Zoe Ayouka’s eyes light up when she talks about her 18-month-old daughter, Khloe.
“She’s big for her age, she’s a tall girl,” said Ayouka, sitting in the dining room of her Edmonton home.
“She loves animals, goes up and gives them kisses. She’s very caring, and loving and sweet.”
Ayouka, 20, is not Khloe’s biological mother, although she was there when the girl was born. She cut the umbilical cord and is listed as one of the parents on Khloe’s birth certificate.
But now, she is locked in a legal battle that may determine if she will be part of her daughter’s life.
Ayouka is preparing to launch a constitutional challenge to what she calls an outdated Alberta law that discriminates against same-sex couples and women.
“If I was a male, it would be much easier for me to be granted guardianship of Khloe,” she said.
Ayouka had been in a relationship with Khloe’s mother before the girl was born. A few years ago, the couple briefly broke up and the other woman started a relationship with a man and became pregnant.
Shortly afterwards, the couple reconciled and decided to raise Khloe as co-parents. They stayed together until just after Khloe’s first birthday before breaking up once more.
Although her relationship with Khloe’s mother ended, Ayouka continued to be a part of her daughter’s life, effectively sharing joint custody.
That continued for a few months, until Khloe’s mother told Ayouka that she didn’t want her to see the little girl anymore.
“It’s been stressful. I have thousands of pictures and videos, and I’ve pretty much memorized every single one.”
Ayouka applied for guardianship, but had no luck. She is listed on the girl’s birth certificate, helps support her daughter financially and shares a last name with Khloe. Still, under Alberta law, she isn’t considered a parent because they are not biologically related.
Alberta’s Family Law Act does provide exceptions for surrogacy and adoption, but neither applies to Ayouka’s case
Ayouka eventually got the Alberta courts to issue a visitation order, which allows her to see Khloe for 12 hours a month. Khloe’s mother has also agreed to enter mediation to discuss the possibility of joint custody.
Even if they come to an agreement, Ayouka thinks she will still challenge the law, arguing it violates her constitutional rights. While she might be able to work out parenting and guardianship without the courts, she said the law must be changed to prevent other same-sex parents from being separated from their children.
“It’s for anyone else who finds themselves in the same situation,” she said.
Ayouka’s lawyer, Pierre Asselin, said there have been few cases involving surrogacy and same-sex couples in Alberta.
He noted that in an earlier case, a judge awarded guardianship to a man in a same-sex relationship. However, that was under a different version of the law, and the cases had some important differences.
“This is a unique set of circumstances that landed in Zoe’s lap,” he said.
Asselin said Alberta judges have the power to assign custody and guardianship based on the best interests of the child, and hopes to convince the court that Khloe would benefit from spending time with both parents.
Although he thinks Ayouka has a strong case, she might be in for a long and expensive fight that could end up costing tens of thousands of dollars.
“You have to have those people who are willing to put themselves out there to bring change to the system,” Asselin said.
“Those that will … bear that private burden for what would effectively be a public benefit.”
Ayouka, who has recently started a new job, said she is saving money to pay for the court challenge. She said she has received support from friends and family, and has recently set up a page on GoFundMe to help raise money for the legal battle.
She said she’s prepared to do whatever it takes to ensure she will be involved in raising Khloe.
“I don’t think you can walk away from someone you love. I want to be with Khloe and be in her life.”