Olivia, Eliza, Bill, and Clarke are a family made up of three parents and one son. Their family makeup brought them before the BC court, seeking a parentage declaration in the context of their polyamorous relationship. As BC’s Family Law Act does not adequately provide for polyamorous families in the context of parentage, the court exercised its discretion to declare that the second mother is the child’s third legal parent.
Background leading to this significant BC family law case
Olivia, Eliza, and Bill have been living together in a committed polyamorous relationship since 2017, known in the polyamory community as a “triad.” To them, this means that they each have a relationship with one another and each of their relationships with each other are considered equal. In early 2018, Bill and Eliza conceived a child through sexual intercourse, without the use of assisted reproduction. During the pregnancy, Olivia, Eliza, and Bill agreed that Olivia would be involved in the child’s life as a “full parent.” In the fall of 2018, the child—a boy named Clarke—was born. Olivia played a very active role in preparing for his birth, going as far as inducing lactation so she would also be able to feed Clarke when he was born. In fact, Olivia was the first parent to feed Clarke after he was born. After Clarke’s birth, Olivia never wavered from her intention of being Clarke’s parent and Olivia, Eliza, and Bill shared parenting of Clarke.
Second mom had no legal rights as parent under BC family law
Olivia’s role in Clarke’s life is the same as Eliza’s and Bill’s. She identifies as Clarke’s parent, and Clarke sees her as one of his mothers. All three agreed that Olivia should be recognized as Clarke’s legal parent, alongside Eliza and Bill. However, Olivia did not have any legal rights as a parent. The BC Family Law Act (“FLA”) recognizes that a child may have three or more legal parents if the child is conceived through assisted reproduction. The FLA does not contemplate a child having more than two parents when a child is conceived through sexual intercourse. Because Clarke was conceived by sexual intercourse, BC family law only recognizes his biological parents—Bill and Eliza—on his birth registration.
Declaration of parentage in polyamorous triad
When Clarke was two and a half years old, Olivia, Eliza, and Bill (the “Petitioners”) sought a declaration that Olivia is Clarke’s third legal parent and that his birth registration be amended accordingly. Unlike many family law matters which come before the BC courts, British Columbia Birth Registration No. 2018-XX-XX5815, 2021 BCSC 767 was not an instance of family members taking adverse positions or trying to skirt their responsibilities. Rather, all of the Petitioners agreed that the second mother should be declared the child’s third legal parent. Madam Justice Wilkinson agreed and directed the BC Vital Statistics Agency to amend Clarke’s birth registration so that Olivia is named as Clarke’s third legal parent, alongside Bill and Eliza.
Best interests of the child must be considered
Madam Justice Wilkinson affirmed that BC courts are statutorily required to consider the best interests of the child in deciding whether a parentage declaration is warranted. On the facts in this case, it was clear that Clarke was being raised in a loving and supportive family by three highly capable parents. It was in Clarke’s best interests to have all of his parents legally recognized as such. Recognition of Olivia as one of Clarke’s legal parents would secure Olivia’s legal financial obligations to Clarke which require parents to support and provide for their children. Neither Olivia nor Clarke would be placed in a position of having to differentiate their relationship from Clarke’s relationship with Eliza and Bill. A legal distinction between the relationships 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.
Court uses its inherent discretion to address changing social conditions
BC courts have broad discretion, known as parens patriae jurisdiction, to fill gaps that have arisen from changing social conditions. Madam Justice Wilkinson found that there is a gap in the FLA with regard to children conceived through sexual intercourse who have more than two parents. About a decade ago, BC family law was modernized to address the issue of children conceived through assisted reproduction. The evidence before the court indicated that when those changes were made, legislature did not foresee the possibility a child might be conceived through sexual intercourse and have more than two parents. Put bluntly, the BC legislature did not contemplate polyamorous families. It remains to be seen whether BC lawmakers will now amend the FLA in light of the declaration made in Clarke’s case to make it easier for polyamorous families to have parentage recognized.
Why parentage is important
The fact that Olivia was not Clarke’s legal parent had practical and symbolic implications. Some of these practical implications would be “cured” if Olivia were to become Clarke’s guardian (the position the BC Attorney General took in response to Olivia’s petition). Madam Justice Wilkinson held that guardianship is not equivalent to parentage and guardianship is not a “cure-all” for Olivia. A declaration of parentage is a lifelong immutable declaration of status, and there are significant rights and responsibilities that come along with it. It allows the parent to fully participate in the child’s life. For example, the declared parent may register the child in school, make health care decisions, and obtain an MSP card, a social insurance number, airline tickets and passports for the child. Parentage also determines lineage, citizenship, potential access to parental leave, and certain financial obligations (including responsibility for child support) and ensures that a child will inherit on intestacy. However, and perhaps most importantly, the key difference between parentage and guardianship is that parentage is immutable: the relationship between a parent and their child cannot be broken.
Take home point on recognition of parentage under BC family law
A declaration of parentage provides both legal and symbolic recognition of the parent-child relationship. The importance of a child’s birth registration cannot be underestimated. It is a document that describes a child’s origin and provides rights to both parents and children. It should be inclusive and reflect the intentions of those involved with the child’s birth.