This is complicated. R and H were in a same-sex interdependent relationship and decided they would like to have a child. D, who was also in a same-sex relationship, agreed to bear a child for them, using R’s sperm. A child, S was born and was raised for her first three years by R and H, with frequent visits by D and her partner. However, in 2006, R and H acrimoniously separated and H moved out. Unbeknownst to H, R and D put together a parenting agreement, naming themselves as guardians, and giving primary responsibility for raising the child to R. H asked the court for a contact order to see S, which was granted in 2007. In 2010 H asked the court for a declaration that his equality rights under the Charter were violated by sections of the Vital Statistics Act and the Family Law Act that prevented him from being registered as S’s father. The wording of those statutes referred to a father as a person married or co-habiting with the mother, or registered as the father at the request of both father and mother. The Chambers judge found that the Family Law Act discriminated against gay males in that it forced them to go through a lengthy legal process to have their parentage and guardianship recognized. She decided that it was in the best interests of the child to grant a declaration of parentage and guardianship for H, using her parens patria jurisdiction. This resulted in S having three legal parents, since the Chambers Judge also concluded that R was a legal parent under the Domestic Relations Act.
Over to the Alberta Court of Appeal. The majority decided that the Chambers judge was correct in her assessment, writing: “…the chambers judge regarded the act of legally recognizing the parental and guardianship status of Mr. H. as advancing the best interests of S. Specifically, she determined that it was in the best interests of S. that the law recognize Mr. H. as her parent, given that he was her parent. This conclusion presumes that children benefit when the law recognizes the reality of their family situations, even when that reality falls outside the norm.”
D.W.H. v. D.J.R., 2013 ABCA 120 (CanLII)