the province intends to modernize the definition of family to give non-hetero parents the same rights as heterosexual parents, Toronto fertility lawyer Sara Cohen says.
"This is very exciting and we're supportive of Kathleen Wynne recognizing that we have discriminatory law in Ontario and how important it is that we recognize all types of families in the province, including non-hetero normative families," says Cohen, founder of Fertility Law Canada at D2LawLLP.
However, what the provincial legislation — to be tabled this September — will entail is unclear as the premier didn't offer any details.
Wynne said Attorney General Madeleine Meilleur will work to develop the legislation, reports the Toronto Star.
The premier's announcement didn’t reveal the details of the redrafted legislation, though Meilleur said the government wants to use a different model for the new legislation.
"I'm curious where the legislation is going to go," Cohen says, adding she is supportive of the general direction it seems the bill will take — and hopes it will recognize non-hetero normative families, multi-parent families and that donors aren't parents.
Cohen says it's the only legislation of this nature in Ontario, so it is fundamentally important that "we're careful to think about the ethical and the practical realities and to take into consideration all the different perspectives, to make sure all the parties are well protected."
She says it's key that the proposed legislation harbours no assumptions about the gender of parents because "we conceive children in lots of different ways, so we should stop making assumptions that aren't true in many situations.
"I think it's important that presumptions of parentage have to be non-gendered and non-hetero-normative, and I think it's important not only that we have birth registration that is in line with different types of families, but also true legal parentage that is in line with different types of families," Cohen says.
She says she likes the thought of codifying the ideas of multi-parent families in Ontario case law. The redefinition of the family should offer LBGTQ parents parental recognition and rights, and clearly end the presumption that only a man and woman can be parents, she says.
Under current legislation, the sperm donor, if known to the parents, could legally be the child's father unless further legal steps are taken to sever that relationship, such as adoption or a court order for legal parentage.
“That's something we should rectify immediately," Cohen says. "We want the law to be that if people donate, they don't have the rights or obligations of being a parent. It's also not safe to be a known sperm donor because someone can come back to you and say, 'Well, you owe child support.'"
It's been a decade since M.D.R. v. Ontario, where Justice Paul Rivard of the Ontario Superior Court of Justice, in part, struck down in 2006 the birth registry provisions of the Vital Statistics Act as invalid because they infringed on the applicants' Section 15 rights — the right to be protected against discrimination based on gender — under the Charter.
Rivard stayed his decision for 12 months to allow the provincial government to "remedy the constitutional defects." Some changes followed, in particular allowing a parent to be on the birth certificate if sperm donors are not known.
But the right for parents who use reproductive technology and where donors are known, to have their names included as presumptive parents on birth certificates the same way parents who conceive naturally, remained elusive — particularly for lesbian couples.
Currently the law allows a LBGTQ parent to be placed on a birth certificate if the sperm donor is not known, signifying the parent as "other." If the donor is known, further legal steps, including adoption, are needed, a rule that doesn't apply to straight couples.
"I hope they're heading in the right direction," says Cohen, adding it's likely the government isn't absolutely sure at this point, "but the important overall goal of it should be lauded."