Summary of the case

The court’s overview at the start of its decision provides a good summary of the dispute at the heart of this case.

[2]        The Applicants are a same-sex couple. The Applicants and the Respondents, who are the child’s biological parents, initially agreed the Applicants would act as parents upon the birth of the Respondents’ child. Once the child was approximately four months’ old, the Respondents sought the return of their child to their care. The child, who is now approximately 17 months’ old, continues to be in the Applicants’ full-time care, subject to parenting-time being exercised by the Respondents.

[3]        As such, the Applicants have no biological connection to the child, namely, Isabelle . . . . They seek to become her legal parents, pursuant to s. 13 of the Children’s Law Reform Act, R.S.O. 1990 c. C.12. [This is the Ontario equivalent to section 31 of British Columbia’s Family Law Act, which empowers a court to make a declaration of parentage.]

[4]        If such a designation is not possible, and regardless of same, the Applicants seek to have primary residence of Isabelle and sole decision-making responsibility for her. They are agreeable to the Respondents having ongoing, gradual increased parenting-time with Isabelle, including overnights, as of July 15, 2022 (once Isabelle is 18 months’ old). It was proposed by the Applicants that the parenting schedule be reviewed in January 2024, once Isabelle reaches the age of three years’ old.

[5]        The Respondents oppose the Applicants’ court Application and seek to have their claims dismissed. They wish to have Isabelle immediately returned to their primary care and seek an order that they have sole decision-making responsibility for her. They are agreeable to the Applicants having contact with Isabelle a minimum of once per week, with the date and duration to be determined by the Respondents in accordance with Isabelle’s best interests.

Ontario legislation (like legislation in British Columbia) gives people the legal tools they need to effectively achieve the result the parties desired (when they “initially agreed the Applicants would act as parents upon the birth of the Respondents’ child”). The tragedy of this case was that the parties were unaware of these tools and embarked on their plan without proper legal advice, only consulting with a lawyer shortly before the child’s birth. By then, it was too late to meet the legislation’s requirements for an effective surrogacy arrangement.

The court’s ruling on parentage

At various points in the judgment, the court emphasized the importance of complying with the legislation:

[233]        I agree with counsel for the Respondents that we have a legislative framework in place for the placement of children through adoption and surrogacy for a reason. These legislative schemes offer a roadmap to all parties involved (biological parents, adopted parents, intended parents, surrogates) to ensure safeguards are met vis-à-vis all parties in the matter and ultimately for the safety, well-being and protection of children. Some of these safeguards include independent legal advice, specified counselling, home studies, pride training and the like.

[234]        The court and public policy should not condone a party having a child and simply handing them off like a football to a third party. This is not the intent of our legislation. There has to be some oversight as to whether the third party is an appropriate caregiver for the child and whether all parties involved understand their rights and obligations and the long-term repercussions of their actions. The issue of permanency for the child is also important, as the birth parent can hand over their child to a third party only to turn around at a later date demanding the return of the child. These situations could have devastating ramifications on the parties and dangerous consequences for the physical and emotional well-being and development of the child.

These considerations came to the fore in the court’s analysis of the applicants’ request for an order declaring parentage.

The court began by noting “[t]here is not a lot of existing case law on having more than two declared parents under s. 13 of the Children’s Law Reform Act.” The court decided it could distinguish this case from an earlier Ontario case because “this case does not involve an insemination or the specific pre-conception intent of gifting reproductive material.” As the court explained:

[294]        Although it was always the intention of the parties that the Applicants would be the intended parents to Isabelle, the evidence actually suggests it was the parties’ intention for the Respondents to not be legally recognized as Isabelle’s parents. There was never any intention to have all four parties be the legal parents for the child. Regardless, these discussions only took place after conception.

[295]        As I previously stated, I am not convinced that when [the respondents] set out to have sexual intercourse with one another they set out to conceive a child by donating or gifting their egg and sperm for the sole purpose of providing the Applicants with a child. In all of the communications I have read (and there are many), the mother never stated the conception was planned for this purpose. She actually refers to her pregnancy as an “oops” or accident. There were no communications I could find suggesting [the male respondent] set out to intentionally donate his sperm.

Finally, the court noted that “it was open to the legislature to require that the best interests of the child be considered with respect to any declaration of parentage, but it did not and chose to omit same.”

The court’s ruling on guardianship

In contrast to the court’s reasoning on parentage, the court noted that the best interests of the child governed its decision on guardianship: “I concur there is no presumption in favour of the biological parents or genetics when determining a parenting order for a child. The governing principle as per subsection 24(1) is best interests, having regard to the considerations outlined in 24(2) and the factors outlined in 24(3) of the [Children’s Law Reform Act]. The best interests standard is a child-centered approach.” And in this case, the court’s determination of the child’s best interests led it to rule in favor of the applicants:

[266]        Isabelle appears to have a secure attachment with the Applicants. There is a possibility that if she were to be placed with the Respondents, she could still form further secure attachments, which would not negatively affect her development. However, why would I do this? Why would I risk this child’s development when she is feeling loved, safe, nurtured and has a parental connection with the Applicants? Why would I now change the status quo when the Applicants have a history and a proven track record with the development of this child and have met all of her needs, and presumably will continue to do so? The fact that the Respondents are her biological parents and want her return is simply not enough. I must look at the totality of the evidence and the circumstances and be guided by the legislative factors to determine what is in this child’s best interests.

[267]        The fact that particular safeguards were not followed or adhered to is not enough to return this child to her biological parents. It is the here and the now and where we are today.

In the result, the court ordered that the applicants had “sole decision-making responsibility” for the child, whose primary residence was to be with the applicants, and granted specified parenting time and other specified rights to consultation and information to the respondents.

The post In “a case about everything the parties did wrong to achieve a particular goal,” Ontario court illustrates the differences between guardianship and parentage first appeared on British Columbia Law Institute.

B.J.T. v J.D., 2022 SCC 24, was a case with “a long, complicated history,” which the court summed up in its overview of the proceedings:

This appeal concerns a custody dispute over a child who was apprehended at the age of four by the Director of Child Protection in Prince Edward Island (“Director”). At the disposition hearing under s. 37 of the Child Protection Act, R.S.P.E.I. 1988, c. C-5.1, which occurred when the child was six, both his father in Alberta and his maternal grandmother in Prince Edward Island sought permanent custody. The hearing judge concluded that it was in the boy’s best interests to be placed with his grandmother, who had cared for him extensively throughout his life. A majority of the Court of Appeal reversed this decision and granted custody to the father, who had only learned he had a child when the boy was five years old and had only recently begun to have a relationship with him. [footnote omitted]

The Supreme Court of Canada allowed the appeal, reversing the court of appeal and affirming the decision of the trial judge.

Much of the court’s decision was concerned with emphasizing the deference that appellate courts should show to a trial court’s determination of a child’s best interests, which is “the guiding principle in most custody matters,” including this case. The court repeatedly pointed out that this determination is “inherently an exercise of discretion.” (Elsewhere, the court said that “an assessment of a child’s best interests can be conceptualized as requiring layered exercises of judicial discretion” and emphasized “the polymorphous, fact-based, and highly discretionary nature of such determinations.”)

“To assess the best interests of a child,” the court noted, “courts apply a multi-factorial legal standard, although different statutes may articulate the individual factors in slightly different ways. It is a highly contextual and fact driven exercise that involves a high level of judicial discretion: a case-by-case consideration of the unique circumstances of each child is the hallmark of the process.” One factor in this analysis occupied a fair bit of the court’s attention.

This factor is the biological tie of parenthood. As the court observed, “a parent’s mere biological tie is simply one factor among many that may be relevant in some cases to a child’s best interests, which is and must be the paramount consideration.”

In Canada, the court noted a long-term trend to diminish the significance of this biological tie, as “[c]ourts have gradually moved away from an emphasis on parental rights and biological ties in settling custody matters, whether arising from a private dispute, an adoption, or the state’s apprehension of children in need of protection.”

In the court’s view, the court of appeal had bucked this trend and had “overstated the importance of a biological tie in itself when it concluded it was an ‘important, unique and special’ factor that must be a tie-breaker when two prospective custodial parents are otherwise equal (paras. 111–13).” Instead, the court emphasized that “[j]udges are not obliged to treat biology as a tie-breaker when two prospective custodial parents are otherwise equal.”

While this case concerned guardianship in the context of child-protection proceedings, some of the court’s comments acknowledged a broader evolution away from emphasizing biological parentage, which may be relevant in other areas of family law, such as parentage:

As well, the importance of biological ties may diminish as children are increasingly raised in families where those ties do not define a child’s family relationships. Family institutions have “undergone a profound evolution” and changing social conditions, as noted, have diminished the significance of biological ties (Young, at p. 43; King v. Low, at p. 97). Change and evolution continues today. Contemporary shifts in parenting and family composition may undermine the relevance of biological ties.

The post Supreme Court of Canada considers the significance of biological ties of parenthood in assessing the best interests of the child first appeared on British Columbia Law Institute.

The first issue concerns notice of applications to court under the section. Section 31 already has a provision that lists people who must be notified of an application. But the provision is incomplete. Notably, it doesn’t refer to public bodies, such as the vital statistics agency, which sometimes must be notified of an application. The committee considered an amendment that would spell out, in section 31, when the vital statistics agency must be notified of an application.

The second issue involved the role—if any—to be played by the best interests of the child test in orders made under section 31. Section 31 doesn’t currently mention the best interests of the child, but the concept has appeared in a few court decisions made under the section. The committee considered a range of approaches to the test—from proposing new provisions tailored to applying the test to parentage to retaining the status quo, which currently leaves it to the courts to lead development on this issue.

The goal of these discussions is to develop tentative recommendations to reform part 3 for a public consultation to be held later in the life of the project.

The post Notice and best interests of the child considered at November 2021 Parentage Law Reform Project Committee Meeting first appeared on British Columbia Law Institute.