Law Times

Law Times • November 7, 2016 Page 11 www.lawtimesnews.com Court challenge results in new parenting definition BY JUDY VAN RHIJN For Law Times T he Ontario legislature is finally responding to challenges by the LGBTQ2+ community to update the way it treats non- biological parents. The pro posed all parents are equal act has been struggling its way through the drafting process after the Ontario Court placed the ball firmly in the government's court. "We are so close to getting it completely right," says Joanna Radbord of Martha McCarthy & Company LLP, in relation to the latest version of bill 28. "These opportunities don't come along very often. If we're going to do it, let's do it com- pletely right." Radbord's practice focuses on gamete donors. She represents the applicants in the Grand v (Ontario) Attorney Gener- al, 2016 ONSC 3434 Charter challenge in which the govern- ment was ordered to table a bill to cure the Children's Law Re- form Act's discrimination based on sexual orientation, gender identity, family composition and use of assisted reproduction. Bill 28 was introduced on Sept. 29 and passed second read- ing on Oct. 3. After hearings be- fore the Standing Committee on Social Policy on Oct. 17 and 18, motions for amendments were made public on Oct. 27. "If passed, bill 28 would up- date the rules of parentage and birth registration to ref lect modern families and to address the use of assisted reproduc- tion in conceiving a child," says Brendan Crawley, spokesman for the Ministry of the Attorney General. "The proposed amendments would ensure that all children are treated the same for all purposes of the law, whether their par- ents are LGBTQ2+ or straight, or whether they were conceived with or without assistance." Radbord says this is a huge improvement on the current parenting legislation. "Bill 28 now significantly protects the best interests of chil- dren and represents the diversity of families in Ontario. It's very good news. We've been waiting a long time," says Radbord. Sara Cohen of Fertility Law Canada in Toronto says she is supportive of the bill. "It is very important to rec- ognize that children are born by means that are not necessarily through sex," she says. "I am very happy that it clari- fies that a gamete donor is not a parent, and it is working on getting rid of the lack of secur- ity for two-mother families and non-heteronormative families." The litigation in Grand is now adjourned pending the final version of the act, with clause-by- clause consideration of the bill scheduled for Nov. 1 and Nov. 14. Radbord's concerns with the original draft of bill 28 have now been appeased in the amend- ments process. "The original version of bill 28 missed the point," she says. Section 8 said: "If the birth parent of a child conceived through assisted reproduction had a spouse at the time of the child's conception, there is a pre- sumption that the spouse is, and shall be recognized in law to be, a parent of the child." Radbord says that the amend- ed section will now simply state that the spouse "shall be recog- nized in law." "The proposed [s. 8] was only a presumption of parentage for a lesbian co-parent. "I was shocked that after the Grand consent order, the gov- ernment still missed the message that there should be definitive proof of parentage for the spouse of the birth parent," she says. "The government response completely failed to grasp the di- lemma of a lesbian co-mother or to provide any security." Radbord is pleased to find that the presumptive language is to be removed through the mo- tions to amend. "I'm very relieved that they have now dealt with that problem appropriately. The language of the act has also been clarified and made transinclusive," she says. Radbord says her clients have yet to make a decision on wheth- er the new legislation is satisfac- tory. Section 7 states that "a per- son whose sperm resulted in the conception of a child conceived through sexual intercourse, is and shall be recognized in law to be, a parent of the child." "[Section 7] gives preferential treatment for a sperm provider who had intercourse without a contract over a social parent," says Radbord. LT FOCUS Joanna Radbord says Ontario's bill 28 'pro- tects the best interests of children and rep- resents the diversity of families in Ontario.' 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