Written on behalf of Feigenbaum Consulting
In a recent British Columbia decision, the court used its parens patriae jurisdiction to declare that a third person was the legal parent to the child of a polyamorous couple.
Polyamorous Couple Seek Addition of Third Legal Parent For Child
Two women and one man began living together in a committed polyamorous relationship in 2017. In the polyamory community such relationships are known as a “triad”, which means that they each have a relationship with one another and each of their relationships with each other are considered equal. The court used anonymous names in discussing the case, choosing to name the applicants Eliza, Olivia and Bill.
Bill and Eliza began living together in a relationship in the early 2000s and met Olivia in 2013. In 2016, their relationships with Olivia became romantic.
When Olivia joined Bill and Eliza’s relationship, she knew they were trying to conceive a child. In early 2018, Bill and Eliza conceived a child through sexual intercourse, without the use of assisted reproduction. During Eliza’s pregnancy, the three agreed Olivia would be involved in the child’s life as a “full parent”.
Following the child’s birth, all three had shared his parenting. Their parenting arrangement allowed each to have one-on-one time with the child as well as time alone.
Eliza, Olivia and Bill applied to court seeking a declaration that Olivia was the child’s third legal parent and that his birth registration be amended accordingly. They argued that the court could make such a declaration under either s. 31 of the British Columbia Family Law Act (“FLA”) or pursuant its parens patriae jurisdiction under s. 192(3) of the FLA.
In addition, or in the alternative, they submitted that s. 26 of theFLA was unconstitutional as it discriminated on the basis of family status, contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms. Section 26(1) of the FLA reads:
26 (1) On the birth of a child not born as a result of assisted reproduction, the child’s parents are the birth mother and the child’s biological father.
The Attorney General of British Columbia opposed the orders sought.
Court Declares Third Legal Parent for Child
After reviewing the existing legislation, the court concluded:
“I find that there is a gap in the FLA with regard to children conceived through sexual intercourse who have more than two parents. The evidence indicates that the legislature did not foresee the possibility a child might be conceived through sexual intercourse and have more than two parents. Put bluntly, the legislature did not contemplate polyamorous families. This oversight is perhaps a reflection of changing social conditions and attitudes…. or perhaps is simply a misstep by the legislature. Regardless, the FLA does not adequately provide for polyamorous families in the context of parentage….
To remedy this gap, pursuant to s. 192(3) of the FLA, I exercise my parens patriae jurisdiction and declare that Olivia is [the child]’s legal parent, alongside his other two parents, Eliza and Bill. It is in [the child]’s best interests to have all of his parents legally recognized as such.”
Because of its finding, the court stated that it was unnecessary to deal with the Charter argument. However, it stated that it would not have been successful, because the parents had not presented sufficient evidence for the court to recognize family status as an analogous ground.
As a result, the court declared that Olivia was the child’s legal parent and directed the British Columbia Vital Statistics Agency to amend his birth registration accordingly.
At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.