Metro Morning

Same-sex parents speak out on parental rights

Same-sex marriage has been legal in Ontario for 15 years, but the laws around parental rights still mean that most same-sex parents need to go to court to establish a legal relationship with their own children. That's about to change.

New legislation coming to help ensure equity for same-sex parents in Ontario

Jennifer Mathers McHenry is "cautiously optimistic" about the prospect of new legislation for same-sex parents in Ontario. (CBC)

Jennifer Mathers McHenry gave birth to her first child in 2010. Ruby was delivered after a complicated labour — made more complicated by the fact that Jennifer's wife, Kirsti Mathers McHenry, had no legal standing as a parent.

"It was extraordinary and outrageous to us," Jennifer told CBC Metro Morning's Matt Galloway Wednesday. "As I was giving birth and wasn't doing well, the thoughts racing through [Kirsti's] mind were, 'What happens if my wife dies on the table? What happens if I can't take our baby home?'"

Currently, only a man and a woman can automatically be defined as parents under the law. That's going to change in the coming months: Premier Kathleen Wynne said Tuesday that the Ontario government will introduce legislation this fall to make birth registration services available to all families, regardless of gender.

Jennifer Mathers McHenry is "cautiously optimistic" about the announcement.

When Ruby was born, Kirsti Mathers McHenry had two options: go through a full-fledged adoption, or go to court to get a declaration of parentage. Both are lengthy processes that involve lawyers, a lot of money, and a lot of red tape. 

"In the intervening time," Jennifer Mathers McHenry explained, "Kirsti couldn't take Ruby to the doctor."

NDP MPP Cheri DiNovo, who has been fighting for this change for years, applauded Wynne's announcement, but said the Liberal government should act sooner rather than later. 

DiNovo announced a private member's bill in 2015 — called Cy and Ruby's Law, after Jennifer and Kirsti Mathers McHenry's children — to amend the definition of parents under provincial law.  

Left to Right: Lawyer Joanna Radbord, NDP MPP Cheri Di Novo, and Kirsti Mathers-McHenry with children Cy and Ruby.

Restricting the definition of parent to one man and one woman creates discriminatory hurdles, DiNovo says. Even though all parents must register their children with the province, heterosexual parents do not have to prove their babies are their own the way many gay parents do. 

In some cases, she said, the consequences can be devastating.

For example, when two women have a baby and the birth mother dies during labour — exactly what Kirsti feared would happen when Jennifer was giving birth to Ruby — the surviving parent may not be able to get custody of her own child. Under Ontario law, a sperm donor's rights supercede those of the non-birth mother. 

Jennifer Mathers McHenry echoed DiNovo's mixed reaction to Wynne's announcement. "No one has ever articulated what it is that they think is wrong with the bill that we have put forward ... That bill theoretically could be passed tomorrow, and a baby born tomorrow would not be born into limbo."

That timing matters: even when things go smoothly with a birth, getting legal standing as quickly as possible is essential to many families — without it, they can also lose out on parental benefits like employment insurance.

In their own case, while fighting for new legislation, Jennifer and Kirsti decided to get a declaration rather than pursue an adoption. "For us," Jennifer says, "the distinction that we made was an adoption creates a new relationship, where we felt that a declaration acknowledged one that already existed."