November is the month for recognition. November 11th is of course Remembrance Day, which honours the sacrifices of those in the Canadian military. Perhaps less well-known is that November 20th is Transgender Day of Remembrance (TDOR). This date is formally recognized by law in Ontario, and is observed each year to acknowledge the memory and legacy of transgender individuals whose lives were lost to anti-trans violence.
In the spirit of TDOR, this Blog will focus on some of the issues that may affect transgender parents in the province.
Focus on the Best Interests of the Child (As Usual)
First, it’s important to know that for transgender individuals in Ontario, parenting issues are governed by the same framework as all other parents in the province: The best interest of the child.
Ontario Family courts evaluate parenting time and decision-making responsibility (formerly “custody” and “access”) by looking at what arrangement best promotes a child’s physical, emotional, and psychological safety, security, and well-being. That analysis is always fact-driven.
Gender identity, by itself, should not count for or against a parent; instead, the courts look at evidence about a child’s needs, each parent’s ability to meet those needs, and how to preserve healthy relationships with both parents.
An example of this is the Ontario Court of Appeal decision in a case called Bourke v. Davis. The parents, one of whom was a transgender woman, had two young children together. The transgender woman had made the decision to transition from male to female after the birth of the second child.
When the other parent (mother) wanted to relocate to Washington state with both kids to join her new husband, the trial judge granted her request and gave her final decision-making responsibility; however the judge also granted the transgender parent generous parenting time. The Appeal Court later confirmed this decision, ruling that the judge had evaluated the children’s best interests correctly. Among other things, the judge had properly rejected the transgender parent’s speculation that the “cultural differences” between the United States and Canada may negatively impact the children. She had not led any evidence on how transgender people experience discrimination in the two jurisdictions, so the judge and Appeal Court could not make any ruling either way on how the best interests of the children might be affected.
Parenting Plans
In past Blogs, we have covered the general elements of a good parenting plan. But if you’re a transgender parent, here are some of the things you should focus on if you are building or defending a parenting plan:
- Keep it child-centred and practical. Offer a clear, written plan covering school routines, health care, activities, and how you will support the child’s relationship with the other parent. In Bourke v. Davis, the successful plan detailed schools, community supports, and realistic blocks of parenting time, including travel logistics and liberal electronic contact. Courts respond well to specifics.
- Maximize contact, realistically. Ontario law favours maximizing a child’s time with both parents where consistent with best interests. If distance is a factor, propose longer visits during school breaks, shared travel responsibilities, and regular video calls.
- Offer evidence, not speculation. If you believe a move or an arrangement could expose your child to transphobic environments, bring evidence: Affidavits, expert opinion, school policies, or data about the specific community. In Bourke, the court rejected speculation about “cultural differences” since there was no evidence or clear ties to the children.
- Proactively address name, pronouns, and school supports. If a child is exploring or affirming their own identity, propose age-appropriate steps: Consistent use of name and pronouns, liaising with the school on inclusive policies, and referrals to affirming health-care providers where needed. Tie these to the child’s well-being and the best-interests factors.
- Don’t let identity do all the talking. Courts are not evaluating your worthiness as a transgender person; they are evaluating a parenting arrangement. Emphasize your relationship with the child, consistency, support networks, and how your plan preserves – and ideally strengthens – the child’s bond with both sides of the family.
Finally, November is a good time to connect with community resources and to remind schools, teams, and caregivers about inclusive practices. Both Transgender Awareness Week (in mid-November) and TDOR on November 20 are opportunities to learn, reflect, and recommit to child-centred co-parenting that affirms every child’s dignity.
If you’re a transgender parent and want help with crafting a parenting plan that works for you and your unique family, give our offices a call.
For the full text of the decision, see:
Bourke v. Davis, 2021 ONCA 97 <https://canlii.ca/t/jd6qb>
