Last week the Alberta Court of Appeal ruled on a 7 year long custody battle between gay parents. At issue was the constitutionality of the Alberta Family Law Act and Family Law Relations Act.
At the centre of the drawn out family law litigation was the best interests of a 10 year old girl who spent her first 3 years living with her two dads. When the men split up the biological father and the birth mom objected to the non-bio dad having custody and access to his daughter. In his quest to be declared a legal parent and guardian of the girl the non-bio dad claimed that the Acts discriminated against him based on his gender and sexual orientation because both laws had male parentage dependent on the existence of a spousal or common law relationship with the birth mother. Last week the Court of Appeal upheld the trial decision that declared both laws violated the equality provisions of the Charter and granted parentage and guardianship to the applicant essentially allowing the girl to have three legal parents.
As I’ve pointed out before there’s still a legislative gap in most provinces when it comes to queer parents who don’t replicate traditional two person couples. Quebec and BC are the other two provinces at the forefront of queer parenting in that they recognize non-traditional intended parental projects. Although most provinces have long ago recognized that non-bio parents can nonetheless act as parents by virtue of being in spousal relationships, we also need to make legislative space for those spouses to be queer women, for people to be parents by virtue of their partnerships with fathers, or for intended parental projects to make families that are not based on romantic relationships at all, be it gay or straight.