Sometimes legislation does not move at the same pace as a changing and progressive society. Particularly with same-sex relationships and the issues that can result when the same-sex couple decides to have children.
In the recent case of MAW v. STN the Ontario Superior Court of Justice dealt with such a case where a married same-sex male couple sought a declaration of parentage that they both be legally recognized as fathers of a child that they had through a surrogate. They further sought a declaration from the court that the gestational carrier was not the mother of the child and that once the changes had been made that the record be sealed. The gestational carrier had consented to the application to be removed as the mother of the child.
With respect to the issue of sealing the records, the court held that the focus must be on what is in the best interests of the child. The court determined that in this case the court should be scrupulous with the child's privacy and held that secrecy ought to prevail over openness.
In conducting the analysis regarding the change of parenting, the court held that in changing times the focus is less on the biological connection between child and parent and more on the substance of the relationship. This conclusion was in line with jurisprudence from the Ontario Court of Appeal which effectively looked at the substance of a bond rather than the biological nature of the relationship.
This is another example of the courts moving with the ebb and flow of changing social norms and being pragmatic about the needs of same-sex couples when they choose to have children.
In the recent case of MAW v. STN the Ontario Superior Court of Justice dealt with such a case where a married same-sex male couple sought a declaration of parentage that they both be legally recognized as fathers of a child that they had through a surrogate. They further sought a declaration from the court that the gestational carrier was not the mother of the child and that once the changes had been made that the record be sealed. The gestational carrier had consented to the application to be removed as the mother of the child.
With respect to the issue of sealing the records, the court held that the focus must be on what is in the best interests of the child. The court determined that in this case the court should be scrupulous with the child's privacy and held that secrecy ought to prevail over openness.
In conducting the analysis regarding the change of parenting, the court held that in changing times the focus is less on the biological connection between child and parent and more on the substance of the relationship. This conclusion was in line with jurisprudence from the Ontario Court of Appeal which effectively looked at the substance of a bond rather than the biological nature of the relationship.
This is another example of the courts moving with the ebb and flow of changing social norms and being pragmatic about the needs of same-sex couples when they choose to have children.