Cy and Ruby’s Law: parental recognition for female same-sex partners in Ontario

By Kirsti Mathers McHenry

When my wife was in labour with our daughter, there was a period of time – maybe a half hour, maybe two hours – when her heart was misbehaving. My daughter’s heart was misbehaving, too. There were two machines. Below the machines, on the floor, there were two piles of paper pooled that recorded their heart rates. There was a shaded band in the middle of each sheet. I remember the nurse explaining to me that the band was good. Anything outside the band – too high or too low – was bad. There was a lot of ink outside the band on both sheets.

I remember thinking, “I have convinced this beautiful woman to have a child with me, and now I’m going to lose both of them.” Then I remembered that I would not be a legal parent to my child when she was born. As I held my wife’s hand and snuck glances at the two rolls of paper unspooling and recording the two heart beats, I went through the possibilities. If my wife died, I might not be able to leave the hospital with our baby. Who would be able to? My in-laws. They were supportive. Maybe the hospital would let the baby leave with them. Our sperm donor – he was known to us – was another possibility. Maybe he could pretend to be more than a donor uncle for a morning and get us home.

In Ontario, right now, a woman who is married to a woman who gives birth is not automatically a parent if they use a known sperm donor. Instead, after the child is born a court date is obtained, independent legal advice is sought for the donor, and the non-birth mother chooses whether to adopt her child or ask the court to declare that she is a parent.

A stressful legal process

My wife was ok and our daughter was ok, and we left the hospital together after visits from family. Months later, we obtained a court date and the three of us, with our lawyer went to court to make me a (legal) mommy.

As a lawyer, I hated this process. I had gone to law school for many of the same reasons I came to work at Legal Aid Ontario (LAO): a belief that law could be used to make lives better; a belief in justice and fairness; and a commitment to equality for all. Having to go to court and get a judge to agree that calling me a parent was in my child’s best interests offended all of those principles. It made me feel lesser. Straight people whose wives give birth don’t have to ask to be recognized as a parent; they just are.

What made it worse, oddly, was that the judge was supportive. She treated it like an adoption – a celebration of a child coming into a family. Only we had done that. At the hospital, when my daughter was born. Or maybe earlier when we first heard her heart beat in utero or first felt her kick. Maybe it was the minute we found out my wife was pregnant. The legal process was acutely stressful. Despite the assurances of my lawyer, I wondered, “What if the judge doesn’t like me? What if she doesn’t think it’s in my child’s best interests to have me as a mom? What if…?” Not logical, but stressful nonetheless.

The judge suggested we take a picture and, in shock, I posed for the camera. We took a picture and celebrated the most direct discrimination at the hands of the law that I have ever experienced. I was angry at myself for not saying anything to the judge: “This is not a celebration. If I was a straight person, we wouldn’t have to do this. This is discrimination.” But it was done and I was a mommy – in all ways now.

In 2006, a group of women, working with lawyer Joanna Radbord, convinced a court that the government’s failure to allow two women to “include the particulars of both parents on each child’s Statement of Live birth” discriminated against them.[1] All of the couples had used anonymous sperm donors. The government amended the Vital Statistics Act to allow same-sex couples who used anonymous donors to be on the birth certificate.

Seeking support for my parental rights

When my son was born, life was busy. I filled out my application for parental benefits, and began parental leave in September 2014. Later that year, I received a letter telling me my application for benefits had been rejected because I was not a parent. Despite many visits to Service Canada, phone calls and an appeal, the denial stuck until we got to court to secure yet another declaration of parentage. While my employer, Legal Aid Ontario, went above and beyond to support me during this difficult time, my government did not.

My wife and I had discussed challenging the laws around parental recognition after our first child was born, but when my second child was born and I was denied benefits, I knew I had to stand up and do something so that other families did not have to face this. I reached out to the Premier and to my MPP and initiated a law reform process.

Taking steps to effect change

Working with my MPP, Peter Taubuns, and then Cheri Di Novo, the NDP LGBT critic, we developed Cy and Ruby’s Law, a bill that fixes Ontario’s laws around parental recognition. We modeled the bill on British Columbia’s legislation. If passed, Cy and Ruby’s Law will provide security to children. It will give parents like me the recognition required to care for and protect their children. It will bring Ontario in line with what many other provinces have already done.

I have moved on from LAO, but I will always be grateful to the staff at LAO for their support. I am thankful for my colleagues in the Policy & Research division and the Corporate Services division who asked about ultra sounds and updates about sleep schedules. I am grateful to Cheryl in payroll and Rachel in HR who always treated me like a mom, even before I went to court. I thank Coreen and Felice who organized a baby shower for us (and everyone who attended!). And I thank the management team, and in particular Bob Ward, Michelle Seguin and David McKillop, who provided such amazing support for my family during the difficult period when I was denied parental benefits.

Getting Cy and Ruby’s Law drafted was the first step. In the next few months, I will continue to work to ensure that this important bill becomes law. In doing this work, I am building on the skills I learned at LAO and in some small way continuing to contribute to making Ontario a better and fairer place, just like the employees at LAO do every day.

Kirsti Mathers McHenry has held management and policy positions at Legal Aid Ontario where, most recently, she was Director, Strategic Initiatives and Planning, Corporate Services. She has addressed issues such as the development of family law services, the use of paralegals, block fees for criminal lawyers, financial eligibility and Aboriginal justice strategies. Mathers McHenry is a former member of The Law Society of Upper Canada’s Equity Advisory Group and has law degrees from Queen’s University and the University of Michigan.

[1] M.D.R. v. Ontario (Deputy Registrar for the Province of Ontario), 2006 at para. 1