Date: Sat, 27 May 1995 10:16:38 -0400 From: ae913@freenet.carleton.ca (Timothy Ross Wilson) To: ron@abacus.oxy.edu ** Unedited ** Indexed as: K. (Re) IN THE MATTER OF The Child and Family Services Act, R.S.O. 1990, c. C-11, Sections 136(1) and 146(2); AND IN THE MATTER OF The Canadian Charter of Rights and Freedoms Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 Between K. and B., applicants, and F. and P., applicants, and B. and K., applicants, and C.L.P. and C.H., applicants [1995] O.J. No. 1425 Toronto Registry Nos. A1924/94A3, A1925/94A3, A1927/94A3, A1928/94A3, A1926/94A3, A1929/94A3 and A1932/94A3 Ontario Court of Justice (Provincial Division) Toronto, Ontario Nevins Prov. J. Heard: May 8 and 9, 1995. Oral judgment: May 24, 1995. (42 pp.) Counsel: L.H. Pawlitza, J.B. Donovan and L.C. Broten, for the applicants F. and B., B. and K., K. and B. J.E. Parrack, for the applicants C.L.P. and C.H. J.E. Minor and A. Siegel, for the Ministry of the Attorney General. [para1] NEVINS PROV. J.:-- Four homosexual couples have presented a series of seven joint applications for adoption to this court. Three of these lesbian couples each wish to apply for adoption of two children, the fourth couple seeks to apply to adopt one child. In each case, one of the partners is the birth mother of the children. Since the adoption legislation only permits joint applications by spouses, and defines spouses as persons of the opposite sex, the constitutional validity of this legislation has been challenged. [para2] Because the preliminary constitutional question raised by each of these applications is identical, the cases were brought on to be heard at the same time to resolve this issue, with the arguments and evidence presented to be applied to all the cases. Once this threshold issue is resolved, the applications will then be considered individually on their merits. Following a number of trial management conferences conducted prior to the hearing dates, detailed written arguments, supported by case law and other authorities, were prepared and delivered to me well in advance of the hearing dates. At the conclusion of the hearing, I delivered very brief oral reasons on the constitutional question, reserving to myself the right to deliver more complete written reasons, which I am now doing, to amplify my oral comments. [para3] I am indebted to all counsel for the professional, thorough and objective manner in which these difficult issues were handled. The involvement of the intervenor was particularly helpful. Although the Attorney General, as intervenor, chose not to defend the legislation in question, and in fact urged me to agree with the position taken by the applicants, counsel nevertheless presented a very complete argument in favour of the legislation so I would have the benefit of examining both sides of the issue. As a result of this approach, the extensive materials with which I was provided, and the substantial amount of evidence put before me, both viva voce and in the form of sworn affidavits, I am confident that I have had a full and fair presentation of the issue. [para4] These reasons into the following segments rn an attempt to deal with the various tests and criteria that must be applied to the constitutional questions raised: PART I: THE ISSUE - will describe the specific issue raised in these cases; PART II: THE ADJUDICATIVE FACTS - will describe the particular facts of these cases; PART III: THE LEGISLATIVE FACTS - will describe and/or set out the various portions of legislation which are relevant to the issue, or which are being impugned; PART IV: ACCEPTABLE STANDARD OF CHILD CARE - will review generally the standard of child care that the law requires of parents, as reflected in the "protection" sections of the CFSA. This review is relevant to one of the Charter tests, namely, whether the unequal treatment alleged is necessarily discriminatory; PART V: EVIDENCE AS TO THE ADEQUACY AND EFFECTS OF HOMOSEXUAL PARENTING - will review the evidence that was presented on the current state of the research and scientific literature as it relates to: a) the effects on children of having been raised by gay or lesbian parents; b) the ability of homosexual couples to offer a family environment that will meet the needs of children; PART VI: THE CHARTER ANALYSIS PROCESS - will review the leading case law that establishes the various tests to be applied and criteria which must be met in all cases when the question of a denial of equality rights under S. 15(1) has been raised; PART VII: S. 136(1) OF THE CPSA AND THE CHARTER - will pose the constitutional questions which are to be answered in these cases, and apply the tests described in PART VI to the adjudicative and legislative facts in these cases to answer those questions; PART VIII: THE REMEDY - will apply what I perceive to be the appropriate and legal remedy following the decision given in PART VII. Throughout these reasons the following abbreviations are used for the statutes most often referred to: "CFSA" shall mean the Child and Family Services Act, R.S.O. 1990, c. C-11 "The Charter" shall mean The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 "The Rules" shall mean the Rules of the Ontario Court (Provincial Division) in Family Matters, R.S.O., 1990, Reg. 199 "Human Rights Code" shall mean the Human Rights Code, R.S.O. 1990, c. H-19 PART I: THE ISSUE [para5] Part VII of the CFSA permits the presentation of an application for adoption of a child either by one individual, or jointly, by two individuals who are "spouses" of one another. The Act also provides that, upon the making of an adoption order, the biological or "birth parent" "... ceases to be the parent of the adopted child, ...". An exception to this rule terminating birth parent rights is provided for those situations in which the birth parent is the "spouse" of the adoptive parent. In those instances, the birth parent still retains his or her parental rights to the child if an adoption order is granted in favour of the birth parent's spouse. [para6] The definition of "spouse" in ss. 136(1) of the CFSA incorporates the definition of "spouse" as found in the Human Rights Code, and provides that "spouses", whether married or unmarried, are persons of the opposite sex. And so, by operation of that definition and other provisions in Part VII, the CFSA as it stands now does not permit the presentation of a joint application for adoption by the couples in these cases, since they are of the same sex, nor does it permit the presentation of an individual application by the partner of the mother of the child, if the mother wishes to retain her parental rights to the child after the adoption. [para7] The preliminary issue raised is whether this definition of "spouse" is constitutionally valid, in that it is alleged to be a denial of the equality rights protected in S. 15(1) of the Charter. More precisely, at issue in these cases is whether these homosexual couples, living in a conjugal or "marriage-like" relationship, should be allowed the right to apply jointly for the adoption of these children, so that the question of whether the requested adoptions would be in the best interests of the particular children could be determined, on the merits of each case, by a court. [para8] From the outset it is important to appreciate that the issue in these cases is not whether homosexual persons in general may apply to adopt children. At present there is no legal prohibition either in the CFSA or any other statute against a lesbian or gay person horn applying to adopt a child, and obtaining an adoption order if it is seen to be in the best interest of the child. In fact, since 1984, except for some precautionary provisions regarding applicants under the age of eighteen, any person who is over the age of sixteen has the right to apply for the adoption of a child, with no restrictions as to sex or sexual orientation. [para9] Rather, the question is whether there is a constitutionally valid reason why an application for adoption by a homosexual couple, living in a conjugal relationship, one of whom 15 the biological mother of the child, should not be accepted by the court and decided on the basis of what is in the best interests of the child. PART II: THE ADJUDICATIVE FACTS [para10] All of the applicants are lesbian couples who have been living together in committed relationships for varying lengths of time. From the evidence I have before me, I have no hesitation in finding as a fact that in all respects these relationships might be termed "conjugal", in that they have all the characteristics of a relationship formalized by marriage. [para11] Each of the couples have cohabited together continuously and exclusively for lengthy periods, ranging from six to thirteen years; their financial affairs are interconnected; they share household expenses, have joint bank accounts and in some cases they own property together in joint tenancy; they share the housekeeping burdens to the extent they are able in light of their respective careers and employments; the individual partners share a committed sexual relationship. Most importantly, they all share equally the joys and burdens of child rearing. [para12] All of the children who are the subject of these applications were conceived through artificial insemination and were born during the currency of the respective existing relationships to one of the partners. In all cases, the decision to have children was a joint decision of the respective couples, and since the birth of the children, who range in age from approximately one year to ten years, all of the couples have shared in, and committed themselves equally to, the care of the children. Although the extended families of all the couples are supportive of their relationships, and their roles as parents, all of the children involved have known only the respective applicants as their parents for their entire lives. All of the couples, in my opinion, clearly fall within the definition of "parent", both in Parts III and VII of the CFSA, and the Family Law Act, R.S.O. 1990, c. F.3, ss 1(1). In this respect, although it is certainly not an issue before me but is a relevant consideration, I am equally of the opinion that each of these applicants would be prima facie liable to contribute financially to the support of the respective children under the Family Law Act, they being persons who, to use the wording of ss. 1(1) of that Act, have clearly "... demonstrated a settled intention to treat the children involved as children of her family." In one case, the couple have obtained an order for joint custody. [para13] From these facts, therefore, these relationships appear to exhibit all the indicia of a "spousal" relationship except that the couples are of the same sex, and it is this circumstance that brings a constitutional consideration of the cases before the court. PART III: THE LEGISLATIVE FACTS The Child and Family Services Act and the Human Rights Code: [para14] Any application for adoption in Ontario is brought under the Child and Family Services Act, and the provisions of Part VII of that statute, as interpreted by case law and implemented by the Rules, contain the complete code for the substantive and procedural aspects of adoptions. The relevant sections of the CFSA for purposes of these applications are: 136. Definition.-(1) In this Part, "spouse" has the same meaning as in Parts I and II of the Human Rights Code. [para15] The Human Rights Code provides: 10.- "spouse" means the person to whom a person of the opposite sex is married or with whom the person is living in a conjugal relationship outside marriage." [para16] The CFSA further provides: 146. Adoption of child.-(1) The court may make an order for the adoption of a child who is less than sixteen years of age, or is sixteen years of age or more but has not withdrawn from parental control and, (a) has been placed for adoption by a society or licensee; (b) has been placed for adoption by a person other than a society or licensee and has resided with the applicant for at least two years, in the child's best interests, on the application of the person with whom the child has been placed. (2) Family adoption. The court may make an order for the adoption of a child, in the child's best interests, on the application of, (a) a relative of the child; (b) the child's parent; or (c) the spouse of the child's parent. (4) Who may apply. - An application under this section may only be made, (a) by one individual; or (b) jointly, by two individuals who are spouses of one another. 158(2). Status of adopted child. - For all purposes of law, as of the date of the making of an adoption order, (a) the adopted child becomes the child of the adoptive parent and the adoptive parent becomes the parent of the adopted child; and (b) the adopted child ceases to be the child of the person who was his or her parent before the adoption order was made and that person ceases to be the parent of the adopted child, except where the person is the spouse of the adoptive parent, as if the adopted child had been born to the adoptive parent. 160. No order for access by birth parent - (1) Where an order for the adoption of a child has been made under this Part no court shall make an order under this Part for access to the child by, (a) a birth parent; or (b) a member of the birth parent's family. 166(3). - "birth parent" means an adopted person's biological mother or father ... [para17] In addition to the originating documents that are required for all adoption applications by the Rules, the CFSA imposes other requirements for certain types of adoptions: - in the case of adoption applications following the placement of the child by a licensee, S. 142 requires the completion of an "adoption home-study" followed by the written approval of the Director of Child Welfare; - S. 149 of the CFSA directs that in the case of an application for the adoption of a child under ss. 146(1), that is, any non-family adoption, the child must reside with the applicant for a minimum probationary period unless there is filed with the application a statement from the Director that it would be in the best interests of the child to make the order even though the required period has not expired; - S. 149 also requires that the Director's statement contain a report of the child's adjustment in the applicant's home. [para18] However, unless specifically ordered by the court, the reports and statements referred to in S. 142 and S. 149 are not required in "family adoption" applications under ss. 146(2). [para19] Of significance in examining the existing adoption legislation is the fact that there is no prohibition against an individual person from applying to adopt a child, regardless of the sex or sexual orientation of the applicant. While amendments to adoption legislation over the years since its first introduction in 1921 have, at times required "special circumstances" before an individual unmarried person could adopt, a restriction that was removed in 1984, at no time has there ever been an absolute bar to an individual person applying for adoption because of sexual orientation. [para20] Of equal significance is the evolution of adoption legislation insofar as it permitted joint applications by couples. At the outset, adoption law prohibited joint applications by anyone other than a husband and wife. By 1984, and the passage of the Child and Family Services Act, the expression "husband and wife" was replaced with the present term "spouse", as defined in The Human Rights Code. This implicit recognition of the legitimacy of relationships involving unmarried couples was consistent with changes in other legislation at the same time which created legal support obligations and rights between unmarried couples. And so, since 1984, adoption legislation has excluded any requirement that joint applicants for adoption must be married spouses. PART IV: ACCEPTABLE STANDARD OF CHILD CARE [para21] An essential prerequisite to the resolution of the equality issue before me is an appreciation of the level of child care which our society, through it's laws, demands of parents. To this end, I believe it is appropriate to examine the CFSA further and consider the standard of child care concept that is imposed by the law and the courts in child protection cases under Part III of that Act. [para22] Generally, Part III of the CFSA establishes the acceptable standard for the level of care which children receive at the hands of their parents. The presumption in the statute and the case law is that the preferable environment for the child to be raised is in a stable, caring home, with natural parents, bee to raise their children in a manner they see fit. It is only when the level of care provided the children in that home falls below that which is seen to be acceptable by the community that the children are seen to be "in need of protection", and the state is authorized, and in fact compelled, to intervene in the best interests of the children. [para23] In these "protection" cases, the law is clear that the state should not, and has no authority to, require of all parents that they provide the best possible care for their children, failing which the state will encroach upon the autonomy of the family unit. Our society does not demand perfection of parents, nor does it demand that parents produce assembly line children, all reaching their full potential, free of any imperfections or defects. The expectation, rather, is that parents provide an adequate level of care for their children. And so long as the parents are providing such care, then the family and,, the parent-child relationship should remain inviolable, free from state intervention or intrusion. It is only when the care given to children is at a level that is seen to be unacceptable by community standards that the state, fastidiously monitored by the courts, is permitted to intervene. [See Note 1 below] --------------- Note 1: Re Brown et al (1976) 21 R.F.L. 315 in which Stortini J. says at p. 319; "... The community ought not to interfere merely because our institutions may be able to offer a greater opportunity to the children to achieve their potential. Society's interference in the natural family is only justified when the level of care of the children falls below that which no child in this country should be subjected to. In deciding on such intervention the curt must consider the best interests of the children in respect of ther biological, social, emotional, cultural and intellectual development." --------------- [para24] Because of this philosophy, the Act sets out in S. 37(2) certain categories of child care which are in and of themselves deemed to be inadequate, unacceptable by our community standards, and which, if proven to exist, justify the ultimate violation of civil rights, involuntary intervention by the state in the family. [para25] I have adopted and modified the same general approach to the parenting ability issue in the present cases. What does the available research reveal as to the ability of homosexual people to parent children in a manner that is considered "adequate" or acceptable by community standards? What evidence is there to indicate that children raised in a family structure in which both parents are homosexual persons, and particularly lesbian couples, exhibit symptoms or indicia of inadequate care significantly more often than one would see in the general population? Is there evidence that the fact of being raised and cared for by homosexual parents would likely lead to physical, emotional, sexual, psychological or social problems in children to a significantly greater degree or frequency than are present in children in the general population, raised by heterosexual parents? The answer to these questions is, in my opinion, fundamental to the resolution of the issues raised in these cases, for if the evidence does indicate that the fact of having homosexual parents is likely, on a balance of probabilities, to produce any combination of the symptoms described above to a significantly greater degree or frequency than one would normally expect to see in the general population of children raised in "traditional" family structures, then the homosexuality of the parents might be seen, in and of itself, to be a level of care below that which is acceptable in our community. PART V: EVIDENCE AS TO THE ADEQUACY AND EFFECTS OF HOMOSEXUAL PARENTING [para26] In the course of the hearing on this constitutional issue, I have been presented with a considerable amount of evidence on the ability of homosexual persons to parent, individually or as couples, and the effects of homosexual parenting on children. This evidence was presented principally through the extensive affidavits from Dr. Margrit Eichler, Dr. Rosemary Barnes, and Dr. Susan Bradley. These documents, and the research papers accompanying them as exhibits, reviewed in considerable detail the scientific literature and research that has accumulated in this area over the last fifty years, and in particular since the mid-1970's. In addition to this affidavit evidence, I had the benefit of hearing viva voce evidence from Dr. Bradley. [para27] To say that the witnesses who executed the affidavits are "qualified" is a gross understatement. All of their curricula vitae were annexed to their affidavits, and individually and collectively their credentials are nothing short of staggering. [para28] Dr. Eichler is Professor and Chair of Sociology at the Ontario Institute for Studies in Education and the University of Toronto. Having obtained her Doctorate at Duke University in 1972, she has over her professional career been the recipient of some 39 research grants, has been the author or co-author of over 150 published works, has lectured and presented papers at innumerable scientific meetings, and has been, widely used as a consultant to various governmental and private organizations. [para29] Dr. Barnes received her Doctorate in Psychology from McMaster University in 1976. At present she is in private practice and is Associate Psychologist at Women's College Hospital in Toronto, having previously served as Chief Psychologist at that institution for many years. Along with her vast experience as researcher, lecturer, consultant, and advisor to various bodies, she also is widely published, and has extensive clinical experience. [para30] Dr. Bradley is presently Psychiatrist-in-Chief at the Hospital for Sick Children in Toronto, having obtained her Diploma in Child Psychiatry in 1972 from the University of Toronto. She is also a consultant psychiatrist with the Clarke Institute of Psychiatry, as she has been for over 20 years, specifically in the Child and Adolescent Gender Identity Program. Her credentials in teaching, research, consultation, and publications are too extensive to attempt to summarize. [para31] All of these witnesses were certainly well qualified as experts in this area, and their opinions were given great weight. [para32] In the course of preparing herself to compile her affidavit and report, and give her viva voce evidence, Dr. Bradley testified she not only reviewed all the known studies and research on the topic of homosexual persons as parents, but she also made efforts to inquire from colleagues as to any ongoing research, or recent research that may have been completed but not yet published. Because of this, she was able to tell the court that she was aware of substantially all the existing research in this area. [para33] Having considered the evidence received through these sources, I come to the following factual conclusions: [para34] The traditional family model of two, middle class, heterosexual parents in which the woman is a full-time housewife and the man has full-time paid employment outside the home, which has long been assumed to be the structure most favourable to healthy child development, is now a minority, and several varieties of non-traditional families appear in our society, including families in which gay fathers and lesbian mothers are the primary caregivers. The sexual orientation of the parents is considered along with race, ethnicity, household composition, and maternal employment as one of a number of ways in which families vary from the traditional model.[See Note 2 below] --------------- Note 2: Exhibit #1: Affidavit and Report of Dr. Rosemary Barnes, March 14, 1995, @ p. 2 --------------- [para35] During this century, families in highly industrialized countries have been undergoing drastic changes, not just in the nature of their composition but in gender roles within the family. These changes have precipitated research into the dimensions of family interactions, and the result of this research indicates a wide variety in the nature and degree of interaction between family members. Moreover, studies by various researchers have convincingly demonstrated that the same internal variations exist between same-sex couples and opposite-sex couples, and that both groups demonstrate the full range of dimensions indicative of family structure. As Dr. Eichler points out, "Overall, the differences among opposite sex couples and among same sex couples are greater than the differences between these two groups."[See Note 3 below] (emphasis added) --------------- Note 3: Exhibit #3: Affidavit and Report of Dr. Margrit Eichler, April 27, 1995 @ pp. 9 and 10 --------------- [para36] Recent studies on the effects of the non-traditional family structure on the development of children suggests that there is no reason to conclude that alteration of the family structure itself is detrimental to child development. The prevailing opinion of researchers in this area seems to be that the traditional family structure is no longer considered as the only framework within which adequate child care can be given. Rather, child development researchers have "... highlighted the multiplicity of pathways through which healthy psychological development can take place and the diversity of home environments which can support such development."[See Note 4 below] --------------- Note 4: Exhibit #1: @ p. 3 --------------- [para37] Progressively more rigorous empirical research in the area of child development has produced the notion that the most important element in the healthy development of a child is a stable, consistent, warm, and responsive relationship between a child and his/her caregiver. [para38] Factors which appear to have a Significant effect on the healthy emotional and psychological development of a child are more related to conflicts in spousal relations than family type or structure. A parent's capacity to support and be emotionally available to a child is enhanced in the context of a supportive relationship, especially if there is good communication, effective problem solving, and sharing of family responsibilities.[See Note 5 below] --------------- Note 5: Exhibit # 2: Affidavit and Report of Dr. Susan Bradley, 13 April, 1995 @ p. 2 --------------- [para39] Research on the effects of gay and lesbian parenting on child development has focused on various stereotypical beliefs regarding homosexual persons and couples. The results of this research, as discussed in detail in the evidence referred to, may be summarized as follows: 1. Mental Health of Gay or Lesbian Individuals: [para40] Homosexual individuals do not exhibit higher levels of psychopathology than do heterosexual individuals, and there is no good evidence to suggest that homosexual individuals are less healthy psychologically and therefore less able to be emotionally available to their children. Studies supporting this have resulted in the exclusion of homosexuality from the nomenclature of the two major psychiatric diagnostic systems, the Diagnostic and Statistical Manual of the American Psychiatric Association, (DSM), and the International Classification of Diseases of the World Health Organization (ICD).[See Note 6 below] --------------- Note 6: Exhibit #2 @ p.4 --------------- 2. Stability of Gay or Lesbian Relationships: [para41] Despite stereotypical beliefs to the contrary, there is no evidence to support the suggestion that most gay men and lesbians have unstable or dysfunctional relationships. Couple relationships are substantially similar regardless of whether the partners are of the opposite sex or the same sex, and it is no longer possible to reason that homosexual relationships will necessarily be less stable than a heterosexual union. Therefore, children raised by gay or lesbian parents will not necessarily be more frequently subjected to the loss of important relationships than will children raised by heterosexual parents.[See Note 7 below] --------------- Note 7: Exhibit #2 @ p. 4 --------------- 3. Gender Development, Sexual Orientation and General Psychological Adjustment of children of Gay and Lesbian Parents: [para42] The reports and affidavits of both Drs. Bradley and Barnes reviewed in great detail the literature and studies in this area, the report of Dr. Barnes being particularly exhaustive. Having considered the research on the psychosexual development of children raised by lesbian mothers specifically in terms of childrens' gender identity, gender role, sexual orientation, intellectual functioning and general psychological adjustment, her conclusion is as follows: "The children of lesbian mothers, like the children of heterosexual mothers almost invariably develop a gender identity and gender role behaviour which is within normal range and consistent with what is conventionally expected of their biological sex. The beat majority of these children are heterosexual in their adult sexual orientation. The children of lesbian mothers show normal psychological development in each of the numerous measures in which they have been compared to the children of heterosexual parents, including intellectual functioning, symptoms of emotional disturbance, behavioural problems, social adjustment; relationship with peers, age-appropriate developmental tasks, self- concept and moral development."[See Note 8 below] --------------- Note 8: Exhibit #1 @ p. 16 --------------- [para43] In her report, Dr. Bradley confirms these findings and states: "Studies of gender development in children raised by divorced or separated lesbian mothers show no differences in development of gender indentity or gender role behaviours or activities from samples of children raised by both heterosexual parents or by single, heterosexual mothers. The sexual orientation of children raised by lesbian mothers also does not appear to differ from that of individuals raised by heterosexual parents."[See Note 9 below] --------------- Note 9: Exhibit #2 @ p. 6. --------------- [para44] Based on this evidence I conclude there is no reason to believe the sexual orientation of the parents will be an indicator of the sexual orientation of the children in their care. Nor is there any evidence that the homosexual orientation of the parents, especially lesbian mothers, will produce any significantly greater incidence of psychiatric disturbance, or emotional or behavioural problems, or intellectual impairment than is seen in the population of children raised by heterosexual parents. 4. The Effect of Social Stigma on Children of Gay or Lesbian Parents: [para45] Although there is little evidence available on this question, there is to date no indication that the possible stigma or harassment that children of gay or lesbian parents may be exposed to is necessarily worse than other possible forms of racial or ethnic stigma, or the stigma of having mentally ill parents.[See Note 10 below] --------------- Note 10: Exhibit #1 @ p. 17. --------------- Summary of evidence: [para46] In summarizing the results of the various studies and research on the effects of homosexual parenting on children, Dr. Barnes has this to say: "What is crucial to the children of lesbians and gay men, as to the children of heterosexual men and woman, is loving stable parenting. The opportunity for a lesbian or gay male parent to adopt a biologically unrelated child whom they parent provides a socially and legally recognized structure for an emotional relationship of great importance to the child. Such a structure recognizes the role and authority of the non-biological parent both in ordinary activities such as school enrolment and doctor's appointments and in times of transition or crises such as illness, disability and death. Such a structure also helps to ensure arrangements which fully recognize parenting relationships of importance to the child in the event of relationship breakdown and/or separation. Although many lesbian and gay male parents are able to make fair and orderly decisions about issues of child support and custody in the absence of a legal framework the emotions associated with relationship breakdown can make this process difficult if not impossible for some. Where a child has been legally adopted by a non-biological parent, this structure may assist in clarifying the needs of the child and parental responsibilities."[See Note 11 below] --------------- Note 11: Exhibit #1 p. 18 -------------== [para47] Now Dr. Bradley candidly acknowledges that the studies to date in this area are not exhaustive, in that "most were done on white, well-educated samples." She does add, however, that.. "... there is no reason to believe that future research will not confirm these findings as there has been reasonable consensus across samples, and the findings are consistent with what we know about development generally" [para48] In her conclusion, Dr. Bradley makes the following comments: "Based on my academic and clinical work in this area of child psychiatry, it is my opinion that same sex couples should generally be treated in the same manner as are opposite sex common law couples with regard to the issue of adoption of children. Having regard to matters related to healthy child development; it is my view that sexual orientation of a person should not; in itself be grounds for excluding a person from consideration as an adoptive parent. "This conclusion is based on my knowledge of child development and the aspects of parenting which are essential to healthy child development; as well as the literature which does not demonstrate a deleterious impact on children raised by gay or lesbian parents. In fact; all studies conducted to date show remarkable similarity in child development patterns of children whose parents are gay or lesbian compared to children whose parents are heterosexual. "... it is reasonable to conclude that children raised by gay or lesbian parents should not be expected to differ substantively in any aspect of their development. Therefore, it is my opinion that gay and lesbian persons have the same capacity to care for children as do heterosexual persons."[See Note 12 below] --------------- Note 12: Exhibit #2 @ pp. 1, 2, 8. --------------- PART VI: THE CHARTER ANALYSIS PROCESS [para49] The relevant sections of the Charter are: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 15(1). Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability. 52(1). The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. The three step analysis under S. 15: [para50] The Andrews case, [See Note 13 below] decided in 1989 by the Supreme Court of Canada, comprehensively describes the three step process which should be undertaken to determine whether a right has been infringed under S. 15(1) of the Charter. Step 1 is a determination of whether there is a distinction in the context of S. 15, step 2 is a determination of whether the distinction is discriminatory, and step 3 determines whether the distinction, if discriminatory, is justified. --------------- Note 13: Andrews v. Law Society of British Columbia, (1989) 1 S.C.R. 143 --------------- [para51] Considering first of all the objectives of S. 15, McIntyre J. comments at p. 171: "It is clear that the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equals deserving of concern, respect and consideration" a) Steps 1 and 2: a distinction which is discriminatory [para52] Against this backdrop, the Court examines S. 15(1), and in particular the term "discrimination", and describes the elements essential to finding S. 15 has been breached. At .p. 174 McIntyre J. states: "I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual soled on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed." (emphasis added) [para53] Discussing the meaning of "discrimination" in the context of S. 15, His Lordship adopts the comments of Hugesson J.A. in the Smith, Kline [See Note 14 below] case at pp 367-369: "As far as the text of section 15 itself is concerned, one may look to whether or not there is "discrimination" in the pejorative sense of that word, and as to whether the categories are based upon the grounds enumerated or grounds analogous to them. The inquiry, in effect, concentrates upon the personal characteristics of those who claim to have been unequally treated. Questions of stereotyping, of historical disadvantagement, in a word, prejudice, are the focus and there may even be the recognition that for some people equality has different meaning than for others." (emphasis added) --------------- Note 14: Smith, Kline & French Laboratories Ltd. v. Canada (Attorney General), (1987) 2 F.C. 359 --------------- [para54] and then adds: "The analysis of discrimination in this approach must take place within the context of the enumerated grounds and those analogous to them. The words "without discrimination" require more than a mere finding of distinction between the treatment of groups or individuals. Those words are a form of qualifier built into s. 15 itself and limit those distinctions which are forbidden by the section to those which prejudice or disadvantage." (emphasis added) [para55] These preliminary requirements were confirmed and expanded upon in Swain.[See Note 15 below] In that case at p. 992 Lamer C.J. states: "The court must first determine whether the claimant has shown that one of the four basic equality rights has been denied (ie., equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This inquiry will focus larger on whether the law has drawn a distinction (intentional or otherwise) between the claimant and others, based upon personal characteristics. Next, the court must determine whether the denial can be said to result in "discrimination". This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed on others or of withholding or limiting access to opportunities, benefits and advantages available to others. Furthermore, in determining whether the claimant's s. 15(1) rights have been infringed, the Court must consider whether the personal characteristic in question falls within the grounds enumerated in this section or within an analogous ground, so as to ensure that the claim fits within the overall purpose of s. 15 - namely to remedy or prevent discrimination against groups subject to stereotyping historical disadvantage and political and social prejudice in Canadian society." --------------- Note 15: R. v. Swain (1991) 1 S.C.R. 933 --------------- [para56] And so, as a prerequisite to deciding whether or not a particular piece of legislation offends the S. 15 rights of an individual or group, one must first determine whether there is: a) a distinction in the law, based on the personal characteristics of the individual or group, in the context of the enumerated grounds in S. 15(1), or grounds analogous to the them, and, b) a distinction that is discriminatory. b) Step 3: justification under S. 1 [para57] The third and final step in this process, in the event it is decided there has been discrimination in the context of the enumerated grounds in S. 15 amounting to an infringement of an equality right, is to consider whether that denial of rights is a reasonable limit which can be "demonstrably justified in a free and democratic society" under S. 1 of the Charter. [para58] A general statement of the nature of an inquiry under this section is found in the Big M Drug Mart case[See Note 16 below] at page 352: "At the outset; it should be noted that not every government interest or policy objective is entitled to s. 1 consideration. Principles will have to be developed for recognizing which government objectives are of sufficient importance to warrant overriding a constitutional protected right or freedom. Once a sufficient significant government interest is recognized then it must be decided if the means chosen to achieve this interest are reasonable - a form of proportionality test. The court may wish to ask whether the means adopted to achieve the end sought to do so by impairing as little as possible the right or freedom in question." --------------- Note 16: R. v. Big M Drug Mart Ltd., (1985) 1 S.C.R. 295 --------------- [para59] An inquiry under S. 1 therefore requires, i) consideration of the objectives of the legislation, and then; ii) a decision as to whether the means chosen to achieve this objective are reasonable, or proportional to the effect of the legislation on the group or individual's Charter rights. i) "pressing and substantial" objective: [para60] Regarding the first prong of this inquiry, Chief Justice Dickson in the Oakes case[See Note 17 below] stated at p. 138: --------------- Note 17: R. v. Oaks (1986) 1 S.C.R. 295 --------------- "The standard must be very high to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important." (emphasis added) ii) The proportionality test: [para61] The second half of an inquiry under S. 1 involves the "proportionality test", a process which in turn necessitates a three step analysis, as set out in Oakes: "There are, in my view three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationale connected to the objective. Second, the means, even if rationale connected to the objective in this first sense, should impair "as little as possible " the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter rights or freedoms, and the objective which has been identified as of "sufficient importance". per Dickson C.J. at p. 139 [para62] Section 136(1) of the CFSA must therefore be analyzed within the framework of these tests and criteria, to determine whether an equality right protected under the Charter has been infringed. PART VII: S. 136(1) OF THE CFSA AND THE CHARTER The questions: [para63] The constitutional questions to be asked in these cases may be framed as follows: Question 1. Does the requirement in S. 136 of the Child and Family Services Act, which incorporates S. 10 of the Human Rights Code, that spouses be of the opposite sex before they may apply for the adoption of a child, infringe rights guaranteed by S. 15(1) of the Canadian Charter of Rights and Freedoms? Question 2. If the requirement in S. 136 of the Child and Family Services Act, which incorporates S. 10 of the Human Rights Code, that spouses be of the opposite sex before they may apply for the adoption of a child, infringes a right guaranteed by S. 15(1) of the Canadian Charter of Rights and Freedoms, is it justified by S. 1 of the Charter? [para64] Following the analytic process established in the cases referred to above, I must now examine the impugned section of the CFSA. The three step analysis under Andrews: Step 1. Distinction or unequal treatment in the context of S. 15(1)? [para65] The threshold question which must be answered in this analysis is whether the provision in question operates to deny homosexual persons one of the protected equality rights set out in S. 15(1) of the Charter. [para66] The effect of the definition of "spouse" in S. 136) (1) of the CFSA is to deny to gay or lesbian people the right to apply, as a couple, to adopt a child. I reject the argument put forward by the intervenor that this is not a denial of a protected right for two reasons: a) I believe the right to adopt is a "benefit of the law", and, b) the denial (or distinction, or "unequal treatment"), is based on the personal characteristics of the applicants. [para67] a) I believe it is clear that the denial of a right to apply to adopt a child is a denial of a benefit. Surely it could not be questioned that the right to apply to adopt a child, to become the parent of a child, is a benefit of the law, and regardless of what other analyses may have to be undertaken in these cases, a denial of the right to make such an application is a denial of one of the rights set out in S. 15. Although I was presented with arguments on both sides of almost all the aspects of these issues, including the argument that the denial might not be discriminatory, it has not been suggested that the distinction here is not a denial of a benefit of the law, and therefore, a denial of one of the protected rights. [para68] b) I also believe that the distinction which has the effect of denying a benefit of the law is one based on the personal characteristics of the applicants. [para69] The applicants in these cases all reside together in relationships that involve sharing of household tasks, financial obligations, child rearing responsibilities and rewards, and mutual support and affection. Yet those characteristics are present in a great many relationships in which the partners would not be considered, or consider themselves to be, spouses. The characteristic of any relationship that transforms it into "spouse-like" is the sharing of a committed sexual relationship, and it is this sexual commitment element of a relationship which, together with the other factors mentioned earlier, distinguishes it from a close relationship between good friends, or relatives, or roommates. It is the presence of a sexual commitment that is one of the essential ingredients of a spousal relationship. [para70] The relationships between these applicants exhibit all the elements of a spousal relationship, including a sexual commitment to each other, and they share a committed sexual relationship because their sexual orientation is homosexual. It is the fact of their homosexuality which gives their relationship the quality of a spousal relationship. It is, at the same time, the fact of this homosexuality, this sexual orientation, which distinguishes them from other spouses in S. 136 of the CFSA. And it is solely because of this personal characteristic that they are prohibited from applying for the adoption of a child. This is, in my view, a denial of one of the protected rights under S. 15(1). [para71] It has been argued before me that the distinction which results from the definition of "spouse" is not based on sexual orientation, but rather on the spousal state, i.e. that it is joint applications for adoption by non-spouses that is being prohibited, and that the distinction is not based on the "same-sexedness" of the applicants. It may very well be argued, in another context, that couples who are not in a spousal relationship are being denied their rights by virtue of the requirements of S. 146(4) of the CFSA. But I do not accept the argument that the distinction in S. 136 is based on, or has the effect of distinguishing between groups on the basis of anything other than sexual orientation. [para72] A review of the relatively brief history of adoption legislation in Ontario reveals that since the time of it's first appearance in the 1920's until 1984 only husbands and wives were permitted to apply jointly for adoption. The addition of the term spouse in 1984 was consistent with changes in other family legislation that recognized the existence and legitimacy of non-married people who were living in a "married-like" or conjugal state. It is obvious that the intention of the adoption legislation is to give special consideration to couples whose relationship, while not formalized by marriage, has the attributes seen to be beneficial to the proper development and care of a child, namely, stability, security, continuity and permanence. If the intention of the legislation is to distinguish between couples who are in a "married-like" state, and those who are not, because the former is presumed to be the more desirable environment in which to raise a child, this goal could still be achieved even if the words "of the opposite sex" were excluded from the definition of spouse. While this distinction between spousal and non-spousal couples may or may not be questioned, the fact is that the effect of the present definition of spouse is that, within the group of people who have been deemed by the legislation to be appropriate care-givers, namely, i.e., those in a "married-like" state, only those who are of the same sex are excluded, even though their relationship might have all the attributes of the married state. The distinction in S. 136 is, in my opinion, based on, or has the effect of distinguishing, solely on sexual orientation, a personal characteristic, and not on the state of being a "spouse" in the traditional sense of a heterosexual couple. [para73] Next, although sexual orientation is not one of the enumerated categories of rights in s. 15, it was clearly stated in the case of Haig v. Canada[See Note 18 below] that it is an analogous category. This same conclusion has been arrived at in many other decisions, and in obiter from the Supreme Court of Canada,[See Note 19 below] and I take it to be well settled. --------------- Note 18: Haig v. Canada (1992) 94 D.L.R. (4th) 1 (Ont. CA) per Krever J.A. @ p. 7 Note 19: Canada (Attorney General) v. Ward (1993) 2 S.C.R. 689 @ 739 --------------- [para74] There is, therefore, a distinction or unequal treatment of a group under S. 136(1), and that unequal treatment is based on grounds which are analogous to those enumerated in S. 15(1) of the Charter, and relate to the personal characteristics of the group, namely sexual orientation. Further, the unequal treatment results In a denial of at least one of the rights protected in S. 15, in particular, the benefit of the law. Step 2. Discrimination: [para75] The next question is whether the unequal treatment described above is discriminatory. Recalling the comments of Chief Justice Lamer in Swain, and McIntyre J. in Andrews, I have little difficulty coming to the conclusion that the differential treatment under S. 136 "... has the effect of imposing a... disadvantage not imposed on others or of withholding or limiting access to opportunities, benefits and advantages available to others." In these particular cases before me, all of the applicants are, by operation of the section in question, denied those benefits, advantages and special privileges that are inherent in the concept of adoption. To expand on this, a brief examination of the nature of adoption is necessary: [para76] The concept of adoption is a unique creature of statute which has been referred to as "the most significant procedure which can arise within the legal system."[See Note 20 below] It involves the total extinguishment of the birth parents rights, and the establishment, legally, retroactively, and permanently of the parent-child relationship between a child and a person who is not the biological parent of the child. To use the very wording of ss. 158(2) of the CFSA, once an adoption order is made... "the child becomes the child of the adoptive parent..." and "... the adopted child ceases to be the child of the person who was his or her parent before the adoption order was made...". (emphasis added) --------------- Note 20: Steinberg, D.M., "Family Law in the Family Courts" (2d ed.) Vol. 1, Toronto, Carswell, 1981 --------------- [para77] Furthermore, except for a right of appeal by the adoption applicants themselves, S. 157 of the CFSA declares that.. "An adoption order... is final and irrevocable,... and shall not be questioned or reviewed in any court by way of injunction, declaratory judgment; certiorari mandamus, prohibition, habeas corpus or application for judicial review." [para78] Adoption is not another form of custody. Although a custody order may give a person all the rights of a parent, it is always subject to review and variation, if it is seen to be in the best interests of the child. And even if a custody order is granted to some person other than the child's birth parents, those birth parents continue to be legally the parents of the child: they must be given notice of and joined in as parties in any application for custody of or access to a child, even though the child might not have ever been in their actual care; the name of the child continues to be that of the birth parent, and the birth records remain unchanged. An adoption order, however, permanently and retroactively establishes the adoptive parents as the child's parents. The child's name is changed to that of the adoptive parents, the birth records of the child are changed to show the adoptive parents as the child's parents, and the adoption file is sealed from the scrutiny of the general public. And unlike custody orders, an adoption order is not subject to subsequent variation or review in the event of a change in circumstances. For all legal intents and purposes, once an adoption order is made, the adoptive parents "become" the birth parents. [para79] While a custodial parent who is not a birth parent may wish to make testamentary provision for a child, testamentary rights do not automatically flow under the law to a child from a custodial parent. An adopted child, however, has all the rights of a "natural" child in matters of estate law, and has, as of right, certain rights and claims to the estate of the adoptive parent. [para80] And of particular significance is that even when a custody order exists in favour of a someone other than the birth parent, those birth parents continue to have the legal right to apply for custody of or access to their child. Not so with adoptions. Once it has been established that it would be in the best interests of the child for this dramatic step be taken, the CFSA creates special protection for the adoptive relationship in an effort to insure the stability, continuity and permanence of the newly created parent-child relationship. The adoptive relationship is given precedence over the former birth parent-child relationship, and our courts have repeatedly emphasized in many cases that the adoptive relationship is a true parent-child relationship which deserves special protection under the law, free from the risk of later intrusion by birth parents.[See Note 21 below] Even in those very few cases in which birth parents have been able to either preserve or renew their relationship with their now adopted children, the courts have gone to great pains to emphasize that it is only in very exceptional circumstances, on the facts of the particular cases, and not comparable at all to applications to vary custody or access orders. --------------- Note 21: See: Lyttle v. Children's Aid society of Metropolitan Toronto, (1976) 24 R.F.L. 134 (Ont. H.C.) @ 137; C.G.W. v. M.J. et al. (1982) 34 O.R. (2d) 44 (Ont. CA.) p. 49, 50; H. (H.L.) v. Catholic Children's Aid Society of Metropolitan Toronto (1987) 7 R.F.L. (3d) 423 (Ont. Dist. Ct.) @ pp. 427 and 428; Catholic Children's Aid Society of Metropolitan Toronto v. S.(T). (1989) 20 R.F.L. (3d) 337 (Ont. CA.) @ 351; --------------- [para81] However, while creating special protections for adoptive parents for the purpose of insuring stability and continuity of care for the adopted child, the Act also recognizes the changing nature of family structures, and gives preferential treatment to "family adoptions", that is, adoptions by a relative of the child, a parent of the child, or the spouse of a parent of the child. In these situations, the requirements of S. 142 and S. 149, involving the scrutiny, intervention and assessment of the adoption placement by a neutral third party, the Director, are presumed to be unnecessary and are dispensed with unless specifically ordered by the court. [para82] From a legal perspective, therefore, adoption is a unique conglomerate of rights and privileges which cannot be replicated through any other combination of orders or processes. To deny an individual or group the right to apply to adopt clearly "imposes a disadvantage" and has the effect of "withholding access to ... benefits and advantages available to others". [para83] What is even more inimical is that the group that is being considered, namely, homosexual couples living in a conjugal relationship, are denied opportunities, benefits and advantages which are not only available to the rest of the population, but are available to individual homosexual persons, that is, the right to apply for adoption and have their application considered in the context of whether it would be in the best interests of the child. Put in it's simplest terms, because of S. 136 the applicants are denied their "day in court" for no other reason than the fact that they are homosexual. I cannot imagine a more blatant example of discrimination. [para84] I conclude therefore that the denial of one of the protected rights does result in discrimination, in that it withholds from this particular group of society opportunities, benefits and advantages available to others. Answer to the first question: [para85] The answer to the first constitutional question must therefore be: Yes; the requirement in S. 136 of the Child and Family Services Act, which incorporates s. 10 of the Human Rights Code, that spouses be of the opposite sex before they may apply for the adoption of a child, infringes rights guaranteed by S. 15(1) of the Canadian Charter of Rights and Freedoms. Step 3. Is the discrimination justifiable?: [para86] To determine whether the the discrimination under S. 136 is justifiable under S. 1 of the Charter, the two pronged Oaks inquiry must be conducted into i) the importance of the legislative objective and ii) the proportional reasonableness of the means used to achieve that end. [para87] At the outset it is clear from Oaks and other cases that the burden of proof in an inquiry under S. 1 is on the party seeking to defend the legislation, and further that the justification of the section in question must be based on evidence, not conjecture. i) The legislative objective: [para88] The "Declaration of Principles" in S. 1 of the CFSA clearly set out the objectives of this legislation: 1. the purposes of this Act are, (a) as a paramount objective, to promote the best interests, protection and well-being of children; (b) to recognize that while parents often need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent; (c) to recognize that the least restrictive or disruptive course of action that is available and is appropriate in a particular case to help a child or family should be followed; (d) to recognize that children's services should be provided in a manner that, (i) respects children's needs for continuity of care and for stable family relationships, and (ii) takes into account physical and mental developmental differences among children; (e) to recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural religious and regional differences; and (f) to recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family. [para89] In Part VII, the best interests criteria are established: 136.(2) Best interests of child.- Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant: 1. The child's physical, mental and emotional needs, and the appropriate care of treatment to meet those needs. 2. The child's physicaL mental and emotional level of development. 3. The child's cultural background. 4. The religious faith, if any, in which the child is being raised. 5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family. 6. The child's relationships by blood or through an adoption order. 7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity. 8. The child's views and wishes, if they can be reasonable ascertained. 9. The effects on the child of delay in the disposition of the case. 10. My other relevant circumstance. [para90] It was agreed by all counsel that the objectives of the adoption provisions of the CFSA are "pressing and substantial", and would, if there were no other arguments raised, be of "sufficient importance to warrant overriding a constitutionally protected right or freedom". [para91] Even if counsel had not agreed, I am very doubtful that any argument could have been put forward to convince me otherwise. The CFSA in general deals with the welfare of children, and the adoption provisions are concerned with the establishment of a parent-child relationship in a manner discussed earlier. This is, my opinion, one of the most, if not the most, important objectives any legislation could have, and it clearly passes the first stage of this inquiry. [para92] The second aspect of the justification inquiry, and the final question in this constitutional analysis is the relationship between the definition of "spouse" in S. 136 and the goals of the statute. How does the prohibition against same- sex adoptions further the objectives of the legislation? Or, put differently, would permitting same-sex adoptions frustrate these objectives? ii) The proportionality test: [para93] While all of the preceding constitutional analysis is of course essential, this final phase is, in my view, the most important, for it is at this stage that focus is centred on the crucial issue in these cases, namely, the best interests of the children. It is in the context of "best interests" that we must consider whether the goal of the legislation is met by the existing discriminatory denial of equality rights. [para94] The three step process that is to be taken at this stage, in determining whether the denial of rights I have found to exist is justified under S. 1 of the Charter is set out clearly in the Oakes decision, supra. If the impugned provision is to survive what is termed the "proportionality" test, these criteria must be met: 1. The offending provision must be rationale connected to the objective of the legislation, i.e. the provision must be "carefully designed to achieve the objective in question", and "must not be arbitrary, unfair, or based on irrational considerations."; 2. Even if rationally connected to the objective, the offending provision should impair as little as possible the right or freedom in question; 3. There must be a proportionality between the effects of the provision which denies a Charter right, and the objective sought to be obtained by the legislation. 1. Rational connection: [para95] The paramount and overriding objective of the legislation is clear: to promote the best interests, protection and well-being of children. In particular, the objective of Part VII of the CFSA is to promote the best interests and well-being of children by ensuring they will be cared for, raised and nurtured in a stable, secure, loving and committed family environment, legalized by an adoption order. It is obvious, and almost trite to observe that throughout the Act the security and integrity of the family unit is considered to be of prime importance in furthering the best interests of children. All of the stated purposes of the Act in S. 1 relate the welfare of the child to the family, and to the maintenance of the family autonomy free from state intervention; the special protection given to adoptive parents is indicative of the emphasis that the legislation places on the security aspect of the parent-child relationship within the family. Even the name of the statute reflects the significance of the bond between the child and the family. [para96] With this observation, I believe it is no coincidence that the evidence I have received indicates consistently that of all the factors affecting the healthy development of a child, the element of a secure and loving home life is the most significant. [para97] And so, while it is correct to say that the paramount objective of the legislation is the promotion of the best interests of children, it is clear, especially from examining the enumerated purposes of the Act in S. 1, that the overall goal of the legislation is the promotion of the best interests of children within the family. [para98] What may be questioned at this point is the nature of the "family" contemplated by the provisions and philosophy of the Act. Although there has been no clear judicial pronouncement on this topic, it is obvious that the Act recognizes the fact of non-traditional families, and affords them the same rights and protections as the more traditional form. By removing the requirement of marriage in the definition of spouse, unmarried or "common law" partners are given the right to apply for adoption, and by analogy, are given financial, custodial and property rights in other statutes. As discussed earlier, single persons are permitted to apply for adoption, without any restriction other than the best interests of the child. And so, the legislation accepts and respects the fact of single-parent families. As well, the concept of "parent" is no longer restricted to the biological parent but now includes any person, married or unmarried, an obvious reflection in the Act of the fact that nontraditional families are a fact of life in our society. [para99] In the Mossop case,[See Note 22 below] a sexual discrimination case decided on the question of statutory interpretation, L'Heureux-Dube J. comments at p. 633: "Given the range of human preferences and possibilities, it is not unreasonable to conclude families may take may forms. It is important to recognize that there are differences which separate as well as commonalities which bind. The differences should not be ignored, but neither should they be used to de-legitimize those families that are thought to be different. "In light of all this, it is interesting to note that, in some ways, the debate about family presents society with a false choice. It is possible to be pro-family without rejecting less traditional family forms. It is not anti- family to support protection for non-traditional families. The traditional family is not the only family form, and non-traditional family forms may equally advance true family values." (emphasis added) --------------- Note 22: Canada (A.G.) v. Mossop (1993), 1 S.C.R. 554 --------------- [para100] Now there are unquestionably societal concerns regarding the influence of homosexual adults on children, and I believe I can take judicial notice of that. There are, as well, possible concerns that the existing research is as yet incomplete and not comprehensive, as Dr. Bradley has pointed out, at least to the extent that it would allay these societal concerns. It may be that no amount of research would ever mollify these concerns. However, I am bound by law and common sense to decide this issue on the basis of the evidence I have available to me now, and not on speculation, unfounded prejudice and fears, or on a reaction to the vociferous comments of an isolated and uniformed segment of the community. [para101] If I accept, as I must from the evidence before me, that a stable, secure and caring family environment is in a child's best interests, and is in fact the most significant and beneficial component in the healthy development of a child, and further that the paramount objective of the legislation is to promote the best interests of children primarily within the context of the family, then I must also accept from the evidence before me that there is no rational connection whatsoever between the goals of this legislation and a provision in that legislation which contains an absolute prohibition against adoption by homosexual couples. For there to be a rational connection between a provision that says homosexual couples may never apply to adopt, there would have to be evidence that homosexual couples could never provide a stable, secure and caring environment for a child. But there is no evidence at all to support such a proposition. On the contrary, there is no cogent evidence that homosexual couples are unable to provide the very type of family environment that the legislation attempts to foster, protect and encourage, at least to the same extent as "traditional" families, parented by heterosexual couples. [para102] There is no evidence at all that families in which both parents are of the same sex are any more unstable or dysfunctional than families with heterosexual parents. There is no evidence that children raised by homosexual parents are any more likely to develop gender roles or identities inconsistent with their biological sex than children raised by heterosexual parents. There is no evidence at all that children raised by homosexual parents will be significantly any different than children raised by heterosexual parents in all areas of their psychological development. [para103] There is also no evidence at all that children raised by homosexual parents will be exposed to any greater degree of social stigma than children of heterosexual parents are exposed to because of race or any number of other characteristics. In a number of decisions in custody cases from various jurisdictions, including one in Ontario, all have taken the position that if such stigmatization does occur, it is merely another factor to be taken into account when determining the best interests of the child, and is not sufficient reason, in itself, to deny a claim for custody. (See B. v B. (1980) 16 R.F.L. (2d) 7 (Ont Prov. Ct Fam. Div.) [para104] There is, in short, no evidence that families with heterosexual parents are better able to meet the physical, psychological emotional or intellectual needs of children than families with homosexual parents. Nor is there any evidence that children of families in which the parents are homosexual would receive less than the "adequate" level of care demanded of heterosexual parents, as discussed earlier in Part IV. If an "adequate" level of child care is the yardstick by which the law determines whether the state will encroach upon the autonomy of the family, surely we cannot demand a higher level of child care from homosexual parents as an excuse to deny them their constitutional equality rights. [para105] When one reflects on the seemingly limitless parade of neglected, abandoned and abused children who appear before our courts in protection cases daily, all of whom have been in the care of heterosexual parents in a "traditional" family structure, the suggestion that it might not ever be in the best interests of these children to be raised by loving, caring and committed parents, who might happen to be lesbian or gay, is nothing short of ludicrous. [para106] In the context of this "rational connection" test, the argument has been raised before me that the court should not "substitute judicial opinions for legislative ones as to the place at which to draw a precise line."[See Note 23 below] This discussion of the propriety of the court encroaching upon the legislative domain has been discussed in many cases, and is particularly relevant in these cases. It is a well known fact that proposed legislation permitting adoption by homosexual persons was recently presented to the Ontario Legislature and rejected. The suggestion therefore is that the distinction in the CFSA between opposite sex and same sex couples is an area of public policy which should remain exclusively within the domain of the legislators, not the judiciary. --------------- Note 23: Edwards Books and Art Ltd. v. The Queen (1986) 2 S.C.R. 713, 35 D.L.R. (4th) 1, @ p. 51 --------------- [para107] I accept and agree with this principle in general, but there are limitations which have been clearly established in case law. In the Edwards Books case Chief Justice Dickson emphasizes that the question of whether a "reasonable limit" was imposed by the Legislature must still be asked in the context of the overriding principles enunciated in Oaks. In that same case, LaForest J. states at p. 67 of the D.L.R. report: "Given that the objective is of pressing and substantial concern, the Legislature must be allowed adequate scope to achieve that objective. It must be remembered that the business of government is a practical one. The Constitution must be applied on a realistic basis having regard to the nature of the particular area sought to be regulated and not on an abstract theoretical plane. "By the foregoing I do not mean to surest that this court should, as a general rule, defer to legislative judgments when those judgments trench upon rights considered fundamental in a free and democratic society. Quite the contrary. I would have thought the Charter established the opposite regime. In seeking to achieve a goal that is demonstrably justified in a free and democratic society, therefore, a Legislature must be given reasonable room to manoeuvre to meet these conflicting pressures. Of course, what is reasonable will vary with the context. Regard must be had to the nature of the interest infringed, and to the legislative scheme sought to be implemented" [para108] And therfore, while a court should be loath to supplant the authority, discretion or judgment of the legislature with it's own simply because the legislation in question is discriminatory, this principle is subject to exception in those cases where the decision of the Legislature infringes upon rights protected in the Charter, and the nature of the legislative scheme is not so substantial as to warrant denial of the particular right. [para109] In my view, the inherent inconsistencies in this legislation, insofar as it is directed to the relationship between the best interests of children and the nature of "family" or the sexual orientation of parents, call into question the precise nature of the legislative scheme. [para110] There is no sexual orientation restriction in the definition of a person who might qualify as a "parent" for purposes of an adoption application. This leads to truly irrational results. In each of the cases before me, it is my opinion that the lesbian applicants would qualify as "parents". They have clearly "demonstrated a settled intention to treat the child as a child of her family". By operation of S. 137(2) therefore, their written consent would be required before an adoption order could be made in favour of any other person. The conclusion from this anomalous situation is that these people are for some reason seen to be so significant in the child's life that they must be given the opportunity to consent to or oppose the adoption, failing which the adoption can not proceed, yet they are not permitted to even apply to adopt that very child themselves. [para111] Further, there is no sexual orientation restriction in any other Part or section of the Act. Sexual orientation does not preclude an adoption application by any individual person, whether a parent, relative or complete stranger, yet it does preclude an application by the spouse of the parent. If parenting by a homosexual couple is intended to be inconsistent with the best interests objective of the legislation, and therefore prohibited, is parenting by a single lesbian or gay person somehow consistent with that objective? Is the concept of "family" recognized by the statute to be expanded to include single homosexual parents, but not homosexual couples living in a conjugal relationship? [para112] In my opinion, the "line" drawn by the legislation in this provision is irrational, not based on any compelling social interest, and is a completely unwarranted infringement of specifically protected Charter rights. [para113] There is not only no rational connection between the absolute prohibition In S. 136 and the paramount objective of the Act, namely, the best interests of children, there appears to be no rational connection between the absolute bar in S. 136 and other sections of the statute. The provision does not meet the first requirement of the justification test. 2. Minimal impairment of Charter rights: [para114] Even if the available evidence were not as conclusive and overwhelming as it is to support the conclusion I have come to as to the absence of a rational connectIon between S. 136 and the objectives of the statute, the definition of spouse in S. 136 imposes a limit on the Charter rights of homosexual persons that is not only excessive, but, in my view, totally unnecessary. [para115] In the circumstances of these cases, what possible concern could there be over the question of whether an adoption would be in the best interests of these children that could not be identified, investigated and determined in the course of an adoption hearing? If there was reason to be concerned that parenting by a homosexual adult or couple might not be in the child's best interests, would the determination of that issue be any more difficult to resolve than, for example, deciding whether a child should be returned to the care of a parent who is addicted to crack cocaine, or is alcoholic, or schizophrenic; or whether to return a child to the care of the parents, when there is a strong suggestion, but inconclusive proof, that the child has been abused? Would it be any more difficult to resolve than a dispute between two parents, blinded by anger with each other, who do battle over custody of a child when it is obvious their motivation is other than doing what is best for the child? These are all issues that our Family Courts deal with daily, week after week, year after year, yet there is no suggestion that the parents in these cases be denied the right to ask to have their children returned. [para116] Even if there were evidence to raise the presumption that parenting by homosexual persons might not be in a child's best interest because of the sexual orientation of the parents, any number of mechanisms are in place, or could easily be put in place that would provide an alternative to the absolute denial of Charter rights: sexual orientation of the parents could be an enumerated head in the factors to be considered in determining the best interests of the child in S. 136(2) of the CFSA; counsel could be appointed to represent the interests of the children and present evidence that would indicate the child's best interests would not be served; "adoption homestudies", Directors statements, reports of the adjustment of the child, all of which are options available to the court presently, could be a required, as they are now in "non-family" adoptions. [para117] All of these, and, with some thought, many other forms of monitoring procedures might be instituted to ensure that the proposed adoption would be in the best interests of the child without denying to an entire group of our society its equality rights under S. 15(1). [para118] Therefore, even if there is a rational connection between the objectives of the legislation and the restriction on applications to adopt by homosexual persons, which I do not believe there to be, the objectives of the legislation could still be achieved without any denial of Charter rights. In my opinion, the objectives of the legislation can be achieved now, with the process and safeguards that are already in place, without the need to deny or impair any rights or freedoms. 3. Proportionality: [para119] Finally, it is my opinion that the effects of the provision in question are, on the evidence I have, disproportionate to the objective of the legislation, namely the promotion of the best interests of children. [para120] If, as I have said, it could be shown on the available evidence, that adoption of children by homosexual parents could never be in the child's best interests, then an absolute bar against joint applications by homosexual spouses could be justified. The promotion of the best interests of children is, as has been acknowledged, of "sufficient importance" to justify the denial of a Charter right. But that is not the evidence. And even if the existing evidence turned out to be faulty, or inaccurate, or subject to interpretation, the effect of this prohibition is that this group of people affected by the section would never have the opportunity to convince a court that, in the circumstances of a particular case, adoption may be in the child's best interests. [para121] The proportionality test surely amounts to this: is there a legitimate and serious objective to be achieved, and, if so, can it be achieved by any measure other than the denial of an individual's Charter rights? And for all the reasons I have given, the answer must be: yes, there is a serious objective to be achieved, but there are many other ways to reach that goal. The effect of this section is, in that context, completely disproportionate to the objective. [para122] The provision in question cannot be justified on this ground either. Answer to the second question: [para123] For these reasons, the answer to the second constitutional question must be: No; the requirement in S. 136 of the Child and Family Services Act, which incorporates S. 10 of the Human Rights Code, that spouses be of the opposite sex before they may apply for the adoption of a child infringes a right guaranteed by S. 15(1) of the Canadian Charter of Rights and Freedoms and this infringement is not justified under S. 1 of the Charter. PART VIII: THE REMEDY [para124] Having answered these questions in this manner, the effect of S. 52(1) of the Charter is that the definition of "spouse" as it appears in S. 136 of the Child and Fame Services Act is of no force or effect. However, I believe the situation here is such that the three criteria described in the Schachter [See Note 24 below] case can be met and the court can resort to "reading in" to the offending provision words necessary to render the provision operative. First, the legislative objective is obvious, that is promoting the best interests of children by permitting their adoption, and reading in words to include the group that has been excluded from the present definition in breach of their Charter rights would further that objective. Second, it is reasonable to assume a legislature would include in the definition words to correct the defect rather than not have a definition action at all. Third, adding words to the provision to correct the defect would have no apparent impact or intrusion at all into any legislative budgetary decisions. --------------- Note 24: Schachter v. The Queen, (1992) 93 D.L.R. (4th) 1 --------------- [para125] Therefore the definition of "spouse" as it appears in S. 136(1) of Part VII of the Child and Family Services Act should be read and applied as if enacted in the following form: "spouse" means the person to whom a person of the opposite sex is married or with whom a person of the same or opposite sex is living in a conjugal relationship outside marriage." [para126] The applicants for adoption in all the cases before me qualify as spouses within that definition, and the adoption applications will now be considered individually on their merits. qp/ci/s/ala End of document. -- Julio Ducat P. 1962-1995