Hester Lessard, UVic Feminist Law Prof: Heterosexual View of Parenthood must be ignored November 14, 2003

"Trociuk is a disheartening endorsement of biological concepts of parenthood ... flawed... it legitimizes a heterosexual view of the family....  It must be ignored"

Darrell Trociuk sat like a coiled spring as he was described by a University of Victoria law professor <Lessard> as "more than a casual fornicator" and "less than a social parent."

In June, the 38-year-old Delta dad won a seven-year-long fight at the Supreme Court of Canada to have his name included on the birth certificates for his triplet sons.

He's still waiting for the change and he's angry that his case has since become a feminist cause celebre in which he is often falsely portrayed.. On Thursday, he confronted professor Hester Lessard after she had given a thoughtful 45-minute presentation at the University of B.C. -- part of a regular lunch-time lecture series at the law school -- on why she believed the unanimous verdict of the Supreme Court in his case was wrong. She came to talk about family ideologies and the construction of parenthood in a world where science says potentially five adults can be involved in a birth -- the two social parents (the couple who rear the child), a sperm donor, an egg donor and a birth mother.

He came to complain that he was being turned into fodder by the gender war.  Some scholars and lawyers, for instance, have suggested that in today's world of gay and lesbian families, the high-court ruling in Trociuk is as flawed as the original statute.

A writer and teacher of feminist theory, constitutional law and equality rights, Lessard is particularly critical of the decision.  Lessard believes Justice Marie Deschamps, writing her first ruling, erred in her analysis and in the manner in which she framed the issues.

She <Lessard> believes the decision is "a disheartening endorsement of biological  concepts of parenthood", "an increasingly fictional creation narrative."  "It legitimates a heterosexual view of the family," she said.

Trociuk won because the Supreme Court ruled B.C.'s Vital Statistics Act violated Canada's Charter of Rights and Freedoms by discriminating against "fathers."

A section of the act provides mothers with sole discretion to include or exclude information relating to fathers when registering the birth of a child. A father who is not named on a birth certificate has no say in the surname of his child.  (Trociuk, however, can't seek name changes for sons Ryan, Andrew and Daniel, born on Jan. 29, 1996, until the province rewrites the act and the government was given a year to fix it.)  Trociuk was not married to Reni Ernst, 44, who maintains that, as soon as the boys are old enough, she will allow them to choose their names. The triplets were putatively conceived in a last-ditch attempt to mend the tumultuous relationship. When the inevitable split came, it was bitter. It remains caustic.

Trociuk began the fight to be acknowledged as the father of the boys within six months of their birth.  He has visitation rights and pays some child support for his sons, who live in Nanaimo.  He lost the first round to be recognized in B.C. Supreme Court and lost again at the B.C. Court of Appeal.

This summer, though, Justice Deschamps disagreed with the lower courts and said Trociuk was right. It was a no-brainer in her view: Mothers and fathers should be equal.

But in 2003, as Lessard pointed out, "Who constitutes the "mother" and the "father"? ....This is the crucial mis-step," she said. "The debate should not be framed by who is a 'mother' and who is a 'father.'"  "The high court's reasoning was flawed", Lessard said, "and the justices should have been more on top of their game."

Before they ruled the Vital Statistics Act should be fixed, she said, a B.C. Human Rights Tribunal had ordered it amended to accommodate gays and lesbians. The high court should have spent time mulling the same concerns.

In essence, what I heard her say is "the law today should be gender-neutral and as reflective of real life as we can make it. The Trociuk decision is bad law because it perpetuates as many stereotypes as it purports to correct."  And I think she's right.

What about a dozen aggrieved fathers in the audience heard, unfortunately, was that they were going to have to wait again while gay and lesbian parents were accommodated.  And a few of them got rude about it.  "I can't believe this crap," snapped one particular boor who dubbed the law school a "lesbian breeding ground."

Listening to the theoretical ramifications of his case, Trociuk didn't like what he heard either.

He has his own version of the story and it isn't about stereotypes or about the interplay of private and public authority in the family unit. It's about romance gone wrong and a father who doesn't get enough time with his kids.  "You are wrong," he told Lessard. "I was all for a hyphenated name.  She has played a charade the whole way."

The professor was talking about public policy and he was talking about pain. "I love my kids," he said. "I could be run over by a bus today and there would be no recognition."  Lessard had no response and moved on to another question. But what could she say?  Trociuk won in the Supreme Court of Canada and it hasn't helped <in BC>.

Ian Mulgrew
Vancouver Sun