Manitoba parental rights law discriminates against LGBTQ families, judge finds

In a major decision for LGBTQ families, a Manitoba judge ruled a piece of legislation that doesn't recognize non-biological parents who conceive through assisted reproduction violates their charter rights.

Chief Justice Glenn Joyal wrote in a consent order in the Manitoba Court of Queen's Bench on Monday that sections of the Family Maintenance Act violate the right to equality as guaranteed by the Canadian Charter of Rights and Freedoms. 

"The combined effect of the definition of 'parent' ... and the presumptions of paternity … unjustifiably infringes section 15(1) of … the Charter, because they do not contemplate parentage through assisted human reproduction and therefore discriminate on the basis of sexual orientation," Joyal wrote.

The provincial legislation considers a woman a mother and a man a father, but that doesn't leave room for LGBTQ parents who have children with reproductive assistance.

Seven couples filed legal proceedings against the Manitoba government through Robynne Kazina and Rhoni Mackenzie of Taylor McCaffrey LLP Barristers and Solicitors, in collaboration with Allison Fenske and Byron Williams of the Public Interest Law Centre.

Current legislation forces parents to go through court processes to be legally recognized as parents.

Kazina says legal parental status is something a lot of people take for granted, but it affects applying for government benefits, health-care decision making and guardianship in the event of a separation of parents or death of a parent.

"It's really the children's right to have the proper people who are caring for them legally recognized so that they can have legal status over them. These children are entitled to the benefit of certainty as to who their parents are in law and shouldn't be treated different just because of the way that they are brought into this world," Kazina said.

She added it also gives legal rights to donors "who have no intent to parent this child or be involved in the child's life in any way just because their biological material was used."

The court declared that the seven sets of parents who launched the legal proceedings are, in fact, parents in the eyes of the law, and they don't need to go through an adoption or declaration process.

'Quite an emotional moment'

That's cause for celebration for Jill Stockwell and her partner Courtney Maddock, who are one of the seven couples. The two, who were married in 2010, had their daughter CJ together two years ago through in vitro fertilization.

"It was quite an emotional moment. The judge pronounced us parents right there, which was huge for us," said Stockwell.

"For us, day-to-day, not a lot changes. Jill was always CJ's mom, right from the beginning. So in that way it didn't impact our family, but it gives us another sense of security knowing that no matter what happens, CJ will always be protected under the law," Maddock added.

This order is a long time coming, Kazina says.

Provisions invalid while legislation is amended

In a 2014 paper, the Manitoba Law Reform Commission recommended these changes. Meanwhile, other provinces like Ontario, British Columbia and Saskatchewan have already updated their laws so parents don't face the same barriers they do in Manitoba, Kazina said.

For the next 12 months, the provisions in the legislation that are considered discriminatory are invalid and suspended. In that time, the province is expected to amend the legislation. 

CBC has reached out to Manitoba Families and Justice, but they didn't immediately respond to a request for comment.

This decision is important to Manitoba's LGBTQ community.

"We have had people reach out to us we haven't heard from in a long time and people we don't even know who have said how much this is going to change their lives," Stockwell said.

"I think being a part of that is quite important to us. I don't think when we entered into it we realized how many people's lives were going to change."