ST. JOHN’S, N.L. – In what is believed to be a legal first in Canada, a court in Newfoundland and Labrador has recognized three unmarried adults as the legal parents of a child born within their “polyamorous” family.
Polyamorous relationships are legal in Canada, unlike bigamy and polygamy, which involve people in two or more marriages.
In this case, the St. John’s family includes two men in a relationship with the mother of a child born in 2017.
“Society is continuously changing and family structures are changing along with it,” says the decision, by Justice Robert Fowler of the Newfoundland and Labrador Supreme Court’s family division.
“This must be recognized as a reality and not as a detriment to the best interests of the child.”
The April 4 decision says the unconventional family has been together for three years, but the biological father of the child is unknown. The family members are not identified in the decision, which was released Thursday by the court.
It’s not the first time a Canadian court has recognized that a family can have three legally recognized parents. In 2007, for example, the Ontario Court of Appeal recognized two women in relationship as the mothers of a child whose biological father was already deemed a legal parent. But the three adults in that case were not in a relationship.
The three people in the Newfoundland case turned to the courts after the province said only two parents could be listed on the child’s birth certificate.
Lawyers for the province’s attorney general argued that the provincial Children’s Law Act does not allow for more than two people to be named as the legal parents of a child.
The lawyer for the family, Tracy Bannier, said the law has not kept up with changes in Canadian society.
“It wasn’t that the legislation was specifically prohibiting any child from having more than two parents,” she said in an interview Thursday. “It’s just that the legislators at the time simply didn’t consider a family structure with more than two parents. Because it didn’t prohibit it, there was a gap in the legislation.”
In his decision, Fowler said his decision hinged on what was in the best interests of the child.
Fowler said the child was born into a stable, loving family that has provided a safe and nurturing environment.
When the Children’s Law Act was introduced about 30 years ago, he said, it did not contemplate the “now complex family relationships that are common and accepted in our society.”
The judge said it was clear the legislation was aimed at assuring equal status for all children, but he agreed that the law included an unintentional gap that acts against the best interests of children born into polyamorous relationships.
“I have no reason to believe that this relationship detracts from the best interests of the child,” Fowler’s decision says.
“On the contrary, 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.”
Toronto-based lawyer Adam Black said the most significant legal implications of this case will arise when polyamorous relationships break down.
“How do we use the current model to resolve the issues that arise when there are three parents, particularly with respect to issues of property and support — the financial side of the breakdown?” said Black, a partner in the family law group at Torkin Manes LLP.
“For me, this is very much uncharted waters. It’s a new frontier in family law.”
He said the Supreme Court of Canada has dealt with so-called joint family ventures, which deal with the sharing of property among unmarried people.
But more legal changes will be needed, he said.
“The legislature may need to turn its mind to these issues to have the legislation keep pace with the evolution of what a family looks like today,” Black said, adding that the Ontario legislature modified some legislation last year with the All Families are Equal Act.
“There’s seems to be a bit of appetite for these types of changes,” he said.
— By Michael MacDonald in Halifax