Same-sex parents win adoption case in N.B.

The New Brunswick Human Rights Board
(July 28, 2004)












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Legal News Canada - Same-sex parents win adoption case in N.B.

August 11, 2004 (updated August 12)

Same-sex parents win adoption case in N.B.
Child's legal name can include non-biological parent

"Including one's particulars on a birth registration is an important means of participating in the life of a child. A birth registration is not only an instrument of prompt recording. It evidences the biological ties between parent and child, and including one's particulars on the registration is a means of affirming these ties. Such ties do not exhaustively define the parent-child relationship. However, they are a significant feature of that relationship for many in our society, and affirming them is a significant means by which some parents participate in a child's life. ... Contribution to the process of determining a child's surname is another significant mode of participation in the life of a child. For many in our society, the act of naming a child holds great significance. As Prowse J.A. notes, naming is often the occasion for celebration and the surname itself symbolizes, for many, familial bonds across generations "
Deschamps J. in Trochiuk

The New Brunswick Labour and Employment Board ruled on July 28, 2004 (the decision was released yesterday) that same-sex couples can adopt each other's children and be named as one of the parents on the birth registration documents in the province. The board ruled that birth registration and adoption are public services bound by the Human Rights Act which prohibits discrimination based on sexual orientation and marital status. The government was ordered to pay damages ($7,500 to the non-biological parent and $5,000 to the birth mother for the affront to their dignity).

"This decision is about supporting families," Alanna Palmer, Chair of the Human Rights Commission said. "It gives a great deal more security and protection to children who would otherwise have only one legal parent. Family ties are strengthened when parents can participate meaningfully in the lives of their children. Allowing a second parent to assume the rights and responsibilities of parenthood strengthens family ties and so improves the child's sense of self and of having a rightful place in the world."

The case began when the Depts of Health and Wellness and of Family and Community Services turned away a same-sex couple who tried to register the birth of their child. One of the mothers, a non-biological parent, attempted to adopt the baby of her conjugal partner. The complainant's partner gave birth to a child with the aid of artificial insemination.

"Based on my academic and clinical work in this area of child psychiatry, it is my opinion that same-sex couples should generally be treated in the same manner as opposite sex common-law couples with regard to the issue of adoption of children. Having regard to matters related to healthy child development, it is my view that sexual orientation of a person should not, in itself, be grounds for excluding a person for consideration as an adoptive parent.

This conclusion is based on my knowledge of child development and the aspects of parenting which are essential to healthy child development, as well as the literature which does not demonstrate a deleterious impact on children raised by gay or lesbian parents. In fact, all studies concluded to date show remarkable similarity in child development patterns of children whose parents are gay or lesbian compared to children whose parents are heterosexual.

…It is reasonable to conclude that children raised by gay or lesbian parents should not be expected to differ substantially in any respect of their development. Therefore, it is my opinion that gay and lesbians persons have the same capacity to care for children as do heterosexual persons."

Dr. Susan Bradley
Psychiatrist in Chief
Hospital for Sick Children, Toronto

"On Christmas Eve we received a letter from the Department of Vital Statistics regarding [C.C.'s] name and birth certificate," the lesbian couple wrote in a letter attached to a complaint forwarded to the Human Rights Commission on July 12, 2002 (the date of the first victory for same-sex marriage in Canada). "They refused to register me as a parent on the birth certificate stating that a birth certificate represents biological facts and that I had no biological connection to the child. Further, they refused to register her under [A] as I am not recognized as a parent so therefore she cannot have my last name. They registered her under [B's'] last name but indicated that if we wanted to pay a fee we could apply for a name change but there was not guarantee that they would do it….

There are several areas of concern for a parent who is not legally recognized as such. One of our main concerns is being able to spend quality time with our child via parental leave. As you know these challenges take time and as I have been denied the right to parental leave. I am missing that Potty training solutionscrucial time with my child. No matter the results of a court challenge, we will not be able to get that time back. Without the right to adopt [C], our relationship as parent/child is left unrecognized and we are both left without protection. In the event that I pass away, she is not entitled to my property, death benefits, etc. without taxation. In the event that [B - the biological mother], her legally recognized parent, passes away, I do not have legal grounds to maintain her in my custody. Simply taking her to the doctor/hospital is more stressful than for a recognized parent as I have to be concerned with whether or not the hospital will recognize my role, whether or not I will be allowed visitation rights and whether or not I can make decisions regarding her health care. These are just a few of the issues and concerns that we deal with on a daily basis."

The board used human dignity as a test to determine whether the couple had been discriminated against, using as an authority the Supreme Court of Canada's decision from Law v. Canada (Minister of Employment and Immigration) (supra) at para. 51:

"What is human dignity? There could be different conceptions of what human dignity means. For the purposes of analysis under s. 15 (1) of the Charter, however, the jurisprudence of this Court reflects a specific albeit non-exhaustive, definition. … Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and physiological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?"

The couple was being treated differently from other (opposite-sex) couples and the basis for the distinction was marital status and sexual orientation.

In awarding damages the Board noted that four years ago the New Brunswick government had previously assured a court that "the Government of New Brunswick was planning to amend the legislation to conform with the decision of the Supreme Court in M v. H (the breakthrough case that eventually led to same-sex marriage in Canada) and that possibly this could be done with six months."

Compensatory Awards
From Discriminatory Conduct

$1,500 in Christie v. Halifax Student Housing Society (1999)

$10,000 in Moffat v. Kinark Child and Family Services (1999)

$12,500 in this case (A.A., B.B. and C.C. v. Depts. of Family and Community Services & Health and Wellness, 2004)

The Board said that the New Brunswick department's response to the couple "reflects reflects a difference in treatment based on marital status implying that same-sex couples are less worthy of consideration as adoptive parents than heterosexual couples with the resulting injury to their self-esteem."

The government has thirty days to decide if it will appeal the decision. New Brunswick has previously refused to recognize gay marriages legally performed elsewhere in Canada. The case represents another step forward to the arrival of gay marriage in Canada's remaining hold-out provinces and territories.

Update - August 12, 2004

Today Premier Lord announced that New Brunswick will not appeal the decision. Further, Premier Lord indicated that the province will look at other legislation to bring the province into compliance with the Canadian Charter. The Premier was not specific, but we hope he has plans to end marriage discrimination in New Brunswick. Please contact the Premier of New Brunswick to express support for equal marriage.

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