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In a ground-breaking decision, the Newfoundland and Labrador Supreme Court (Family Division) recently determined that three adults (two men and a woman) in a polyamorous relationship are the parents of a child born to the woman.
The Relationship
Justice Robert Fowler described the relationship between the three parents as follows:
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 parents asked to be recognized as the parents of the child, but the Newfoundland Ministry of Service refused to do so, stating that the province’s Vital Statistics Act only permitted two parents on a child’s birth certificate. The parents brought a court proceeding again asking to be recognized as parents.
Justice Fowler noted that polyamorous relationships raise novel legal issues that provincial legislation has previously not addressed, noting 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.
He went on to say that:
[there is nothing in the Act] 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.
In making his decision Justice Fowler relied on a 2007 Ontario Court of Appeal decision in which a lesbian couple sought to have both women legally recognized as the mothers of their child. In that case, the Court of Appeal concluded that there was a legislative gap that did not allow a child to have two mothers, but that there is nothing in Ontario’s Children’s Law Reform Act that would suggest that the Ontario government had made any policy choice to deliberately exclude children of lesbian mothers from the “advantages of equality of status accorded to other children under the Act.
In addition to relying on the appellate court’s decision, Justice Fowler also emphasized the best interests of the child, noting 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.
Polyamory in Canada
“Polyamory” is a term made up of the Greek word for “much” or “many” and the Latin word for “love”. As these words suggest, individuals who are in a polyamorous relationship prefer to be involved in more than one long-term relationship at the same time.
Polyamorous relationships vary. Some polyamorists prefer long-term relationships with two or more people, and can involve a group of consenting, informed adults that live together, as is the case with the family at the centre of the Newfoundland decision. Other polyamorous couples prefer simultaneous relationships of varying commitment and permanence.
Whereas bigamy and polygamy (where the parties participating in multiple simultaneous relationships get married) are prohibited by the Criminal Code, polyamorous relationships are not.
Polyamorous couples in Canada have been fighting to have Canadian law recognize their relationships, naming immigration, parental rights, tax benefits, and medical issues as areas where legislation must “catch up”. Legal researchers note that:
Most people who are involved in polyamorous relationships have executed emergency authorizations to deal with health-care issues. Following that, most people had done school authorizations so other adults could deal with the school on behalf of the kids, followed by legal and medical powers of attorney and things like this.
However, such measures can only go so far.
This Newfoundland decision is the first in Canada to recognize multiple parents. While it is a step that those in polyamorous relationships are likely celebrating, the law will still have to address complex family law questions such as what would happen if the three-way couple separated, how child and spousal support would be paid, and similar issues.
We will continue to follow developments in this matter and will provide updates as more information becomes available. In the meantime, if you have questions about challenging aspects of family law, contact Windsor family lawyer Jason P. Howie. With more than 25 years of experience guiding husbands and wives through the stress and strain of separation, divorce, support and custody, Jason understands your frustrations and fears. Jason has seen all of the possible permutations when it comes to separation and divorce. Jason has seen enough to know that each case must be treated differently, and that no single solution will work in every situation or negotiation. Jason will customize an approach to meet your specific needs. Contact Jason at 519-800-1039 or contact us online.
