July 18, 2007
To follow up on Julian Ho's blog of Thursday, July 22, entitled, "Jane Doe v Alberta: What about the interests of the child?," the Supreme Court of Canada dismissed Jane Doe's application for leave to appeal. This ruling affirms the judgment of the Alberta Court of Appeal in refusing to recognize a contract between the natural mother of a child and her co-habiting male partner, John Doe, who did not father the child. The contract purports to absolve the partner from any parental obligations to support the child and denies him any parental rights.
In reaching this decision, the Alberta Court of Appeal stated at paragraph 23:
The 'settled intention' (between Jane and John Doe) to remain in a close, albeit unmarried, relationship thrust John Doe, from a practical and realistic point of view, into the role of parent to this child. Can it seriously be contended that he will ignore the child when it cries? When it needs to be fed? When it stumbles? When the soother needs to be replaced? When the diaper needs to be changed? In my opinion, a relationship of interdependence with the mother of the child in the same household, of itself, will likely create a relationship of interdependence of some permanence, vis-à-vis the child. John Doe’s subjective intent not to assume a parental role will inevitably yield to the needs (and not merely the physical needs) of the child in the same household. Were it otherwise, one can only imagine the emotional damage visited upon the child. One must keep in mind that, among the factors cited in s. 48(2) is the child’s perception of the person as a parental figure.
By dismissing this application for leave to appeal, the SCC highlights the importance of the rights of the child. While some may argue that the decision impedes the rights of single parents to decision-making involving their relationships with family members and stifles the independence of women, the judgment asserts that, unlike the division of property in the dissolution of a relationship, the future of a relationship between a child and another individual cannot be determined in advance. Nicholas Bala, a family law professor at Queen's University, explained in an article in the Toronto Star, that this decision reflects evolving attitudes toward the definition of a family, as it has important implications not only for co-habiting couples, but also step-parents, and both heterosexuals and homosexuals with respect to situations involving artificial insemination.
I am in agreement with Julian with respect to this case. While parental rights are of great importance, the best interests of a child should always be placed at the forefront of any decision in which they play a part. Some may argue that in allowing her partner to legally contract out of parental duties toward her child, Jane Doe was considering the best interests of the child, if, for example, she did not trust her partner's parenting skills or judgment. I would suggest, however, that her partner should not be living with them as a “family” if Jane Doe does not feel that he is a good parent. One cannot dictate or regulate how a child will react to an adult who, having legally absolved him/herself from any responsibility, continues to live with the child in what most would view as a parental role. Some situations, especially those involving children and their protection and rights, cannot be ruled by the written word. One can neither predict the influence of an adult in a close relationship with a child, nor the perception by the child of such an adult as a parental role model. As a child ages, the relationship between the child and his or her non-custodial parent will evolve, so what the contract stipulates may not serve to be in the best interests of the child over time.
3 Comments
I agree with the overall thrust of this piece and of the Court of Appeal's decision, insofar as the personal desires/wants of parents (biological, step, or imputed) or adults living with children should be subordinated to the best interests of the child. The BiC philosophy is the foundation of a great deal of family law in Canada, and has much merit.
However, I disagree with the following claim:
I would suggest, however, that her partner should not be living with them as a “family” if Jane Doe does not feel that he is a good parent.
It is risky business to go about determining who and under what circumstances people should be allowed to live as a recognised "family". Jane Doe should be allowed to live in a romantic relationship with whomever she chooses, regardless of that person's parenting skills. For the same reason, we do not say to married people with pre-nuptial agreements, "you shouldn't be getting married if you anticipate this marriage breaking down at some point."
The best interests of the child principle allows us to avoid judgments of this sort. Instead of forcing us to criticise Jane's choice of partners, it allows us to simply say to Jane and her partner that if the partner is living with the child, then immediately the interests of the child are implicated, blood relation or not, and this has certain legal consequences that cannot be contracted out of.
An interesting twist on this that just popped into me head would be how a court would apply this principle to a child living in a household with two or more polyamorous adults. Would all 3 "parents" be equally responsible?
I agree with you, Mr. Hargreaves, that the court cannot control who lives together as "family". Perhaps I was imposing my own personal opinion with respect to such a situation. You are quite correct, however, that it would be incorrect to define the circumstances under which people should be allowed to live as recognized "family". I feel strongly for the best interests of the child and was communicating my own moral feelings in this regard.
Your hypothetical situation does pose an interesting twist. I would hope that in any situation, the BiC principle will prevail.
In a free country, of what concern is it to the state how people choose to live?
The intent of the court was to make certain that the putative "father" would be bound to legally contribute economically to the welfare of the child should any 'separation' between the couple occur. That is based upon the court's idea of Canadian feminist social policy in order to facilitate the transfer of wealth from a productive working man to a mother.
I took the position 10 years ago .... [that] if the state can dictate the relationship I have with my own children after my separation from their mother, the state was, in fact, both mine and the children's parent. While I rejected that the state was my father with that sort of power over me, the state, according to it's own social policy, owes my children some interest within their daily welfare including their comfort, control and discipline.
Consequently, because the state expected me to maintain my interest in a liability which they had created for me, my children have had no father for the past 10 years and their children can expect to have no grandfather, ever.
As a human being, I accept the definition of my family is who lives with me and not whom I am merely entitled, by some court, to visit.