On November 9, 2020, the Honourable Chief Justice Glen Joyal pronounced an Order declaring several sections dealing with parentage in The Family Maintenance Act to be discriminatory on the basis of sexual orientation. The declaration was made with the consent of both parties.
Robynne Kazina, Rhoni Mackenzie and Kelby Loeppky, of Taylor McCaffrey LLP, in collaboration with Public Interest Law Centre lawyers, Byron Williams and Allison Fenske, represented the seven LGBTQIA2S+ families who filed legal proceedings in the Manitoba Court of Queen’s Bench against the Manitoba government relating to its outdated Family Maintenance Act.
The current Manitoba Family Maintenance Act has not been updated since 1987 and does not recognize non-biological parents who conceive through assisted reproduction. This denies substantive equality to LGBTQIA2S+ parents who rely on reproductive technologies, by forcing them to go through costly and sometimes lengthy court process to be legally recognized as parents. The barriers created by the legislation also run against the best interests of children. All children benefit from having certainty in their family relationships and from being parented by persons who have clear legal rights and obligations, regardless of how they were conceived.
The Court also declared that the seven set of parents who launched the legal proceedings are parents in the eyes of the law, and they are not required to go through an adoption or declaration process through Court.
The Province of Manitoba must now remedy the discrimination, most likely by amending The Family Maintenance Act so that any family who uses assisted reproduction has a meaningful and accessible pathway to legal recognition as parents.
This is a great step forward for the Province, which is expected to bring it in line with other provinces like British Columbia, Ontario and Saskatchewan who have already enacted new legislation to recognize legal parentage in cases of assisted reproduction, including surrogacy, egg donation, sperm donation, and embryo donation.
The number of LGBTQ2S+ families formed through the use of assisted reproduction is significant and continues to increase rapidly due to technological developments, increased availability, changes in social acceptance and medical policies and practices. New legislation will have far reaching beneficial impacts for all intended parents conceiving with the use of assisted reproduction, not just the LGBTQIA2S+ community.
By removing these barriers and burdens for new parents it allows them to focus on what is most important, their children.
Robynne Kazina was the recipient of the Canadian Bar Association’s Sexual Orientation and Gender Identify Community Section (SOGIC) Ally award in 2020, which award is given to one individual across Canada who has advanced equality for the LGBTQ2+ community. She also received the Manitoba LGBT Chamber of Commerce 2020 Community Builder Award in relation to her work on this case as well as her many other contributions to Manitoba two-spirited and LGBTQ communities and the business community at large.
DISCLAIMER: This article is presented for informational purposes only. The views expressed are solely the author(s)’ and should not be attributed to any other party, including Taylor McCaffrey LLP. While care is taken to ensure accuracy, before relying upon the information in this article you should seek and be guided by legal advice based on your specific circumstances. The information in this article does not constitute legal advice or solicitation and does not create a solicitor-client relationship. Any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.