© 2007  Karen Selick
Two Mommies Wasted Their Money (and Mine)
An edited version of this article first appeared in the January 5, 2007 issue of The National Post
under the headline "Wasting the Court's Time". 
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Two Mommies Wasted Their Money (and Mine)

The Ontario Court of Appeal decided this week that a five-year-old boy can have two legal mothers.  The child’s biological mother, a lesbian, conceived him with sperm from a friend. The father remains involved in the child’s life, but the boy lives primarily with his mother and her same-sex partner. He calls both women his mother, and the couple sought a court order granting them both that official status.  Although the first court they applied to denied their request, the Court of Appeal has now granted it, setting off a firestorm of controversy.

As a practitioner of family law in Ontario for more than two decades, my first reaction to the news story was, “Who gave those two women such over-the-top and expensive legal advice?”

Had the two women walked into my office with their concerns, here is how I would have recommended they resolve them.

One of their fears, apparently, was that if the non-biological mother died, the child would not inherit her estate.  “That’s simple,” I would have told them.  “Just write a will, and your estate will go to whomever you wish.  In fact, you should write a will in any event, because if you die intestate even after a court grants you recognition as a parent, your estate will still be problematic to administer.”

Another fear the couple mentioned to the court was that if the birth mother died, her “surviving partner would be unable to make decisions for their minor child, such as critical decisions about health care.”

This, too, I would have told them, could be resolved quite simply and inexpensively by the birth mother writing a will.  Under the Children’s Law Reform Act, anyone who has custody of a child can, by will, appoint a successor to have custody. This appointment is binding for 90 days after the parent’s death.  The custodian could then apply to a court for a further order if necessary. But why spend the money on court proceedings now when the chances of this situation ever arising are extremely remote?

The cost of preparing two wills for the women would probably have been less than $500.  It would have resolved both of their major concerns.  Instead, they chose to go to court for an order recognizing parentage, including a trip to the Court of Appeal. This must have cost them thousands of dollars—money which would arguably have been better spent on the child’s upbringing and education.

Not only were they extravagant with their own money, they were extravagant with taxpayers’ money, too.  The Office of the Children’s Lawyer intervened on behalf of the child.  In addition, the court appointed a prominent family law practitioner to serve as amicus curiae to give legal advice.  These lawyers didn’t work for free.  

This leads me to wonder whether the application before the court really was intended to serve the interests of the child, or whether it was merely one in a long series of court test cases designed to get “in the faces” of heterosexuals and score political points. 

The big show of maintaining privacy for the parents and the child struck me as particularly ludicrous. I have little doubt that every individual involved in this child’s life—teachers, grandparents, aunts, uncles, neighbours, etc.—know who this headline-making boy is despite the official anonymity maintained by the courts and the media. Had the two women really wanted privacy for themselves and their son, they would have simply prepared wills as I have suggested. Then nobody need to have known.

If a political statement was indeed their goal, then they must have been gratified by the way the media lapped up the story. Who gives a darn, frankly, whether this kid has one mother or lives in a commune with ten female caregivers?  As long as he is being fed, clothed, housed, and loved, why should this story be front-page news?

The “straight community” too, with all its hand-wringing, seems to want nothing more than something to fight about. They are apparently unaware that for many years, the law of Ontario has awarded the status of parent to three or more people for a variety of reasons.  The Family Law Act, for instance, defines the term “parent” to include anyone who has demonstrated a settled intention to treat a child as a child of his or her family. It is commonplace in Ontario for more than one father (i.e. one biological father and one step-father) to be legally considered a parent for the purposes of paying child support. Similarly, a child might have more than one support-paying mother, although this is seen less commonly.

The Child and Family Services Act also contains a very broad definition of “parent” for the purposes of its child protection sections.  Anyone who has legal custody of a child—be it a grandparent, step-parent, aunt, or neighbour—is legally defined as a parent.  The definition is even broader for the purposes of the adoption portions of the Act, including anyone who has a right of access to the child.  Theoretically, it is possible for a child to have numerous legal “parents”.  Why has there never been an outcry before?

A pox on all their houses, I say.  Let’s get on with some real news.

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January 7, 2007