British Columbia Family Law Blog

The first case was initially heard in front of the British Columbia Human Rights Tribunal in 2001. In Gill v. Murray, [2001] B.C.H.R.T.D. No 34, the BC Human Rights tribunal held that the refusal of the Director of Vital Statistics to register both same-sex partners as parents on a birth registration form was discriminatory and a breach of the BC Human Rights Code. This case involved two female same-sex couples. One partner in each relationship had been artificially inseminated and given birth to a child. The birth registration form from the Director of Vital Statistics had a space for the name of the 'mother' and a space for the name of the 'father'. There was no space available and the Director would not create an additional space for a non-biological co-parent whether male or female. Therefore, the partners of the women who had given birth to the child were not able to be registered on the birth certificate unless they went through a lengthy and expensive adoption process. The BC Human Rights Tribunal directed that Vital Statistics amend the birth registration form so that it provided the option of identifying a non-biological co-parent. The Minister of Health Planning sought and received a judicial review of the decision in British Columbia (Minister of Health Planning) v. British Columbia (Human Rights Tribunal) [2003] B.C.J. No. 1755. Justice Williamson held that Tribunal had overstepped its jurisdictional boundaries by directing Vital Statistics 'how' to alter its forms and that part of the decision was set-aside. Now Vital Statistics only has to ensure that its form is not 'discriminatory' but there is no direction as to how. This leaves same-sex couples still in jeopardy as Vital Statistics could still put in a biological relationship requirement, which would leave same-sex parents in no better situation than they were before.

In the second decision, Rypkema v. British Columbia [2003] B.C.J. No. 2721 released on November 28, 2003 from the BC Supreme Court, a married heterosexual couple entered into a surrogacy agreement with another couple using their own genetic material. When the couple went to register the child's birth listing themselves as the mother and father of the child, the Director refused to process the registration on the basis that the woman seeking to register the child had not actually given birth. The parents applied for an order declaring them as mother and father of the child and an order that the birth registration reflect this. Madam Justice Gray granted the application finding that the petitioners were clearly both the genetic and social parents of the child and that there was no contest to this claim. Therefore there was no justifiable reason for their names not to be placed on the birth registration. Justice Gray briefly discussed the psychological, social and legal importance of a parent being registered on the birth certificate, noting the comments of Madam Justice Dechamps in the recent Supreme Court of Canada decision in Trociuk v. British Columbia (Attorney General) 2003 SCC 34 at paragraphs 15-16:

Parents have a significant interest in meaningfully participating in the lives of their children. In B.(R.) v. Children's Aid Society of Metropolitan Toronto (1994), [1995] 1 S.C.R. 315, at para. 85, La Forest J. wrote that "individuals have a deep personal interest as parents in fostering the growth of their own children." In a similar vein, Wilson J. in R. v. Jones, [1986] 2 S.C.R. 284, (S.C.C.) at p. 319, wrote: "The relations of affection between an individual and his family and his assumption of duties and responsibilities towards them are central to the individual's sense of self and his place in the world."

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 for many in our society, and affirming them is a significant means by which some parents participate in a child's life.

These comments relate directly to birth fathers as the Trociuk case addressed a birth mother's ability to leave off the birth registration the genetic father. However, the principals are transferable to other parental relationships. Justice Gray also cited the BC Human Rights Tribunal decision of Gill v. Murray, supra noted above. The Tribunal noted at paragraph 81 of their decision that:

With the advent of various forms of reproductive technology, it is possible for a child to have legal social parents, biological parents, and a birth mother who is neither a legal social or a biological mother. It is evident that the Birth Registration regime established by Vital Statistics has not kept up with the reproductive technologies. The same-sex partner of the biological mother of a child is denied the presumptive proof of her relationship to the child, including the right to register her child in school, to obtain airline tickets and passports for her child, as well as denying her the ability to assert her child's rights with respect of a myriad of other laws, from the B.C. Benefits (Child Care) Act to the Young Offenders Act, unless she resorts to the adoption process.

The written law of our society has tended to be notoriously slow in keeping pace with the changes in our technology and relationships. Where it comes to issues of parenting however, the law must push to be progressive. It has long been held that the prime consideration in BC family law decisions is the best interest of a child. It is clearly not in the best interests of a child to have his or her parent restrained or restricted in their ability to perform certain parenting functions. How many parents out there could imagine not being able to take their child to receive certain medical treatments, to school or on vacation. It would be difficult to imagine how it feels raising a child from birth only to be told that you have no legal right to be recognized as a parent and that your only recourse is a costly and time consuming adoption process, which in and of itself does not produce a guaranteed result of legal parentage. Cases such as Murray, Rypkema and Trociuk are forcing change in BC family law and legislation, or at least trying to. The lawmakers must be responsive and responsible in looking after BC's children. In both of the above cases, the Court was dealing with persons who were obviously committed to being social and legal parents. The government should be assisting these people in fulfilling this role, not making them fight for it.