Opponents appeal Three Parents case to Supreme Court

  • March 8, 2007
OTTAWA - The Alliance for Marriage and Family filed an application Mar. 5 to appeal the so-called Three Parents Case to the Supreme Court of Canada.
horganThe case, officially known as AA vs. BB and CC, involves a lesbian couple who are raising a child conceived through artificial insemination with a male friend. The father has remained active in the child's life and retained his legal status as a parent. On Jan. 2, the Ontario Court of Appeal recognized the biological mother's lesbian partner as a third legal parent. 

"This case is the first of its kind in  Canada," said Evangelical Fellowship of Canada (EFC) legal counsel Don Hutchinson in a Mar 5 news release from the Alliance for Marriage and Family. "If left unchallenged, the Ontario Court of Appeal's decision will have a profound impact on all types of families. The case raises an issue of public and national importance that warrants the consideration and guidance of the Supreme Court of Canada."

The Alliance, which includes the EFC, the Catholic Civil Rights League, Real Women of Canada, and the Christian Legal Fellowship, has made Hutchinson the Alliance's spokesperson. The   Alliance intervened in the Ontario Court of Appeal case.

The Ontario government, which has jurisdiction over family law, is reviewing the case but is not planning an appeal, according to Valerie Harper, a spokesperson for the Ontario attorney general. She said the province was not a party to the previous cases.

"We would have preferred the government would have taken steps to deal with this issue of social policy,"   Hutchinson said in a phone interview Mar. 6 from EFC headquarters in Markham,   Ont. "In their absence we feel an obligation to take this matter to the Supreme Court of Canada."

The Alliance is arguing the case sets a dangerous precedent for judge-made law in areas of social policy.

"The (Ontario) Court of Appeal has, in effect, rendered the role of the legislature in formulating family law policy obsolete: if an applicant can show that changing social norms or technology have made a gap in the legislation with regard to the applicant's particular circumstances, the courts now have wide-ranging authority to rewrite the legislation," the Alliance argues in the statement of facts accompanying its appeal application.

According to Catholic Civil Rights League president Phil Horgan, there have been competing rulings from various appellate courts on the "inherent jurisdiction" of courts to "grant justice" in cases where the law is not clear.

"In fact, the Supreme Court of Canada has expressly limited recourse to a broad usage of the court's inherent jurisdiction in recent cases," Horgan said in an interview from Toronto Mar. 6.

  A lower court judge had originally dismissed the case because of its possible ramifications. In 2003, Ontario Superior Court Justice David Aston wrote in his decision: "If this application is granted, it seems to me the door is wide open to stepparents, extended family and others to claim parental rights in less harmonious circumstances."

"If a child can have three parents, why not four, or six or a dozen," he wrote.   Aston's views have been echoed by the Alliance's various members groups.

Gay rights organizations, however, cheered the decision as a sign the justice system is ahead of politicians in acknowledging the changes in Canadian society. "This isn't the only couple that's had a baby with another person and wanted the three people to be equally involved in the child's upbringing," EGALE's acting-executive director Kaj Hasselriis told Canadian Press, according to a Jan. 3 story.

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