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Desperately Seeking Daddy: A Critique of Pratten v British Columbia (Attorney General)
Published online by Cambridge University Press: 13 May 2013
Abstract
Current Canadian law, by silence rather than explicit choice, does not prevent anonymous sperm donation. Anonymous sperm donation, however, may soon disappear. In the recent Pratten decision, the Supreme Court of British Columbia determined that anonymity violates the constitutional rights of children born of Assisted Reproductive Technologies (ARTs). While finding that children should have access to genetic knowledge, the court failed to consider the impact of the elimination of anonymity on other parties to ARTs, both sperm donors and ART families. The case was appealed by the Attorney General of British Columbia and heard by the British Columbia Court of Appeal in February 2012 and was overturned. While agreeing with the decision of the Court of Appeal, this article argues that the court failed to provide a fulsome analysis of issues related to privacy, genetic knowledge, alternative family formation, and the false assertion that sperm donation makes a man a father.
Résumé
Les lois canadiennes actuelles, par omission plutôt que par choix explicite, n’interdisent pas les dons anonymes de sperme. Les dons anonymes pourraient, par contre, bientôt cesser. Dans la récente décision Pratten, la Cour suprême de la Colombie-Britannique a déclaré que l’anonymat porte atteinte aux droits constitutionnels des enfants nés à l’aide des technologies de reproduction assistée (TRA). Tandis que la cour reconnaissait le droit des enfants d’avoir accès à des données génétiques, la cour n’a pas reconnu l’impact de l’élimination de l’anonymat sur les autres parties impliquées dans les TRA, c’est-à-dire les donneurs de sperme et les familles issues des technologies de reproduction assistée. Au mois de février 2012, cette affaire était portée devant la Cour d’appel de la Colombie-Britannique par le Procureur général de cette province. En plus de souligner les aspects problématiques de la décision Pratten, cet article fait une analyse approfondie des notions de confidentialité, de connaissances génétiques, et de formations familiales alternatives ainsi que de la fausse affirmation selon laquelle un homme est un père s’il donne du sperme.
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- Copyright © Canadian Law and Society Association / Association Canadienne Droit et Société 2013
References
1 James, Arlene, Desperately Seeking Daddy (Buffalo, NY: Silhouette Romances, 1996)Google Scholar. The phrase “desperately seeking” also appears in the 1985 film Desperately Seeking Susan.
2 According to the Canadian Fertility and Andrology Society’s 2009 report, there were 4,412 live births that year that were the product of ARTs (Joanne Gunby, “CARTR Annual Report 2009,” Canadian Fertility and Andrology Society: Montreal, 2009).
3 Waldman, Ellen, “What Do We Tell the Children?” Capital University Law Review 35 (2006): 517.Google Scholar
4 This paper will deal exclusively with sperm donor anonymity. Although some of the principles discussed herein apply to egg donation, the invasive nature of egg donation, and the risks to the donor, must also be considered.
5 Some Western countries, however, have moved to systems of donation that require a willingness to release identity, but information is only released once donor children reach adulthood. Importantly, nowhere has retroactive de-anonymization been endorsed. For further information, see Blyth, Eric and Frith, Lucy, “Donor-Conceived People’s Access to Genetic and Biographical History: An Analysis of Provisions in Different Jurisdictions Permitting Disclosure of Donor Identity,” International Journal of Law, Policy and the Family 23 (2009): 176 CrossRefGoogle Scholar. Reproductive tourism has increased in such jurisdictions (Lisa Ikemoto, “Reproductive Tourism: Equality Concerns in the Global Market for Fertility Services,” Law and Inequality 27 (2009): 296).
6 “Under Bill C-13, a licensee is required to collect health reporting information from donors of human reproductive material before accepting the material. However, unless the donor has consented to the disclosure of identifying information, individuals who make use of, or who are conceived by means of, the donation are entitled only to the non-identifying health information of the donor held by the licensee” ( Foster, Jennifer and Slater, Barbara, “Privacy and Human Reproduction: A Discussion Paper,” Health Law Review 11, no. 1 (2002): 56–61 Google ScholarPubMed at para 22). Bill C-47, the Human Reproductive and Genetic Technologies Act, was introduced in 1996, and the Assisted Human Reproduction Act was introduced in 2002. Key provisions of the Assisted Human Reproduction Act came into force on April 22, 2004. (Health Canada: http://www.hc-sc.gc.ca). Donated sperm must be obtained through a clinic ( Cameron, Angela, Gruben, Vanessa, and Kelly, Fiona, “De-Anonymising Sperm Donors in Canada: Some Doubts and Directions,” Canadian Journal of Family Law 26 (2010)Google Scholar at para 1).
7 Eric Blyth, “ART Regulation in Canada—birth much delayed,” BioNews, July 11, 2011; see also N. Hall, “BC government appeals landmark sperm donor ruling,” Vancouver Sun, June 17, 2011. Pratten v British Columbia (AG), [2012] BCJ no 2460.
8 This point has been made by other authors and is a serious issue of contention with powerful fathers’ rights groups, which posit that men have a right to visit and control children (and their mothers) purely on the basis of a genetic connection. For further information, see Baker, Katharine, “Bargaining or Biology: The History and Future of Paternity Law and Parental Status,” Cornell Journal of Law & Public Policy 14, no. 1 (2004)Google Scholar; Boyd, Susan, “Gendering Legal Parenthood: Bio-Genetic Ties, Intentionality and Responsibility,” Windsor Yearbook of Access to Justice 25 (2007): 63 Google Scholar; Boyd, “Demonizing Mothers: Fathers’ Rights Discourse in Child Custody Law Reform Processes,” Journal of the Association for Research on Mothering 6, no. 1 (2004): 52; Cameron, Angela, Gruben, Vanessa, and Kelly, Fiona, “De-Anonymising Sperm Donors in Canada: Some Doubts and Directions,” Canadian Journal of Family Law 26 (2010)Google Scholar; Angela Campbell, “Regulating the Queer Family: The Assisted Human Reproduction Act,” ibid. 24 (2008): 101; Campbell, Angela, “Conceiving Parents Through Law,” International Journal of Law, Policy, Family 21 (2007): 248 CrossRefGoogle Scholar; Chambers, “Newborn Adoption: Birth Mothers, Genetic Fathers and Reproductive Autonomy,” Canadian Journal of Family Law 26, no. 2 (fall 2010): 339; Chambers, “In the Name of the Father: Children, Names and the Law in English Canada,” University of British Columbia Law Review 43, no. 1 (September 2010): 1; Cohen, Jonathon and Gershbain, Nikka, “For the Sake of the Fathers? Child Custody Reform and the Perils of Maximum Contact,” Canadian Family Law Quarterly 19 (1999): 121 Google Scholar; Felicity Kaganas and Shelley Day Sclater, “Contact Disputes: Narrative Constructions of ‘Good’ Parents,” Feminist Legal Studies 12 (2004): 5; M. Kaye and J. Tolmie, “Discoursing Dads: The Rhetorical Devices of Fathers’ Rights’ Groups,” Melbourne University Law Review 22 (1998): 180; Kelly, “(Re)forming Parenthood: The Assignment of Legal Parentage Within Planned Lesbian Families,” Ottawa Law Review 40 (2008–2009): 185; Kelly, Transforming Law’s Family: The Legal Recognition of Planned Lesbian Motherhood (Vancouver: University of British Columbia Press, 2011); Kelly, “Producing Paternity: The Role of Legal Fatherhood in Maintaining the Traditional Family,” Canadian Journal of Women and the Law 21, no. 2 (2009): 315; Hester Lessard, “Mothers, Fathers and Naming: Reflections on the Law Equality Framework and Trociuk v. British Columbia (AG),” ibid. 16, no. 1 (2004): 165; and Wiegers, Wanda, “Gender, Biology, and Third Party Custody Disputes,” Alberta Law Review 47, no. 1 (2009).Google Scholar
9 Unfortunately, no studies about disclosure have been done in Canada. In a study of heterosexual couples in Sweden who conceived through donor insemination, 89 percent had not informed their children (see Gottleb, Claes, Lalos, Othon, and Lindblad, Frank, “Disclosure of Donor Insemination to the Child: The Impact of Swedish Legislation on Couples’ Attitudes,” Human Reproduction 15 (2000): 2052.Google Scholar
10 Pratten, [2011] at para 1.
11 Ibid. at para 1.
12 Ibid. at para 39.
13 Ibid. at para 40.
14 Chad Skelton, “Searching for their genes,” Vancouver Sun, Saturday, April 22, 2006.
15 Pratten, [2011] at para 16.
16 Pratten v British Columbia (AG), [2010] BCJ no 2012 at para 8.
17 Ibid. at para 7.
18 Ibid. at para 11.
19 Ibid. at para 28.
20 Adoption Act, RSBC 1996, ss 63, 65, 66.
21 Her statement of claim can be accessed at Arvay Finlay Barristers: http://www.arvayfinlay.com/news/Writ%20of%20Summons%20and%20Statement%20of%20Claim.pdf.
22 Pratten, [2011] at para 7.
23 Pratten, [2012] at para 6.
24 Ibid. at para 37.
25 Ibid. at para 42. In explaining this decision, Frankel J. A. cited Cunningham: “Section 15 (2) affirms that governments may not be able to help all members of a disadvantaged group at the same time, and should be permitted to set priorities . . . The cost of identical treatment for all would be loss of real opportunities to lessen disadvantage and prejudice” (Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37, [2011] 2 SCR 670 at para 41).
26 Ibid. at para 50.
27 Ibid. at para 51.
28 Pratten, [2011] at para 116.
29 See Chambers, Misconceptions: Unmarried Motherhood and the Ontario Children of Unmarried Parents Act, 1921-1969 (University of Toronto Press/Osgoode Society Press, 2007); and Chambers, “Newborn Adoption: Birth Mothers, Genetic Fathers and Reproductive Autonomy,” Canadian Journal of Family Law, 26, no. 2 (fall 2010): 339.
30 Cameron et al., “De-Anonymising Sperm Donors in Canada” at para 56.
31 Cheskes at para 1. Joy Cheskes asserted that the proposal that a disclosure veto be obtained via a hearing violated her right to make autonomous decisions (Cheskes at para 33). Denbigh Patton was concerned about the impact of contact with a birth parent on his elderly, and very loving, adoptive parents, and found “no comfort from the option of filing a no-contact preference. The no-contact provision would not prevent the disclosure of his identity and with that identifying information” (Cheskes at para 35). C. M. had known for fourteen years that a birth parent was avidly searching for her and asserted that “the no contact order is totally irrelevant to me, because no contact will not mean that they cannot watch me, they can’t drive past my house. This person could get my name and give this to children that she has, to other friends, to relatives . . . I could be stalked” (Cheskes at para 41).
32 In Ontario, adoption was established by statute in 1921 and adoption records were officially sealed in 1927. See Adoption Act (1921), c 55 and Adoption Act, RSO 1927. See also RSO 1980, c 66 and SO 1984, c 55. Adoption files could be opened only on proof of “good cause” in a court of law, and when adoptees attempted to expand “the meaning of ‘good cause’ to become more inclusive,” they had little success in court ( Cahn, Naomi and Singer, Jana, “Adoption, Identity and the Constitution: The Case for Opening Closed Records,” University of Pennsylvania Journal of Constitutional Law 2 (1999–2000): 161 Google Scholar). Access to identifying information from adoption files was consistently denied by courts in Ontario and elsewhere in Canada: Kelly v Superintendent of Child Welfare and Williams (1980), 23 BCLR 299 (SC); Ferguson v Director of Child Welfare et al. (1983), 40 OR (2d) 294; Tyler v Ont Dist Ct, [1986] OJ no 3074; Phelps v Manitoba (Director of Child and Family Services) (1987), 51 Man. R. (2d) 64, [1987] MJ no 542 (QB (Fam Div)) (QL) [Phelps]. In Ontario, an Adoption Disclosure Registry was established in 1987.
33 Cheskes at para 19. It is interesting to note that the AIDA ran into serious opposition: Hansard, 2005, pp. 1069–1074.
34 Cheskes at para 4.
35 Ibid. at para 22.
36 Ibid. at para 28.
37 Ibid. at para 65.
38 Cheskes at paras 45–50.
39 Ibid. at para 82.
40 R v O’Connor, [1995] 4 SCR 411 at para 117.
41 Jennifer Stoddart (Privacy Commissioner), “Statement in Support of the Remarks of the Information and Privacy Commissioner of Ontario,” (May 11, 2005) at 1.
42 Edmonton Journal v Alberta, (AG), [1989] 2 SCR 1326. The court found that legislation in Alberta prohibiting the printing of evidence from matrimonial/divorce hearings violated freedom of expression guarantees, because even when “a newspaper chose to publish a story which scrupulously avoided revealing the identity of parties or witnesses but discussed in general terms the kind of evidence introduced in matrimonial proceedings, the newspaper would be in contravention of s 30 (1)” (Edmonton Journal at para 26 (as per Cory J.)) The court did not reject the importance of the protection of privacy interests with regard to identifying information about litigants.
43 MEH v Williams, [2012] OJ no 525.
44 Cheskes at para 84. The limitations of no-contact orders are evident in the context of Tennessee (Carol Chumney, “Tennessee’s New Adoption Contact Veto is Cold Comfort to Birth Parents,” University of Memphis Law Review 27 (1997): 851.
45 Globe and Mail, November 14, 2007, p. A8. In Ontario, adopted adults and birth parents can file a disclosure veto to protect their privacy if the adoption was finalized before September 1, 2008. The veto prevents the release of post-adoption information about the person who filed it. If the adoption was finalized after the specified date, a person can file a no-contact notice if they do not want to be contacted but if they are willing to have their identifying information released: http://www.ontario.ca/en/information_bundle/adoption/111872.html.
46 Blyth and Frith, “Donor-Conceived People’s Access to Genetic and Biographical History,” 176.
47 Baldassi, Cindy, “The Quest to Access Closed Adoption files in Canada: Understanding Social Context and Resistance to Change” Canadian Journal of Family Law 21 (2005): 211–265 Google Scholar at para 59. See also Adoption Act, RSBC 1996, c 5, and the Adoption Act; Financial Administration Act—Adoption Regulation, BC Reg. 291/96. Interestingly, the adoption provisions in British Columbia are very much like those overturned in Cheskes.
48 Pratten, [2011] at para 3.
49 Ibid. at para 92.
50 Moyal, Dena and Shelley, Carolyn, “The Future Child’s Rights in New Reproductive Technology: Thinking Outside the Tube and Maintaining the Connections,” Family Court Review 48, no. 3 (July 2010): 431.CrossRefGoogle Scholar
51 It is now widely recognized that many of the early studies of the so-called negative impact of adoption were seriously flawed. The foundational studies of Arthur Sorosky, Annette Baran, and Rueben Pannor have come under particularly harsh criticism for their lack of empirical soundness but continue to be cited by court experts. See Baran, Pannor, and Sorosky, “Open Adoption,” Social Work (March 1976): 98.
52 Ontario v Marchand, [2006] OJ no 2387 at para 85.
53 Ravitsky, Vardit, “‘Knowing Where You Come From’: The Rights of Donor-Conceived Individuals and the Meaning of Genetic Relatedness,” Minnesota Journal of Law, Science and Technology 11, no. 2 (2010): 670.Google Scholar
54 Waldman, “What Do We Tell the Children?” 537.
55 Cheskes v Ontario (AG), [2007] OJ no 3515 at para 65.
56 Pratten, [2011] at para 116.
57 Marchand, [2006] at para 116. It is important to note that leave to appeal to the Supreme Court of Canada was filed January 29, 2008, submitted to the Court on March 10, 2008, and dismissed by McLachlin C. J. and Fish and Rothstein J. J. on April 24, 2008, without reasons (Marchand v Ontario, [2008] SCCA no 37).
58 Pratten, [2011] at para 193.
59 Ibid. at para 198.
60 Cameron et al., “De-Anonymising Sperm Donors in Canada” at paras 6–7.
61 Pratten, [2011] at para 226.
62 Caufield, Timothy, “Canadian Family Law and the Genetic Revolution: A Survey of Cases Involving Paternity Testing,” Queen’s Law Journal 26 (2000) at para 20.Google Scholar
63 Autonomy rights, according to many health theorists, are the leading concern in medical practice ( Lentz, Vanessa, “Asking the Inconceivable? Ethical and Legal Considerations Regarding HIV-Seropositive Couples’ Request to Access Assisted Reproductive Technologies (ARTs): A Canadian Perspective,” Health Law Journal 16 (2008): 10 Google Scholar).
64 In fact, this possibility was explicitly rejected by an Ontario court. A successful challenge under s 15 of the Canadian Charter of Rights and Freedoms was made in MDR v Ontario (Deputy Registrar General) regarding the difficulties that lesbian co-mothers experience in registering both mothers’ names as parents. Rivard J. held that identification of biological parentage is a key purpose of vital statistics regimes, but not the only purpose (ibid., [2006] OJ no 2268 (SCJ)).
65 RSC, 1985, c P-21.
66 Pratten, [2011] at para 234.
67 Pratten, [2012] at para. 51.
68 Foster and Slater, “Privacy and Human Reproduction,” 56–61.
69 Alberta Family Law Act, SA, c F-4.5, s 13 (3).
70 Quebec, Art 528.2 CCQ.
71 SBC 2011, c 25, Part 3.
72 Jadva, Vasanti, Freeman, Tabitha, Kramer, Wendy, and Golombok, Susan, “The experiences of adolescents and adults conceived by sperm donation: comparisons by age of disclosure and family type,” Human Reproduction 24, no. 8 (2009): 1909.CrossRefGoogle ScholarPubMed
73 Jadva et al., “The experiences of adolescents and adults conceived by sperm donation,” 1910.
74 Waldman, “What Do We Tell the Children?” 545.
75 Jadva et al., “The experiences of adolescents and adults conceived by sperm donation,” 1912.
76 Haimes, Eric and Weiner, Kate, “‘Everybody’s got a dad’: Issues for lesbian families in the management of donor insemination,” Sociology of Health and Illness 22, no. 4 (2000): 486.CrossRefGoogle Scholar
77 Ibid., 488.
78 Mykitiuk, Roxanne, “Beyond Conception: Legal Determinations of Filiation in the Context of Assisted Reproductive Technologies,” Osgoode Hall Law Journal 39 (2001)CrossRefGoogle ScholarPubMed at para 54.
79 Johnson-Steeves v Lee (1997), 33 RFL (4th) 278 (Alta CA) at para 16; see also ibid., 29 RFL (4th) 126 (Alta Ct QB).
80 Mykitiuk, at para 57.
81 SG v LG, [2004] RDF 517 (Sup Ct).
82 A v B, C and X (2007), RDF 217.
83 Currently, same-sex second parent adoption is permitted in all Canadian jurisdictions except Prince Edward Island and Nunavit. See Re K; Re A (1999), 181 DLR (4th) 300 (Alta QB); Re Nova Scotia (Birth Registration No. 1999-02-00420) (2001), 194 NSR (2d) 362 (SC) (Nova Scotia); Adoption Act, CCSM 1997, c A2, s 10 (Manitoba); Adoption Act, SNL 1999, c A-2.1, s 20 (Newfoundland and Labrador); Adoption Act, SS 1998, c A-5.2, s 23 (Saskatchewan); Adoption Act, RSBC 1996, c 5, ss 5, 29 (British Columbia); Adoption Act, SNWT 1998, c 9, s 5 (Northwest Territories); and Re: K (1995), 15 RFL (4th) 129 (Ont Prov Ct).
84 In all but Quebec and Manitoba, the gender-neutral birth certificate was achieved through litigation. The provinces that currently allow the second mother to sign the birth certificate are: Alberta (Fraess v Alberta (Minister of Justice and Attorney General), [2005] AJ no 1665; British Columbia (Gill v Murray, 2001 BCHRT 34); New Brunswick (AA v New Brunswick (Department of Family and Community Services), [2004] NBHRBID no 4); Manitoba (Vital Statistics Act, RSM 1997, c V60, s 3 (6)); Quebec (Civil Code of Quebec); and Ontario (MDR v Ontario (Deputy Registrar General), [2006] OJ no 2268).
85 PC v SL, 2005 SKQB 502 at para 17. This is ironic, as planning for a lesbian pregnancy requires significantly more intent than ejaculation. Lesbian couples always intend to inseminate when donor sperm is used, but most men only rarely intend to procreate when they ejaculate.
86 Boyd, Susan, “Gendering Legal Parenthood: Bio-Genetic Ties, Intentionality and Responsibility,” Windsor Yearbook of Access to Justice 25 (2007), 63 Google Scholar np (QL).
87 MDR v Ontario (Deputy Registrar General), [2006] OJ no 2268 (SCJ).
88 Kelly, “(Re)forming Parenthood: The Assignment of Legal Parentage Within Planned Lesbian Families,” Ottawa Law Review 40 (2008–2009): 185 at para 10.
89 For example, in Ontario a father is clearly defined under the Children’s Law Reform Act, s 8 (1).
90 Cameron et al., “De-Anonymising Sperm Donors in Canada,” 130.
91 Kelly, Transforming Law’s Family: The Legal Recognition of Planned Lesbian Motherhood (Vancouver: University of British Columbia Press, 2011), 37.
92 Millbank, Jenni, “The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family,” International Journal of Law, Policy, Family 22 (2008): 160.CrossRefGoogle Scholar
93 Eekelaar, John, Family Law and Personal Life (Oxford: Oxford University Press, 2006).Google Scholar
94 Smart, “Family Secrets,” 554.
95 Kelly, “Producing Paternity,” Canadian Journal of Women and the Law 21, no. 2 (2009): 329.
96 Ibid., 329.
97 Ibid., 331.
98 Family Relations Act, RSBC, c 128, s 1. They were not cohabiting at the time of birth and the babies were born more than nine months after the couple had ceased cohabitation (Family Relations Act, RSBC, c 128, s 95).
99 Proceedings commenced in 1998, in the names of the children, by the father as litigation guardian. On February 25, 1999 Collver J. ordered that the infant petitioners “be removed as parties to the proceedings and that their names be struck from the style of cause” and explicitly acknowledged a central issue in the case that was thereafter ignored by subsequent courts: “It is primarily his interests at stake,” and the interests of the father and those of the children must be differentiated (Trociuk v British Columbia (AG), [2001] BCJ no 1052).
100 Ibid., [1999] BCJ no 1146 at para 17. It is noteworthy that before the case was heard by the Supreme Court, the biological basis for registration had been exposed as hollow in Gill v Murray, in which the BC Court of Appeal rejected the government’s claim that the mother and father requirement for registration was based on biology and deemed that the exclusion of lesbian parents, one of whom had borne a child via anonymous donor insemination, constituted discrimination (Gill v Murray, [2001] BCHRTD no 34, rev’d in part British Columbia (Minister of Health Planning) v British Columbia (Human Rights Tribunal) (2003), 17 BCLR (4th) (BCSC)).
101 Trociuk, [1999] at para 16.
102 R v Oakes (1986), 24 CCC (3d) 321 (SCC)
103 Andy Ivens, “Dad ‘feels like dirt’: Father has no right to give his own sons his surname,” The Province, Thursday, May 24, 2001. As critics of men’s rights groups have noted, such groups employ rhetorical devices to normalize the idea that men are discriminated against in the context of family law, in order to make claims on this basis for formal equality for men as victims and to conflate the interests of children with the desires of men. (“Discoursing Dads: The Rhetorical Devices of Fathers’ Rights Groups,” Melbourne University Law Review 22 (1998): 180).
104 In the interim, the court had appointed an amicus curiae to represent the interests of the children, and his report recommended allowing the appeal and registering the changes of names for the three boys. The reasons given by the amicus curiae are disturbingly patriarchal. He argued that it was “in the best interests of the children for their name to include their father’s surname” because (a) the father was present at their births; (b) the father is not a mere “sperm donor”; (c) the father has provided regular financial support; (d) the father “has taken legal action to gain access to the children,” and his failures of access were blamed on “the hostility of the mother”; (e) “it is in the children’s interest to grow up with a strong sense of their family heritage”; (f) “it is still the social norm for children, whose fathers are known, to have their father’s name”; (g) particularly since the children are boys, it is “in the children’s interest to know who their father is”; and (h) “the father has always treated the mother with respect” (a claim that Reni Ernst might have contested, see Trociuk (2001) at para 26) (Southin J.quoting from the deposition of the amicus curaie).
105 Trociuk (2001) at para 177.
106 Ibid. at para 153.
107 Ibid. at para 153.
108 Ibid. at para 159.
109 The motion to state a constitutional question was granted on July 9, 2002 and the case was heard and reserved on December 4, 2002 (Trociuk v Attorney General of British Columbia and the Director of Vital Statistics and Reni Ernst, [2001] SCCA no 410).
110 Trociuk, [2003] at para 16.
111 Disturbingly, it also suggests that “beyond circumstances of rape and incest there is no justification for a mother to ‘arbitrarily’ fail to name a biological father” (Kelly, “Producing Paternity,” 330).
112 Wiegers, Wanda, “Gender, Biology, and Third Party Custody Disputes,” Alberta Law Review 47, no. 1 (2009) at para 1.Google Scholar
113 For more information, see Saskatoon Dad, www.saskatoondad.com.
114 Wiegers, “Gender, Biology, and Third Party Custody Disputes” at para 17.
115 Ibid, at para 16. Neither the Saskatchewan Court of Queen’s Bench, family division nor the press noted that such victim-blaming behavior is indicative of abuse. For information regarding characteristics of an abusive personality, see Dutton, Donald, The Abusive Personality: Violence and Control in Intimate Relationships, 2d ed (New York: Guilford Press, 2007)CrossRefGoogle Scholar.
116 Hendricks v Swan, 2007 SKQB 36 at para 2.
117 Ibid. at para 18. For a discussion of the need for contextualized understanding of the circumstances faced by Aboriginal women, see Razack, Sherene, “Gendered Racial Violence and Spatialized Justice: The Murder of Pamela George,” Canadian Journal of Law and Society 15, no. 2 (2000): 91.CrossRefGoogle Scholar
118 Ibid. at para 18.
119 Wiegers, “Gender, Biology, and Third Party Custody Disputes” at paras 28–30. Disregarded in press accounts was the fact that in the adoptive family, it was the father who had chosen to be “a stay-at-home parent.”
120 The court considered the relative parenting abilities of the genetic father and the adoptive parents and found that the adoptive parents were financially and emotionally stable and committed to parenting (ibid. at para 64).
121 MacGyver v Richards (1995), 22 OR (3d) 481 at para 38.
122 Wiegers, “Gender, Biology, and Third Party Custody Disputes” at para 1.
123 Trociuk, [2003] at para 16.
124 AL v SM, [2009] OJ no 2972.
125 Ibid. at para 1.
126 Ibid. at para 4.
127 Children’s Law Reform Act, RSO 1990, c C.12, s 8 (1).
128 AL v SM, at para 21.
129 Ibid. at para 30.
130 Ibid. at para 58.
131 Pratten, [2011] at para 11.
132 Kelly, “Producing Paternity,” 336.
133 Waldman, “What Do We Tell the Children?” 535.