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Gay Custody Battle Could Set Standard

Toronto Sun,  Nov 17, 2010
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CALGARY - The fight between two Calgary gay ex-lovers over custody of their daughter could advance same-sex parenthood rights in Alberta, says one of the litigants.

The man says Court of Queen's Bench is expected to rule Dec. 8 on whether the province will be paying his past and future legal fees in a four-year battle that could fill a void in Alberta's Family Law Act that fails to legally define gay men as fathers.

"Hopefully, the government will pay for another lawyer to go against their own legislation," said the man known as Mr. H., whose name is under a publication ban.

The man and his former partner arranged for a surrogate mother to give birth to their daughter in 2003 conceived through artificial insemination.

When the couple split in 2006, a custody tug-of-war erupted, with Mr. H's former lover claiming he, as the sperm donor, and the girl's biological mother should be solely considered the parents.

Though a succession of court decisions have favoured Mr. H's access to his daughter, his ex-partner has fought the rulings by using a loophole in the Family Law Act that freezes out gay males as fathers when a female biological parent is involved, said Mr. H.

"This is discrimination based on gender and sexual orientation...biology trumps all intent in this province -- you can't have a gay male family," said Mr. H.

"She had nothing to do with raising or parenting our child and she was never intended to."

On Monday, Court of Queen's Bench awarded guardianship of the girl to Mr. H's former partner but the man said he'll find out next month if his charter challenge in the case will be funded by the province.

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