CLRA - Discriminatory Against Gay, Lesbian and Transgendered Parents?

[Tayken]

Hi All,

With all the positive changes the Lesbian, Gay, Bi-Sexual and Transgendered ("LGBT") community has brought forward on the understanding of human rights in the area of marriage I am personally concerned that the Children's Law Reform Act of Ontario may be in fact biased against this community of parents.

I am looking to explore if the Children's Law Reform Act of Ontario ("CLRA") Section 20: Father and mother entitled to custody is gender biased towards hetrosexual men and women.

Or, is it just outdated wording that needs an update?

Children's Law Reform Act, R.S.O. 1990, c. C.12

20. Father and mother entitled to custody

In the index it explicitly states that custody entitlement is to a father and mother. It really is not "gender neutral" as it should be written in my personal opinion but, they do provide in Section 1: Rules of Parentage a definition of Kindred relationships (1.(3)):

The parent and child relationships as determined under subsections (1) and (2) shall be followed in the determination of other kindred relationships flowing therefrom. R.S.O. 1990, c. C.12, s. 1 (3).

Furthermore Section 2.(1) Rule of construction states:

For the purposes of construing any instrument, Act or regulation, unless the contrary intention appears, a reference to a person or group or class of persons described in terms of relationship by blood or marriage to another person shall be construed to refer to or include a person who comes within the description by reason of the relationship of parent and child as determined under section 1. R.S.O. 1990, c. C.12, s. 2 (1).

So, this appears to be the exception to the gender biased wording in the CLRA to leverage and define that people of different sexual orientations can be parents.

But, then again in section 4.(1) Paternity and maternity declarations there is a re-statement of potential gender bias:

Any person having an interest may apply to a court for a declaration that a male person is recognized in law to be the father of a child or that a female person is the mother of a child. R.S.O. 1990, c. C.12, s. 4 (1).

This section (and subsequently the subsections that follow are all gender biased. One would think that this legislation would have gotten a refresh when the Province made gay, lesbian and transgender marriage legal.

Section 20: Father and mother entitled to custody is also very gender biased as well:

Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. R.S.O. 1990, c. C.12, s. 20 (1).

One would hope that in a modern society where the LGBT community is protected under the Human Rights Act/Codes of the Province that this antiquated wording that defines a parent (or even references that a parent) has to be a man to be a father and a woman to be a mother would have been updated.

A child can have many parents. That parent could be gay, lesbian, bi-sexual, transgendered, heterosexual, etc... It is disappointing to me that the CLRA still has wording such as this.

Hopefully legislators are going to update this legislation to insure it respects the fact that we live in a modern society in which LGBT have equal rights as heterosexuals.

Good Luck!
Tayken

[dad2bandm]

I saw your posting and read this, and wondered about this too, but presumed that they always assume there is a father and mother, to a child, biologically, and the law was rooted in that, in the definitions?

[Tayken]

I saw your posting and read this, and wondered about this too, but presumed that they always assume there is a father and mother, to a child, biologically, and the law was rooted in that, in the definitions?

It is an issue of out-dated wording that needs a major refresh. Case law doesn't reflect the wording but, the reason I raise the issue is that human rights go beyond what society accepts... It should be reflected in our laws as well. With the changes to the Ontario Human Rights Act and all the case law identifying gay, lesbian and transgendered parents it is time (in my opinion) that this wording get updated... It is long over due... It is 2013!

It is a shame that with all the work the government has done on recognizing everyone equally under law we still have (and rely upon) laws that are not gender and sexual orientation neutral.

Good Luck!
Tayken