In a ruling which may have a ripple effect across Canada, a British Columbia judge recently issued a decision stating that two women involved in a polyamorous relationship with a man can both be officially considered the child’s parent along with the father.
The Polyamorous Relationship
The petitioners involved in the decision were referred to anonymously by the court as Olivia, Bill, and Eliza. The three partners have lived together in a polyamorous since 2017. Bill and Eliza have been living together in a relationship since the early 2000s. They met Olivia in 2013, and their relationship became romantic in 2017.
A polyamorous relationship is different than a polygamous relationship. The former, which is what the parties are involved in. Each of them have a romantic relationship with one another, with each relationship being equal to the other. That means that Olivia and Eliza share a romantic relationship, as do Bill and Olivia and Eliza and Bill. This stands in contrast to a polygamous relationship, in which a single person has multiple spouses.
When Olivia joined Bill and Eliza’s relationship, she knew they were attempting to conceive a child. However, they did not discuss the role that Olivia would have with the child should they be successful in having one.
Eliza became pregnant in 2018 and it was agreed that Olivia would be involved in the child’s life as a “full parent.” This plan has played out, with Olivia being very involved in the child’s life, even going so far as to induce lactation in order to feed him when he was a baby. She has in essence, acted as a parent for the child’s entire life to date.
Can Olivia be named a parent of the child?
The province’s Family Law Act contains two different regimes for parentage, neither of which speak to a polyamorous situation. The first speaks to children conceived through sexual intercourse, while the second addresses children conceived through assisted reproduction. As such, there is no legislative framework that lays out how a situation such as this can be addressed by the courts.
That said, Section 31 of the Act states that courts have jurisdiction to make declarations of parentage if they “find there is either a dispute or uncertainty” regarding the child’s parentage.
A gap in the law
The Attorney General’s office argued that lawmakers did not include such situations as this because they did not intend to allow a child to have three legal parents in such a situation. However, when the court looked at Hansard notes when the legislation was going through the provincial parliament, there was no discussion about such a situation. As such, the court found there was a gap in the legislation.
The next question the court had to answer was whether it would address this gap by making an order that Olivia is the child’s parent.
The court stated that the child’s best interests would support Olivia being a parent, writing,
“Recognition of Olivia as one of (the child’s) legal parents would secure Olivia’s legal financial obligations to (the child) which require parents to support and provide for their children. Neither Olivia nor (the child) would be placed in a position of having to differentiate their relationship from (the child’s) relationship with Eliza and Bill. A legal distinction between the relationships may create an inequity between their roles in (the child’s) life which would negatively impact (the child). Recognition of Olivia as (the child’s) legal parent would also allow Olivia to access additional statutory and other benefits for (the child) which, in turn, would positively impact him.”
The court did stop short of finding existing legislation unconstitutional, stating that other parents in this situation would have to go through the courts and discuss their specific situation if they wished to have a third person in a polyamorous relationship designated as a parent.
We should state that this decision does not have any authority in Ontario, but we will certainly monitor to see if similar petitions are raised here or if legislation is introduced that speaks to such situations.