In the first decision of its kind in Canada, all three adult members of a polyamorous family have been recognized as parents of a child.
Two months ago, Justice Robert Fowler of the Newfoundland and Labrador Supreme Court (Family Division) in the case of Re C.C., decided the adults would be named as parents of the child born within their three-way relationship.
In the introduction to his decision, Justice Fowler described the unconventional St. John’s household:
“J.M. And J.E. are the two male partners in a polyamorous relationship with C.C., the mother of A., a child born of the three-way relationship in 2017. The relationship has been a stable one and has been ongoing since June 2015. None of the partners in this relationship is married and, while the identity of the mother is clear, the biological father of the child is unknown.”
The three adults brought a court proceeding asking to be recognized as the parents of A. after the Newfoundland Ministry of Service refused to designate them as parents, saying that the Vital Statistics Act allowed only two parents on the child’s birth certificate.
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In his ruling, Fowler observed that “the child, A., has been born into what is believed to be a stable and loving family relationship which, although outside the traditional family model, provides a safe and nurturing environment…. I can find nothing to disparage that relationship from the best interests of the child’s point of view…. To deny this child the dual paternal parentage would not be in his best interests. It must be remembered that this is about the best interests of the child and not the best interest of the parents.”
Polyamorous relationships are varied, and may involve a cohabiting group of three or more consenting, informed adults. American research suggests that 1 in 500 Americans are polyamorous, and that more than 500,000 polyamorists live openly in these relationships.
Unlike bigamy and polygamy — which involve marriage ceremonies between the participating parties — polyamorous relationships are not prohibited by the Criminal Code.
Both Canada and the U.S. have innumerable organizations supporting or connecting people in polyamorous relationships: there are 36 in Quebec and Ontario, and 22 in British Columbia alone. John-Paul E. Boyd, who has written about the the polyamorous community in Canada for the Canadian Research Institute for Law and the Family, has defined polyamory as “multiple romantic relationships carried out with certain assumptions and ideals: of honesty and clear agreements among partners, mutual good will and respect among all involved, intense interpersonal communication, and high ethical standards.”
Boyd’s research found that people who identify as polyamorous, typically “reject the view that sexual and relationship exclusivity is necessary for deep, committed, long term relationships with more than one person on mutually agreeable grounds, with sex as only on aspect of their relationships.”
The legal issues arising from polyamorous relationships are new, as Justice Fowler observed: “There is little doubt that the legislation in this Province has not addressed the circumstance of a polyamorous family relationship as is before this Court, and that what is contemplated by the Children’s Law Act is that there be one male and one female person acting in the role of parents to a child.”
In the Act, there is no reference “which would lead one to believe that the legislation in this province considered a polyamorous relationship where more that one man is seeking to be recognized in law as the father (parent) of the child born of that relationship.”
Justice Fowler relied heavily on the 2007 decision of the Ontario Court of Appeal, A.(A.) v B.(B)., in which a lesbian couple sought to have both women legally recognized as the mothers of a child.
In A.(A.), Justice Mark Rosenberg found that there was a legislative gap which precluded allowing a child to have two mothers, and found that “there is nothing in the legislative history of the Children’s Law Reform Act to suggest that the Legislature made a deliberate policy choice to exclude the children of lesbian mothers from the advantages of equality of status accorded to other children under the Act.”
In recent decades laws in Canada have changed, adapting to new societal norms. In 1995, Ontario was the first province to recognize same sex adoptions. In 2004, the Supreme Court of Canada recognized same sex marriage. All of these legal changes, however, have maintained the traditional notion of coupledom; to accommodate same sex couples, the legislative changes largely needed only to tinker with the definition of “spouse.”
There is little doubt the recognition of three parents will be the least legally complex aspect of polyamorous relationships. Family law legislation across Canada now recognizes only one spouse’s obligation to the other. Current legislation will be difficult to apply in polyamorous relationships, especially if new partners become involved in the relationship and the relationship later breaks down.
For example, the length of time spousal support is paid is usually related to the length of the relationship. In many provinces, the increase in the value of all property, (including assets such as pensions) is shared between the date of a couple’s marriage and the date of separation.
How those concepts will be imported where three, four people or more people are involved and have entered the relationship at different times, will be a complicated business indeed.
Laurie H. Pawlitza is a senior partner in the family law group at Torkin Manes LLP in Toronto.