Are You My Mother?

June 8, 2017
Leisha Murphy

(Creds to P.D. Eastman)

The law often has difficulty keeping pace with changes in our social landscape.

Examples of this law-society disconnect are readily found, but one of particular interest to families is the challenge lawmakers face when it comes to defining a “parent”. Whether in the context of two friends raising a child together or a same-sex couple waged in battle post-separation, the question of who is a parent is arising with more and more frequency.

Below, we discuss two recent situations where North American courts were asked to consider this question and reflect on how British Columbia law would treat similar cases.

Friends and Parents: The Ontario Case of Bakht and Collins

In February 2010, Natasha Bakht, who was single, gave birth to Elaan. Lynda Collins was a colleague and close friend of Bakht. 

From the time of Elaan's birth, Collins remained close to mother and son and eventually sold her house and moved into the condo unit directly above Bakht's.  She was a caregiver to Elaan and an integral part of his life. When the two women sought to formalize Collins’s role and recognize her as Elaan’s mother, however, they faced a legal hurdle. Because they were not in a conjugal relationship, Ontario law did not allow Collins to legally adopt Elaan.

So that Collins could take on all the legal rights and responsibilities that go along with being a parent, she and Bakht took their case to Court. In the end, an Ontario judge granted Collins the right to be listed on Elaan's birth certificate as a parent, giving her parental status. 

In January 2017, (after the decision in Collins' case) the Ontario All Families Are Equal Act came into force. Under this legislation, Ontarians who have used reproductive services such as sperm donation or surrogacy no longer need apply to court to be confirmed a parent. Further, a birth parent may enter into a parentage agreement (before conception) with up to three other people in which they agree to be, together, parents of a child not yet conceived. In Collins’ case, she and Bakht would not have met the requirements of this Act (had it been in place at the time) since they had no written agreement regarding Elaan’s parentage.

What Would BC Law Say:

This new Ontario legislation is similar to Part 3 of BC’s Family Law Act (FLA). However, since the FLA has been in force since 2013, it is questionable whether Collins’ claim for parentage would have been successful in BC.

Separated Same-Sex Couples and Adoption: The U.S. Case of Hamilton and Gunn

While Circe Hamilton and Kelly Gunn, a same-sex couple living in the U.S., were together, they initiated the process of adopting Abush. Once they split up, however, Hamilton pursued the adoption alone.

The two women remained close after separating, and one year after Abush arrived in the U.S., they agreed that Gunn would be the child's godmother. Fast-forward 5 years to 2016: Hamilton decided to return with Abush to her native country of England.

To allow Hamilton to pack for her big move, Gunn and Hamilton agreed that Abush would stay with Gunn for a few nights. Shortly before Hamilton was to pick up the child from Gunn's care and leave for England, Gunn hired a lawyer and brought a court application to restrain Hamilton from leaving the U.S. with Abush. Gunn’s legal action was based on her claim that she was Abush's parent.

After protracted litigation and legal wrangling, the judge concluded that Gunn was not a parent and that Hamilton was permitted to travel with Abush to England. Gunn appealed this decision, with the result that Hamilton and Abush were required to remain in the U.S. until the Court of Appeal made its final ruling.

What Would BC Law Say:

B.C.'s Adoption Act and Part 3 of the FLA define parentage. Under both these pieces of legislation, Gunn would not be considered a parent because:

In BC, someone in Gunn's position would have to apply to our Court under section 31 of the FLA to be declared a parent. Such an application would require the same parade of witnesses, documentary evidence and soul-bearing evidence as seen in Gunn v. Hamilton to prove not only her involvement in the child's life, but also that declaring a person (such as Gunn) a parent would be in the child's best interests. (The child's best interests are determined under s. 37 of the FLA and include such factors as the child's health and well-being, the child's views (if appropriate), the history of the child's care, and the need for stability in the child's life.)

Takeaway

The FLA in BC has tried to address the changing nature of families; however, potential parents who are unaware of the law and the need to enter into agreements where appropriate and required may end up in our courts.

The potential result? Tremendous uncertainty about one of the most important questions a child can ask: Are you my parent? 

A Final Note: Guardianship

Only guardians can make crucial decisions related to a child's health, education, religion and upbringing.  In BC, a person cannot be a child's guardian unless they are:

  1. A parent (this includes adoptive parents),
  2. Appointed due to a parent's death or incapacity, or
  3. Permitted to be a guardian by court order.

The FLA has permitted important individuals in a child's life who are not parents, such as grandparents, to bring court applications to have court ordered "contact" or time with a child. However, a person that has "contact" with a child does not have the rights and responsibilities of a guardian.

 

 

Leisha Murphy
Leisha Murphy
Partner (Vancouver)
Connect Family Law

Leisha has practised exclusively in the area of family law since being called to the British Columbia Bar in 2010. Before opening Connect Family Law in 2015, she practiced in the family law group of a leading British Columbia law firm.