In recent decades, there has been a fundamental shift in the way that individuals organize their families. Due to important societal changes, such as the rise of divorce and remarriage, the legal recognition of cohabiting spouses, the legalization of same-sex marriage, and the advent of new reproductive technologies, there is now a multitude of family forms in Canada. (1) Family law has been slow to respond to these changes and, as a result, it does not meet the needs of existing, valid Canadian family units. The current laws pertaining to legal parenthood are premised on the underlying ideology that the nuclear, typically heterosexual, family is the ideal family unit. (2) This outdated notion fails to acknowledge present societal realities and has an adverse effect on alternative families. They are forced to fit into a legal structure that was not designed for them and, as a result, they are often denied legal recognition or are forced to settle for an outcome that does not meet their unique needs and circumstances.
Legislatures have been reluctant to amend the laws pertaining to legal parenthood to better reflect the diversity of Canadian families. Accordingly, much of the evolution of these laws has originated in the pursuit of legal recognition through litigation by private individuals. This is a significant barrier to effective change because courts must work within a legislative structure that continues to idealize the nuclear family, making it impossible in some cases to legally recognize a legitimate family form. Progress is often dependent on a judge's willingness to either interpret rigid laws more liberally or to invalidate the legislation altogether. Thus, in the absence of more inclusive legislation, the legal recognition of an alternative family is dependent on a judge's perception of the ideal family unit and the role of the courts in evolving Canadian family law. (3)
It is inappropriate to continue to premise legal parenthood solely on the heterosexual nuclear family because it is no longer the only significant family unit in Canada. The preference of one unit to the exclusion of others delegitimizes alternative family models and encourages a false perception that the majority of Canadian families share one common form. (4) There is a disconnect between the law of legal parenthood and the societal reality in Canada. This must be addressed through legislative reform that uses a more inclusive and flexible family ideology to better reflect the fundamental shift in how individuals choose to structure their families. This paper will examine the state of legal parenthood in Canada and analyze the most common methods used by individuals to seek legal recognition of their alternative family form. In general, it will focus on same-sex couples and the use of reproductive technologies because this is the context for the most frequent and complex legal parenthood litigation in Canada.
HISTORY OF LEGAL PARENTHOOD
The family has historically been essential to the functioning of civilizations and its ideal form has evolved with the priorities of our society. Individual survival and the accumulation of wealth have been closely tied to the form of a family unit. Thus, there is a demonstrated connection between the economics of a time and the way people choose to order their affective relationships. (5) The current Canadian family ideology developed in feudal England, with major changes occurring during the industrial and post-industrial periods. (6) In feudal times, familial ties were grounded in guardianship rather than parenthood. The transfer of estates through male inheritance was of fundamental importance and, as such, the law reinforced the male as the head of household by restricting guardianship to men. (7) This legal emphasis on guardianship rather than biological parenthood also influenced the form of many families by promulgating the concept that the ideal family unit consisted of a moderately sized, interdependent group. (8) This reflected the demands of the feudal subsistence economy, which required a family to be self-sufficient in providing for the survival of its members.
The major economic shifts of industrial and post-industrial society led to changes in the ideal family unit. The law evolved to promote the heterosexual nuclear family because it was believed to be the most economically efficient model. (9) The rise of individualized, private work meant that it was no longer necessary to rely on a large family group for survival. Greater proportions of wealth began to be held by individuals, and the heterosexual nuclear family allowed a man to expend less money in providing for his dependents and to directly transfer this wealth to his children upon his death. (10) Thus, it was more efficient to form smaller, nuclear units in which a man was the financial provider and a woman raised the children. (11) Current Canadian family laws have their foundation in these concepts and they continue to be highly influential because of the belief that the nuclear family supports the functioning of our post-industrial, capitalist society. (12)
For many years, it was relatively simple to define the term "family" because only marriage conferred legal status and the right to support on the parties' children. Today, however, significant societal changes have made the task more difficult. Marriage has declined in its central importance due to the prevalence of divorce, the increased acceptance of single parents, and the recognition of common-law and same-sex couples. It is now both socially and legally permissible for a family to exist in the absence of marriage. For example, Statistics Canada found a nineteen percent rise in the number of common law families between 2001 and 2006, and a thirty-three percent rise in the number of same-sex families in the same period. (13) The 2001 Canadian census indicated that there were more than 3,000 same-sex couples raising children in Canada (14) and other sources have estimated that there are closer to half a million gay and lesbian parents raising over one million children. (15) While the majority of these children were born into a heterosexual nuclear unit that was later dissolved through divorce, same-sex couples are increasingly conceiving children through new reproductive technologies.
Despite the expansion of family forms, there has been little examination of how Canadians, as a society, define family. Most individuals generally accept that there is a consensus in the definition and do not question their underlying beliefs about the concept even when their personal family is very different from cultural understandings of the term. (16) This failure to critically examine the societal conception of family has contributed to the maintenance of the status quo and allowed the law to fall out of step with social changes. If any meaningful legal reform is to take place, the first step is determine how to define a family, as this will guide the development of legislation and underlie all policy decisions.
It has been suggested that parenthood has replaced marriage as the determinative component of a family. (17) Legal parenthood has a central place in family law because it is essential to establishing a person's identity through his or her family name, nationality, and cultural heritage. (18) It also can be determinative of who may have a meaningful relationship with a child, including both affective ties and support obligations. Despite its importance both in law and to a child's personal development, there is no clear method to determine legal parenthood. While biological connections were frequently regarded as the paramount consideration in such determinations, this method is not, and arguably has never been, sufficient because it is not the sole means of creating a legitimate parental relationship. Adoption has created non-biological, legal parent-child relationships since Roman times (19) and new reproductive technologies are increasingly severing genetic factors from legal parenthood. (20)
Canadian laws currently recognize forms of parenthood that are both biological and social, but they typically restrict the inquiry to nuclear family models. These laws generally do not provide guidance on how to determine legal parenthood, and use the terms "mother" and "father" without defining their meaning. (21) As a result, the outcome of contested cases depends on judges' interpretations of the law and their conceptions of parenthood. In the absence of legislative direction, judges often prioritize evidence of biological connections in complex and novel cases. (22) Courts may consider a number of other factors, such as the parties' intentions and affective ties with the child, but the weight of each factor is left to a judge's discretion. This leads to highly contextual and often unpredictable results.
CURRENT APPROACHES TO DETERMINING LEGAL FATHERHOOD AND MOTHERHOOD
Even under current Canadian legislative regimes, biological factors are not determinative of legal fatherhood. In many cases, the most important consideration is the man's relationship with the child's mother. (23) There is a presumption that the husband, or male partner, of a child's mother is the father. To rebut this presumption of paternity, the man must prove not only that he is not the child's genetic father, but also that he did not consent to be the father or withdrew his consent before conception. (24) The operation of this presumption means that a woman's male partner is recognized as the father of her child even when the couple uses a sperm donor. Absent evidence that the male partner did not consent to the child's conception, biological ties in these cases will be irrelevant to a determination of legal fatherhood. This means that, even where the sperm donor has a relationship with the child, the genetic connection will not confer on him the status of a legal parent.
Until recently, it was very simple to make a determination of legal motherhood. The law provided that, in the absence of an adoption order, the woman who gave birth to a child was the legal mother. However, this principle has become much more complicated with the rise of reproductive technologies. In cases of surrogacy, it may be that, although a woman is the genetic and birth mother, she never had an intention to parent the child. It is also possible that, through ovum donation, the woman who gives birth to a child is not the genetic mother. (25) The determination of legal motherhood can also be very challenging in the context of lesbian relationships. There is no legal equivalent to the presumption of paternity that can be applied to the female partner of a child's biological mother. (26) As a result, a woman who is not the birth mother, but who planned a child's conception and intends to be a parent, will not be recognized as a legal mother without applying for an adoption or a declaration of legal parenthood.
Canadian jurisdictions have been slow to respond to advances in reproductive technologies. (27) Only three provinces, Newfoundland and Labrador, Alberta, and Quebec, have enacted legislation to address these new challenges to determinations of legal parenthood. (28) Therefore, in the event of litigation, a court may be forced to use legislation that was not created in contemplation of such technology to make a determination of legal parenthood. (29) This can mean that parties who are functionally and intentionally parents are denied legal recognition because of the prohibitive phrasing of outdated provisions. However, in uncontested cases, courts are often able to fashion a result that is favourable to the parties because all the potential parents agree on who should be recognized as legal parents. The determination of legal parenthood becomes less predictable and more complex when one of the potential parents contests the application because he or she wishes to retain legal rights to the child. (30) In these cases, courts must attempt to balance the claims of the parties using a legal structure that was not designed for the circumstances.
THE USE OF ADOPTION TO BECOME A LEGAL PARENT
Adoption is one of the oldest means to become the legal parent of a child to whom a person is not biologically related. An adoption order permanently transfers the legal parent-child relationship from natural parents to adoptive parents. (31) The current Canadian adoption laws fully terminate all legal ties between children and their biological parents.(32) However, this was not always the effect of an adoption order. The first adoption act in Canada was passed in New Brunswick in 1873, and nearly all the provinces had their own acts by the late 1920s. (33) These early statutes divested biological parents of ongoing legal rights and responsibilities in relation to adopted children, but permitted the children to inherit from their birth parents. (34) It was not until the 1950s that most Canadian adoption statutes were amended to completely sever all legal ties between the biological parents and children.
The primary purpose of most early adoption laws was to secure a male heir for a family and facilitate the transfer of wealth. (35) …