Law Times

February 11, 2019

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LAW TIMES 10 COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 11, 2019 BY DALE SMITH For Law Times A recent case has changed the laws in Ontario around adoption after two women successfully challenged the 2017 changes to the provin- cial Child, Youth and Family Services Act. In S.M. (Re), 2018 ONSC 5145, two friends who lived to- gether wished to adopt a child, but they were barred from doing so under the act. The Ontario Superior Court of Justice subsequently ruled that the definition of "spouse" within the act is discriminatory for those seeking to adopt but who are not in a spousal rela- tionship. Marta Siemiarczuk, a partner and head of the family law group at Nelligan O'Brien Payne LLP in Ottawa and counsel for the two applicants seeking to adopt in this case, says the decision helps to expand the concepts of family and parenting, both le- gally and socially. "From a social perspective, that concept has been expand- ing at a much faster pace than the law has," says Siemiarczuk. "This [decision] catches up with what society is doing, and it's recognizing that platonic co-parenting is something real, it exists and it doesn't make for any less of a family than non- platonic co-parenting." In S.M. (Re), Ontario Supe- rior Court Justice Victor Mi- trow ruled that the words "who are spouses of one another" in clause 199(4)(b) of Child, Youth and Family Services Act be struck down with respect to the definition of adoption in the leg- islation. Mitrow's ruling means that with the language around spous- es in the legislation struck down, there is nothing else that the provincial government needs to do to comply with the act, says Siemiarczuk. She says the decision was not appealed, even after a change of provincial government, and the deadline to appeal has now passed. "I doubt any further amend- ments [to the act] are going to happen as a result of this deci- sion, because it just strikes out the offending language," says Siemiarczuk. Nigel Macleod, strategic counsel with AGB Lawyers PC in Ottawa, who served as Crown counsel in the Office of the Chil- dren's Lawyer for more than 20 years, who was not involved in the case, says the decision pres- ents a thoughtful way to develop the legal understanding of how Canadians can create families in different ways as guaranteed by the Charter. Macleod points to Mitrow's passage in the ruling that says the limitation on non-spouses adopting was "being imposed arbitrarily." "While joint applicants who are spouses may have a stable relationship, that is not always the case. The exclusion of non- spousal couples is indicative of a presumption that they do not or are not likely to have stable rela- tionships," wrote Mitrow. Macleod says the ruling struck down the offending lan- guage around spouses under the Child, Youth and Family Servic- es Act with "surgical precision" without affecting statutory or historical continuity in the rest of the act. The ruling does not detract from the new CYFS legislation, which Macleod calls a signifi- cant step forward for both On- tario and the world. Macleod says SM (Re) is a reminder that "the law is living." "Fortunately, in Canada, we have an alert and apolitical ju- diciary who can actively partici- pate in these inevitable course corrections," says Macleod. "We strive to fully support new parenting combinations [that] embody the age-old attri- butes of love, patience and sta- bility in the best interests of our Canadian children." Siemiarczuk says that, while there is still work to do by fam- ily lawyers in the area of platonic co-parenting, the decision by the court is a step toward full recog- nition. In particular, in cases where there is a biological mother with a platonic friend who wishes to get a declaration to be legally a co-parent, the new Ontario leg- islation does not allow the pla- tonic friend to get such a decla- ration, says Siemiarczuk. While S.M. (Re) allows for adoption from a Children's Aid Society, the legislation doesn't allow for platonic co-parenting adoption that isn't through a so- ciety, says Siemiarczuk. "What my case has done now is to recognize . . . that you don't have to be having sex to become parents," says Siemiarczuk. "You can become parents Marta Siemiarczuk says a recent Ontario Superior Court of Justice decision helps to expand the concepts of family and parent- ing, both legally and socially. Ruling changes the way co-parents recognized "Fortunately, in Canada, we have an alert and apolitical judiciary who can actively participate in these inevitable course corrections." Nigel Macleod FOCUS See Tax, page 12 THE CANNABIS C C What are the implications of the Cannabis Act? 7JTJUUIFXFCTJUFUIBUQSPWJEFTSFMJBCMFOFXT BOBMZTJTFYQFSUTBOESFTPVSDFTGPS QSPGFTTJPOBMTMPPLJOHGPSBOTXFSTȋXIFUIFS UIFZȎSFEFBMJOHXJUIDBOOBCJTJOUIF XPSLQMBDFJOUFSQSFUJOHMFHJTMBUJPONBOBHJOH ."USBOTBDUJPOTPSOBJMJOHEPXOJOUFMMFDUVBM QSPQFSUZSJHIUT Untitled-7 1 2019-01-30 10:22 AM Childview_LT_Nov12_18.indd 1 2018-11-06 3:22 PM

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