Sexual orientation has a fairly limited intersection with legal issues about the care and control of children. Broadly speaking, a parent's orientation is only likely to crop up as an issue when a gay, lesbian or bisexual parent is fighting about custody with a straight parent. For gay and lesbian couples who have had a child together, their orientation will only come up as an issue should a donor or surrogate parent make a claim with respect to his or her biological child. In a contest between gay and lesbian parents, sexual orientation shouldn't matter at all.

With respect to contests between a gay or lesbian parent and a straight parent, all of the arguments and stereotypes you'd expect would come up will likely come up, such as:

• "homosexuals are paedophiles"
• "if my lesbian wife raises my child, my child will grow up to be a lesbian"
• "my child shouldn't be exposed to a morally corrupt lifestyle"
• "gays are promiscuous and it will confuse my child to be exposed to a parade of sexual partners"

To deal with these co-called arguments, consider the following extracts from some of the case law on this subject:

Halpern v. Canada (Attorney General), Ontario Court of Appeal, 2003:

Importantly, no one, including the AGC [Attorney General of Canada], is suggesting that procreation and childrearing are the only purposes of marriage, or the only reasons why couples choose to marry. Intimacy, companionship, societal recognition, economic benefits, the blending of two families, to name a few, are other reasons that couples choose to marry. As recognized in M. v. H., [1999] 2 S.C.R. 3, at 50, same-sex couples are capable of forming "long, lasting, loving and intimate relationships." Denying same-sex couples the right to marry perpetuates the contrary view, namely, that same-sex couples are not capable of forming loving and lasting relationships, and thus same-sex relationships are not worthy of the same respect and recognition as opposite-sex relationships.

Similarly, a law that restricts marriage to opposite-sex couples, on the basis that a fundamental purpose of marriage is the raising of children, suggests that same-sex couples are not equally capable of childrearing. The AGC has put forward no evidence to support such a proposition. Neither is the AGC advocating such a view; rather, it takes the position that social science research is not capable of establishing the proposition one way or another. In the absence of cogent evidence, it is our view that the objective is based on a stereotypical assumption that is not acceptable in a free and democratic society that prides itself on promoting equality and respect for all persons.

The third purpose of marriage advanced by the AGC is companionship. We consider companionship to be a laudable goal of marriage. However, encouraging companionship cannot be considered a pressing and substantial objective of the omission of the impugned law. Encouraging companionship between only persons of the opposite sex perpetuates the view that persons in same-sex relationships are not equally capable of providing companionship and forming lasting and loving relationships.

Re: K, Ontario Court Provincial Division, 1995:

Recent studies on the effects of the non-traditional family structure on the development of children suggests that there is no reason to conclude that alteration of the family structure itself is detrimental to child development. The prevailing opinion of researchers in this area seems to be that the traditional family structure is no longer considered as the only framework within which adequate child care can be given. Rather, child development researchers have "highlighted the multiplicity of pathways through which healthy psychological development can take place and the diversity of home environments which can support such development". Progressively more rigorous empirical research in the area of child development has produced the notion that the most important element in the healthy development of a child is a stable, consistent, warm, and responsive relationship between a child and his or her caregiver.

Homosexual individuals do not exhibit higher levels of psychopathology than do heterosexual individuals, and there is no good evidence to suggest that homosexual individuals are less healthy psychologically and therefore less able to be emotionally available to their children.

Despite stereotypical beliefs to the contrary, there is no evidence to support the suggestion that most gay men and lesbians have unstable or dysfunctional relationships. Couple relationships are substantially similar, regardless of whether the partners are of the opposite sex or the same sex, and it is no longer possible to reason that homosexual relationships will necessarily be less stable than a heterosexual union.

I conclude there is no reason to believe the sexual orientation of the parents will be an indicator of the sexual orientation of the children in their care. Nor is there any evidence that the homosexual orientation of the parents, especially lesbian mothers, will produce any significantly greater incidence of psychiatric disturbance, or emotional or behavioural problems, or intellectual impairment than is seen in the population of children raised by heterosexual parents.

Bubis v. Jones, Ontario Superior Court, 2000:

There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents: see Re K. (1955), 15 R.F.L. (4th) 129 at 161-2 (Ont. Prov. Div.) per Nevins J. Furthermore, lesbian relationships do not break down at a significantly different rate than do heterosexual relationships and the sexual orientation of children is not influenced by the gender preference of their parents. It is true that the children of a lesbian in a same-sex relationship may be ostracized by some peers because of the lifestyle of their mother. However, I do not think that a rational decision by this court should be precluded by the possibility that it may provoke an irrational response in others.

The end result of all of this is that the same-sex preference of a parent is merely one of the many factors which a court should consider when determining the best interests of children. A lesbian relationship, conducted with discretion and sensitivity, is no more harmful to children than a heterosexual relationship, conducted with discretion and sensitivity. Heterosexual parenting is not better than lesbian parenting — just different.

In other words, what really matters is the best interests of the children, and nothing else. The social stereotypes have been debunked, and lesbian and gay parents are no better and no worse caregivers than their straight counterparts. The child of a gay parent isn't statistically more likely to be gay than the child of a straight parent, if that is a concern. Parenting by a queer parent is equivalent to parenting by a straight parent; the outcome for the child is no different.

Of course, when the contest is between two same-sex parents, all of these issues and stereotypes fall by the wayside, and the question returns to a straightforward custody evaluation: if the parents cannot share the children's time equally, which parent should have the day-to-day care and control of the children based on the best interests of the children?

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This segment offers a brief review of these issues and must be read together with the section "Children" for a proper understanding of the basics of the law applicable to issues of custody, guardianship and access.

The two pieces of legislation which bear on this issue are the federal Divorce Act and the provincial Family Relations Act. The Divorce Act applies only to married spouses, including same-sex spouses, but the Family Relations Act applies to married spouses, common-law partners and other unmarried people who meet the act's definition of "parent."

The Divorce Act

The Divorce Act deals with child support, the custody of children and access to children. For the purposes of this piece of legislation, guardianship is considered to be an aspect of custody. Children are referred to as "children of the marriage" in the act, and "children of the marriage" are defined in s. 1(1) as:

This definition is expanded to include step-parents in s. 1(2):

So long as the child falls within these definitions, or a spouse qualifies as a step-parent, all of the provisions of the Divorce Act regarding custody, access and child support will apply.

Note one of the spouses must have been "habitually resident" in the province in which you intend to sue for at least one year before you start an action under the Divorce Act.

The Family Relations Act

The Family Relations Act deals with child support, custody, guardianship and access. In this context, the act is concerned with "parents." If you qualify as a "parent" under this act, you are subject to the various obligations and rights the act provides for. Under s. 1(1) a "parent" includes a biological parent as well as:

This definition is expanded in s. 1(2) to expressly encompass married parents and people in common-law relationships:

So long a person qualifies as a parent within these definitions, all of the provisions of the Family Relations Act regarding custody, guardianship access and child support will apply.

Custody

Broadly speaking, custody means having the day-to-day care and control of a child. Custody can be shared, held jointly, or held by one parent alone. People can have joint custody of a child even though they don't share the child's time equally and even though they live in different places.

Custody is generally held by a child's biological or adoptive parents, or, in the case of children produced during a same-sex relationship by some means of assisted reproduction, by the parties to the relationship. In the case of a contest between a biological parent and step-parent, the most likely result is that the biological parent will retain the custody of the child unless the other biological parent is no longer in the picture. In a contest between a biological parent and an adoptive parent, custody will be determined on the best interests of the child.

For more information on this subject, see the chapter "Children > Custody."

Guardianship

In some ways, guardianship is more important than custody, since guardianship is really concerned with the rights involved in parenting a child. A guardian has the right to get information from and give instructions to third-parties involved in the child's care, such as the child's doctors, teachers, coaches, instructors and so forth, as well as the right to participate in and help direct important issues in the child's life, such as religious instruction, moral education, schooling, health care, sports involvement and so forth.

Guardianship can be held jointly or by one personal alone. When people have joint guardianship, they are under a mutual obligation to speak to one another about the child and work together to make guardianship decisions in the best interests of the child. Having joint guardianship does not necessarily mean that the parties have joint custody of the child.

Where a parent or step-parent does not have guardianship of a child, he or she has no right to speak to the child's teachers and doctors, or compel them to disclose information about the child. A parent without guardianship can usually make emergency health care decisions, but that's about it.

Where there are more than two people involved in the child's life, such as the biological parents and a subsequent step-parent, non-parents may not be able to share in the guardianship of the child unless one of the biological parents is absent from the child's life.

For more information about guardianship, see the chapter "Children > Guardianship."

Access

Access refers to a parent's time with his or her child. Normally access refers to the time a parent without custody has with the child. Where people have joint or shared custody of a child, "access" may not be the best way to describe each parent's time with the child as the term is often seen as trivializing the importance and role of the person who has the child for the lesser amount of time. "Time with child" or "parenting time" may be more appropriate.

The amount of access a parent or step-parent has can be extensive or it can be virtually non-existent. Access can be specified, meaning that the times that the parent sees the child are completely spelled out, or unspecified. Terms and conditions can be put on a parent's access to a child, such as requiring that the visit be supervised, but conditional access like this is usually reserved for situations where a child is at risk when in the care of that parent.

Where there are more than two people involved in the child's life, such as the biological parents and a subsequent step-parent, more than one person can have access to the child. For example in Murphy v. Laurence and Rogers, a 2002 case from Ontario, the biological mother and her lesbian partner received joint custody of the child, with the biological mother having the child's primary residence, and her partner and the biological father were both awarded access.

For more information, see "Children > Access."

The Views of the Court

Whether the battle over a child is between two parents of the same gender or between parents of opposite genders, the legal test the court will consider is the same: what arrangement with respect to custody, guardianship and access is in the child's best interests? That is the paramount concern. The case law — which you may very well have to quote at length — is plain that the sexual orientation of the parents is only one of many factors to be considered, and even then may prove to be a non-issue.

The following is a brief review of some of the cases that have dealt with this issue since 1997.

Anger v. Anger, British Columbia Supreme Court, 1998:

Mother sought Order that the children live primarily with her. Father opposed application as he found mother's sexual orientation "repugnant on religious and moral grounds." Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.

Murphy v. Laurence and Rogers, Ontario Superior Court, 2002:

Applications by biological mother and mother's lesbian partner for custody and child support. Parties had three year common-law relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separation, partner exercised liberal access to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custody with primary residence of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.

Handy quote: "The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same-sex parents seeking custody are no different than opposite-sex parents seeking custody."

Bubis v. Jones, Ontario Superior Court, 2000:

Application by mother for vary custody Order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same-sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.

Handy quotes: "Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice." "There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."

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This segment offers a brief review of adoption and must be read together with the chapter "Other Family Issues > Adoption" for a proper understanding of the basics of the law on this subject.

The issues of adoption and assisted reproduction arise in two general contexts: where one party in a same-sex relationship has a child which the other wishes to adopt; or, where a same-sex couple wish to have a child of their own. Childless gay men generally resort to adoption. Childless lesbian couples frequently resort to some means of assisted reproduction, although adoption is also a possibility. Where one party has children, the other parent may elect to adopt the children as his or her own, providing that the consent of the other biological parent is obtained as well asthe consent of the child, depending on the child's age.

Adoption

The effect of adoption is to give a person all of the rights and responsibilities of parenthood with respect to a child, while, at the same, time stripping those rights from the child's biological parent. A biological parent who has given a child up for adoption is considered to have absolutely no rights with respect to that child at all. There are two basic types of adoption: relative or "private" adoption, or adoption by placement through the Ministry for Children and Family Development.

In a relative adoption, the child is usually related somehow to the adopting parties. For the purposes of this section, the child will usually be a biological child of one of the parties to a same-sex relationship, and the purpose is to enlist the non-parent as a parent of the child. In this case, the adoption will require the consent of the other biological parent, unless he or she is dead or absent from the child's life and unable to be contacted. The child's consent may also be required, depending on the child's age. This sort of adoption is fairly painless.

Where a child is placed with a couple through the Ministry, the child is a stranger who shares in no part of the genetic heritage of either adoptive parent. As the child has already been given up for adoption, the consent of the biological parents is not required, but the process can nevertheless be painfully slow and will involve significant intervention and evaluations by Ministry staff.

Gays and lesbians are equally entitled to adopt children, through either process, just as straight couples may adopt children.

Assisted Reproduction

This issue is a lot more complex than simple adoption, since assisted reproduction relies on the assistance and genetic contribution of a third-party to create a child. Typically a lesbian couple will want to secure an arrangement whereby one of the parties is impregnated by the sperm of a male third-party. There is no reason why a gay couple cannot ask a woman to be impregnated by one of them and then relinquish the child into their care, and while this does happen, it happens a lot less than assisted reproduction in lesbian couples. Childless gay couples generally pursue adoption.

A child born through assisted reproduction will share in the genetic heritage of only one party to the same-sex relationship. For the time being, children must be conceived with both female and male gametes. That's just the way it is. As a result, one of the parties to a same-sex relationship will not be able to contribute to the child's genetic makeup and the contribution of a third-party, known or anonymous, is required.

Since a third-party must be involved, issues can arise concerning that person's role in the child's post-natal life. After all, he or she will be one of the child's genetic parents, regardless of the anticipated living and parenting arrangements for the child after birth, and there are a number of cases in which donor males and gestational females have asserted claims for custody and access rights. As a result, a properly worded surrogacy agreement is absolutely essential.

The child can also be registered as the biological child of the parties; a 2003 case of the Supreme Court, Rypkema v. British Columbia, found that as the court has the authority to make declarations of paternity, it also has the authority to make declarations as to parenthood in general. This case involved a straight couple who had a gestational surrogacy agreement with a nother couple and sought to register the birth in their own names. In Gill v. Murrary, the Human Rights Tribunal found that the same-sex couples should be able to register as parents and held that the refusal of the Director of Vital Statistics to do so was a breach of our Human Rights Code.

Where a donor male or a gestational female asserts a claim to the child contrary to the terms of an assisted reproduction agreement, you can expect the court to analyze the situation as a contest between a biological parent and adoptive parents. The third-party, after all, has contributed to the genetic heritage of the child and will have a certain presumptive interest in the child as a result. In an Alberta case, Johnson-Steeves v. Lee, the court found that there was a difference between a biological parent an a social parent and that this distinction could have a bearing on access, including denying access altogether, which was the case in H.T. v. L.H., a case from the Northwest Territories.

In such cases, the court will be guided by the best interests of the child, and will look at a wide range of factors, including:

1. the stability of the adoptive parents' versus the biological parent's life and lifestyle;
2. the opportunities the adoptive parents versus the biological parent will be able to offer to the child's life and education;
3. the amount of family and community support available to the adoptive parents versus the biological parent; and,
4. the stability of the adoptive parents' relationship.

It will likely be necessary to trot out the case authorities previously cited in this chapter as proof of the proposition that children's outcomes are not statistically different when raised by same-sex parents than they are for children raised by straight parents to level the playing field and ensure that sexual orientation does not become a red herring in the court's analysis.

Back to the top of this chapter.

This segment offers a brief review of adoption and must be read together with the section "Child Support" for a proper understanding of the basics of the law on this subject.

Child support is paid to the parent who has the care and control of a child for most of the time by the parent who has the child for the lesser amount of time. Child support is paid to defray the expenses the parent who has the child for most of the time incurs as a result of his or her disproportionate duty to care for the child and the disporportionate share of the child's expenses that parent will incur.

Whether you are straight, gay, lesbian, bisexual, or something in between, if you qualify as a "parent" for the purposes of the Family Relations Act or the child qualifies as a "child of the marriage" for the purposes of the Divorce Act, child support will be payable by the party who has the child for less of the time to the parent who has the child for most of the time, as was the case between two lesbian parents in Re: L.K.F., a 1999 Provincial (Family) Court decision.

Child support will be payable at the amount specified under the Child Support Guidelines unless the parent paying support (the "payor") fits into one of a very narrow range of exeptions:

• The payment of support in the usual amount would cause "undue hardship."
• The payor is responsible for the care and control of the child for more than 40% of the child's time.
• The payor earns more than $150,000.00 per year, and payment of the table amount would result in an unfair windfall to the recipient.
• Other persons are also under a legal obligation to care for the child.

These exceptions are canvassed at length in the section "Child Support."

The only one of these exceptions which has any special relevance to same-sex couples is the last: where another person is under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that other parent will also be obliged to contribute to the support of the child. In Murphy v. Laurence and Rogers, the biological mother received child support from both her lesbian partner and the biological father.

Note that a payor may be able to have the amount of his or her child support order lowered to reflect the other parent's contributions to the child, any may be able to seek partial restitution for any support already paid against that other parent.

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