Donna McDonagh sits in her daughter’s bedroom in her home in Ottawa on Sept. 15. McDonagh has spent $200,000 fighting for joint custody against her ex-partner, after being denied access to her daughter because of a legal loophole.Dave Chan
Donna McDonagh's daughter was born in the autumn of 2006 – an exciting time in the province of Ontario for lesbian couples. A law was about to change, allowing two moms to put their names directly onto a child's birth certificate. Their baby was the first in Ottawa to have a birth certificate listing two women as parents.
Both McDonagh and her partner, K., were in their 40s when they decided to start a family, but K. had embryos that she'd created some years earlier, using her own eggs and donor sperm. McDonagh was there when the embryo was transferred into her partner's uterus, there for the doctors' appointments, the prenatal classes and the birth. Because K. was self-employed, and McDonagh was a federal government employee, McDonagh took parental leave and said she was the primary caregiver for most of the first 11 months of their baby's life.
McDonagh had every reason to be confident that she was a full parent before the law. Not only was her name on the birth certificate and their child's last name a hyphenated hybrid of the two moms' surnames, but the two women had signed an order of joint custody, declaring that their intention was to be co-parents with equal say in the child's life. She was granted paid – and topped-up – parental leave. She'd successfully applied for the baby's health card and social insurance number and was named as "parent" on the application for a passport. Wills, powers of attorneys, codicils – everything signalled the same intent, that McDonagh and K. would play equal roles as parents. (K. denies this was ever their intention.)
"I really felt that we were good," McDonagh recalls. McDonagh was aware that birth certificates were just the beginning, that there were other laws that were still awaiting revision, but she was confident that it would just be a matter of time before everything was updated as Justice Paul Rivard had said it should be in the 2006 landmark case that made the birth-certificate changes they had taken advantage of. "I trusted in that process."
But in August, 2009, the relationship ended. At the time of the breakup, K. agreed that there would be joint custody. But there was a loophole in one of the laws governing parentage, which could be used to cut McDonagh out.
The law was the Children's Law Reform Act of 1990, and the loophole was that a non-birth, non-biological parent could only be "presumed" to be a parent if the person both cohabited with the birth mother and was male. McDonagh isn't male. This detail was one of the several bits of law that Justice Rivard had indicated was in need of updating, saying that lesbian mothers were correct to argue that they shouldn't have to ask permission to be parents of their own children.
But those updates never happened. McDonagh's name on the birth certificate, it turned out, meant very little.
She was outraged. "If I was a man, cohabiting with a women, and my sperm didn't swim – and if we decided to use a sperm donor – nothing more has to be done. I would be recognized as a parent," she says. But a female in the identical circumstance, she learned, still had to formally adopt her child, or go to court to be legally declared a parent. That can cost thousands of dollars, and many people find it humiliating. "That's not fair," she says. "That is a gender bias. That is constitutionally unacceptable."
Nonetheless, it was the law. The two women fought it out through the courts. In the end, after more than two years and hundreds of thousands of dollars in legal costs, McDonagh was granted joint custody of her daughter.
Like McDonagh, Kirsti Mathers McHenry was at her wife's side while she was giving birth to their daughter. But Mathers McHenry, a Toronto lawyer, was acutely aware that as the non-birth mother in the relationship, she had no automatic parental rights – unlike what a father in the very same situation would have. During the labour, her wife started to have heart problems. It occurred to Mathers McHenry that if her wife died, she might not even be able to legally take the baby out of the hospital.
Her wife survived, and the couple went on to have a second child. When Mathers McHenry applied for parental leave benefits through employment insurance, they were denied; a letter from Service Canada informed her she was not a parent. That was too much: Mathers McHenry and her wife decided to challenge the laws around parentage in Ontario.
The result was a private member's bill named after the couple's two kids: "Cy and Ruby's Act" was introduced last fall by Toronto MPP Cheri DiNovo, who worked with the couple and lawyer Joanna Radbord to come up with amendments to the pieces of Ontario law that discriminate against non-standard families. The bill quickly passed first and second readings, but then, says Radbord, the government stalled.
"The law just hasn't kept pace with the diversity of ways in which people make families today," Radbord says. She'd already heard from many other parents who were facing discrimination under the law, such as a family of two women and two men, all of whom wanted to be recognized as equal parents, but couldn't be.
Another was a trans person who was pregnant, and who would be required by the Vital Statistics Act to be listed as "mother," rather than "parent." Radbord points out that even a woman who gave an egg to her spouse to gestate would not be considered a "mother" or a "parent" under the law as it stood – or even be listed on the birth certificate – if the couple used a known, rather than an anonymous, sperm donor. This, despite her genetic relation to her child.
Last April, 21 parents, McDonagh among them, sued the government of Ontario, arguing that many of the laws around parentage are discriminatory and unconstitutional.
In June, Ontario Superior court ruled in their favour, finding that the Children's Law Reform Act violates the Charter of Rights because it "… does not provide equal recognition and the equal benefit and protection of the law to all children, without regard to their parents' sexual orientation, gender identity, use of assisted reproduction or family composition." The provincial government was given until the end of this month to introduce proposed changes. "I'm cautiously optimistic," says Radbord, who won an interim settlement for the 21 parents that suggests the government might make significant changes to parenting laws.
That could include allowing up to four legal parents per family. Parents might be able to call themselves "mother," "father" or "parent" on official documents, as they choose. The intentions people had before conception could be given greater weight than previously, so that people such as McDonagh and Mathers McHenry would be recognized as parents without legal intervention.
The role of sperm donors may also be clarified, so that a man who only ever intended to donate can't change his mind after the birth and ask to become a legal parent.
Other provinces have already tackled some of these issues. In Alberta, for instance, same-sex partners such as McDonagh are automatically recognized as parents. In British Columbia, the donor of genetic material is not by that fact alone considered a parent. Radbord hopes the proposals make Ontario the most inclusive place in the country.
McDonagh, whose access to her daughter is equal down to the hour, is excited to see what the government brings in. "People have lots to say about whether or not they believe situations like this should exist," she says, "but they do. And at the end of the day, children are born to these families. What should they share? They should share the security that their parents are recognized legally. And that no one can disrupt that."