The area and practise of family law is shaped by and evolves through societal change, legislation, global events (like a pandemic), and through judicial decisions of the Courts in Ontario and across Canada. FamilyMatters is the Lerners Family Law Group’s weekly update on how that change is being made:
In recent years across Canada, courts and the government alike have been making strides to recognize and expand on the definition of a legal “parent”.
In a decision released in April, 2021 by the British Columbia Supreme Court, Justice Sandra Wilkinson found that three parties living together in a romantic relationship were all legal parents of the child they share together. Justice Wilkinson further ordered that all three parents may be listed on the child’s birth registration.
The parties have lived together in a committed polyamorous relationship since 2017. They are in a relationship known in the polyamory community as a “triad”. Since the child’s birth, the parties have shared parenting responsibilities.
The child was conceived through sexual intercourse between two of the three parents. Accordingly, B.C.'s Family Law Act only permitted two parents to be named on the child’s birth certificate - a birth mother and a "presumed" biological father. In the case at hand, this meant that one of the members of the triad - a female who had not conceived or given birth to the child - could not be recognized in law to be a parent of the child.
It is of note that a separate regime is set out in B.C.’s legislation as it pertains to the parentage of a child conceived through assisted reproduction. In the case of assisted reproduction, British Columbia’s Family Law Act actually does permit three people to be named as a child’s legal parents. This could include two intended parents, and a donor of genetic material for example, so long as the parties have a written pre-conception agreement in place prior to the child being conceived.
Accordingly, Justice Wilkinson acknowledged that there is a “gap” in British Columbia’s legislation that was likely unintended. She noted: "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."
With decisions like this becoming more commonplace and long overdue updates being made to legislation with respect to matters of parentage, we are likely to continue seeing changes that are more inclusive of the many diverse kinds of families we have across the country.
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