Polyamory And Parent Status: BC Court Declares Parentage Order For A Third Parent In Polyamorous Triad

Published date03 May 2021
Subject MatterFamily and Matrimonial, Family Law, Wills/ Intestacy/ Estate Planning
Law FirmClark Wilson LLP
AuthorMs Jeannette Aucoin and Chantal M. Cattermole

On April 23, 2021, a BC Court ordered that a second mother in a polyamorous triad relationship be declared a legal parent. Re British Columbia Birth Registration No. 2018-XX-XX5815, 2021 BCSC 767 is the first case of its kind in BC and ground breaking, not only for polyamorous relationships, but also for reproductive technology and the issues of parentage.

The petitioners, Olivia, Eliza, and Bill, had lived together in a committed polyamorous relationship for several years. In 2018, they welcomed Clarke, who is the biological child of Eliza and Bill. As a result of s. 26 of the BC Family Law Act, only Bill and Eliza were named as legal parents on Clarke's birth registration. The application to add Olivia as Clark's parent was opposed by BC's Attorney General.

Olivia, Bill, and Eliza argued that:

  1. The court could make a parentage declaration for Olivia under s. 31 of the BC Family Law Act, on the basis that legal parentage was disputed or uncertain;
  2. The court could make the declaration under its parens partriae powers, which give the court inherent authority to protect persons who are legally unable to act on their own behalf such as children; or
  3. The court could find that s. 26 of the BC FLA is an unconstitutional violation of the Canadian Charter.

Bill and Eliza had been in a committed relationship since the early 2000s. In 2016, they began a polyamorous "triad" relationship with Oliva, which the court found "means they each have a relationship with one another and each of their relationships is considered equal." It was clear that at some point during Eliza's pregnancy, the petitioners agreed that Olivia would be involved in Clarke's life as a full parent.

At the time of this application, Clarke was 2 and half years old. Olivia had played an active role from the start, and even induced lactation so she was able to feed Clarke when he was born. Although she was not entitled to parental leave, she took unpaid leave to stay home with the family. She continues her involvement in Clarke's life as a parental figure. The court found that it was undisputed that "Clarke is being raised by three loving, caring, and extremely capable individuals."

The court found that a section 31 parentage declaration could not be made in this case. There was no "dispute" or "uncertainty" as to Clarke's parentage under Part 3 of the Family Law Act - his parents are Eliza and Bill, not Olivia. The Family Law Act does not contemplate a child having a third parent, unless that...

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