Polyamorous Relationships: Judicial Recognition of More Than Two Parents

In a recent Newfoundland and Labrador Supreme Court case known as CC (Re)[1], two male partners applied for a declaratory order of parentage of the newborn child of their female partner. The three adults were all in a polyamorous relationship together, and the two men requested that they both be declared parents (along with the mother herself) of the child.

In his written decision released on April 4, 2018, Justice Robert Fowler granted the men’s request. He did so despite agreeing with the Attorney General’s argument that that province’s Children’s Law Act (CLA)[2] does not contemplate the possibility of a child having more than two legal parents. In particular, section 26(3) of the CLA provides that “where more than 1 person is entitled to custody of a child, 1 of them may exercise the rights and accept the responsibilities of a parent on behalf of both in respect of the child,” while section 28(2)(a) provides that “a child is habitually resident in the place where he or she lived with both parents.”[3] Justice Fowler acknowledged that this use of the word “both” means that the House of Assembly did not contemplate the possibility of a child having more than two legal parents; therefore, the CLA could not be used as authority for the declaration the applicants were seeking.[4]

However, statutory interpretation did not end the matter. Justice Fowler invoked the court’s parens patriae jurisdiction to grant the declaration sought by the two men. Parens patriae is a Latin term meaning “parent of the nation,” and this broad jurisdiction allows a Canadian superior court to step in and act as a parent to a child in need of its assistance. Parens patriae is an inherent jurisdiction of the superior courts which exists independent of legislation.

Justice Fowler cited two cases in support of this use of parens patriae jurisdiction. In both cases, the courts intervened after finding a “gap” in the relevant legislation. First, in Beson v Newfoundland (Director of Child Welfare),[5] the Supreme Court of Canada held that because the relevant legislation offered no appeal from a government decision to remove a child from the home of prospective adoptive parents, the court had an obligation to intervene. On this case, Justice Fowler commented: “It would seem from Wilson, J.’s comments that the crucial factor in using the Courts parens patriae power was to protect the best interests of the child in that case.”[6]

Second, in A(A) v B(B)[7], two women had applied to both be legally recognized as parents of a child. The Ontario Court of Appeal found a gap in Ontario legislation which contemplated that a child could only have one mother and one father. Justice Fowler found persuasive that Court’s reasoning that in determining whether a legislative gap exists, “the realities of a changing society must not be ignored to the detriment of children who no longer fit the traditional family model.”[8]

Thus, two principles from these cases were found by Justice Fowler to be relevant: the best interests of the child should be the primary factor in determining whether it is appropriate to use the parens patriae jurisdiction to fill a legislative gap; and when determining whether there is a gap, it is appropriate to consider relevant social changes since the drafting of the legislation. He wrote: “I am of the opinion that when the CLA was enacted in this Province it was never the intention of the legislature to discriminate against any child but clearly to bring about equal status for all children notwithstanding their parentage.”[9] Therefore, the effect on the child in this case of a technical interpretation of the CLA would be contrary to the very purpose of that statute. In determining whether the declaration sought would be in the child’s best interests, Justice Fowler examined what appeared to be “a stable and loving family relationship” and concluded, “I can find nothing to disparage that relationship from the best interests of the child’s point of view.”[10] He also reasoned that “to deny the recognition of fatherhood (parentage) by the Applicants would deprive the child of having a legal paternal heritage with all the rights and privileges associated with that designation.”[11]

This written decision is the first of any Canadian court declaring all members of a polyamorous relationship to be legal parents of a child. It is therefore significant to all Canadians, because courts in other provinces may consider it highly persuasive. Although this case is novel on its particular facts, it follows previous jurisprudence which used parens patriae jurisdiction in different situations to remedy unintentional legislative gaps. CC (Re) therefore illustrates the broad and discretionary nature of parens patriae jurisdiction, and how it can be used to protect a child’s best interests in various contexts.

This judicial approach does have its limitations, however: the decision hinges on the finding that the legislative gap was unintentional, based on a contextual analysis of the purpose of the entire statute. If a gap were found to be intentional, parens patriae jurisdiction could not be used to remedy it. Instead, such legislation could be subject to a constitutional challenge under section 15 (the “equality provision”) of the Canadian Charter of Rights and Freedoms. Section 15 has been used to extend support rights and obligations to same-sex couples where legislation failed to do so.[12] In Alberta, section 9(7)(b) of the Family Law Act[13] explicitly provides that a declaration of parentage “may not be made” if it “would result in the child having more than 2 parents.” Unless the Legislative Assembly amends this legislation, a constitutional challenge may be required in Alberta to achieve the type of declaration sought in CC (Re).

Our legal system is designed to be able to respond to social change in order to provide equal protection to all individuals. Re CC exemplifies the system’s flexibility, but also raises further questions. For example, if this family relationship breaks down and the child lives with one parent full-time, would the other two parents each be liable for Guideline child support payments as if the other non-custodial parent didn’t exist? Also, if one partner is found to be entitled to a quantum of partner support that both other partners can pay, could one of those payors be liable for the full amount and then be left to seek an accounting from the other “payor” partner? The courts may be forced to answer these and other potential questions as individuals from non-traditional families increasingly seek “traditional” legal remedies.

[1] 2018 NLSC 71.

[2] RSNL 1990, c C-13.

[3] Emphasis added. See para 21.

[4] See paras 23-24.

[5] [1982] 2 SCR 716.

[6] Para 26.

[7] 2007 ONCA 2.

[8] Para 28.

[9] Para 33.

[10] Para 34.

[11] Para 35.

[12] See M v H, [1992] 2 SCR 3.

[13] SA 2003, c F-4.5.

About Alex Kubish

Alex Kubish is a third year law student at the University of Alberta Law School. He worked as a summer student at the Edmonton Community Legal Centre in 2018, assisting the Family Law Department. Alex has also volunteered with Student Legal Services, an organization which provides free legal information to Edmontonians.
This entry was posted in Family Law, legal aid, Public Policy, Uncategorized and tagged , , , , , , , . Bookmark the permalink.

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