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Can a child have only two parents? At first glance, this seems like a simple question, with a simple, obvious, answer – of course, a child can only have only two parents.

As family law lawyers, we know the answer to this question is more complicated. Another concept of parent exists in family legislation, being the concept of in loco parentis. Persons who stand in the position of a parent to a child may have some parental-like rights and obligations to a child, such as child support, and rights to claim custody and access. As such, in family law, we are familiar with the notion that a child can have many parents – two biological or adoptive parents, and any persons who stand in loco parentis to the child.

The legal status of an in loco parentis parent is not the same, however, as a biological or adoptive parent. Most significantly, the in loco parentis relationship can be broken, whereas the biological or adoptive parental relationship is permanent. The recognition of in loc parentis status is also limited to certain purposes under the Family Law Act and the Children’s Law Reform Act. Orders under these Acts are subject to variation. It also does not mean that a party has “parental” status for purposes outside of this legislation, where an expanded definition of parent is not used. In loco parentis status does not establish lifetime kindred relationships.

Which brings us back to the original question – can a child have only two parents, meaning two legal parents? It turns out that the answer to this question is also complicated, given advances in reproductive technology and societal changes that are increasingly accepting of diverse family relationships. The Ontario Court of Appeal is being asked to address this issue in the case of A.A. v. B.B., which is expected to be argued within the next year.

This paper looks at some of the challenges to our concept of parent, reviews the lower court decision of the Honourable Justice Ashton in A.A. v. B.B.1 which is subject to appeal, and provides some comments on where we may be headed. I have also attached an example of a parenting agreement in a multiple parent situation.

1. What’s All The Fuss About?

Advances in reproductive technology and societal changes that are increasingly accepting of diverse family relationships have seen a number of new family models present themselves in the legal realm.

a. Artificial Insemination with an Unknown Donor

Reproductive technology allows a couple to use artificial insemination, with an unknown donor, to have a child. One of the parties will not be biologically related to the child.

In the past, access to artificial insemination with unknown donors, which is only available through fertility clinics, was restricted to opposite sex couples. Few legal issues arose in this context. The man, although not biologically related to the child, was presumed to be the child’s father. On the birth of the child, the man was simply registered as the child’s father and few questions were ever raised regarding his parental status.

With the introduction of protection from discrimination on the basis of sexual orientation under human rights codes and the Charter of Rights and Freedoms, access to fertility clinics was made available to same sex couples (female) and single women. A same sex couple could use artificial insemination to have a child and, again, one of the parties would not be biologically related to the child. This presented legal challenges that did not arise for opposite sex couples. The Ontario government will not accept a birth registration that lists two women as the parents of a child, even if they are married at the time of the child’s conception or birth.

There are arguments that it is unconstitutional for the government to refuse to register the same sex partner of the biological mother as a parent of the child. If the mother’s partner is male, he is presumed to be the child’s father, and registered as such, no questions asked. The Children’s Law Reform Act provides for a presumption of parentage for a male cohabitating with the mother at the time of the child’s birth2. The argument is that there should be a similar presumption for a female cohabitating with the mother at the time of the child’s birth.

The difficulty with this argument is that the presumption under the Children’s Law Reform Act reflects the biological reality of conceiving a child. It is also just a presumption that can be displaced with evidence that the man is not the biological parent. In November of 2005, the Honourable Justice Wilkinson adopted similar reasons in rejecting a constitutional challenge of a comparable provision of the Saskatchewan Children’s Law Act.3

Given that the Ontario government will not register the mother’s same sex partner as a parent on the birth of a child, only one parent – being the biological mother – can be registered as the legal parent of the child. This leaves the mother’s partner with no legal parental status except for, under the Family Law Act and Children’s Law Reform Act, as a person who acts in loco parentis to the child. This is regardless of whether the same sex couple is married at the time of the child’s birth, or whether they jointly planned to have the child, and went through the entire conception and birthing process together.

The absence of legal status for the same sex partner can be addressed, in part, by a step-parent adoption4. After the adoption order is issued, both the biological and non-biological parent has the same legal status as a parent of the child.

There are problems, however, with the adoption process. First, it requires the consent of the biological parent and this consent can be withdrawn5. This means that the parties, who may have spent years planning for the child’s birth together, and even years after the child’s birth co-parenting the child, need to still be getting along when the application for adoption is made. In fact, they need to be “spouses” in order to qualify for a step-parent adoption process. If they have separated, the chances of the non-biological parent being successful in adopting the child are very small6. Again, regardless of the non-biological parent’s role in the child’s birth and care giving after the birth, the non-biological parent has no parental status except for that of a person who acts in loco parentis.

Timing, therefore, becomes very important for step-parent adoptions. An application for adoption cannot be made, however, until the Statement of Live Birth is issued by the Ontario government, confirming the registration of the child’s birth. These are not normally available until, at minimum, four months after the child’s birth. In recent years, the Ontario registration process has been severely backlogged, causing delays of up to a year to obtain a Statement of Live Birth. A lot can happen in a year.

The second difficulty with step-parent adoptions is that it allows the child to have only two parents – the biological parent and their spouse. No more than two parties can apply for an adoption order. An adoption terminates the parental ties of the other biological parent, be that parent known or unknown. While this is not an issue where the donor is unknown, it may not be what the parties wish when the identity of the donor is known.

b. Insemination With A Known Donor

Same sex female couples can also have a child using insemination from a known donor. These arrangements are usually done without the assistance of a fertility clinic and may or may not involve an insemination method that is considered “artificial”. Some fertility clinics do allow the use of sperm from a known donor if various criteria are met.

In these cases, an issue that needs to be addressed at the outset is the role that the donor will have in the child’s life. Will the child know the donor as his or her father? Will there be an ongoing parenting relationship with the father? Will the father provide financial assistance to the child?

When using a known donor, the legally proactive same sex couple7 often entered into “donor agreements” with the donor, prior to conception, to set out their agreement and intentions regarding the child and their respective roles in the child’s life. “Donor agreements” addressed issues such as representations regarding the donor’s health, rights with respect to the use of his sperm8, including in the event of the donor’s death, the donor’s financial obligations, indemnification clauses, statements with respect to the parties’ wishes regarding parenting of the child, and acknowledgements regarding the best interests of the child. The legal enforceability of such agreements is doubtful, but at a minimum these agreements provided evidence of the parties’ intentions at the time of conception. The mere existence of such agreement also went a long way to prevent disputes from arising in the first place, as the parties had a clear understanding of their parenting roles from the outset, and usually felt morally bound to abide by their agreement.

The typical donor agreement was one in which, in addition to dealing with the use of the donor’s sperm, the parties agreed that the donor would not have a child support obligation9, provided him with an indemnification with respect to child support, stated the parties’ intentions that the donor would not be considered a parent to the child and would not have any custody or access rights, contained an acknowledgement that it was in the best interests of the child to be raised by the same sex couple and stipulated that the donor would consent to the adoption by the biological mother’s partner10.

More and more frequently, however, couples who use a known donor want the donor to have an ongoing relationship with the child and be recognized as the child’s father. This seems to relate to an increasing sensitivity to the importance of a child knowing his or her biological heritage11 as well as society adopting a broader view of what constitutes a “family” and a “parent”. In any event, it creates a new legal challenge – how can a child have three legal parents?

c. Surrogacy

Such legal challenges are not the exclusive domain of same sex female couples that choose to have a child using a known donor. Similar legal challenges to the concept of parent can arise in the following situations:

i. For same sex male couples, where one parent is the biological father of the child through the use of a surrogate.

ii. For opposite sex couples, where one parent is the biological parent who has been inseminated with sperm from a known donor, or where the parties have used a surrogate.

iii. For same sex female couples who use a surrogate.

In a surrogacy situation, the child may or may not have any biological connection to the surrogate. Similarly, either party in the couple may or may not have a biological connection to the child.

Determining parentage in a surrogacy situation presents its own difficulties, although again the existence of a contract that clearly stipulates parenting roles can avoid legal disputes. In J.K. v. L.H. and G.H.12, two women entered into an agreement that one of them would provide the genetic material while the other, the gestational carrier, would bear the child. The Honourable Justice Kiteley granted a declaration under the Children’s Law Reform Act that the woman who provided the genetic material was the only mother of the child, in light of the parties’ agreement that this would be the case, and the fact that the gestational carrier consented to such an order.

This type of surrogacy arrangement, in which the gestational carrier agrees not to have any status as a parent to the child, has been the most common form of such agreements. As in the situation of the known sperm donor, however, it is quite possible for parties to a surrogacy arrangement to wish to continue to recognize the surrogate as a parent of the child in addition to the couple that will be raising the child.

2. The Decision in A.A. v. B.B.

In this case, a same sex female couple, A. and C., decided to have a child together with the assistance of a male friend, B. A. and C. had discussed having a child together for a long time. They agreed that C. would be the biological mother. They also agreed that it was in their future child’s best interests to know his or her biological father and for the father to play an active role in the child’s life.

B. was a friend of the couple. After much discussion, all three agreed that A. and C. would be the primary custodial and decision-making parents, but B. would also have an active role in the child’s upbringing.

After the child’s birth, A. and C. acted as equal primary parents towards the child. B. visited the child twice a week and participated in family activities. The child was “a bright, happy, healthy individual who is obviously thriving in a loving family that meets his every need”.

A applied for a declaration that she was a parent of the child, and specifically a mother to the child. This application was made under section 4 of the Children’s Law Reform Act that provides that the court can grant a declaration that a person is recognized in law to be the father or mother of a child. B. and C. consented to the application.

The Honourable Justice Ashton declined to grant the declaration that A. was a parent of the child, finding that, as a matter of statutory interpretation, the Children’s Law Reform Act does not allow for a child to have more than two parents. The court could not overrule this legislation, in particular because the application did not raise a constitutional challenge. Ashton J. also declined to exercise the court’s parens patriae authority, even though he found that it was in the child’s best interests to grant the application.  Ashton J. held that although the court’s parens patriae authority can sometimes be used to bridge a legislative gap, it could not be used to rewrite the legislation.

Ashton J. also contemplated the implications of such a declaration beyond the facts of the present case. He stated:

“Furthermore, the court must also be concerned about the best interests of other children not before the court. For example, if this application is granted, it seems to me that the door is wide open to stepparents, extended family and others to claim parental status in less harmonious circumstances. If a child can have three parents, why not four or six or a dozen? What about all the adults in a commune or a religious organization or sect? Quite apart from social policy implications, the potential to create or exacerbate custody and access litigation should not be ignored.”

This decision has been appealed to the Ontario Court of Appeal. The Court of Appeal will need to determine whether the Children’s Law Reform Act allows a child to have more than two parents. It may simply decide the case on a narrow point of statutory interpretation, but it is expected that the court will address, in some way, the policy issues involved in dealing with multiple parents. Whether these policy issues end up being instrumental in the court’s decision or not, they will certainly be given significant consideration in further legal and political debates on this issue.

3. Where Do We Go From Here?

Boarder concepts of what makes a “family” and who is a “parent” are an increasing reality in a diverse society that values equality. The law must adapt and respond to these changes. Our laws were drafted when we had a narrow view of “family” and “parent”. They simply did not address the diversity of families that we see today, nor the possibilities that have been created by the advances in reproductive technology.

The A.A. v. B.B. decision aptly demonstrates the shortcomings of our current legal framework. The facts are clear, in this case, that the child’s best interests would have been served by having three legal parents, yet the legislation did not allow this. But the decision also raises the prospect that such an expansion would, on a broader scale, wreck havoc on families and lead to contentious litigation.

But would it really? The facts in A.A. v. B.B. are very unique. Would an expansive recognition of who is a parent, in a situation where all of the parties agreed to their respective roles from the outset and acted, successfully, in accordance with these roles, lead to a similar result where the parties did not have an agreement on parenting prior to the child’s birth, and are in conflict? And, does the risk of litigation in other cases warrant a refusal to recognize a parent where to do so would be in the child’s best interests?

We need to take another look at what we mean by “parent” within this new and challenging context. We need to be purposive in our approach. We need to, somehow, create a solution that works for and supports these new forms of families. Are you up for it?

1 A.A. v. B.B. [2003] O.J. No. 1215 (Ont.S.C.J.)
2 Children's Law Reform Act, R.S.O. 1990, c.12, Section 8
3 P.C. v. S.L. [2005] S.J. No. 744 (Sask.Q.B.)
4 Ontario has allowed same sex step-parent adoptions since 1995.
5 See, for example, the decision of the Honourable Harvison Young in L.K. v. C.L. [2005] O.J. No. 2377 (Ont.S.C.J.), in which the biological mother was allowed to withdraw her consent to the adoption of the child by her former same sex partner. The parties had separated after the adoption application was filed.
6 See L.K. v. C.L. [2005] O.J. No. 2377 (Ont.S.C.J.); K.G.T. v. P.D. [2005] B.C.J. No. 2935 (B.C.S.C.)
7 In reality, the majority of couples do not enter into donor agreements, preferring instead to deal with parenting issues informally or, perhaps, preferring not to deal with parenting issues at all. This is a riskier method of proceeding. People have a tendency to remember things differently when involved in a legal dispute, and the terms of the “informal” agreement can be a significant area of contention. Failing to even discuss parenting rights and obligations in advance is a surefire method of getting into a contentious legal dispute.
8 Clauses dealing with the use of a donor’s sperm should be carefully constructed, if included at all, given the restrictions created under the federal Assisted Human Reproduction Act [not in force], which was enacted in 2004.
9 In Ontario, spousal support may need to be addressed, perhaps out of an abundance of caution. Under Part III of the Family Law Act, spouses, for the purposes of spousal support, include two persons, in a relationship of some permanence, who are the natural parents of a child: Family Law Act, s.29.
10 A contract in which the donor agrees to consent to the adoption of the child, in advance of the child's birth, is not legally enforceable.
11 In this vein, we have also seen new legislation opening up adoption records.
12 [2002] O.J. No. 3998 (Ont.S.C.J.)

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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