Legal Parenthood and the Recognition of Alternative Family Forms in Canada
Bird, Alison, University of New Brunswick Law Journal
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 (2) This outdated notion fails to acknowledge present societal realities and has an adverse effect on alternative families.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. …