Why Has Ontario Fallen Behind with Its Parental Recognition Laws?
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Why Has Ontario Fallen Behind with Its Parental Recognition Laws?

A proposed bill means that some LGBTQ couples would not have to start their family with a lie.

LGBT family at Toronto Pride Parade. Photo by Photobiophilia from the Torontoist Flickr Pool.

It started with a lie.

The birth of Megan Smith’s* daughter three years ago should have been a pure and honest moment. Instead, Smith and her partner, Julie, were forced to fib on their newborn’s birth certificate. “No,” they told doctors, they didn’t know the sperm donor used to impregnate Julie. They proceeded to fill out the forms, Julie’s name scrawled down as mother, Smith as “father/other.” Once the paperwork was completed, the Toronto couple shared legal parentage over their baby girl.

In reality, the Smiths knew their sperm donor well—he was a good family friend. But had the pair disclosed this fact to their doctors, Smith would be forced to adopt her own daughter. In fact, the donor, who had no interest in raising the child as his own, would have more legal clout than Smith. Lying about their donor, then, was not a preference, but a last resort.

For LGBTQ parents in Ontario, these white lies have become a workaround, a means of avoiding long and expensive legal battles to parent children they know are rightfully their own. In this province, same-sex couples—in addition to any family who does not have a conventional biological father and mother setup at birth—are forced to either adopt or receive a declaration of parentage to attain legal protections over their children.

Joanna Radbord, a lawyer who works with same-sex couples seeking legal recognition as parents, says there are thousands of LGBTQ parents facing this scenario in Toronto alone. “We continue to be in the midst of a ‘gayby’ boom,” she wrote in an email. “And it seems that most people who can become pregnant are having kids these days.” Moreover, she points to research that suggests about half of lesbian couples choose a known sperm donor who must jump through hurdles to become legal parents.

Queen’s Park LGBTQ critic and NDP MPP for Parkdale-High Park Cheri DiNovo is attempting to change that. Just over a week ago, DiNovo brought forth Cy and Ruby’s Law, a private member’s bill that would offer LGBTQ families the rights to their children at birth. The bill also calls for more inclusive birth forms that would allow trans men who give birth to list themselves as a parent or father, and not a mother by default. If passed into law, the bill would prevent the need for fibbing in the delivery room.

While the tabling of Cy and Ruby’s Law should be celebrated, it is a wonder why a province as progressive as Ontario has fallen so behind on such basic protections for LGBTQ parents.

This province, after all, is known for its equity laws: Its government was among the first to legalize same-sex marriage more than a decade ago. Just this summer, a bill to ban conversion therapy passed through Queen’s Park with all-party support. Our provincial government is not afraid of equitable lawmaking.

Yet, Ontario lags behind four other provinces—British Columbia, Alberta, Manitoba, and Quebec—that have already updated their LGBTQ parental recognition laws.

These laws are not radical by any means. In many of Radbord’s cases, two same-sex parents fought for the legal right to their children in an “archetypal” family unit. Cy and Ruby’s Law would also allow for the recognition of an additional parent—say, a known sperm donor. In a city as diverse as Toronto, this concept of a chosen family is not uncommon—to legally recognize them seems a natural next step.

Despite these factors, little has been done to explain the delay. In 2006, Ontario Justice Paul Rivard ruled that the Children’s Law Reform Act and the Vital Statistics Act, which govern birth registries, were “clearly outdated” when two lesbian co-mothers fought to have their names on their child’s birth certificate. Couples and their lawyers have been pushing for better legislation for years. Families have threatened constitutional challenges. What, then, was the hold up?

Even worse, no one seems to be willing to take accountability for the long wait. When I press MPP DiNovo on the issue, she too is dumbfounded. “We’re spending taxpayer money every time a family goes to fight their cases in court,” she laments.

DiNovo says there hasn’t been any word about all-party support just yet; that will come with the bill’s second reading in December. And while she has been successful at seeing equity-based laws through to their ends in the past—Toby’s Law and Bill 77, to name a few—private members’ bills seldom become law. If that’s the case, Kirsti Mathers McHenry, a non-profit lawyer who helped develop the bill with DiNovo, says litigation is a natural next step.

The cost of this hold-up is not just monetary—though its financial price tag alone is enormous. For many parents, it is an emotional devastation, a manifestation of every mother or father’s worst fears. Mathers McHenry knows this best: she and her partner, Jennifer, chose to use a known donor for their first pregnancy. When their daughter, Ruby (who is one half the namesake of DiNovo’s bill), was born, Jennifer experienced medical complications. Had Jennifer not made it through her delivery, Mathers McHenry would not have the legal right to parent Ruby. To be denied parental recognition at such a pivotal moment is frustrating at best, and legally consequential at worst.

Perhaps the wait is rooted in the rigid governmental view of family. The Conservative Party of Canada still recognizes marriage as a union between one man and one woman. Many still value the “traditional family,” but Cy and Ruby’s Law would help modernize Ontario’s views on parenting. No longer will the government have the right to codify these groups as “other.”

For Smith and parents like her, fingers are crossed that Cy and Ruby’s Law comes to fruition. Smith and her partner are planning another pregnancy—this time, Smith will be carrying the child. The couple can only hope there won’t be a reason to fib in the delivery room again. As Smith says, “You should never have to start something so lovely with a lie.”

*Names have been changed to protect identities.