The road to equality for LGBTQ2 Canadians has been a long one. Although homosexuality was decriminalized in 1969, marriage for same-sex individuals was not adopted by the federal government until 2005. As it relates to parents with children, the law still needs further development with same-sex couples in mind.

The good news is that, through court decisions, there is progress. This blog post discusses the legal rights of same-sex parents in Canada. We also spotlight recent developments pertaining to decision-making and parenting time (previously referred to as custody and access) for parents who have separated.

2003: Ontario Court of Appeal rules marriage rights must be available for same-sex couples

The first provinces to legalize same-sex marriage were Ontario and British Columbia. Halpern v Canada (Attorney General) is a 2003 decision by the Ontario Court of Appeal that determined the common law definition of marriage was a violation of section 15 in the Canadian Charter of Rights and Freedoms. This is the section that guarantees the equality rights of all Canadians.

At the root of this case was pastor Brent Hawkes, who performed marriage ceremonies for same-sex couples in 2001. This method of marriage (called “banns of marriage”) was a legal way to marry without the usually required marriage license, which was issued by the city. The process required certification with the provincial registrar. Because the marriages performed were between same-sex couples, a hearing had to be held at the Ontario Superior Court.

The Ontario Superior court ruled that marriage rights must be available for same-sex couples. The Legislative Assembly of Ontario was given time to comply with the ruling, but during that time the federal government appealed the decision. The Ontario Court of Appeal upheld the Superior Court ruling in 2003 and ordered that the new definition of marriage allowing same-sex couples to marry be instated immediately.

2005: Canada legalizes same-sex marriage

Despite being unsuccessful in the appeal, the federal government passed the Civil Marriage Act in 2005 to officially legalize same-sex marriage across the nation. Although this was a feat for the LGBTQ2 community, the decision had little to do with the rights of LGBTQ2 parents.

Statistics on same-sex couples and children in Canada

In Canada, there are more than 8,000 same-sex couples raising children. Many of these families are blended, meaning that one or both parents were previously married to someone of the opposite sex and had children with them before coming out as gay. This can often present unique challenges when determining decision-making responsibility and parenting time.

2019: Ontario enacts All Families Are Equal Act 

The All Families Are Equal Act is Ontario’s landmark piece of legislation that recognizes same-sex parents. It was introduced in 2016 and had its final reading at Queen’s Park on November 1, 2018. The law took effect on January 1, 2019 following a vote by all members of provincial parliament from all three major political parties.

This is Canada’s first piece of legislation to specifically address same-sex parenting rights following legalization through court challenges like M v H. The decision in M v H was released in 1999, well-before Halpern v Canada. The parties, in that case, challenged Ontario’s Family Law Act for its definition of common-law spouse which excluded same-sex couples. The provision was ruled unconstitutional for promoting the view that same-sex relationships are less worthy of protection and recognition compared to opposite-sex couples.

The All Families Are Equal Act removed all references to mothers, fathers, natural parents, and blood relations from the law in Ontario. The legislation also allowed children to have up to four parents, amongst other reforms.

The law was designed to allow individuals to determine what family means to them. Prior to the enactment of the All Families Are Equal Act, if same-sex couples wanted to be legally recognized as the parents of a child, they had two options: 1) they could adopt a child together, or 2) have a child that is biologically related to one of them and apply to a court for legal recognition of the other parent. 

The best interests of the child guide decision-making matters

Although not a decision concerning same-sex parents specifically, a recent decision from the Supreme Court of Canada has helped the law develop positively for the LGBTQ2 community. In BJT v JD, a grandmother was granted decision-making responsibility for her grandchild even though the child’s biological father was alive and not unfit for parenting. 

In this case, the father learned about his child’s existence years after his ex-wife had given birth. At the time, the grandmother was responsible for decision-making for the child because the mother was experiencing serious mental health challenges that affected her ability to parent. At trial, the grandmother was granted decision-making responsibility, but the Court of Appeal reversed the decision and gave the responsibility to the father.

Biological ties carry minimal weight in the assessment of a child’s best interests

In overturning the Court of Appeal decision and restoring decision-making responsibility (referred to as custody in the case) to the grandmother, the Supreme Court stated the following:

“[C]ourts should be cautious in preferring one biological tie over another absent evidence that one is more beneficial than another…. Comparing the closeness or degree of biological connection is a tricky, reductionist and unreliable predictor of who may best care for a child. It fails to take into account how often other family members assume care for children whose biological parents cannot act as caregivers as a result of addictions, mental health issues, criminal behavior, or other challenges. It also overlooks that a custody dispute that is superficially between two biological parents may frequently draw in several family members, as a parent’s extended family may also assist in care and feel invested in seeing a custody claim succeed.”

Although not directly speaking about same-sex parents, the Supreme Court’s caution against heavily weighing biological ties in custody battles is undoubtedly a win for the LGBTQ2 community. While developments may still be required to ensure equality for all under the law, it is clear that the attitudes of the past barring same-sex couples from enjoying certain rights have slowly dissolved in Canada.

Contact NULaw in Toronto for Advice on Same-Sex Custody Matters

NULaw and its predecessors have been helping clients in Toronto and throughout the Greater Toronto Area since 1953. Our family and divorce lawyers have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters. We help our clients reach fair and efficient solutions to all of their separation and divorce issues, including child support,  spousal support and property division. Contact us online or at 416-481-5604 to book a consultation.