Court flags gap in law for children conceived through intercourse who have more than two parents
A British Columbia judge ruled that a third person — a second mother — be added to a child’s birth certificate, as she found that current family laws in the province did not contemplate the concept of polyamorous families.
“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,” Justice Sandra Wilkinson of the Supreme Court of B.C. wrote in a decision released on April 23.
“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.”
The oversight may reflect changing social conditions or simply a misstep by the legislature, Justice Wilkinson wrote. “Regardless, the FLA [Family Law Act] does not adequately provide for polyamorous families in the context of parentage.”
To remedy this gap, Justice Wilkinson exercised her jurisdiction to declare that the second mother is a legal parent, alongside the child’s birth parents, as it is in his “best interests to have all of his parents legally recognized as such.”
The court can use the court’s parens patriae jurisdiction to bridge a legislative gap, though it should not broadly interfere with existing laws.
“I am happy to see that the law is finally catching up to the reality of polyamorous and multi-parent families in British Columbia,” says lawyer Catherine Wong, who acted for the applicants.
The petitioners, Olivia, Eliza, and Bill have lived together in a committed polyamorous relationship since 2017. (The court anonymized names.) They are in a relationship known in the polyamory community as a “triad.” Justice Wilkinson wrote: “This means they each have a relationship with one another and each of their relationships with each other are considered equal.”
In the fall of 2018, the petitioners had their first child, Clarke. Eliza and Bill are Clarke’s biological parents and, therefore, according to B.C.’s Family Law Act, are the only legal parents named on Clarke’s birth registration. At some point during the pregnancy, the three agreed that Olivia would be involved in Clarke’s life as a “full parent.”
If Olivia, Bill and Eliza used assisted reproduction (surrogacy or sperm donor) to conceive, Wilkinson wrote, they might have been able to draw up an agreement that all be declared parents under a different section of the Family Law Act.
But because Clarke was conceived through sexual intercourse, the act left no room on his birth certificate for anyone but a birth mother and a “presumed” biological father. Wrote Wilkinson: “Currently, Olivia does not have any legal rights as a parent. She has also not applied for guardianship, so she does not have any legal rights as a guardian.”
Wilkinson also pointed out that a legal distinction between Olivia and the other two members of the relationship “may create an inequity between their roles in Clarke’s life which would negatively impact Clarke.
“Recognition of Olivia as Clarke’s legal parent would also allow Olivia to access additional statutory and other benefits for Clarke which, in turn, would positively impact him. For example, Olivia testified that a declaration of legal parentage would mean that Clarke could be added to her employer’s extended health plan.”
B.C.’s attorney general objected to having Olivia declared as Clarke’s third legal parent, arguing it would open the floodgates for parentage declarations in the future. However, Wilkinson wrote: “I do not think this concern is warranted nor a reason to refrain from exercising my parens patriae jurisdiction in the circumstances.
“It is uncommon for an individual to come to court wanting a parentage declaration. In fact, in many family law cases that come before the court, parents are trying to skirt their responsibilities, instead of secure them.” But the courts must evaluate the particular circumstances of each case before exercising parens patriae jurisdiction.
The attorney general also argued it would be an “insignificant” difference to name Olivia a legal guardian rather than a parent. However, Justice Wilkinson pointed out in her ruling that being named a parent is a lifelong status compared to guardianship. “While some of these practical implications would be ‘cured’ if Olivia were to become Clarke’s guardian, guardianship is not equivalent,” she wrote, adding that Clarke is being raised “in a loving and supportive family” by three “highly capable” parents.
“A declaration of parentage is a lifelong immutable declaration of status, and the rights and responsibilities that come along with that status.”
Wilkinson also ruled that, as the government did not contemplate this “gap” in the law, it is up to the legislature to “clarify when (and if) a child may have more than two legal parents if they are conceived through sexual intercourse.”
The ruling in B.C. is one of several that have come from courts across Canada in recent years as the legal system wrestles with the changing makeup of the modern family.
These include a 2007 decision from the Ontario Court of Appeal that favoured a same-sex female couple who wanted both of their names listed as mothers alongside the name of the man who helped them start a family.
More recently, another B.C. Supreme Court judge ruled that a man who donated his sperm to a female same-sex couple could have his name listed on the birth certificates of the children born to each woman.
In 2018, three members of a polyamorous family in St. John’s won their application to identify all three on their child’s birth certificate.
The Newfoundland and Labrador case involved two men and one woman, and — unlike the one involving Clarke — it wasn’t known which of the men was the biological father.
In Alberta, the Family Law Act is similar to the law in B.C. The basic rule under Alberta law is that the parents of a child are the birth mother and the biological father, unless there was an adoption or assisted reproduction was used to conceive the child.
The family in the B.C. case also made a Charter argument that the law discriminated against them, under s. 15, based on family status. Justice Wilkinson did not rule on this argument because she declared Olivia as a parent using her parens patriae jurisdiction.
However, Wilkinson wrote the applicants likely would not have successfully used that argument, as they would have had to prove family status is an “analogous” ground.
“While family status has come before the courts previously as a proposed analogous ground, it has yet to be found to be as such.” For a court to find a new analogous ground, there needs to be “significant evidence and submissions.”
Whether family status is an analogous ground “requires looking beyond the petitioners’ circumstances, Wilkinson wrote. “This is because once an analogous ground is recognized in a Charter case, it is recognized for . . . all future potential Charter cases.”
Wong, who acted for Olivia, says this is an important decision and that Olivia is finally acknowledged as an equal parent to Clarke as Bill and Eliza, “as it recognizes that the family law has not been serving the diversity of families that exist in British Columbia.”
She adds: “The law basically did not contemplate these types of families. And what we know is that this family is not unique, that a diversity of families in British Columbia exist. We’re hopeful that this is the first step towards further law reforms, so that all families can be recognized.”
Lawyer Zara Suleman, who acted for Eliza, adds that, while the decision is positive, it required multiple lawyers and many resources. “Most families will not have the ability to pursue such claims. Most polyamorous, multi-parent or diverse families will continue to fall through this legal ‘gap’ unless we see some immediate law reform.”
Monique Shebbeare, counsel for Bill, says that when the legislature passed the Family Law Act in 2011, it was “very progressive” legislation. “But society has evolved in the last 10 years.”
She adds: “The case also makes some really important points about the importance of parentage, that it is a lifelong immutable declaration of status, which gives so much more certainty and peace of mind to the family than guardianship.”