D.W.H. v. D.J.R., 2011 ABQB 608

Court of Queen ’ s Bench of Alberta Citation: D.W.H. v. D.J.R., 2011 ABQB 608 Date: 20111012 Docket: FL01 11127 Registry: Calgary Between: D.W.H. Applicant - and - D.J.R. and D.D. Respondents - and - The Minister of Justice and Attorney General of Alberta Intervener Restriction on Publication: By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. See the Family Law Act , s. 100 . _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.M. Bensler _______________________________________________________

Introduction [ 1 ] The Applicant, Mr. H., is challenging certain sections of the Family Law Act, S.A. 2003, c. F-4.5 (" FLA ") and the Vital Statistics Act , R.S.A. 2000, c. V-4 (" VSA ") on the basis that both pieces of legislation discriminate against him on the grounds of gender and sexual orientation contrary to s. 15 of the Canadian Charter of Rights and Freedoms .

The Applicant filed a Notice of Motion seeking an Order declaring that ss. 8 , 12 and 13 of the FLA violate his right to equality pursuant to s. 15 of the Charter and a reading in of any language necessary to recognize the parental rights of "intended parents" in a gay male relationship. Mr. H. further seeks an Order declaring that the VSA violates his s. 15 rights by failing to provide for recognition of a non-biological gay male "intended" parent on a birth certificate and seeks an amendment to the registration process under this Act . Mr.

H.'s Notice of Motion was filed on October 28, 2010. [ 2 ] In addition to the above, Mr. H. is also seeking damages against the Province as well as an award of costs on a retroactive basis. History [ 3 ] The Applicant Mr. H. and the Respondent Mr. R. were in a same-sex interdependent adult relationship when they determined that they wanted a child. They met with a lesbian couple, the Respondent Ms. D. and her partner Ms. C., and worked out an arrangement whereby Ms. D. would be impregnated using Mr. R.'s sperm in an assisted conception, and would give the child to Messrs. H. and R. Following this birth, Ms.

D. would then be impregnated for a second time, again using Mr. R.'s sperm in an assisted conception, and the second child would be raised by Ms. D. and her partner. [ 4 ] Baby S. was born in May of 2003 following a successful assisted conception using Mr. R.'s sperm. Mr. H. and Mr. R. were both present at her birth. Baby S. lived with and was cared for by Mr. H. and Mr. R. She grew up referring to these two men as "Papa" and "Daddy", respectively. Both Ms. D. and Ms. C. enjoyed regular access to the child S. In October of 2005, Ms. D. gave birth to the child N., again using Mr.

R.'s sperm via assisted conception. Baby N. lived with and was raised by Ms. D. and Ms. C., with Mr. H. and Mr. R. (more so Mr. R.) exercising regular access. Biologically, the child S. and the child N. are sister and brother. [ 5 ] A number of factual findings as to the nature of the relationship between Mr. H. and Mr. R., as well as the role played by Ms. D., are set out by Eidsvik, J. at 2009 ABQB 438 , 478 A.R. 109. This judgment has not been appealed and I adopt the factual findings as set out therein. Specifically, I accept that Mr. H. and Mr. R. were living together in a loving and committed relationship.

They each wore similar wedding bands, although they were never legally married. Both individuals were extremely excited about the birth of the child S. and lovingly welcomed her into their home. Both contributed to the care and upbringing of the child S. as dual primary caregivers. Mr. H. indicated that he was initially interested in adopting the child S. but did not pursue this option as he was unsure of the parental rights of Ms. D. and did not want to "rock the boat". Ms.

D. lived with the couple for the first 2 ½ months following the child S.'s birth at which time all three parties participated in the baby's care. After Ms. D. moved back home, primary responsibility for the child S.'s care moved to Messrs. H. and R. By all accounts, Mr. H. was a loving and involved de facto parent to Baby S. [ 6 ] Messrs. H. and R. separated in June of 2006 when the child S. was approximately three years of age. Mr. H. moved out and the child S. continued to reside with Mr. R. Ms. D. had not relinquished her parental or guardianship status and she and Mr.

R. subsequently entered into a parenting agreement which named each of them as guardians of both the child S. and the child N., with Mr. R. having primary responsibility of the child S. and Ms. D. having primary responsibility of the child N. Following the separation, relations between Mr. H. and Mr. R. and Mr. H. and Ms. D. soured. The Respondents claimed to be the sole legal parents of the child S. and initially denied any meaningful access to Mr. H., claiming that it was not in the child S.'s best interests. [ 7 ] In October of 2006, Mr.

H. brought an application for a contact order pursuant to s. 35 of the FLA granting him reasonable access on the basis that he acted as a parent to the child S. for the first three years following her birth. The chambers judge refused to grant the order and Mr. H. appealed to the Court of Appeal. The Court held that the trial judge erred by failing to determine Mr. H.'s legal status with respect to the child S., in loco parentis , before considering whether a contact order ought to be made: 2007 ABCA 57 ,

412 A.R. 34. The Court of Appeal found that "the uncontested evidence supports the conclusion that [Mr. H] stood in the place of a parent to the child": para. 18, and that Mr. H. had been "directly involved in her parenting since birth": para. 19. Accordingly, the Court awarded reasonable access pending trial or further court order. [ 8 ] Of note to this application are the Court's comments at para. 7 that: The FLA is recent legislation. The

definitions of father, mother, parent and guardian and whether it is possible to have more than one father or mother have yet to be judicially considered in this province and arguably arise on these facts. However, for the purpose of this interim application, we need not determine whether having more than one father and mother is possible under the FLA , or whether the respondents meet the

definitions of parent or guardian under the FLA and what might flow as a result. [ 9 ] Subsequent to the Court of Appeal's order, Mr. H. began exercising his access rights. The relationship between the parties further deteriorated and shortly thereafter a parenting assessment was performed. An order was granted in November of 2007 discontinuing contact between Mr. H. and the child S. Mr. H. submits that following this period, his relationship with the child S. has become virtually non-existent. [ 10 ] Mr.

H. sought a subsequent contact order giving him reasonable and generous access to the child S. under s. 35 of the FLA . The trial took place in the spring of 2009, when the child S. was six years old: see 2009 ABQB 438 , supra . Mr. H. brought the application for access on the basis that he was a person standing in the place of a parent, or that he was a person who could be considered a parent in law. Eidsvik, J. found that based upon the Court of Appeal's finding that Mr. H. stood in the place of a parent, he was able to bring the application without leave, pursuant to s. 35 of the FLA .

She further noted that had Mr. H. been considered a legal parent, he would not have to satisfy the conditions enumerated under s. 35 . Rather, there is a presumption that it is in the child's best interests to maintain maximum contact with his or her parents, absent evidence to the contrary. On the facts of the case before her, Eidsvik, J. applied the common law test for access as if both Messrs. H. and R. were legal fathers to the child S. On this basis she found that it was in the best interests of the child S. to have access visits with Mr.

H. and ordered accordingly. [ 11 ] Following the trial, Eidsvik, J. informed the parties that under the wording of the FLA , Mr. R. was not the legal father to the child S. Indeed, by operation of the Act , the child S.'s sole legal parent was Ms. D., who did not have primary custody of the child S. Following receipt of these reasons, Mr. R. applied to become - and was appointed - guardian of the child S. The order was granted in November of 2010. Mr. H. is also seeking an order for declaration of guardianship in relation to the child S. This application is opposed by Mr. R. and Ms.

D. [ 12 ] As a part of his application Mr. H. is challenging the validity of both the FLA and the VSA , as set out above. It is this constitutional challenge that is before me today. Following written and oral submissions by the parties it became clear that there has been some misapprehension on the behalf of the Applicant (who is self-represented) as to whether he was precluded from arguing in favour of a three-parent family model, based upon correspondence that he had received.

In order to fully and finally resolve this issue, I requested that both the Applicant and the Intervener provide this Court with submissions as to whether the FLA discriminates against the Applicant's Charter rights utilizing a multiple-parent model. [ 13 ] Submissions were received by both parties in this regard. The submissions received by the Applicant revealed that he continued to operate under the misapprehension that he was precluded from arguing in favour of an inclusive parenting model (although he clearly expressed his preference for a two parent model to the exclusion of the birth mother).

This is best reflected in para. 6 of his supplementary submissions wherein he indicates that he has been told by lawyers and other government officials that the multiple parent model was not an arguable option. With respect to the Applicant, it is the courts, and not lawyers or government employees, who ultimately determine the

interpretation of legislation. While the supplementary submissions of the Intervener confirmed that the Applicant was not arguing for a multiple parent model, it went on to address the issues surrounding the multiple parent model. [ 14 ] In order to fully appreciate Mr. H.'s argument, I have reproduced the relevant sections of the legislation at issue. Legislation [ 15 ] The Applicant filed his originating notice of motion in this matter on October 28, 2010. He claims that his Charter rights were

[ 15 ] The Applicant filed his originating notice of motion in this matter on October 28, 2010. He claims that his Charter rights were infringed by the FLA as worded at that time. This hearing took place on April 20, 2011. The Family Law Statutes Amendment Act , S.A. 2010, c. 16 received Royal Assent on December 2, 2010. Its relevant sections were proclaimed in force on August 1, 2011. This Act amends the presumptions of parentage originally created in the FLA .

The sections of the Act that are pertinent to this Application have been appended to this decision (“ Amended Act ”). [ 16 ] While the Applicant made reference to the changes proposed in the Amended Act during argument, this Act had not yet been proclaimed in force and thus any Charter arguments concerning the amended legislation were not before this Court. While the recent proclamation of the Amended Act has, in part, rendered certain of my findings moot, the Applicant’s claim that his Charter rights were infringed by the previous version of the legislation will be adjudicated on its merits.

It is the previous version of the FLA which established parentage over Baby S. and it is this legislation which the Applicant claims negatively effected his relationship with the child and under which he seeks damages. [ 17 ] The relevant sections of the FLA are as follows:

Definitions 1 (f) "father" means (

i) unless subclause (ii) or (iii) applies, the biological father of a child, including a male person described in section 13(2)(a), (ii) in the case of an adopted child, a male person who adopts the child, or (iii) a male person described in section 13(2)(b); 1 (i) "mother" means (

i) unless subclause (ii) or (iii) applies, the person who gives birth to a child, (ii) in the case of an adopted child, a female person who adopts the child, or (iii) a female person described in section 12(6); 1 (j) "parent" means the father or mother of a child; 1 (n) "relationship of interdependence" means a relationship of interdependence as defined in the Adult Interdependent Relationships Act ; Presumption of parentage 8(1) For all purposes of the law of Alberta, unless the contrary is proven on a balance of probabilities, a male person is presumed to be the biological father of a child in any of the following circumstances:

(

a) the male person was the spouse of the mother of the child at the time of the birth of the child; (

b) the male person was the spouse of the mother of the child and the marriage was terminated by (

i) a decree of nullity of marriage granted less than 300 days before the birth of the child, or (ii) a judgment of divorce granted less than 300 days before the birth of the child; (

c) the male person became the spouse of the mother of the child after the birth of the child and has acknowledged that he is the father of the child; (

d) the male person cohabited with the mother of the child for 12 consecutive months during which time the child was born and has acknowledged that he is the father of the child; (

e) the male person cohabited with the mother of the child for at least 12 consecutive months and the period of cohabitation ended less than 300 days before the birth of the child; (

f) the male person is registered as the father of the child at the joint request of himself and the mother of the child under the Vital Statistics Act or under similar legislation in a province or territory other than Alberta; (

g) the male person has been found by a court of competent jurisdiction in Canada to be the father of the child for any purpose.

(2) Where circumstances exist that give rise to a presumption under subsection (1) that more than one male person might be the father of a child, no presumption as to parentage may be made. Declaration of parentage 9(1) The following persons may apply to the court for a declaration that a female person named in the application is the mother of a child or a male person named in the application is the father of a child: (

a) a person claiming to be the mother or father of the child; (

b) the child; (

c) a parent of the child, if the child is under the age of 18 years; (

d) a guardian of the child; (

e) a person who has the care and control of the child.

(2) The court shall grant a declaration of parentage on being satisfied on a balance of probabilities that the alleged mother or alleged father is the mother or father of the child.

(3) In making a declaration of parentage, the court shall have regard to any subsisting presumption of parentage under

section 8 .

(4) The court has jurisdiction under this

section if the child or an alleged parent against whom an application is brought resides in Alberta.

(5) A declaration under this

section applies for all purposes of the law of Alberta. Surrogacy 12(1) In this section, (a) "genetic donor" means a female person who provides genetic material that is fertilized and implanted in the uterus of a gestational carrier; (b) "gestational carrier" means a female person in whose uterus the genetic material of a genetic donor is implanted.

(2) A genetic donor may apply to the court for an order declaring the genetic donor to be the mother of a child who is born in Alberta to a gestational carrier.

(3) An application under subsection (2) may not be made more than 14 days after the date of the child's birth or such longer period as the court allows.

(4) The gestational carrier and any other guardian of the person claimed to be the child must, in accordance with the regulations, be served with notice of an application under subsection (2).

(5) If (

a) the court is satisfied that the child resulted from the fertilization of the genetic donor's genetic material, and (

b) the gestational carrier consents, in the form provided for by the regulations, to the application, the court shall make an order declaring the genetic donor to be the sole mother of the child.

(6) A genetic donor who is declared to be the sole mother of the child under subsection (5) is deemed to be the mother at and from the time of the birth of the child.

(7) Any agreement under which a gestational carrier agrees to give birth to a child for the purpose of relinquishing that child to a genetic donor (

a) is not enforceable, and

(

b) may not be used as evidence of consent of the gestational carrier under subsection (5)(b). Assisted conception 13(1) In this section, "assisted conception" means the fertilization by a male person's sperm of a female person's egg by means other than sexual intercourse and includes fertilization of a female person's egg outside of her uterus and subsequent implantation of the fertilized egg into her uterus.

(2) A male person is the father of the resulting child if at the time of an assisted conception he was the spouse of or in a relationship of interdependence of some permanence with the female person and (

a) his sperm was used in the assisted conception, even if it was mixed with the sperm of another male person, or (

b) his sperm was not used in the assisted conception, but he consented in advance of the conception to being a parent of the resulting child.

(3) Subject to the exceptions in the regulations, a male person whose sperm is used in an assisted conception involving an egg of a female person who is neither his spouse nor a person with whom he is in a relationship of interdependence of some permanence is not the father of the resulting child and acquires no parental or guardianship rights or responsibilities of any kind as a result of the use of his sperm. [ 18 ] The Applicant also alleges that the Vital Statistics Act discriminates against him on the basis of gender and sexual orientation. He did not specify any particular

section as being offensive, other than to argue that the VSA demonstrated a breach of individual rights due to a lack of legislative services and that the Act should otherwise acknowledge him as a parent to the child S. As I understand the Applicant's argument, he is claiming discrimination based upon the fact that the VSA requires registration to reflect the parentage of Ms. D. as birth mother, and not an individual such as Mr. H., who stands as an intended parent. After hearing oral argument, it became clear that the majority of the discrimination alleged by Mr. H. stemmed from operation of the FLA . I note that s. 8(1) (

f) of the FLA presumes parentage of the male person who is registered as the father of a child under the VSA . Issues [ 19 ] The primary issue before this Court is whether the impugned legislation offended the Applicant's s. 15 Charter rights by failing to grant status as a parent or guardian by operation of law based upon a prohibited enumerated or analogous ground.

Section 15(1) of the Charter states that: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [ 20 ] Laws which offend against this principle are considered unconstitutional, unless otherwise saved under a s. 1 analysis. If the legislation in question offends the Applicant's s. 15 Charter rights and cannot be saved under s. 1 , I must determine an appropriate remedy.

Analysis [ 21 ] At the outset of my decision, and prior to addressing the Charter issues, I wish to briefly discuss one of the grounds of relief

requested by the Applicant; that is, his request to reopen the property and asset settlement previously reached between himself and Mr.R. The Applicant argues that this prior settlement was agreed to under duress and settled fraudulently. He seeks to have this settlementre-opened in order to introduce new evidence of duress. The Applicant further argues that the settlement was procured on the grounds ofdiscriminatory legislation. The application before this Court is meant to deal specifically with whether the legislation in issuediscriminates against the Applicant's ability to be recognized as a parent.

The Applicant did not argue that either Act discriminatedagainst his ability to claim for property division or support. If the Applicant wishes to have his property and spousal support settlementreviewed he must proceed through the proper channels. [22] Having briefly dealt with and dismissed this part of the Applicant's claim, I turn now to the crux of this application, namelywhether the impugned provisions of the FLA and the VSA offend against the Applicant's s. 15 Charter rights.

Although the Applicant'sNotice of Motion alleged discrimination based upon gender and sexual orientation, during both written and oral argument he furtheralleged that he had been discriminated against on the basis of family status. As a preliminary point, I shall address his claim on thisground. [23] At para. 11 of the Applicant's brief, he asserts that the above-mentioned sections of the FLA and the VSA violate s. 4 of theAlberta Human Rights Act. The Applicant filed a human rights complaint on August 13, 2009 pursuant to the [now] Alberta HumanRights Act, R.S.A. 2000, c. A -25.5 ("AHRA").

As I understand the Applicant's human rights claim, he has asserted that the FLA and theVSA demonstrate a lack of legislative services which in turn have breached his rights by failing to acknowledge his family status, genderand sexual orientation. Mr. H.'s human rights claim was investigated and was ultimately dismissed by the Director on February 9, 2011pursuant to s. 22(1)(

a) of the AHRA on the grounds that the Applicant had failed to prove discrimination in the provision of goods orservices available to the public. In putting forth his human rights claim, the Applicant argued that he had been discriminated against, inpart, on the basis of family status. The AHRA expressly protects against discrimination on the grounds of "family status." Family status isdefined at s. 44(1)(

f) as "the status of being related to another person by blood, marriage or adoption." [24] On March 5, 2011 the Applicant wrote to the Chief Commissioner requesting a review of the Director's decision to dismisshis complaint and suggesting that the matter be referred to a human rights panel. This appeal was commenced within 30 days of thedismissal, as required by the AHRA. If the Applicant is not satisfied by the decision of the Chief Commissioner, he is able to apply forjudicial review of that decision.

To my knowledge, the appeal before the Chief Commissioner has not been determined, nor has theApplicant filed an application for the matter to be reviewed by this Court pursuant to s. 37 of the AHRA. As such, this Court lacks thejurisdiction to make any determination as to whether the AHRA has discriminated against the Applicant on the basis of family status,gender or sexual orientation. [25] While "family status" is an enumerated ground under the AHRA, it is not an enumerated ground under the Charter.

Gender, ofcourse, is an enumerated ground and sexual orientation has since been accepted as an analogous ground: Egan v. Canada, (SCC), [1995] 2 S.C.R. 513; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493; M. v. H., (SCC),[1999] 2 S.C.R. 3. According to G. Beaudoin and E. Mendes, 4th ed., Canadian Charter of Rights and Freedoms (Markham, Ont.,Butterworths, 2005) at p. 996, "family status" has not yet been recognized by the Supreme Court of Canada as an analogous ground. ThisCourt has been unable to locate any Supreme Court authority confirming family status as an analogous ground. However, I do refer toCorbiere v.

Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R. 203, where the majorityconfirmed the test for establishing an analogous ground, at para. 13: What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds ofdistinction that are analogous or like the grounds enumerated in s. 15 -- race, national or ethnic origin, colour, religion, sex, age, ormental or physical disability.

It seems to us that what these grounds have in common is the fact that they often serve as the basis forstereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only atunacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Lawanalysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expectingus to change to receive equal treatment under the law.

To put it another way, s. 15 targets the denial of equal treatment on grounds thatare actually immutable, like race, or constructively immutable, like religion.

Other factors identified in the cases as associated with theenumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that hasbeen historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personalcharacteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making. [26] While there has not been a definitive Supreme Court ruling on this issue, I note that a number of lower courts have accepteddistinction on the grounds of "family status" as an analogous ground.

In Pilette v. Canada, 2009 FCA 367, 319 D.L.R. (4th) 369, theapplicant claimed that a certain

section of the Income Tax Act infringed upon her s. 15 Charter rights based on both age and familystatus. The respondent argued that a distinction based upon family status was not an analogous ground. While both the trial judge and theappellate Court seemingly accepted family status as a ground, they held that on the facts the applicant had failed to prove that singlefamily parental incomes constituted a homogeneous economic situation involving a vulnerable group. In Frégeau v. Canada, 2004 TCC293, the applicant claimed that the disallowance of a tax credit was discriminatory based on family status and violated his s. 15 Charter

rights. The Court found that notwithstanding the fact that the applicant was treated differently based upon a personal characteristic -family status - the differential treatment under the Income Tax Act was not discriminatory in purpose or effect. [27] In Thibaudeau v. Canada, (FCA), [1994] 2 F.C. 189, the majority of Federal Court of Appeal held that theIncome Tax Act discriminated against the applicant, a separated custodial parent, on the grounds of "family status".

Of note, the majorityopined at p. 211 that: The fact that family status or some similar expression figures as a prohibited ground of discrimination in most human rights statutes alsoserves to confirm its analogous nature to the grounds enumerated in the Charter.

Finally, the group to which the applicant belongs and which claims discrimination on the ground of family status, separated custodialparents, can readily be seen as a discrete and insular minority which has historically suffered prejudice and has need of protection. [28] On appeal, the majority of the Supreme Court allowed the appeal, deciding that the tax regime was not discriminatory,without focusing on the nature of marital or family status as such: (SCC), [1995] 2 S.C.R. 627. [29] More recently, the discrimination claim in Fraess v.

Alberta (Minister of Justice and Attorney General), 2005 ABQB 889, 390A.R. 280 was decided on the basis of the applicant's gender and sexual orientation, as opposed to expressly establishing family status as aground. [30] I do not mean to state that there can never be overlapping grounds of discrimination; surely the grounds of "gender", "sexualorientation" and "family status" cannot be seen as being mutually exclusive. However, during the application before me, Mr.

H. failed todemonstrate how he was discriminated against on the grounds of family status in a manner that differed from either sexual orientation orgender. In his Notice of Motion he claimed discrimination on two distinct grounds; sexual orientation and gender. These are the groundsthat the Intervener, who filed their written submissions first, addressed in argument.

As such, and given my findings that the Applicanthas proven discrimination on the grounds as pled, I leave for another day the issue of whether family status is a properly recognizedanalogous ground. [31] I turn now to the question of the whether the legislation in issue offended the Applicant's Charter rights. [32] The facts are clear that the child S. was conceived via assisted human reproduction whereby Mr. R.'s sperm was inserted intoMs. D.

The FLA defines "assisted conception" as the "...fertilization by a male person's sperm of a female person's egg by means otherthan sexual intercourse...". [33] I accept the earlier findings of this Court that both during the planning for conception and after the birth of the child S., therewas an understanding that Mr. R. and Mr. H. would have primary parenting responsibilities over the child S. and that Ms. D. would carrythe baby for them, in return for the opportunity to have and raise baby N. using a subsequent assisted conception.

During the trial beforeEidsvik, J., it became apparent that the parties may have been operating under different assumptions. Mr. H. believed that following thebirth of the child S., the child would be raised by himself and Mr. R., and that he would be one of two fathers with all of the rights andresponsibilities that would come along with that role. Ms. D. testified that although she understood that Messrs. H. and R. would be theprimary caregivers, she expected to be involved to some degree in the child S.'s life and did not expect to give up any of her parentalrights. Eidsvik, J. found that Mr.

R. understood that Mr. H.'s role was going to be one of a co-parent (father). [34] Mr. H. argues that because he was in the equivalent of a spousal relationship with Mr. R. prior to planning the conception andthen following birth (up until separation) and that because throughout this process he fully intended to act as a father to the child S., heshould be recognized as a parent by operation of law notwithstanding the fact that his genetic material was not used in the conceptionprocess.

For the purposes of this judgment, I use the term "spouse" or "spousal" as indicating a couple that is married, living commonlaw, or in relationship of interdependence.

[35] The FLA operates to regulate parentage of children born outside of the traditional method (being conception through sexualintercourse). Advances in reproductive technology have made it possible for couples - and individuals - who are otherwise unable toconceive a child to do so. However, the very nature of assisted conception can lead to difficulties with the legalities of determining "whois a parent".

While the FLA has attempted to define parenthood through assisted conception, it is clear that the Act was modelled upon atraditional family structure (i.e. a heterosexual couple who is unable to conceive a child through sexual intercourse). However, this factalone does not ground a claim for discrimination under s. 15 of the Charter. [36] Both parties agree that the current test for discrimination has been recently restated by our Supreme Court in R. v. Kapp, 2008SCC 41, [2008] 2 S.C.R. 483 and Withler v. Canada (Attorney General), 2011 SCC 12, 1 S.C.R. 396.

These cases confirm a two-stepanalysis: the first step is determining whether the law, on its face or in its apparent effect, creates a distinction on an enumerated oranalogous ground. The second step involves an examination of whether this distinction creates a disadvantage by perpetuating prejudiceor stereotyping: Kapp, para. 17; Withler, para. 30. The legal burden is on the claimant to establish a violation of his or her rights on abalance of probabilities.

Were the Applicant's s. 15 rights infringed? [37] The first step is determining whether the impugned law creates a distinction based upon one of the grounds protected under s.15 of the Charter. That is, is the claimant being treated differently on the basis of one (or more) of the enumerated or analogous grounds.As the Court in Withler held, it is unnecessary to pinpoint a particular mirror group that precisely corresponds to the claimant group forthe purposes of a comparison: para. 63. The focus of a s. 15 complaint must be on substantive, not formal equality: Withler, para. 2; LawSociety of British Columbia v.

Andrews, (SCC), [1989] 1 S.C.R. 143, at p. 171; Kapp, para. 15. [38] While the Intervener suggests that it is no longer necessary to identify a particular comparator group, comparison continues toplay a role throughout the analysis. As such, the Intervener suggests that, when compared to any couple where neither party can carry achild, the Applicant is treated no differently under the FLA. With respect, I do not think this is a proper comparison. Rather, the analysisshould determine whether Mr. H. (in his relationship with Mr.

R.) is treated differently from couples who require assistance inconceiving a child thus falling under ss. 12 or 13, and should not be limited to instances where neither couple is able to carry a child toterm. [39] In this instance Mr. H. is claiming discrimination on the grounds of gender and sexual orientation. He is arguing that the FLAfails to account for the realities of parentage in a homosexual male relationship.

He claims discrimination based upon a commingling ofthese two grounds. [40] As the Court in Withler held, at para. 58: ...An individual or a group's experience of discrimination may not be discernible with reference to just one prohibited ground ofdiscrimination, but only in reference to a conflux of factors, any one of which taken alone might not be sufficiently revelatory of howkeenly the denial of a benefit or the imposition of a burden is felt... [41] The above approach allows for the flexibility required to accommodate claims based on intersecting grounds ofdiscrimination: Withler, para. 63. [42] The Intervener argues that the fact that Mr.

H. was not recognized as a parent and guardian by operation of law incircumstances where assisted conception was used - where he intended to be a parent and was in a spousal relationship with the geneticfather of the child - has nothing to do with his gender or sexual orientation. Rather, the Intervener argues the FLA operates identically forall people where neither partner can carry the child, regardless of their gender or sexual orientation.

It argues that under the FLA regime,adoption is the means for the non-biological partner to become a parent. [43] The Intervener further argues that in relation to parentage in cases where assisted conception must be used, the Act is notabout making parents by operation of law based solely on intent as opposed to biology. Rather, the Intervener submits there must be anappropriate biological connection coupled with an intention to parent.

[44] With respect, I disagree with the Intervener's

interpretation of the Act. The FLA clearly provides for a mechanism whereby anon-biological partner can be considered a parent based upon intention. Section 13(2)(

b) provides that a male who is in a spousalrelationship (or its equivalent) with a female who becomes pregnant through assisted conception is the father of the resulting child, evenif his sperm was not used in the fertilization process, as long as he consents in advance to being a parent. This is clearly an instance of anindividual becoming a parent by operation of law based solely on intent as opposed to biology without having to resort to the adoptionprocess.

It is also, given the wording of s. 13, applicable only to heterosexual couples using assisted conception. [45] The FLA recognizes that in some instances, although each member of a couple has healthy genetic material, the couplenonetheless requires assistance in conceiving a child.

The Act thus contemplates circumstances wherein each member of a heterosexualcouple will be able to use their own genetic material to create a foetus, albeit where conception must take place through a means otherthan intercourse. [46] For example, under s. 12 (surrogacy) a female person (genetic donor) can provide her own egg which has been fertilized usingher male partner's sperm, with the foetus being carried to term by a gestational carrier. In this circumstance the male partner of the femalegenetic donor is recognized as the biological father of the child by operation of ss. 1(f)(

i) and 13(1) and (2). The genetic donor can (withconsent of the genetic carrier) apply for an order following the birth of the child to be declared the sole mother: s. 12(2)-(5). Likewise,under s. 13(2)(

a) each member of a heterosexual couple is able to provide their own genetic material in order to create a foetus, althoughfertilization takes place outside of the uterus. [47] By operation of biology, gay couples are unable to each provide the genetic material required to produce a baby. Unlikeheterosexual couples (where if possible each member can donate genetic material), gay couples are forced to elect which partner will usehis or her genetic material for the purposes of fertilization. The decision may be the result of discussion, an arbitrary election, or even ofmedical necessity (in this case Mr.

H. is HIV positive and as such would not be a candidate to provide genetic material). Therefore, in allgay couples, at least one partner must rely solely on the "intended" parental provisions of the Act. [48] Furthermore, the limited recognition of parenthood in the FLA is not restricted to "intended" gay parents, but to biologicalparents as well. As noted by Eidsvik, J., under the FLA, Mr. R. is not considered the child S.'s father. Notwithstanding the fact that hissperm was used in the fertilization process, he is not deemed a father in the same way that a heterosexual male in a spousal relationshipwith Ms.

D. would have been. As such, the FLA fails to bestow parentage on a homosexual individual (Mr. R.) who is both a biologicaland intended father. [49] Indeed, s. 13 of the FLA bases male parentage upon the existence of a spousal relationship with the birth mother; anoccurrence which will never be realized in a gay male relationship. Under the historical version of the FLA, the spouses in a gay unioncould never be recognized as parents by operation of law. I recognize that the situation faced by gay parents has been alleviated by s. 8.1of the Amended Act, assuming consent of the surrogate.

This, of course, is not the situation before Messrs. H. and R. [50] The FLA's limited recognition of parenthood in this regard operates to an unfair disadvantage to gay couples where bothpartners in a gay union fully intend to act as parents to the child. As shall be seen, the forced election as to which individual in a gaycouple is to donate genetic material creates an additional disadvantage for the non-donor spouse. As a result, the FLA confers uponheterosexual spouses a benefit (parental presumption under s. 13(2)(

a) and (

b) or parental status under a relatively easy process under s.12) that is denied to homosexual spouses. As is apparent upon reading Fraess, this distinction is even more pronounced in the case of ahomosexual male couple, given the presumption of parentage that is linked to the existence of a spousal relationship with the birthmother.

As such, I find that the Applicant has established an adverse distinction based upon an enumerated or analogous ground. [51] The second stage of the s. 15 inquiry involves an examination as to whether the impugned legislation has a purpose or effectthat is discriminatory within the meaning of the equality guarantee. [52] Discrimination was described by McIntyre, J. in Law Society of British Columbia v.

Andrews, (SCC), [1989] 1S.C.R. 143, at pp. 174 - 175: ...I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating topersonal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such

individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed. [ 53 ] In the case at bar Mr.

H. argues that the FLA creates a substantive inequality by perpetuating disadvantage, prejudice or stereotyping in its treatment of gay couples using assisted conception technology. As the Court noted in Withler , the contextual factors relevant to this stage of the inquiry will vary with the nature of each case: para. 66. [ 54 ] In turn the Intervener argues that the fact that a gay male couple will biologically require a donor egg and a gestational female carrier in order to become parents does not, in itself, establish a violation under s. 15 . In so arguing the Intervener relies, in part, on Doe v.

Canada (Attorney General) , 2007 ONCA 11 , 276 D.L.R. (4th) 127. I agree with the Intervener in this regard. However, while the FLA obviously legislates within biological reproductive realities, its effect on gay parents and especially gay male parents must be scrutinized against the claim of discriminatory treatment. [ 55 ] In the case at bar, there are two issues to examine in order to determine whether the law creates a distinction towards the claimant group. First, I must examine the Applicant's submission that the FLA recognizes the wrong person as a parent in a gay male family (Ms.

D.) and that the Act should recognize only the intended gay male fathers as parents and guardians by operation of law. [ 56 ] I agree fully with the Intervener that the FLA does not discriminate against gay intended parents by failing to automatically "force" a birth mother to relinquish a child to intended gay parents by operation of law.

A review of the FLA makes it clear that where a woman carries a baby for another couple (or individual), the only way she can cease to be the legal mother of the child is through consenting to a declaration of parentage in a surrogacy application ( s. 12 ) or through an adoption order made under the Child, Youth and Family Enhancement Act , R.S.A. 2000, c. C-12.

While adoption orders may be made absent the consent of the birth mother, the circumstances surrounding such types of orders are not before the Court today. [ 57 ] Although the surrogacy sections of the FLA are not applicable in the present case (in that they require a donor egg and a gestational carrier as opposed to a donor sperm and a gestational carrier) this

section acts to highlight the similarity of treatment between all individuals utilizing a surrogate. If a heterosexual couple or a lesbian couple utilized this method, consent of the surrogate must be provided in order to declare the "intended" mother to be the sole mother of the child. This consent is required even though the "intended” mother's genetic material (egg) was utilized in the conception process. Under this section, any agreement whereby the birth mother had agreed to relinquish the child to the "intended" parents is not enforceable. [ 58 ] Under s. 13 (assisted conception), the rights of the birth mother are similarly enshrined. Unlike the surrogacy section, this

section does not provide a mechanism for relinquishment by consent. It also envisions the birth mother using her own egg in the conception process. As such, the only way a female giving birth under s. 13 can cease to be the legal mother of the child is through the adoptive process.

The Applicant has failed to demonstrate discriminatory treatment: any individual falling under this section, regardless of gender or sexual orientation, would have to proceed through the adoption process in order to have a birth mother's rights so relinquished. [ 59 ] Moreover, I accept the argument put forth by the Intervener that any legislated forced relinquishment of parental status by the birth mother would fly in the face of various laws enacted to ensure the best interests of the child, to say nothing of the negative effect upon women's autonomy. [ 60 ] The Intervener relies on a publication entitled Proceed with Care: Final Report of the Royal Commission of New Reproductive Technologies (Canada: Minister of Government Services, 1993) where it was opined, at p. 666 that: There is certainly a body of legal opinion that states that legitimizing preconception arrangements would be inconsistent with existing family law principles.

This is because a contract that provides in advance for handing over a child at birth would be at odds with fundamental principles of family law - that custody must be determined according to the best interests of the child and that parental authority and obligations cannot be legally "contracted away" in anticipation . Adults cannot simply transfer custody of a child at their whim: the child's best interests must guide decisions and actions in this respect. [emphasis added]

[ 61 ] The FLA operates in accordance with other provincial and federal legislation in providing that the best interests of the child remain paramount in determining a wide range of issues relating to the well-being of children; including parentage, guardianship, custody and access. I agree with the Intervener that the decision to legislatively recognize the initial rights and obligations of the birth mother is in keeping with the overall goal of ensuring the best interests of the child and that to force a capable birth mother to relinquish a child is contrary to family law policy in Canada.

Our Supreme Court has stated that legislative policy goals may be relevant contextual factors in considering whether the impugned law perpetuates disadvantage or prejudice: Withler , para. 71 . I find that the clear legislative policy goals of ensuring the best interests of the child do not act to perpetuate any disadvantage in this instance. [ 62 ] The Applicant has failed to demonstrate how a failure to provide for automatic relinquishment of a birth mother's status as parent offended his s. 15 rights.

He is treated no differently than other "intended" parent regardless of gender or sexual orientation, none of whom are entitled to force a birth mother to automatically relinquish a child by operation of law. The Applicant has failed to produce any argument as to why he should stand on a footing unequal to other intended parents utilizing a surrogate or otherwise utilizing assisted conception. [ 63 ] I pause to note that the newly proclaimed Amended Act does not provide for the automatic relinquishment of a birth mother's parental status.

The surrogacy provisions in the Amended Act provide for greater acknowledgment of an individual standing in a spousal relationship where their partner's genetic material was used in the assisted reproductive process. However, the Amended Act does not bestow parentage upon an "intended" (non-donor) individual in place of the birth mother. Moreover, s. 8.2(6)(

b) is clear that consent of the surrogate is still required to relinquish her position as parent, and that any surrogacy agreement remains unenforceable: s. 8.2(8). Nor is there any automatic relinquishment under the assisted reproduction provisions: s. 8.1.

This is so whether the intended parents are in a heterosexual, lesbian or gay male relationship. [ 64 ] Given my finding that the automatic recognition of a child's birth mother does not violate s. 15 , it is unnecessary to consider whether any infringement is justified under s. 1. [ 65 ] I turn next to whether the FLA is discriminatory in failing to recognize the Applicant as a parent in addition to Ms. D. retaining her parental status; that is, an inclusive approach to parental recognition. [ 66 ] The FLA does not envisage gay couples as parents by operation of law.

While the Act does not draw any distinction in its provisions which operate to remove the birth mother as a parent by operation of law, I find that it fails to treat gay couples the same as heterosexual couples when it comes to inclusive provisions. In the case of a gay male couple, neither individual is considered a parent under the Act , even if the genetic material of one of the male spouses is used in the assisted conception. Had Mr. R. been in a heterosexual relationship with Ms. D. at the time of conception, he would have been considered S.'s father under the Act by operation of s.13(2)(a). Had Mr.

H. been in a heterosexual relationship with Ms. D. he would have been the child S.'s father under the Act by operation of s. 13(2)(b). The FLA simply does not contemplate situations of gay couples as co-parents. [ 67 ] While not brought before the Court as a constitutional challenge, the decision in A.A. v. B.B. , 2007 ONCA 2 , 278 D.L.R. (4th) 519 is of note in this Application.

In A.A ., the Court held that a legislative gap under the Child Law Reform Act (“ CLRA ”), which did not allow for a child to have two mothers, was not a deliberate attempt by the legislation to prevent lesbian co-parents and invoked its parens patriae jurisdiction to declare the applicant a mother of the child. AA and CC were females in a same-sex spousal relationship. BB was a male friend of the couple who assisted them in having a child by enabling CC to conceive. The parties agreed that AA and CC would be the primary caregivers for the child, who referred to both of them as his mother.

All parties wanted AA's status as the child's mother to be recognized. They also agreed that it would be in the best interests of the child for BB to remain involved in his life. [ 68 ] The Court held that it would be contrary to the child's best interests to deny legal recognition of both of his mothers, as well as his father. The Court noted that the declaration of parentage was important in this instance as BB would lose his status as a parent if AA applied for an adoption order.

The Court discussed a number of advantages to recognizing the parental status of AA under Ontario law, at paras. 14-15 including: • the declaration of parentage is a lifelong immutable declaration of status; • it allows the parent to fully participate in the child's life;

• the declared parent has to consent to any future adoption; • the declaration determines lineage; • the declaration ensures that the child will inherit on intestacy; • the declared parent may obtain a provincial health card, a social insurance number, airline tickets and passports for the child; • the child of a Canadian citizen is a Canadian citizen, even if born outside of Canada; • the declared parent may register the child in school; • the declared parent may assert her rights under various laws such as the Health Care Consent Act; and • upon death of one of the spouses the surviving mother would be able to continue to make decisions for the minor child. [69] The Court of Appeal also noted the Victorian Law Reform Commission's position paper entitled Assisted ReproductiveTechnology & Adoption: Position Paper Two: Parentage at pp. 15 and 17, as referred to in M.D.R. v.

Ontario (Deputy RegistrarGeneral) (2006), (ON SC), 270 D.L.R. (4th) 90 (Ont. Sup. Ct. Jus.) as follows: These submissions reported that the non-birth mother often encounters obstacles and ignorance, and at times hostility, in her dealingswith government agencies and service providers where legal status is a relevant factor.

Because the non-birth mother cannot be named asa parent on the child's birth certificate, she is unable to produce evidence of her relationship to the child unless she has taken steps toobtain a Family Court parenting order or some form of written authority from the birth mother. [W]e [Lesbian Parents Project Group] feel that legal recognition of our role as parents to our children is essential for their safety andsocial well being. It is critical to children that they have reflected back to them the value and integrity of their lives, including thelegitimacy of their families ...

Equal familial status sends a powerfully positive message to all social institutions that have an influence onour children's lives. It obliges them to acknowledge and respect the families our children live in. [70] The Court agreed, at para. 32, that while Ontario's legislation contemplated only one mother and one father, and that while itfavoured a biological preemption: ...the Act does not define parentage solely on the basis of biology. For example, s. 1(2) treats adopting parents as natural parents. Oftenone or both of the adopting parents will not be the biological parents of the child.

Similarly, s. 8 enacts presumptions of paternity that donot all turn upon biology; the obvious example is the presumption of paternity flowing simply from the fact that the father was marriedto the child's mother at the time of birth. Further, as Ferrier J. pointed out in T.D.L. v.

L.R.L., (ON SC), [1994] O.J.No. 896 (S.C.J.) at para. 18, the declaration made under s. 4(1) is not that the applicant is a child's natural parent, but that he or she isrecognized in law to be the father or mother of the child. [71] The Court went on, at paras. 33 -35 to find that: ...even if the CLRA was intended to limit declarations of paternity and maternity to biological parents, that would not answer the question

...even if the CLRA was intended to limit declarations of paternity and maternity to biological parents, that would not answer the question of whether there is a gap. Advances in reproductive technology require re-examination of the most basic questions of who is a biological mother.... I return to the earlier discussion of the intention of the CLRA . The legislation was not about the status of natural parents but the status of children. The purpose of the legislation was to declare that all children should have equal status.

At the time, equality of status meant recognizing the equality of children born inside and outside of marriage. The Legislature had in mind traditional unions between one mother and one father. It did not legislate in relation to other types of relationships because those relationships and the advent of reproductive technology were beyond the vision of the Law Reform Commission and the Legislature of the day.... Present social conditions and attitudes have changed.

Advances in our appreciation of the value of other types of relationships and in the science of reproductive technology have created gaps in the CLRA 's legislative scheme. Because of these changes the parents of a child can be two women or two men. They are as much the child's parents as adopting parents or "natural" parents.

The CLRA , however, does not recognize these forms of parenting and thus the children of these relationships are deprived of the equality of status that declarations of parentage provide . [emphasis added] [ 72 ] Of note, the Court concluded that the Legislature simply did not foresee the possibility of declarations of parentage for two women at the time of drafting, and that to find a failure to do so was deliberate "requires assigning to the Legislature a discriminatory intent in a statute designed to treat all children equally." I note that the Attorney General of Ontario did not appeal the decision of the Ontario Court of Appeal: 2007 SCC 40 , para. 6 . [ 73 ] The FLA was relatively new legislation, and the drafters have turned their minds to advances in science making assisted conception a reality.

While concerns over same-sex relationships were known, they were not addressed in a concrete fashion. For example, the following concerns were raised during the Legislative Assembly debates, Alberta Hansard , No. 56 (December 3, 2003) at 2087-2088 (Laurie Blakeman): There are inequities that are being created with this bill that I was trying to correct.

In particular, I think we have caused some people to have to go to additional expense and time and through court manoeuvers in order to achieve what they are seeking, particularly around the surrogacy and assisted-conception sections that are in the bill, where in effect we are now creating legal parents. Because of the technological advances in new reproductive technology, we can create parents where we couldn't before. I was seeking to be able to have many different people be able to seek these remedies, to be creating parents rather than to be creating specifically mothers and fathers.

I felt that the concept of parent was more inclusive and more important, therefore, than segregating this into stereotypical gender-specific roles. The government was not supportive of that.

I think these are the areas that were most likely to receive the challenges. [ 74 ] See also the Legislature of Alberta Debates, Alberta Hansard (November 27, 2003), at p. 1950, where a proposal (unadopted) was made to revise s. 12 of the FLA using more gender-neutral language based upon the following concern: So this is getting around that problem where we're sending people off to court after the fact basically for them to adopt a child and go through the court process. I think we want it to be Charter -proof and we want to have this open to many different kinds of families.

Specifically, I think we need to be alive to the possibilities of same sex parents here, so I brought forward this amendment hoping that we could get support for this and be able to do it right the first time and not have to come back with a Charter challenge and fix it later. [ 75 ] In comparison to gay male couples, lesbian couples are placed in a slightly more advantageous position through the operation of biology in that the assisted conception provisions of the FLA recognize the birth mother as a legal parent.

Presuming there is no surrogacy arrangement with a third party, lesbian couples have the assurance that at least one of the spouses will be recognized as a parent (being the spouse who carries the child to term). While this places lesbian couples in an advantageous position vis-à-vis gay male couples (where neither male is provided with parental recognition by operation of law) the FLA does not provide a mechanism for recognition of a female in a same-sex relationship who does not carry the child.

[76] This situation was addressed by our Court in Fraess, where the female spouse of the biological mother applied to have s. 13(2)(

b) of the FLA declared unconstitutional. The applicant was in a spousal relationship with her female partner who had becomeimpregnated through artificial insemination (the couple purchased sperm from an anonymous donor). Throughout the pregnancy andafterwards both women assumed the role of parent to the child. The applicant then learned that under the FLA she would be a legalstranger to the child unless she proceeded with a step-parent adoption. The applicant argued that if she had been in a heterosexualrelationship with her spouse, she would have been deemed a parent by operation of s. 13(2)(

b) of the FLA and that as a woman married tothe biological mother, she was denied the benefit of this law. [77] The applicant therefore argued that the FLA conferred a significant benefit to heterosexual spouses but denied her and otherlesbian spouses the same benefit, thus forcing them to engage in a separate and protracted legal process in order to obtain the sameparental acknowledgment granted to opposite sex spouses by operation of law.

The Court agreed, holding, at para. 6 that: The law is clear that where a law is creative of legislated consequences for opposite sex couples and excludes from its ambit same sexcouples the law will violate s. 15(1) of the Charter. See M v. H, (SCC), [1999] 2 S.C.R. 3. The effect of s. 13 of theFamily Law Act is to confer upon opposite sex spouses a benefit denied same sex spouses. Men married or partnered to women canreceive parental status immediately upon the birth of the child conceived through artificial insemination provided that they consented tobeing a parent in advance of the conception.

Women married or partnered to women cannot. Such a provision clearly violates s. 15(1) ofthe Charter of Rights and Freedoms. [78] The Court found that given such violation, the appropriate measure was to read in language that would include the applicantas a spouse to the biological mother of the child. The Court disagreed with the suggestion that the

section be severed, which would haveresulted in all non-biological "intended" parents having to proceed through adoption, regardless of sexual orientation.

Rather, it held, atpara. 13 that: ...It seems extraordinary that once the Legislature as a policy matter accepts a person can be a parent through intention that should betaken away from those persons because it is discrimination under the Charter. [emphasis added] [79] In determining that a "reading in" was the proper approach, the Court stated as follows, at para. 9: This would be a sufficiently "distinct" provision for the purposes of the analysis giving rise to when "reading in" is appropriate.Furthermore the legislative objective of s. 13 of the Family Law Act is clear.

Once the subsection confers parental status on the spouse orpartner of the biological mother whether or not such person contributed genetic material provided that they consented to being a parent inadvance of the procedure.

The proposed provision would include a group of spouses or partners whose exclusion violates the Charter sothat their inclusion could only further the goals of the legislation. [emphasis added] [80] The Applicant argues that as per Fraess, he is discriminated against in that the FLA deems parentage in situation where a malewas in a spousal relationship with the biological mother of the child and the male intended to act as a parent to child notwithstanding thefact that his biological material was not used in the assisted conception process. [81] While Fraess can obviously be distinguished on the basis that the applicant was in a same-sex relationship with the mother ofthe child, I do not find this distinction fatal to Mr.

H.'s claim. Section 13(2)(

b) of the FLA allows for a heterosexual male to be deemedthe parent of a child born to the biological mother if he is in a spousal relationship with the mother and consented to be the parent of theresulting child conceived through assisted conception. Fraess concluded that the FLA discriminated against lesbian partners in a similarposition. In so doing, the Court confirmed that the FLA "...as policy matter accepts a person can be a parent through intention." [82] Section 13(2)(

b) of the FLA permits individuals, both male and (post Fraess) female, to be deemed parents where they were ina spousal relationship with the biological mother of the child and intended/consented to act as the child's parent. By definition, a gay manwill never be in a spousal relationship with the biological mother and thus will always be excluded from being deemed a parent underthis provision. As such, gay males are denied an advantage (declaration of parentage by operation of law) that is bestowed upon all otherindividuals under s. 13(2)(b).

[83] The Intervener argues that the FLA treats all instances where a couple wants to be parents, but neither individual can carry achild, identically. While this is true in that such couples would of necessity fall under the surrogacy provisions in s. 12 (where the foetusis carried to term by a gestational carrier instead of the gestational donor) with respect, this argument fails to address the inherentinequities created under the FLA. [84] Under the FLA, a gay male, regardless of whether he provided sperm for the purposes of the artificial conception, cannot bedeemed a parent by operation of law.

At the end of the day, the only individuals who can be recognized as parents based uponconsent/intent (absent a surrogacy declaration or adoption) are those who are in a spousal relationship with the biological mother. Again,this will never be a gay male. The FLA legislates a benefit for individuals in a spousal relationship with the biological mother, whichassumes the existence of a heterosexual relationship or (post Fraess) a lesbian relationship.

By failing to provide a similar benefit for gaymales (whether as genetic donor or intended/consensual father) the FLA creates a distinction that transcends the mere operation ofbiology. [85] Consider the application of the FLA to the facts at bar: while the parties are not in full agreement as to the exact role Ms. D.was to play in the child S.'s life, Eidsvik, J. found that the arrangement entailed that S. was to be cared for and raised mainly by Messrs.R. and H., with Ms. D. having weekly access. Under the FLA the only legal parent to the child S. is Ms.

D., notwithstanding the fact thatshe is not the child S.'s primary caregiver and that the child S. does not normally reside with her. On the other hand Mr. H. and Mr. R.,the child S.'s papa and father, acquire no parental or guardianship rights or responsibilities (outside of those attached to in loco parentisstatus).

It is difficult to see how this arrangement, whereby the FLA acknowledges the parentage of only the birth mother whileexcluding both the biological and intended/consensual father, can be seen as operating in the best interests of the child S. [86] The Intervener argues that in limiting the number of parents that a child can have to two, the FLA creates a distinction basedupon number as opposed to any ground under s. 15. With respect, I again disagree.

While the particular circumstances surrounding thebirth of S. may not have been foreseen at the time of drafting, the FLA operates to create a distinction based upon gender and sexualorientation in that only same-sex spouses are excluded from deemed parentage under s. 13(2)(b). [87] The Intervener further submits that the ability to make decisions in respect of a child is attached to guardianship status asopposed to parentage status and the FLA does not limit the number of guardians a child may have.

While this is an accurate statement inlaw, it does not address the inequality suffered by gay male parents in the position of either Mr. R. or Mr. H. The Court acknowledgesthat Mr. R. has already successfully applied for status as the child S.'s guardian and that Mr. H.'s application is pending. However, it isthe very fact that both individuals had to engage in an additional and protracted court process in order to receive such status that is inissue.

Under s. 20 of the FLA, a male and female living together in a spousal relationship are both the mother and father of the child aswell as the guardians of the child. Thus, in a traditional family, no further court process is required to receive guardianship status. In agay male relationship the additional step of seeking guardianship status or an adoption order is always required. [88] The Court in Withler summarized the fundamental analysis concerning equality rights at para. 54: In

summary, the theme underlying virtually all of this Court's s. 15 decisions is that the Court in the final analysis must ask whether,having regard to all relevant contextual factors, including the nature and purpose of the impugned legislation in relation to the claimant'ssituation, the impugned distinction discriminates by perpetuating the group's disadvantage or by stereotyping the group. [89] Even though both Messrs. R. and H. are able to apply for guardianship status, this is not the same as being a legal parent. Themajority in Kapp revisited the decision in Law v.

Canada (Minister of Employment and Immigration), (SCC), [1999] 1S.C.R. 497, where the Court had suggested that discrimination should be defined in terms of the impact that the impugned law has on thehuman dignity of the claimant, having regard to four factors.

In Kapp the majority acknowledged that while several difficulties havearisen from the attempt to employ human dignity as a legal test, it remains an essential value underlying the s. 15 equality guarantee:para. 21. [90] The effect of the FLA is that when gay males in a committed relationship decide to have a family assisted by a female (in thisinstance with the assistance of a friend who conceives for them) they should either be satisfied with guardianship status (which they mustapply for to receive) or they must undertake the protracted adoption process.

Denying a gay father (biological or intended) the status oflegal parent has a negative effect on his human dignity. The significance of parental status has been recognized by our Supreme Court, assummarized in Trociuk v. British Columbia, 2003 SCC 34, [2003] 1 S.C.R. 835, at para. 15:

Parents have a significant interest in meaningfully participating in the lives of their children. In B. (R.) v. Children's Aid Society ofMetropolitan Toronto, (SCC), [1995] 1 S.C.R. 315, at para. 85, La Forest J. wrote that "individuals have a deeppersonal interest as parents in fostering the growth of their own children". In a similar vein, Wilson J. in R. v.

Jones, (SCC), [1986] 2 S.C.R. 284, at p. 319, wrote: "The relations of affection between an individual and his family and his assumption ofduties and responsibilities towards them are central to the individual's sense of self and of his place in the world." [91] The ultimate operation of the FLA suggests that same-sex couples are somehow less able, or less worthy, of being parents.This reflects outdated assumptions or understandings about family in Canadian society. [92] At the end of the day, I find that s. 13(2) discriminates against gay males in that it fails to confer a benefit (recognizedpaternity) and forces gay male parents to endure an extended and protracted legal process in order to have their guardianship andparentage recognized.

Having found infringement, is the impugned law saved under a s. 1 analysis? [93] The Intervener submits that in the event that this Court finds that the impugned provisions of the FLA infringe upon theApplicant's s. 15 Charter rights, that any such infringement is demonstrably justified under s. 1 of the Charter, which reads: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free and democratic society. [94] The test for justification was established in R. v.

Oakes, (SCC), [1986] 1 S.C.R. 103. The onus of showingthat a law is saved by s. 1 rests on the party seeking to uphold the limitation. To satisfy this test the government must show that: (1) thelegislation addresses a "pressing and substantial" objective; (2) a rational connection between the impugned legislative measure and theobjective exists; (3) the legislation impairs rights and freedoms as little as possible; and (4) a proportionality exists between theimportance of the objective and the injurious effects of the legislation.

It is clear that the limitation in issue in this instance is "prescribedby law." [95] As Dickson, J., writing for the majority in R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295 stated atp. 352: At the outset, it should be noted that not every government interest or policy objective is entitled to s. 1 consideration. Principles willhave to be developed for recognizing which government objectives are of sufficient importance to warrant overriding a constitutionallyprotected right or freedom.

Once a sufficiently significant government interest is recognized then it must be decided if the means chosento achieve this interest are reasonable -- a form of proportionality test. The court may wish to ask whether the means adopted to achievethe end sought do so by impairing as little as possible the right or freedom in question.

(1) Pressing and Substantial Objective [96] I agree with the Intervener that one of the primary considerations of the FLA is assurance of the child's well-being. In order toensure the safety and security of children, the FLA operates to identify an adult(

s) to assume responsibility for the child, to protect thechild and to make essential decisions on behalf of the child. Protection of the best interests of children is a pressing and substantialobjective. [97] Having found a pressing and substantial objective, I now move on the proportionality test as set out in Oakes.

(2) Rational Connection

[98] At this stage, the Intervener must show that the impugned provisions are rationally connected to the goal of ensuring thewelfare of children. To establish a rational connection, the Intervener "must show a causal connection between the infringement and thebenefit sought on the basis of reason or logic": RJR- MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3S.C.R. 199, at para. 153 . The rational connection requirement is aimed at preventing limits being imposed on rights arbitrarily: Albertav.

Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567 at para. 48. [99] The challenged provisions act to determine parentage in situations outside of the "normal" conception process. They provideconsistency and predictability in establishing who, exactly, is charged with providing care for and protection over the child upon birth.While the Intervener has established a connection between establishing clear parental status and the objective of ensuring the well-beingof the child, the FLA is underinclusive in this regard.

As noted above, the operation of the Act has resulted in the following scenario: thechild S. resided primarily with her Daddy and her Papa. While she maintained regular access with Ms. D., it was Messrs. R. and H. whoacted as her primary caregivers. However, the child S.'s sole parent and legal guardian was Ms.

D., an individual who did not exerciseday-to-day care over the child S., who did not accept primary responsibility for her, and who was not contributing financially towards herexpenses. [100] As a result, while the FLA has as an objective the protection of children through the naming of a clearly identifiable parent andguardian, it arguably does not achieve this goal when same-sex male parents are involved (outside of recourse to the adoption process orguardianship order). If anything, the goals of the FLA are undermined by the impugned sections.

Furthermore, the Intervener did not putforth a convincing argument as to why a three-parent model will fail to achieve the goal of ensuring that an adult individual is namedwho will care for and protect a child upon birth. [101] Even if I am incorrect in this regard, and a rational connection has been proven, I find that the Intervener has failed to satisfy theremaining steps in the Oakes test.

(3) Minimal Impairment [102] The majority in Hutterian Brethren of Wilson Colony explained the minimal impairment analysis as follows, at para. 53: The question at this stage of the s. 1 proportionality analysis is whether the limit on the right is reasonably tailored to the pressing andsubstantial goal put forward to justify the limit. Another way of putting this question is to ask whether there are less harmful means ofachieving the legislative goal.

In making this assessment, the courts accord the legislature a measure of deference, particularly oncomplex social issues where the legislature may be better positioned than the courts to choose among a range of alternatives. [103] Regard may also be had to the oft-cited quote from RJR-MacDonald, at para.160, setting out the appropriate standard: The impairment must be 'minimal', that is, the law must be carefully tailored so that rights are impaired no more than necessary. Thetailoring process seldom admits of perfection and the courts must accord some leeway to the legislator.

If the law falls within a range ofreasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailorobjective to infringement. [104] The Intervener argues that it would not be possible to legislate in a fashion that would address all of the possible combinationsof parents and guardians of a child arising by operation of law.

While parents are generally also guardians, guardianship powers may beallocated according to the particular circumstances of each child, based upon what is in the child's best interests. [105] The Intervener submits that because various rights and responsibilities flow from holding either parentage or guardianshipstatus, laws that are too inclusive or too exclusive will have deleterious results. It argues that because it is difficult to know where todraw the line, some degree of deference should be given to the legislature in establishing the status of parents and guardians.

[106] I agree that some degree of deference should be afforded, especially given the wide ranging consequences involved once a legalfamilial relationship has been established.

However, while the Legislature is charged with balancing an individual’s desire to be a parentwhile attempting to provide for the care and protection of children, it must do so in a fashion which impairs rights and freedoms as littleas possible. [107] The Intervener argues that the failure to make the Applicant a parent by operation of law is minimally impairing in that theApplicant could - and did - apply to the Court for a contact order and for status as the child's guardian.

It submits that in cases where theFLA is unable to provide clear rules as to who is a parent or guardian, an application to the Court is available in order to determine suchstatus. As such, it submits that recourse to the Court in these circumstances will satisfy the minimal impairment test. [108] I disagree with the Intervener that the impugned provisions of the FLA minimally impairs the Charter protected equality rightsof homosexuals - especially homosexual males - seeking to raise a family.

The fact that a homosexual male has the option of applying forguardianship status (through the FLA) or for parentage status (through the adoption process) is not an adequate substitute for therecognition automatically given to other couples. Again, a heterosexual male who "intends" to have a child with his partner can beautomatically named as a parent under s. 13(2) whether or not his genetic material is actually used in the conception process. I do notfind that the reasoning in Trociuk v. British Columbia, 2003 SCC 34, [2003] 1 S.C.R. 835. assis

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