Law Times

Page 8 November 19, 2018 • Law Times www.lawtimesnews.com Platonic friends can adopt a child together BY MARG. BRUINEMAN For Law Times T he Ontario Superior Court has recently sided with two friends seek- ing to adopt a child together, finding governing leg- islation restricting their joint adoption application to be un- constitutional. The women, who are life-long friends and live together, argued in S.M. (Re), 2018 ONSC 5145 (CanLII) that the legislative re- quirement that they be spouses of each other in order to adopt infringes upon their consti- tutional rights on the basis of marital status. Their application was supported by the Attorney General of Ontario, interveners in the case. In S.M., the women were ini- tially foster parents of the half siblings not long after they were each born, one in 2015 and the other in 2016. The women, who describe themselves as "platonic friends," share the same values and live together with the children as a family, stated Justice Victor Mitrow in the Ontario Supe- rior Court of Justice decision released in September. "I find that the impugned legislation discriminates against the applicants' rights guaranteed by s. 15 of the Charter on the ba- sis of marital status," he wrote. "There's always been this conjugality concept within the law of what a spouse is and what parents are to each other," says Marta Siemiarczuk of Nelligan O'Brien Payne LLP in Ottawa, who acted for the women. "Peo- ple don't need to be having sex to parent together." She says the decision further extends our concept of family, which is historically defined as being made up of a mom, a dad and children. Siemiarczuk says that when the court oversees an adoption through a children's aid society or through a licencee, it looks for assurances that a child's needs are properly being met and are going to be met in the long term. That includes them having the ability to parent and create a bond and attachment to the children along with a commit- ment. "The court agreed with us that you can have all of those things and not be in a spousal relationship," says Siemiarczuk. What doesn't change, says Katherine Cooligan, managing partner at Borden Ladner Ger- vais LLP in Ottawa and a certi- fied specialist in family law, is the basic test for adoption. The accepted test is that an adoption should proceed if it is in the best interests of the child, she says. "The recent decision has not changed that. It changed who can make the application. And then once you have the authority to make the application that this case gives you, then you're into the same procedure and test as everyone else," she says. "The full adoption process is not a simple one and is obvi- ously designed to ensure that the adoption proceeding is in the best interest of the child." University of Ottawa family law associate professor Natasha Bakht says whether two people are having sex or not should not play a role in their eligibility for adoption and doesn't ref lect upon their ability as parents, a position this recent decision re- f lects. But she says there is still work to be done. Two years ago, Bakht claimed some legal and personal success when a court agreed to issue a declaration of parentage to Lyn- da Collins, naming both women as parents of Elaan, now eight years old, whom Bakht had us- ing donor sperm. Collins, who was Bakht's birthing coach, remained very involved in raising and car- ing for Elaan, who is severely disabled. She even moved into the same building, although she maintains her own apart- ment. Bakht explains that when Collins considered adopting her own child, she proposed to Bakht that she adopt Elaan, sim- ilar to how a step-parent might adopt the child of a new spouse, so they could be co-parents and Bakht loved the idea. "The helping really became caregiving and parenting. And, over the years, we realized that that was what we were doing — we were co-parenting my son," she says. But because they weren't in a conjugal relationship, they couldn't go through the adop- tion process unless Bakht gave up her parental rights. And Bakht says launching an expen- sive constitutional challenge would have been financially ir- responsible, given the high and increasing costs of Elaan's care. Instead, they sought a decla- ration of parentage, which they knew had never been done pre- viously for a non-conjugal pair. They were successful, but there were no reasons attached to the judgment. And while S.M. pushes the law forward by removing the conjugality requirement for peo- ple who want to adopt through childrens' aid societies, Bakht says the All Families Are Equal Act, passed just after she and Collins won their declaration, would now prevent it, despite the headway it otherwise makes for gay and lesbian parents, because it turns on pre-conception plan- ning. "There were some important steps that were taken in the leg- islation. I think that the require- ment that the intentions of par- ents to be pre-conception is fine for that to exist, but I think there should have been a mechanism in the act that allowed a judge to look at each situation on a case- by-case basis and say: 'Look, in this situation, the intention to parent was formed after the child's birth, but let me look at what's in the best interest of the child and do what's in the best interest of the child," she says. "What the All Families are Equal Act appears to do is fet- ter the judges' discretion in this area. So that remains a chal- lenge." LT Katherine Cooligan says the accepted test is that an adoption should proceed if it is in the best interests of the child. FOCUS FOCUS ON Family Law Childview_LT_Nov12_18.indd 1 2018-11-06 3:22 PM

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