GayCalgary® Magazine [copy]

Three’s a crowd

A Mother’s fight for her daughter

News by Daniela Costa (From GayCalgary® Magazine, March 2015, page 12)

Imagine you witnessed a beautiful baby girl come into this world and you claimed her as your own. You were there before and after the birth, and helped raise her for over a year. You became attached. And then you were told you couldn’t see your little girl anymore. What would you do? For Zoë Ayouka the answer is, fight for the right to mother.

She and her 18-month old daughter Khloë both live in Edmonton, but not together. That’s because Ayouka, 20, is no longer in a relationship with Khloë’s birth mother. It got more complicated when a few months into the breakup Khloë’s other mother told Ayouka she could no longer see her daughter. And because of Alberta’s parentage laws, launching a constitutional challenge may be key to a continued presence in her child’s life.

"I love Khloë, and I want to be there for Khloë," explains Ayouka.

And she was. Khloë’s birth mother became pregnant as a result of her relationship with a man during a time when she and Ayouka were broken up. When the couple got back together they decided to raise Khloë as co-parents, with Ayouka’s name even writ on the birth certificate.

"I assumed that was all self-explanatory, as to my role in Khloë’s life from that point on," she says.

Not so.

"In this case it’s the issue of intercourse that really turns this thing around," says Ellen Embury, partner at Dunphy Best Blocksom, and a leading practitioner of fertility law in Alberta. "Our legislation deals with what is happening at the moment of conception."

In Alberta you can only have two legal parents, and because Khloë was not adopted or conceived by means of assisted reproduction (such as artificial insemination, in vitro fertilization or surrogacy), the biological father has parental rights.

"They should have gone to court at the time of birth," says Embury, who claims a parentage declaration was needed.

"If I didn’t take the right steps after she was born, maybe that’s my fault? I wasn’t informed," says Ayouka, clearly frustrated.

It would have been complicated regardless, because even if Ayouka had attempted to adopt Khloë it would have required her biological father give up his parental rights.

This case – and all its complexities – have raised the question of whether or not discrimination is an element.

In Embury’s opinion, it is not. "I don’t think that Zoë is being discriminated against because she is a lesbian woman."

"I think that she is being disadvantaged because her partner had sex with a man, and conceived a child when Zoë wasn’t in the picture, and thus she doesn’t fall under the ‘assisted human reproduction’ categories in our legislation."

She is referring to section 7 of Alberta’s Family Law Act, "Rules of parentage". As Ayouka is not Khloë’s birth mother, nor specified as her parent in an adoption order, her case hangs in the balance because the birth was not a result of the only other category of parentage – assisted reproduction.

So is there any hope for Ayouka?

At the provincial level, Embury sees two options she can pursue. One, seek a parentage declaration under section 9 of the Act. But again, given the nature of conception, her odds here aren’t great. The second option is a guardianship application under section 17, which Embury believes is more plausible.

"Ultimately, the test on any application will be the best interests of the child [section 18], and I fully expect that the Court would feel that based on the facts, the best interests of the child clearly dictate that Zoë should be involved."

But Ayouka says she and her lawyer don’t feel they’ll be successful landing a trial for guardianship, parenting or even contact time through Alberta’s courts. "Essentially, they’ll just turn us down. That’s what we think."

So launching a constitutional challenge to the Family Law Act is their answer. But it won’t come cheap.

To cover her legal fees, Ayouka started a GoFundMe campaign, which aims to raise $20,000. She says this is also a fight for others who find themselves in a situation like hers, and urges those who can to donate. "I know it sounds uncommon, but if it happened once the chances are it happened before and will happen again."

For now, she gets to see her daughter three Sundays a month for four-hour visits, this after the courts issued an interim visitation order in January. "We always have amazing visits. They’re very short, but fun," she says.

Additionally, Khloë’s birth mother has agreed to mediation at the end of March to discuss the potential of guardianship. But now that the story has gone public, Ayouka has serious doubts. "I don’t think she’s going to want to give me anything."

Nonetheless, Ayouka is prepared to fight for a permanent place in her daughter’s life.

"I want to be able to be there for her long term."


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