Case/Facts Issue Ratio

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Casimel v Insurance Corp of British Columbia

Recognition of traditional aboriginal adoption and marriage.

S. 46 of the Adoption Act states that the court may recognize that an adoption order effected by the custom of an Indian band or Aboriginal community has the effect of an adoption order made under the Act

Also applies to marriage

Egale v Canada (AG)

Same sex marriage

BC SS marriage challenge.

Common law bar to SS marriage cannot be justified by s.1 of the Charter.

No rational connection b/w heterosexual def’n marriage and procreation.

Note that the States have taken the opposite view.

Reference Re SS Marriage (2004)

Same sex marriage and federal JD

Feds can legislate in regards to capacity to marry. Hetero marriage is not constitutionally protected. Feds cannot legislate exemptions to the solemnization of SS marriage. Letting SS couples marry does not violate the rights of HS couples. Freedom of religion guarantee does protect against compulsory celeb of SS marriage.

Followed soon after by Civil Marriage Act in 2005.
“Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.”

Connolly v. Woolrich

Recognition of aboriginal marriage.

validity in the community, voluntariness, exclusivity, and permanence.

Gill & Murray v Vital Statistics: challenge arose when VS refused to record lesbian partner of mother as parent.

Legal parent. Does VS treat SS parents and children with SS parents , as compared to OS parents, in a discriminatory manner?

Vs acts discriminatory. No rational connection b/w denial and purposes of birth reg. Birth reg does not purport to identify biological parentage. Purpose of VS to gather and record facts about imp’t events.

What is the purpose of the VS Act? It is not to provide genetic or biological info, so no reason to exclude SS parent. VS does not demand proof of genetic r from OS parents.

Non-biological def’n of parent trend.

Rypkema v British Columbia, [2003]

genetic mother should be officially listed as the “mother” on the child’s birth certificate, rather than the surrogate mother who carried the child. The claimant argued that the Vital Statistics Act was antiquated for defining a “mother” as the woman who gives birth to a child.

Trociuk v British Columbia: Dad wanted to be on birth certificates of three sons and for them to have his name. Asked the court to compel VS to put his name on the BC and to change the kids’ surnames.

Definition of parent

Possibility of a father being arbitrarily and absolutely excluded from the processes of birth registration and naming is a violation of s.15 rights.

Legislation was amended to add a procedure to apply to have parent’s partics on birth registration.

Reinstates a biological and heterosexual notion of parental status

AA v BB: lesbian non bio parent of kid wanted to be declared a parent, application made with consent of both bio parents.

Lesbian and gay parenting. 3 parents?

CA held it was w/in parens patriae power to declare A child’s mother.

Court has to fill in gaps in family leg

Leg gap not deliberate, not a policy.

BIC to recognize legal status of both moms.

Non-biological trend

SG v LC: Sperm donor dad of kid wanted access to kid, have legal paternity recognized. Had planned to have kid with lesbian mom.

Definition of parent

Parent by virtue of participation in “parental project.”

Between whom is the parental project?


Intention trend of parent?

Rights of child to have access to parent.

Re Patrick (Australia): Gay sperm donor wanted access to kid . Said always his intention to parent. Maybe agreement, but never in writing, w/mom.

Definition of parent

Distinguish “father” from “parent.” Due to legislation, donor not a parent, but is “father.”

Def’n of parent as capable of reflecting a broad array of family forms.

K.G.T. v P.D. [2005]: Lesbian couple, on ehas baby. Together 7.5 years. Mom leaves, starts new r. New S wants to adopt kid.

Definition of parent

Court refused to say KGT a parent, did not allow her to adopt without other mom’s consent. KGT allowed joint guardianship, access rights. New partner barred from adopting.

DWH v DJR: Two SS couples, two kids. MM separation, M wanted to deny non-bio parent access.


Access granted. Had stood in loco parentis to child.

BIC. Evidence of parent child relationship.

Non-bio def`n parent.

King v Low: Bio mom gives up child for adoption, changes her mind 2 months later. Aboriginal element.


Reversed previous CL trend emphasizing rights of biological parents. Primary concern now BIC.

BIC. Esp bonding, financial/social stability of adoptive parents.

Aboriginal tie not given much consideration.

Role of status quo by virtue of importance of bonding.

Re: K: lesbian wanted to apply to adopt child of partner, prevented by def’n of spouse in HRA.

Adoption – who can adopt

Def’n of spouse violates Charter.

Social science evidence: Not damaging to kids to be raised in gay family. Not gayifying.

In the Matter of a Female Infant: Bio mom adopted out baby without telling father. Was able to do so b/c she did not disclose his name on BR. He tried to get the kid back, she eventually supported him in it. Adoptive parents sought an order that his consent be dispensed with.

Adoption – consent required

Def’n of father.

BIC not served by transferring custody to dad. Trial judge said the factors were balanced except for biological link. CA said no, take into account socio-economic position of adoptive Ps.

Had birth parents worked out a satisfactory care arrangement?

Uncertainties associated with care of child in biodad’s home?

Factors even? Bio factor can be decisive.
Dissent: demands more evidence of potential harm to the child.

Seems to be that if the factors are even, the biological connection can tip the scales, but the status quo issue will crop up. “The benefits that flow to a child from blood ties are intangible and not readily put into words.”

Dissent: the only natural father who is not by definition a “parent” is a casual fornicator. Where a father is not such a CF, he should have a say. Says wishes of parents still relevant unless BIC require they be put aside.

Re Alberta Birth Registration (BCCA)

Adoption – making order when outstanding access order exists

Tie to BP should not prevent child becoming part of new family, but C should also not be cut off from access P if in his BI. Any person with a sufficient tie to the child ought to be heard before an order is made.

A petitioner should notify and normally give notice to a person with a right of access, a parent in whose home the C lives, any person w/subs tie to child.

In abs of specials order made at time of adoption, the order has the effect of terminating a right of access. Adoptive parents can resist access just like natural parents.

SS. 38, 59, 60 Adoption Act.

North v North

Adoption - access

Does an adoption order cancel an access order made under DA?

Paramountcy – access order stands

C (DH) v S. (R); bio parents gave up kid for adoption, GM wants custody or access.

Adoption – access - grandparents

Access and custody denied.

Unknown factors, conflict b/w GM and Mom

No rights for GPs

Practice Standards and Guidelines for Adoption

Adoption – aboriginal issues

Guidelines advocate extensive consideration of aboriginal culture.

Require Exceptions Committee to approve non-ab parents.

Most ab kids adopted out end up w/white parents anyway.

Racine v Woods: kid abandoned by mother, adopted by white/metis parents. Mom came back at age 5, said she wanted her kid.

Adoption – aboriginal issues

The importance of cultural background and heritage as opposed to bonding abates over time.

BIC test emphasizes bonding over culture, esp after time has passed.

Wilson says the interracial aspect is overblown, this is all about cutting legal ties with nat mother.

Sawan v Tearoe: ab mom gives kid to white folks for adoption. Signed the consent forms, then verbally revoked 6 days later. Legislation required written revocation. Kept trying to get kid back. Ts went ahead with adoption petition at one year, mom filed a habeus corpus.

Adoption – aboriginal.

Kid stays with adoptive parents.

Abatement of importance of cultural ties over time in comparison with bonding thing from Racine quoted with approval.

Leave to appeal denied to SCC.

DH v HM: kid born to AA father, ab mother. Mom had been adopted out to a white family early on. WGMs looked after kid for a while, then mom took him back to BC. Kid went into care. Bio GP and adoptive GPs want custody. Custody was awarded to adoptive GMs. Failure to notify Sagkeeng First Nation.

Adoption - aboriginal

Both GMs have ability to provide good home.
Not fatal that SFN did not get notice at SCC level. No rehearing.

Kid goes to AGP. Ab factor was not disregarded, other factors pointing towards AGPs.

Court downplays aboriginal issue, says adoptive GPs are just as much GPs as the bio.

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