A.A.+v.+B.B.


 * A.A. v. B.B. et al**

2007 Court of Appeal, Ontario

Facts:
 * A and her partner C are in stable same-sex relationship for 9 years.
 * A male friend, B, helped C get pregnant. A and C wished for B to keep his status as the child’s parent according to s.158(2) of the Child and Family Services Act (as they believed it was in the best interest of their child to have the father be a part of the family too), so they did not adopt the child after the birth.
 * Instead, A brought an application to be declared the child’s mother. The application was dismissed.
 * At the trial level, the judge did not find that he had jurisdiction to approve her application on the basis of the CLRA and the court’s inherent parens patriae jurisdiction.
 * At the appeal, A brought a Charter rights argument to the courts, on the basis of s.7 and 15.

Issue: 1)Can A raise a Charter argument for the first time on appeal? 2)On what basis can the court make the declaration of parenthood?

Held: 1)Yes 2)NOT by interpreting the CLRA to permit the declaration that a child has two mothers or three parents; CAN by invoking the parens patriae jurisdiction, which confers broad jurisdiction on the courts under the impact of changing social conditions to fill legislative gaps.

Reasoning: (Rosenberg J.A.)

Issue 1: In order to raise a Charter argument on appeal, 3 conditions must be met: In this case the raising of the issue was for tactical reasons… By not bringing up the issue at the trial level, the Alliance for Marriage and Family did not introduced evidence to oppose the application. In addition, the issue of ‘miscarriage of justice’ was not pertinent. Relief could be granted without resorting to the Charter.
 * 1) There must be sufficient evidence from the trial level to resolve the issue.
 * 2) The failure to raise the issue at the trial level must not have been a strategic choice.
 * 3) The court must be assured that no miscarriage of justice will result from the refusal to hear the Charter issue on the appeal.

Issue 2: The appeal should be allowed, because even though the courts cannot use the CLRA to make the order, they can use their inherent jurisdiction. See below: 1) At the trial level, the judge found that the CLRA limited the declaration of parenthood to a single male person as father and a single female person as mother (see s.4(1)).The provisions of the CLRA are unambiguous, so the Charter could not have been used as an interpretive aid (Note: i.e., the judges could find no reason to read-in mother/mother filial bonds, nor could they read in three parents, based on the Charter… the whole law would have to be found unconstitutional, which was an issue the courts refused to introduce at the appeal level) 2) Relief could have been granted through the court’s inherent //parens patriae// jurisdiction, which may be applied to rescue a child in danger or to bridge a legislative gap. A non-deliberate legislative gap existed in the CLRA and can be filled by the courts (Note: i.e., the judges find justification for re-writing the law). //The Legislative Gap//:
 * The CLRA was created to bring about equality between children born inside and outside the marriage (legitimacy and illegitimacy) and to ensure the best interests of the child.
 * The legislative regime does not represent the social conditions and reproductive technologies of the day (i.e., same sex relations and egg donors), nor does it even contemplate that they may exist. As such, there is a gap in the legislation, which did not recognize the equality interests of certain children in having two mothers recognized.
 * The deprivation in the legal declaration of parentage is not justified, as there is nothing in the legislation to suggest that children of lesbian parents ought to be excluded from the advantages of equality of status for policy reasons. According to the judge, in order to treat all children equally and to ensure the best interests of children are met, the CLRA must allow for the declaration of two mothers of a child.

Ratio: The courts may exercise parens patriae jurisdiction where a child is in danger or a legislative gap exists. A legislative gap existed in the CLRA, as it did not contemplate the legal recognition of two mothers as necessary for the inclusion of all children into the protections of the law.



• the declaration of parentage is a lifelong immutable declaration of status; • it allows the parent to fully participate in the child’s life; • the declared parent has to consent to any future adoption; • the declaration determines lineage; • the declaration ensures that the child will inherit on intestacy; • the declared parent may obtain an OHIP card, a social insurance number, airline tickets and passports for the child; • the child of a Canadian citizen is a Canadian citizen, even **if born outside of Canada** • the declared parent may register the child in school; and, • the declared parent may assert her rights under various **laws such as the //Health Care Consent Act, 1996.//**
 * __Extra Excerpts for the Importance of the Declaration of Parentage:__**
 * In their very helpful factums, the //M.D.R//. Intervenors and the Children’s Lawyer summarize the importance of a declaration of parentage from the point of view of the parent and the child:**
 * See //M.D.R.// at para. 220. As the M.D.R. Intervenors say:** “A declaration of parentage provides practical and symbolic recognition of the parent-child relationship.”**