The Supreme Court of British Columbia recently ruled that all three parents in a polyamorous relationship were legal parents of an infant child they had been raising together. This case addresses the gap in the Family Law Act (“FLA”) which fails to account for children conceived through sexual intercourse who have more than two parents.
The petitioners, Eliza, Olivia, and Bill were living in a committed polyamorous relationship since 2017. They considered themselves to be a “triad”, which meant each had a relationship with the other and each relationship was considered equal.
In 2018, Eliza gave birth to Clarke. Given that Eliza and Bill were the biological parents of Clarke, only their names were listed on the birth certificate. The petitioners sought a court declaration that Olivia also be recognized as Clarke’s legal parent and added as a mother to the birth registration.
A Gap in the Family Law Act?
The FLA contains two ways to determine parentage. The first applies to children conceived through sexual intercourse and the second applies to children conceived through assisted reproduction. In the first regime, the child can have one or two parents and in the second regime, a child can have one or more parents. The petitioners argued that there was a gap in the FLA, as the legislatures did not contemplate the possibility of children conceived through sexual intercourse having more than two parents. The decision, therefore, hinged on whether the FLA comprehensively considered parentage where a child is conceived through sexual intercourse.
The Attorney General contended that there was no gap in the legislation; the legislatures intended to limit the parents of a child conceived through sexual intercourse to their birth mother and biological father. The Attorney General held that if the legislatures wanted to account for polyamorous relationships in their drafting of the FLA, they would have done so.
The Court, however, found that the legislatures were intent on updating the law regarding children conceived through assisted reproduction. The legislatures were not focused on reviewing or updating the law on parentage in regards to children conceived through sexual intercourse. According to the Court, “[p]ut bluntly, the legislature did not contemplate polyamorous families. This oversight is perhaps a reflection of changing social conditions or attitudes . . . or perhaps is simply a misstep by the legislature”. Either way, the Court found that the FLA did not sufficiently consider polyamorous families in regards to parentage.
The Court, therefore, exercised its parens patriae jurisdiction pursuant to s. 192(3) of the FLA and declared that Olivia was also Clarke’s legal parent.