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COURT UPDATE

1. The Spanking Case

Last January, the Supreme Court of Canada granted Leave to Appeal to the Canadian Foundation for Children, Youth and the Law, to challenge the legality of S.43 of the Criminal Code which permits spanking of children if it is reasonable under the circumstances.

It was unusual for Leave to Appeal to be granted in this case since the Foundation had unanimously lost in the two Ontario lower courts. What is also unusual is that the Supreme Court of Canada appears now to be fast tracking the case, which has been set down for argument for June 6, 2003.

A coalition of pro-family groups including REAL Women, Focus on the Family, Home School Legal Defense Fund (HSLDF) and the Canadian Family Action Coalition (CFAC), have intervened in the case under the name Coalition for Family Autonomy. The Canadian Teachers' Association has intervened in support of S.43. Intervenors supporting the removal of S.43 from the Criminal Code include the Child Welfare League, Ontario Social Workers' Association and Quebec Human Rights Association..

2. Marriage Cases

(a) BC

The BC Court of Appeal heard arguments on February 13 - 16, 2003, on the appeal from the judgement of Mr. Justice Pitfield of the BC Supreme Court, who denied the same-sex couple's application for marriage. The BC Court of Appeal handed down its decision on May 1, in support of same-sex marriage.

REAL Women's BC Chapter, together with several other pro-family groups, such as Focus on the Family, intervened in this case.

(b) Ontario

The Ontario appeal on the same-sex union marriage case was argued in Toronto on April 22-24, 2003. The Lower Divisional Court of Ontario decision in July 2002, recognized gay and lesbian partners as having the right to "marriage" on the basis of the equality provision (S.15) of the Charter of Rights.

Ontario Chief Justice, Roy McMurtry, granted the federal Human Rights Commission and the Canadian Coalition of Liberal Rabbis for Same-Sex Marriage intervenor status in the case. The latter's intervention by the way was funded by the federal Court Challenges Program. These interventions were granted despite objections from the federal Attorney General, who claimed that it was an injustice to the parties in the case, especially since the applications were made less than two months before the appeal was to be heard. The only condition imposed on these two new intervenors by Chief Justice McMurtry was that they would not seek costs (for their court expenses), but that they may possibly be liable for costs.

In granting them intervenor status, Chief Justice McMurtry stated that the Canadian Human Rights Commission had a "long history of promoting equality and combating discrimination" and had "the experience and expertise to enable it to provide assistance to the court in analysing the many issues under appeal." In regard to the Canadian Coalition of Liberal Rabbis, they were accepted as intervenors on the grounds that they had expertise in the theological aspects of same-sex unions and in the counselling of gay and lesbian congregants about the reality of the difficulties they encountered participating in Jewish religious life.

REAL Women, Focus on the Family and the Canadian Family Action Coalition (CFAC) had previously been granted intervenor status under the title, Alliance for Marriage and the Family in Ontario.

(c) Quebec

The Evangelical Fellowship (EFC) of Canada, together with the Catholic Civil Rights League, have joined forces to defend the definition of marriage in the Quebec Court of Appeal. Their arguments are based on the right to religious freedom of Christians, Jews and Muslims for whom marriage is a religious act between a man and a woman. The Superior Court of Quebec in September 2002, supported same-sex unions to be legal marriages, which, according to the pro-family intervenors, was not a question of expanding marriage to let others in, but rather was destroying marriage. The written legal arguments (factums) in the appeal were filed in January, but the date the case will be argued before the Quebec Court of Appeal has not yet been set.

3. Three Parent Family Case

Lesbian partners in London, Ontario, approached a male friend to assist in the conceiving of a child on their behalf. The intent was that the lesbian partners would be the "principle" parents, and the biological father, who lives elsewhere, would be recognized as the child's father.

The child thus conceived is now 2½ years of age, and his biological mother applied in February 2003 to the Ontario Superior Court for her lesbian partner to be granted legal parent status as another "mother" of the child. That is, the biological mother applied to the Court to have it declare that the boy has three parents - two (lesbian) mothers and a father.

This case had enormous ramifications for society, and, in particular, for children. It was an adult-driven case for the benefit of adults, certainly not the child. Studies have documented beyond any dispute that a child thrives best when he/she is raised by his/her natural patents, a mother and a father. A same-sex home is not in the child's best interests.

Moreover, if the court agreed with the mother's application that a child may have two mothers and a father, it will have fatal consequences for our traditional understanding and definition of a "mother" and a "father," and for the legal marriage of a man and a woman and the definition of "family." This case was yet another attempt by activists to use the courts to undermine and ultimately destroy society's template of traditional marriage and family.

In view of the seriousness of this case, several pro-family groups applied to intervene. They were REAL Women, Focus on the Family, Evangelical Christian Fellowship and the Catholic Civil Rights League. Fortunately, the legal costs for our four organizations were minimal due to the fact that the lawyer, Michael Menear of London, Ontario, as part of his pro bono (free) contribution to Alliance for Faith and Freedom (AFF), agreed to argue the case on our behalf.

The Decision of the Court on the Three Parent Case

It was a welcome relief that the judge, Mr. Justice Aston, actually followed the law instead of making it up to suit his own personal preferences and that of the applicants. The Ontario Children's Law Reform Act refers to the mother and the father. According to Mr. Justice Aston,

Legislation is presumed to be accurate and well crafted …When the legislation uses words such as "the," it is presumed to do so precisely and for a purpose. It represents a choice of the definite article over the indefinite article. Considerable weight must be given to its clear and ordinary meaning.

The legislator could have left open the possibility of more than one father but, instead, made an express opposite choice. There is no logical reason to suppose the legislator would choose to limit the number of fathers to one while allowing for more than one mother.

Therefore, the plain and ordinary meaning of the word "the" is unambiguous, consistent with other expression of legislative intent and not inconsistent with any Charter or common law principle.

In my view, Part II of the Children's Law Reform Act does not afford authority for the court to grant this application.

Mr. Justice Aston went on to say:

Furthermore, the court also must be concerned about the best interests of other children not before the court. For example, if this application is granted, it seems to me the door is wide open to stepparents, extended family and others to claim parental status in less harmonious circumstances. If a child can have three parents, why not four or six or a dozen? What about all the adults in a commune or a religious organization or sect? Quite apart from social policy implications, the potential to create or exacerbate custody and access litigation should not be ignored.

Polarized views exist concerning the definition of the modern family. Court decisions may sometimes necessarily impact on that debate, particularly where Charter considerations are engaged. However, when it comes to creating or shaping social policy, political considerations belong to the legislature. (Emphasis ours.)

Mr. Justice Aston is a judge who does what he is supposed to do - interpret the law according to the legislators' intent. His judgement is a welcome breath of fresh air in these times of judicial activism.

Summary of REAL Women's Court Interventions

REAL Women has been carefully monitoring the cases coming before the courts which will directly affect the family unit in Canada. We have intervened in those cases which we believe have the greatest potential to undermine family life. We have been asked, however, by some individuals why we are continuing to intervene in cases where we know that the liberal judges will treat our arguments with barely concealed contempt. The answer is that we intervene because:

1. History must show that there were Canadians who firmly resisted the anti-life family policies that were being forced on them by the courts; and

2. The courts must be provided with solid legal reasoning as to why the family unit in Canada requires protection. If the judges choose to ignore these valid legal reasons and instead adopt the politically correct position of contemporary ideology, they cannot later exonerate themselves from their damaging decisions on the grounds that no one presented them with alternate arguments. These judges must be held responsible for what they have done.

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