Citing Gap in Family Law Act, Court Makes Unique Parentage Order

What makes a family? Once upon a time, most people only considered the traditional nuclear family of a mother, father, and their children. Over time, however, society has begun to recognize that families come in various forms, including same-sex couples, single parents, and blended families. Most of us are familiar with the concept of a child having more than one mother or father, whether due to divorce and remarriage, or same-sex parents. However, given the changes to family law in recognizing various parental roles in recent years, polyamory is a concept that remains somewhat out of the conversation. In a recent case out of British Columbia, however, a judge has identified a gap in the law and made an order to recognize three legal parents of a child of a polyamorous family.

Child Born to Family With Three Parents

In the matter at hand, three people, two women and one man, have been in a polyamorous relationship since 2016. After deciding to have children, one of the women became pregnant via intercourse with the man and gave birth to a son. While all three adults in the relationship consider themselves to be equal parents to the child, only the two biological parents were recognized under the law. The child’s other mother then sought to enforce her right to be named a legal parent of the child.

Judge Points to Gap in Legislation

The British Columbia Family Law Act (the “FLA”) has provisions stating who can be considered a legal parent of a child. There are two methods to determine parentage set out in the Act depending on how the child was conceived. If the child was conceived through sexual intercourse, only the biological mother and father, or the presumed father, can be listed as parents. The legislation only allows for more than two parents if a child is conceived through assisted reproductive methods, which could involve more than two people.

The judge in the case at hand viewed this gap as an instance where the law has yet to catch up with societal changes:

I find that there is a gap in the [Family Law Act] 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.

In Alberta, the Family Law Act similarly limits parentage when a child is conceived through traditional methods. Under section 7(2)(a) of the Act, the parents of a child conceived this way can only be the birth mother and biological father.

Decision Follows Other Precedent-Setting Cases from Across Canada

The makeup of a family is constantly shifting, and since legislation takes time to catch up, many decisions are being made in courtrooms across the country when the law falls short. In 2007, an Ontario court ordered that two mothers should be added to a child’s birth certificate after a female same-sex couple used a man’s sperm to conceive a child.

In British Columbia, a man successfully petitioned to have his name added to the birth certificates of two children he helped to father for a lesbian couple.

In what is believed to be the first decision with respect to a polyamorous family, a Newfoundland court allowed the three adults to be listed as the parents. In that situation, however, two of the parents were male, and it was unknown which one was the biological father of the child.

In the case at hand, the Court based its reasoning on the fact that the non-birth mother knew the other two members of the relationship were trying to conceive a child. Further, all three had the intention that each person would be considered an equal parent. The non-biological mother even induced lactation so she could participate in breastfeeding their son once he was born.

While the Attorney General argued there was an insignificant difference in naming the non-birth mother as a legal guardian instead of a parent, the judge pointed out that being named a parent is a lifelong status that couldn’t compare.

Speaking to the CBC, the parents expressed their hope that this decision will help other non-traditional families find similar protections under the law.

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to parenting issues and unique family law matters. We work with families to find effective solutions that always place the best interests of the child first. Contact our office today by calling us at 403-910-3000 or reach out online.