Wednesday 3 February 1999
The Ottawa Citizen
Score another one for liberalism. Social conservatives have long argued that families, and the sense of duty that binds them, are hurt by liberalism's emphasis on individual freedom. But last week, the Supreme Court gave a neat demonstration of how individual liberty and parental obligation can go together like, well, love and marriage.
The case involved Gerald and Sharon Chartier of Winnipeg. Sharon Chartier already had a child, Jessica, from a previous relationship when she married Gerald Chartier in 1991.
Together, the couple had another child, Jeena. During their marriage, Gerald Chartier took an active role in the lives of both children. The Chartiers discussed Gerald Chartier's possible adoption of Jessica but didn't proceed. They did, however, make a false application stating that Gerald Chartier was Jessica's biological father, and with this changed Jessica's surname to Chartier.
In the initial divorce proceedings, Gerald Chartier acknowledged Jessica to be his child and was granted access to her. But in the final steps, he said he wanted nothing to do with the little girl, that he wasn't her father, and that he therefore shouldn't have to pay support. The trial judge agreed, saying that step-parents could just walk away.
It looked like individual liberty running amok at the expense of a little girl. Just one more casualty of liberalism, as social conservatives would say.
Nonsense. Liberalism does not mean the freedom to pursue any whim, any time. It means freedom of choice, including the freedom to assume responsibilities that may impinge on one's future liberty. The man who chooses to have sex knowing that a child may result has responsibilities to that child that he cannot walk away from. In the same way, a man who freely chooses to step into the role of a parent takes on the responsibilities of a parent --╩which, by their nature, cannot be tossed aside when he tires of them. The trial judge's ruling wasn't liberal. It was perverse.
And it didn't survive the Supreme Court. In a unanimous decision, the court declared that "Once a person is found to stand in the place of a parent, that relationship cannot be unilaterally withdrawn by the adult." When can it be said that an adult "stands in the place of a parent''? Ms. Chartier's lawyer argued that this should be decided entirely by whether the child sees the adult as her parent. But the Supreme Court wisely rejected this.
Instead, the court set this test: Did the adult intend to become a parent to this child, and did he in fact act that way? There's no absolute standard of proof. Intention can be explicit, or it can be inferred from a person's actions, such as Mr. Chartier's decision to change Jessica's birth certificate to bear his surname. Some indicators suggested by the Supreme Court include whether the person disciplines the child, whether the person represents himself in public as the child's parent, and whether the person, if he is able, provides financially for the child.
It's a sensible approach that combines a principled focus on intention -- did he choose to take on this responsibility? -- with an understanding of the messy reality of many people's lives.
It may well be, as some lawyers have warned, that this ruling may hurt single parents looking for new relationships, since those who date single parents risk being saddled with the responsibilities of a parent if they act as one. Well, good.
As a judge quoted by the Supreme Court put it so well, "In many cases children are used as pawns by men ╔ who desire the attention of the children's parent and once the relationship between the adults fails, the children are abandoned. If requiring men to continue their relationship ╔ with the children is a discouragement of generosity, then, perhaps such generosity should be discouraged." If a man isn't prepared to be a parent -- that means no blithely walking away -- he shouldn't pretend to be one.
In this way, individual liberty is respected, but so too are the duties demanded of a parent. The choice between freedom and family, between liberalism and community, is shown to be a false one, as it always has been.
Copyright 1998 Ottawa Citizen