Tuesday, 21 February 2017

Sex in the Witness Box, but Only if Necessary

An Ontario couple has just set an incredible new legal precedent: You can adopt a child and co-parent the children with their birth mother even if you aren't having sex. Crazy I know.

I think this is probably the kind of breakdown of traditional marriage that opponents of gay marriage were worried about. Once marriage is no longer about a man and a woman, what's next, will parenting children cease to be about having relations with a co-parent? Or, in the event that it isn't about doing the nasty with a co-parent, will it cease to be about one partner begrudging the lack of nookie, choosing to bump uglies with someone else and being discovered, all leading to an epic battle that traumatizes the children and leaves them with only one parent?

That's the proper, non-society-threatening way to raise children. Having two moms is an abomination, and having two moms that don't even fadoodle... what is the world coming to?

I read about all this on the CBC this morning, and you can too. If you aren't that interested in personal details about the co-moms and the child, you can skip it since basically that's what the story is about. The child has some very severe disabilities stemming from a knot in their umbilical cord that deprived them of nutrients and oxygen before birth. No matter how irrelevant I feel the disabilities of the child should be, I'm pretty sure they were important to getting the decision these women got - the judge probably saw the importance of the kid having two parents - and may have had a role in this situation coming up in the first place. Future similar cases will be made easier by this empathy-generating circumstance though, so I'll call this a case of bad facts making good law.

I'm glad this happened. It was, I think, predictable, given the current state of the law, but predictable doesn't mean it was easy. If the court had not accepted their application, their only recourse would have been a charter challenge, and that is time consuming and costly. It's easy for me to sit at a distance and say that this ruling made sense, but it is pretty hard to be the one going through it when recognition of your relationship with your child is on the line, despite both parents knowing the law themselves.

The troubling part of the law is the word "conjugal". You have to be in a conjugal relationship with someone to co-adopt a child with them. The google-search dictionary definition of conjugal is "relating to marriage or the relationship of a married couple," but colloquially I'm pretty sure it's more like, "relating to joining paunches or the relationship of people who are playing at rantum-scantum." Legally I guess there is some case law on the matter, but basically you have to ask yourself - if you moved to live together and you are raising a child together, I'd say that is related to the relationship of a married couple, though it isn't one. That somehow adding some night physics to the relationship would suddenly make it sufficiently like a marriage to count seems pretty weird.

If it were me I'd have been very tempted to take the, "What evidence do you require?" route, where you simply ask the court what evidence is needed to demonstrate that you are willing to fulfill their absurd requirement. Appealing to the courts graces, as these women did, is a much better idea than being openly contemptuous to the law, though. And frankly, the answer to the question is "a sworn statement" not "nug-a-nug in the witness box" so it's not really that defiant or even funny.

People who are married can surely confirm that horizontal refreshment isn't really the defining factor. Dancing the Paphian jig sometimes falls out of marriage and yet the marriage continues. Yet somehow the fact that two partners have - at some point in the past - arrived at the end of a sentimental journey together remains a requirement for the relationship that isn't at all about that to be considered conjugal.

This ruling doesn't change the law, the court simply made the ruling in the best interests of the child. What I think it does do is open things up for people to argue that a relationship can be conjugal without any houghmagandy involved. This matches literally everyone's common sense about what marriage is. Two people who live together, sleep in the same bed, raise children together, visit one another extended families on holidays and share finances are an awful lot more like a married couple than flatmates who occasionally have benefits when they are drunk.

So hooray. Hooray for the now-official mom of her now-official son. Hooray for a boy whose future is considerably less vulnerable and uncertain if something unfortunate befalls his birth parent. Hooray, if applicable, for any new grandparents involved who previously probably had to use multi-sentence phrases to explain the relationship they had to the kid. And hooray for the continued degradation of traditional marriage, and its replacement with an actually useful social construct which may or may not include fucking.

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