Pride Month & Parenthood Planning: Ontario’s Cautionary Tale

June is Pride Month — a time to celebrate love and families, and the many unique and different forms both can take. For many in the 2SLGBTQ+ community, building a family still involves navigating legal, emotional, and logistical hurdles that heterosexual couples may never have to think about.

A recent Ontario case shows just how complicated things can get when friends set out to create a family together, but skip legal safeguards in parenthood planning. The case is Jacobs and Coulombe v. Blair and Amyotte, and it’s as heartwarming as it is heartbreaking.

The Family Plan, That Lacked Good Parenthood Planning

Brock and Christian, a same-sex couple in a 10-year-long committed relationship, had always dreamed of being dads. Their female friend Kobryn generously offered to carry a child for them; the biological father would be her partner Jake. There were hugs, messages of love, even a gender reveal party. Everyone seemed on the same page — until they weren’t.

The pregnancy didn’t happen through a fertility clinic. There was no written surrogacy agreement, just a loose verbal arrangement between the four friends. No legal advice. No clarity about who the biological father was going to be.

When baby Isabelle was born, she was handed over to Brock and Christian at a Tim Hortons parking lot, without so much as a legal document in place. In the joyful months that ensued, Brock and Christian raised Isabelle as their daughter. But about four months in, Kobryn and her partner, Jake, changed their minds. They wanted Isabelle back.

Same Sex Parenting: The Court Steps In

The court was left to sort it all out, including whether Brock and Christian could legally be declared Isabelle’s parents under Ontario’s Children’s Law Reform Act (CLRA). But since there was no formal written surrogacy agreement or legal adoption, and no written contract before conception, the law didn’t offer much clarity into this unique situation.

The court summed it up this way:

This is a case about everything the parties did wrong to achieve a particular goal, which ultimately led to the demise of a friendship, with a sweet little girl caught in the middle.

Ultimately, the court declined to declare Brock and Christian their legal parents, as it could have done under the CLRA. The statutory requirements for making that kind of requirement had simply not been met, especially since there was no written pre-conception surrogacy agreement.

With that said, the court recognized that the child Isabelle had been in Brock and Christian’s full-time care since birth.  She had developed a strong bond with them.

The court ordered that Isabelle should remain in their primary care, and granted them sole decision-making over her. The biological parents, Kobryn and Jake, were granted gradually increasing parenting time, but no decision-making rights. The court emphasized this would be in Isabelle’s best interests.

So, What’s the Takeaway for Same Sex Surrogacy?

Although this may be a unique scenario, it also serves as a cautionary tale about the importance of legal safeguards, especially in non-traditional family-building arrangements such as surrogacy for same sex couples. Love and good intentions are beautiful things, but they don’t replace legal planning.

If you’re a same-sex couple considering co-parenting, surrogacy, or any kind of family-building arrangement with friends or donors, we suggest the following pride month information:

• Put it in writing — early. Before conception, create a written agreement that clearly outlines everyone’s roles, expectations, and intentions. Verbal understandings can lead to confusion, and conflict.
• Get independent legal advice. Each party should have their own lawyer. This helps ensure everyone understands their rights, responsibilities, and the potential long-term implications.
• Plan for “what ifs.” What happens if someone changes their mind? Moves away? Or wants more involvement? A solid agreement will address these scenarios before emotions run high.
• Think beyond birth. Decide who will make medical and educational decisions, how expenses will be shared, and what the parenting schedule will look like as the child grows. Make sure this is all embodied in a parenting agreement drafted with a family lawyer.
• Know the law. In Ontario, legal parentage doesn’t automatically reflect emotional or caregiving roles. Understanding how the Children’s Law Reform Act and other statutes apply is critical.
• Remember: Courts prioritize the child’s best interests. Even with a signed agreement, judges will look at the reality of each party’s involvement when deciding decision-making responsibility and parenting time.

Conclusion: Trust Us with Your Parenthood Planning

At our law firm, we can help individuals and couples in the 2SLGBTQ+ community navigate these complex and deeply personal decisions like parenthood planning. This pride month and beyond, if you’re thinking about building your family through surrogacy, known donor arrangements, or co-parenting, let’s talk. Reach out to our expert team today.