Polyamorous relationships and the best interests of the child
August 23, 2018 By: David Ang and Paul Taylor-Sussex Read Time: 3 minutes
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The law is getting better at acknowledging and protecting family configurations that range beyond the nuclear, such as single parents and same-sex parents. However, there are some family units that the law has been slow to recognise.

A case before the Newfoundland and Labrador Supreme Court looked at three adults in a polyamorous relationship. Polyamory, where people maintain multiple intimate relationships with different people, is legal in Canada. On the other hand, polygamy (usually where a man marries more than one woman) is not.

Polyamorous

The facts

The case, C.C. (Re), concerned J.M. and J.E., two male partners in a polyamorous relationship with C.C. The three have been together since 2015, and a child, A., was born of the relationship in 2017. The biological father is not known.

J.M. and J.E. sought to have themselves legally recognized as parents of A., pursuant to section 7 of NL’s Children’s Law Act (relating to declaration of fatherhood).

The law in Newfoundland and Labrador

In the decision, Justice Fowler acknowledged the shortcomings in NL’s legislation when it comes to dealing with polyamorous family relationships.

Under NL’s Vital Statistics Act, you are not able to register more than two parents on a child’s birth certificate. Likewise, other related laws, such as the Children’s Law Act, all refer to the father of a child as a “man”; that is, in the singular. In addition, parents are referred to collectively as “both parents” – which implies two individuals.

Justice Fowler makes a point of emphasizing that in all family law matters dealing with children, the best interests of the child are paramount and a determining factor for courts. NL’s Children’s Law Act was introduced almost 30 years ago, and he argued that it was never intended to discriminate against children, regardless of parentage.

He noted that, in this case, the child “has been born into what is believed to be a stable and loving family relationship which, although outside the traditional family model, provides a safe and nurturing environment.” To deny the recognition of fatherhood, Justice Fowler concluded, would not be in the child’s best interests.

Therefore, he issued a declaration that both J.M. and J.E. are the fathers (parents) of the child, born of the polyamorous relationship with C.C., the mother.

Conclusion

This is a landmark ruling, and an important step in recognizing non-traditional family relationships.

Interestingly, here in Ontario, the All Families Are Equal Act came into force last year, which amended the Children’s Law Reform Act to allow up to four parents on a birth registration for a child born through surrogacy. You can read more about that Act here. The Children’s Law Reform Act continues to have provisions for declarations of parentage, though we have yet to see any court decisions in Ontario like the C.C. (Re) case.


Last year, our own Marta Siemiarczuk was involved in a historic case involving two mothers of a child who were not in a conjugal relationship. The court granted their request for a declaration of parentage that recognized the non-biological mother as the child’s parent. You can read more about Marta’s work here.

Society is constantly evolving, and it is through vital cases like these that the law continues to evolve with it.

For more about declarations of parentage, contact our Family Law Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2018 Nelligan O’Brien Payne LLP.

Service: Family Law
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