{"id":2852,"date":"2018-07-12T18:30:37","date_gmt":"2018-07-12T18:30:37","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2852"},"modified":"2019-02-15T04:14:55","modified_gmt":"2019-02-15T04:14:55","slug":"applying-the-law-or-not-to-a-child-born-of-a-three-way","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/applying-the-law-or-not-to-a-child-born-of-a-three-way\/","title":{"rendered":"Applying the law (or not) to \u201ca child born of a three-way\u201d"},"content":{"rendered":"

In a decision delivered in April 2018, a Newfoundland court recognized three legal parents (two fathers and one mother), based on the throuple\u2019s sexual relationship\u00a0<\/strong><\/p>\n

The case starts with a Newfoundland throuple\u2014two men and a woman in a sexual relationship\u2014who had a child in 2017.[1]<\/u>\u00a0The identity of the mother is clear, both biologically and in law. However, the men could not both be recognized as fathers in Newfoundland law.<\/p>\n

So the throuple petitioned a judge to declare both men to be fathers, whatever the statutes say. Though there have been earlier \u201cthree-parent\u201d cases, such as A.A. v B.B.<\/u>(2007) in Ontario, this is the first known case<\/a> to involve a three-some seeking to be co-parents to a naturally conceived child.<\/p>\n

The trio came to court claiming ignorance of paternity. Their ignorance, Justice Fowler observed, \u201cseems to be the adhesive force which blends the paternal identity of both men as the fathers of J.A.\u201d The judge commented further, \u201cI can find nothing to disparage that relationship from the best interests of the child\u2019s point of view.\u201d<\/p>\n

Genie or judge?<\/strong><\/p>\n

The legal issue is whether the court had authority to declare both men to be fathers. The Children\u2019s Law Act, the Vital Statistics Act, and the Family Law Act are all structured around the basic reality that a child has two parents, thus \u201cthe provincial legislation does not offer much comfort to the Applicants in this matter,\u201d writes the judge. So how did the judge get to his decision in their favour?<\/p>\n

Justice Fowler invoked the court\u2019s parens patriae<\/em>\u00a0jurisdiction\u2014its common law authority to ensure that a vulnerable individual\u2019s rights are protected in a situation where they would otherwise not be. In modern Canadian family law, the rule is that a court may exercise its parens patriae jurisdiction where there is a gap in legislation, where a circumstance arises that is not covered by a relevant statute, rather than dismiss the case without resolution or remedy. Where a statute applies, however, the judge must follow what the statute prescribes.<\/p>\n

Justice Fowler decided there is a gap in the legislation because it supposedly does not contemplate \u201ca child born of a three-way relationship.\u201d He is wrong, biologically and legally.<\/p>\n

What the law says<\/strong><\/p>\n

Part I of the Children\u2019s Law Act<\/u>\u00a0 (CLA) governs the legal status of children and parents. The basic principle stated in section 3 is that children are legally what they are naturally \u2013 \u201cthe child of his or her natural parents.\u201d The exception is when an adoption order is made. Notably, section 3 is never mentioned in the judgment.<\/p>\n

Part II of the CLA sets out rules for establishing parentage and is focused on determining who a child\u2019s natural parents are. It deals with maternity and paternity separately. It allows anyone with an interest in settling a question of paternity to ask a court to declare \u201ca man is or is not the father of a child.\u201d The Act presumes (in section 10) that a man who was married to or cohabiting with the child\u2019s mother at the relevant time is the child\u2019s father, but that presumption can be rebutted by evidence that someone else is likely the father.<\/p>\n

The CLA contemplates (in section 10) that circumstances may \u201cgive rise to a presumption that more than one man may be the father.\u201d In such a circumstance, section 10 states, no presumption about paternity can be made and \u201cno one is recognized in law to be the father unless the court so finds under subsection 7(2).\u201d Subsection 7(2) says a court may declare \u201ca man\u201d to be \u201cthe father\u201d if the judge is persuaded that the man in question likely is the child\u2019s biological father. A declaration made under section 7 may be nullified if new evidence becomes available.<\/p>\n

Section 8 of the CLA permits a judge to give a party leave to obtain a genetic test. Consent to a genetic test is required. If a person refuses to submit to a genetic test, the court may infer what it will from the refusal.<\/p>\n

So the law prioritizes biology, though not always. Section 12 states that a man who is married to or cohabiting with a woman who becomes pregnant via artificial insemination or IVF is the father of the child, even if the woman uses another man\u2019s sperm, \u201cif he consents in advance.\u201d Here, the law does not prioritize biology in deciding who is the father, but makes the husband or cohabiting partner responsible for her child if he consents to her using assisted reproduction.<\/p>\n

In any event, the law is clear about a judge\u2019s options where paternity is uncertain because a woman is sexually involved with two men. Either \u201cno one is recognized in law to be the father\u201d (section 10(2)) or the court may find a\u00a0man to be the father, on a \u201cbalance of probabilities\u201d (section 7(2)). It\u2019s one or none.<\/p>\n

Had Justice Fowler refused to declare both or either of these men to be the father, one of more of the parties could have chosen to introduce evidence regarding paternity. Had they chosen not to do so at this hearing, any of the three could still seek recognition of paternity in the future, should one of them have a change of mind.<\/p>\n

Ignoring the law<\/strong><\/p>\n

Justice Fowler disregarded what the Children\u2019s Law Act instructed him to do. However, he attempts a justification.<\/p>\n

Justice Fowler claims provincial legislation doesn\u2019t apply. \u201cThere is little doubt that the legislation in this Province has not addressed the circumstance of a polyamorous family relationship as is before this Court and that what is contemplated by the CLA is that there be one male and one female person acting in the role of parents to a child,\u201d he writes.<\/p>\n

There are two responses to this \u201clegislative gap\u201d justification.<\/p>\n

First, what is contemplated by the CLA is not that only one male and one female person will ever \u201cact in the role of parents,\u201d certainly that is not the case for many children. Rather, the CLA says that for the purpose of establishing parentage under Part I and II, and the related purpose of registering the child\u2019s parents under the Vital Statistics Act, a child has one mother and one father, whatever the extraneous sexual relationships of the father or mother.<\/p>\n

Second, the law of paternity in the CLA\u00a0plainly covers situations where paternity is uncertain because a woman is sexually involved with more than one man.<\/p>\n

Justice Fowler continues, \u201c[The CLA speaks to] a \u2018man\u2019 in the singular and at no time is there a reference which would lead one to believe that the legislation in this Province considered a polyamorous relationship where more than one man is seeking to be recognized in law as the father (parent) of the child born of that relationship.\u201d<\/p>\n

Justice Fowler, finding no mention of polyamory in the CLA, too easily concludes that it has not \u201cconsidered\u201d three-somes, thus finding a \u201cgap.\u201d It might make more sense to ask whether legislators ever turned their minds to alternative relationships. The applicants have no interest in providing evidence that legislators had considered it, though, because their case hinges on the gap theory. Since the CLA accounted for in vitro fertilization already in 1988, and the Act was amended seven times between 2001 and 2013, it seems highly unlikely that legislators never considered such a possibility. Yet Newfoundland\u2019s legislators have not removed the two-parent principle from the CLA or the Vital Statistics Act.<\/p>\n

Even if most or all legislators never thought of such a circumstance, however, the CLA would still apply. It plainly deals with uncertain paternity. The legislature is not required to and cannot foresee every potential circumstance that could give rise to uncertain paternity, let alone set out specific rules for each. Thus, judicial speculation about what did or did not enter the minds of legislators cannot be the basis for finding a \u201cgap\u201d in legislation. The fact that a statute does not explicitly address a particular detail of the factual matrix before the court does not mean that the statute leaves gaps. It simply means that some facts are legally irrelevant. In this case, the fact that the mother\u2019s two male lovers consider themselves to be part of a throuple is irrelevant to determining paternity under Part II of the CLA.<\/p>\n

The \u201cbest interests of the child\u201d principle\u00a0<\/strong><\/p>\n

Justice Fowler tries to bolster the argument for why he has authority to declare two men to be fathers by citing the \u201cbest interests of the child\u201d principle. This gives the appearance that he is following the CLA, rather than rewriting it to reach his preferred outcome. However, the \u201cbest interests\u201d principle is taken from Part III of the Act, which governs custody and access. Typically, this Part of the Act applies when parents split up. The basic rule is that \u201cthe\u00a0father and the\u00a0mother of a child are equally entitled to custody of the child\u201d (emphasis added).<\/p>\n

Where an application is made to a court under Part III \u201cin respect of custody or access to a child,\u201d the application is to be determined \u201con the basis of the best interests of the child.\u201d Part I and II of the CLA, governing a child\u2019s legal status and rules for establish parentage, respectively, do not include such a rule. The inquiries regarding parentage under Parts I and II are factual and the answers are fact-based, not interests-based: A child\u2019s mother and father are not who a judge thinks are most deserving or would be the best parents for a child.[2]<\/u><\/p>\n

However, if a dispute as to custody and access (sadly) arises, then a judge is to apply the \u201cbest interests\u201d principle in the context of Part III and with the guidance given in section 31(2), which considers the child\u2019s relationship with other family members (besides mother and father) and other factors. Parents themselves are expected to exercise custody and access rights under a separation agreement in the best interests of the child, by for example encouraging the child\u2019s continuing relationship with \u201cthe other\u201d parent. What is in the child\u2019s best interests depends on many factors.<\/p>\n

In this case, Justice Fowler uses this principle from Part III of the CLA to essentially rewrite the rules for establishing paternity in Part II. Even so, however, the judge discounts or ignores the implicit judgement of the legislature that it is in a child\u2019s best interests to have only one legally recognized mother and father,[3]<\/u>both of whom (ceteris paribus) are equally entitled to custody. Part III of the Act depends on Parts I and II, not the other way around. And Part III is fully consistent with the two-parent rule. It is misleading to suggest otherwise.<\/p>\n

Justice Fowler declares, \u201cSociety is continuously changing and family structures are changing along with it. This must be recognized as a reality and not as a detriment to the best interests of the child.\u201d This is perhaps more striking than his two-dad declaration. He observes that Newfoundland does not recognize multiple dads or three-way parenting. But, he declares, it must recognize \u201cchanging family structures,\u201d substituting his judgment about what the law should be for the collective judgment of the legislature. Would he have said the same under slightly different circumstances? What if there were four parties in the sexual relationship? What if there were one man and two women or two men and three women petitioning for legal parenthood?<\/p>\n

Meanwhile, he comments that the uncertain paternity of the child \u201cseems to be the adhesive force\u201d blending the paternal identity of both men. If ignorance is the binding force in this now legally recognized family arrangement, what happens if the truth inadvertently comes out, or the child demands to know the truth?<\/p>\n

What is certain is that this ruling leaves more questions than answers.<\/p>\n

This article was originally published by Cardus, here<\/a>. Thanks to Andrea Mrozek of Cardus for her edits.<\/p>\n

[1]<\/u>The case is (C.C. (Re), 2018 NLSC 71). The decision was delivered April 4, 2018.<\/p>\n

[2]<\/u>See C.C. v M.B. (2003 NLSCTD 14). A mother opposed a man\u2019s application for a declaration of paternity of her child, arguing that it was not in the child\u2019s best interests. The argument was rejected. The judge wrote, \u201cPart II of the Children\u2019s Law Act, which deals with \u2018establishment of parentage\u2019, makes no reference whatsoever to the best interests of the child. It is only after an application is made pursuant to s. 27 [custody or access] of the Children\u2019s Law Act that the merits of an application [\u2026] must be determined on the best interests of the child.\u201d<\/p>\n

[3]<\/u>For same-sex partners in Newfoundland to be legally recognized as the parents of the same child, one or both must be an adoptive parent. The right of same-sex couples to adopt was won through Charter\u00a0litigation in other provinces. In this case, however, the judge does not claim that the Charter requires all three polyamorous persons to be recognized as the (non-adoptive) parents.<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

In a decision delivered in April 2018, a Newfoundland court recognized three legal parents (two fathers and one mother), based on the throuple\u2019s sexual relationship\u00a0 The case starts with a Newfoundland throuple\u2014two men and a woman in a sexual relationship\u2014who had a child in 2017.[1]\u00a0The identity of the mother is clear, both biologically and in …<\/p>\n","protected":false},"author":523,"featured_media":2858,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[35],"tags":[],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2852"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/523"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=2852"}],"version-history":[{"count":1,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2852\/revisions"}],"predecessor-version":[{"id":2855,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2852\/revisions\/2855"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/2858"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=2852"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=2852"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=2852"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}