A family law lawyer who has practiced for 33 years, I am a direct witness in child custody disputes – the most heartbreaking and difficult conflicts for everyone, and especially for the child who finds himself unwillingly at the heart of the debate.
It is certain that the reform of family law has been awaited too long and that finally we have a bill on the table with several changes: surrogate mother, domestic violence, knowledge of her origins, among others.
Some believe there is a loophole in the bill – multi-parenthood is not there, that is, allowing more than two people to be the parents of a child, while this is indeed the case in certain Canadian provinces. Why not ? we say. Why deprive these families of being recognized by law?
First and foremost, you have to think about the child. We must stop believing that the parents who decide to have a child are excluded by the very fact of any possibility of rupture! The breakup happens between two parents – straight or gay – but it also happens with parents who have gone all the way to have a child, whether through adoption or assisted procreation. It is living in the land of unicorns to believe that, if we recognized more than two parents, these three or four parents could not live a separation because they had decided to form a parental project together and that this protects against breakage.
And so, when there is a family breakdown, what do we do with the child? When it comes to two parents, shared custody is often the norm: schedule 7-7, 5-2-2-5, 2-2-3. The child lives in two residences, with two different families, often with different rules, not to mention the addition of new spouses. We are asking a lot of him already.
And the child with three parents, what would he do? How much do we divide it into when it breaks? Two three four ? What do you do when making a decision for school, sports, health, the COVID-19 vaccine? Who will make the important decisions in this child’s life? The majority of parents? A judge of the Superior Court? Why absolutely believe that the breakup of a family of three parents would be done peacefully? And if so, why need judicial recognition of the role played in the life of the child? What is the need for this recognition, if in any case this family lives in harmony?
In the Court of Appeal’s Family Law 191677 decision, we saw three adults – a lesbian couple and a man – decide together to have a child. With an agreement called Agreement to give birth to a child. Everyone in good faith. But now one of the two women has chosen to become a man and has experienced a sex change. They subsequently divorce. The man – biological father – asked to be registered on the birth certificate of the child, which was granted to him at first instance and subsequently refused by the Court of Appeal. In short, this child now has two (separated) parents on the birth certificate and a biological father who has been legally excluded from the life of this child, but who is present in his life.
Here is a three-way parenting plan, agreed in writing and thought out, that went wrong and made it to the Court of Appeal. Doesn’t the best interests of the child deserve to protect him from this possible conflict of three adults? Do we necessarily have to give him three parents on a birth certificate? Is it in his best interest?