Human relationships are diverse. A person can have romantic or intimate relationships with more than one other person at a time. The practice of doing so consensually can be called polyamory. Although the number of people in polyamorous relationships in Canada is unknown, 82.4% of respondents to a 2016 survey agreed or strongly agreed that “The number of people who identify as polyamorous is increasing.”1
What does this mean for family law?
The Canadian Civil Marriage Act and Divorce Act are structured around marriage as “the lawful union of two persons to the exclusion of all others.” However, in addition to married spouses, “spouse” under the BC Family Law Act (“FLA”) includes a person who has lived with another person in a marriage-like relationship if they have done so for at least two continuous years or, for some purposes, if they have a child together.
There is no requirement in the FLA that a person have only one spouse, but in many ways, such as setting out the right of each spouse on separation to an undivided half interest in family property, it is structured to address the breakdown of two-person relationships. This raises a number of questions. How should property be divided, or spousal support obligations determined, upon separation if a person has had more than one spouse at once?
Whether or not they are in a romantic or intimate relationship, more than two people may wish to be parents together. As the laws of BC relating to children were not drafted with multi-parent families in mind, and very few issues have been put before the courts for determination, there are several legal challenges these families could face. Some unknown circumstances include:
- If assisted reproduction is used and there is a pre-conception agreement, can a child have more than three legal parents?
- If the child is conceived through sexual intercourse, can the parents who are not genetically related to the child be recognized as legal parents?
- In the event of a relationship breakdown, will all parents be obliged to pay child support? If so, how will child support be calculated? What would be considered a “shared parenting” schedule? How are section 7 expenses to be paid?
- In the event of the death of a parent, is there an ongoing obligation to support a child that has more than two parents?
It is clear from the basic questions set out above, the law has not contemplated its applicability to polyamorous families. However, this does not mean that multiparent or polyamorous families should simply give up.
One option that is recommended is that parties enter into a pre-conception and parenting agreement, which would set out the method of conception, and the intentions and the obligations of the parties with respect to parentage and parenting of the child. If any of the parties in the family wish to opt-out of the parenting arrangements, they could do so as well.
It is also recommended that parties seek advice about entering into a cohabitation agreement.
If you have a client who plans to enter a marriage-like relationship involving, or have children with, two or more other people, please encourage them to seek the advice of experienced counsel who have worked with multiparent and polyamorous families before.
- John-Paul E. Boyd, Perceptions of Polyamory in Canada (Calgary, AB: Canadian Research Institute for Law and the Family, 2017) at 74, 128, DOI: <10.11575/PRISM/34544>. | ↩