The fight between two Calgary gay ex-lovers over custody of their daughter could advance same-sex parenthood rights in Alberta, says one of the litigants. The man says Court of Queen’s Bench is expected to rule Dec. 8 on whether the province will be paying his past and future legal fees in a four-year battle that could fill a void in Alberta’s Family Law Act that fails to legally define gay men as fathers.
“Hopefully, the government will pay for another lawyer to go against their own legislation,” said the man known as Mr. H., whose name is under a publication ban. The man and his former partner arranged for a surrogate mother to give birth to their daughter in 2003 conceived through artificial insemination.
When the couple split in 2006, a custody tug-of-war erupted, with Mr. H’s former lover claiming he, as the sperm donor, and the girl’s biological mother should be solely considered the parents. Though a succession of court decisions have favoured Mr. H’s access to his daughter, his ex-partner has fought the rulings by using a loophole in the Family Law Act that freezes out gay males as fathers when a female biological parent is involved, said Mr. H.
“This is discrimination based on gender and sexual orientation…biology trumps all intent in this province — you can’t have a gay male family,” said Mr. H. “She had nothing to do with raising or parenting our child and she was never intended to.” On Monday, Court of Queen’s Bench awarded guardianship of the girl to Mr. H’s former partner but the man said he’ll find out next month if his charter challenge in the case will be funded by the province. He said the custody fight since 2006 has cost him $350,000 and hopes the ruling with compensate him for those expenses.
In 2009, Court of Queen’s Bench Justice Kristine Eidsvik stated the Family Law Act doesn’t deal with “fatherhood” issues in cases of surrogate children of gay partners. New legislation is in the works to bring the Family Law Act in line with current realities, said Alberta Justice spokesman David Dear. “Obviously, the nature of families is changing with technology and society — there are more ways of defining a family,” said Dear.
These issues are not novel. There have been a handful of similar custody disputes here in the United States involving same sex couples fighting for custody over children born by surrogates. Much like Canada, the laws throughout the U.S. have failed to keep pace with the rapidly evolving definition of “family”. Worse yet, we have a patchwork set of laws that lead to inconsistent results depending upon where the child resides. So it is inevitable similar challenges like this will occur not only in America, but throughout the world as other countries attempt to reconcile antiquated laws with 21st century families.