One Parent, Three Parents: Judges and Ontario’s All Families Are Equal Act, 2016

33:3 International Journal of Law, Policy and the Family [Forthcoming]

31 Pages Posted: 26 Feb 2019

See all articles by Robert Leckey

Robert Leckey

McGill University - Faculty of Law

Date Written: February 10, 2019

Abstract

This article studies judges’ early treatment of a new law on parentage and assisted reproduction. During decades of legislative inaction, Ontario’s judges adapted the law to evolving familial practices, at times boldly. A legislative overhaul in 2016, aiming to recognize all children’s families equally and inclusively, raised the question whether judges would adopt a more restrained role post-reform. In two early cases, where the new conditions for automatic recognition of a parental arrangement were unmet, the judges emphasized the intention of involved adults. Closely reading the legislation, the article presents bases for deciding the cases otherwise and for reducing their potential to incentivize litigation. Where the legislature has set out a broad range of accessible paths to parentage, even judges who champion family diversity may have reasons to stick to those paths. For legislative drafters, the difficulty of anticipating the variety of contemporary forms of family may counsel against purporting to limit judicial discretion. Ontario’s experience also favours including transitional measures in major reform.

Keywords: Parentage; Assisted Reproduction; Ontario; Law Reform; Judicial Role

JEL Classification: K19

Suggested Citation

Leckey, Robert, One Parent, Three Parents: Judges and Ontario’s All Families Are Equal Act, 2016 (February 10, 2019). 33:3 International Journal of Law, Policy and the Family [Forthcoming]. Available at SSRN: https://ssrn.com/abstract=3331916 or http://dx.doi.org/10.2139/ssrn.3331916

Robert Leckey (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
514-398-4148 (Phone)
514-398-4659 (Fax)

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