“The Family Law Act does not adequately provide for polyamorous families in the context of parentage”: BC Supreme Court
April 30, 2021
BY Kevin Zakreski
In British Columbia Birth Registration No. 2018-XX-XX5815, 2021 BCSC 767, the BC Supreme Court considered the following situation:
[8] The petitioners have lived together in a committed polyamorous relationship since 2017. The petitioners are in a relationship known in the polyamory community as a “triad”. As the petitioners explain, to them this means that they each have a relationship with one another and each of their relationships with each other are considered equal.
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[10] When Olivia joined Bill and Eliza’s relationship, she knew they were trying to conceive a child. At that time the three of them did not think it was necessary to “nail down” the exact type of relationship Olivia would have with the child. In early 2018, Bill and Eliza conceived Clarke through sexual intercourse, without the use of assisted reproduction. Although Eliza’s evidence is that the petitioners agreed prior to conception that Olivia would have the role of parent to the child, it is unclear whether all three of the petitioners were committed to Olivia being Clarke’s “full parent” prior to Eliza becoming pregnant. However, on the whole of the evidence, it is clear that at some point during Eliza’s pregnancy, the petitioners agreed Olivia would be involved in Clarke’s life as a “full parent”.
This was a rare family-law case not driven by interpersonal strife. As the court bluntly put it: “[i]t is their family makeup which brings them before the court.” The issue for the court to resolve was whether this family could be made to fit within the parameters of the Family Law Act’s parentage provisions. Ultimately, the court found that it couldn’t make a declaration of parentage under section 31 of the Family Law Act. But it did have the power under its parens patriae jurisdiction to remedy this gap in the legislation and declare Olivia to be Clarke’s parent, alongside Bill and Eliza.
In coming to this conclusion, the court made a series of noteworthy observations on part 3 of the Family Law Act.
“The key difference between parentage and guardianship is that parentage is immutable: the relationship between a parent and their child cannot be broken”
Parentage is a legal status. Guardianship of children is a separate concept, encompassing parental responsibilities. Parentage is established at a child’s birth and lasts a lifetime. Unlike guardianship, parentage doesn’t end when childhood ends. Even though parentage doesn’t embrace what may be called the functional elements of being a parent, establishing parentage is still important for legal and symbolic reasons.
Reflecting on these considerations, the court rejected an argument that “that the difference between being a ‘parent’ and being a ‘guardian’ is nominal, and that a parentage declaration would not give Olivia many more, if any more, substantive rights.” In the court’s view:
There are clear and tangible differences between being a parent and being a guardian, evidenced, in part, by the legislature’s decision to distinguish between these two roles with separate designations. A parentage declaration is also a symbolic recognition of a parent-child relationship. This difference should not be minimized.
“Section 31 allows a court to make a parentage declaration if there is dispute or uncertainty as to whether a person is or is not a parent”
Part 3 was intended to be a comprehensive legislative framework (PDF) for parentage in British Columbia. In the vast majority of cases, parentage will be established by application of part 3’s substantive rules. But there will always be a few cases that seem to fall outside these rules. For these cases, part 3 empowers the court to make declarations of parentage. But the court’s jurisdiction turns on finding that there is (1) a dispute or (2) any uncertainty as to whether a person is or isn’t a parent.
In the court’s view, neither of these two conditions could be met in this case. On the first condition, the court flatly stated that “there is no ‘dispute’ as to Clarke’s parentage.”
On the second condition, the court reviewed a series of past cases and found they could be distinguished from this case. These past cases involved what the court called “mistakes” in meeting the requirements of establishing parentage when surrogacy or donor assisted reproduction is employed. In the court’s view:
While s. 31 is broad enough to allow the court to correct mistakes, it does not give the court the overarching power to make parentage declarations not otherwise provided for in the FLA. The FLA does not contemplate a child having more than two parents when a child is conceived through sexual intercourse. Unlike the cases discussed above, there is no “uncertainty” as to who Clarke’s legal parents are under Part 3 of the FLA.
“The best interests of the child are always a consideration when making decisions that affect children and therefore are a consideration under Part 3 of the FLA”
In response to an argument that “the best interests of the child are not a consideration in making parentage declarations under Part 3 of the FLA,” the court decided that the best interests of the child should be considered. In support of this decision, the court pointed to case law and a general provision of the Family Law Act. The court concluded:
It is trite law that the best interests of the child are always an important factor which a court must consider when making decisions that affect children. While Part 4 of the FLA provides that the best interests of the child are the only consideration when making orders respecting guardianship, parenting arrangements, and contact, this does not preclude the best interests of the child from being considered under other parts of the FLA. While the best interests of the child are not the only consideration under Part 3 of the FLA, it would be contrary to the overall objective and purpose of the FLA to ignore the best interests of the child when making parentage declarations which by their very nature always affect a child/children. [emphasis in original]
“Part 3 of the FLA contains two different regimes for parentage”
The court drew a sharp distinction between “two different regimes for parentage: one regime that applies to children conceived through sexual intercourse, and one that applies to children conceived through assisted reproduction.” This way of viewing part 3 is particularly germane to this case because “[i]n the former regime a child may have one or two parents. In the latter regime a child may have one or more parents.”
“There is a gap in the FLA with regard to children conceived through sexual intercourse who have more than two parents”
Although the court decided there was no scope to make a declaration of parentage under section 31 of the Family Law Act, it noted that its “parens patriae jurisdiction may be used to bridge a legislative gap”: “the court has broad discretion to fill gaps that have arisen from changing social conditions.”
In considering the application of this jurisdiction, the court wrestled with an argument that “that there is no gap in the FLA and that Part 3 is a complete code for determining parentage in BC.” In considering this argument, the court returned to its theme that part 3 contains two different regimes for parentage. Past cases that have characterized part 3 as a complete code dealt with the provisions relating to children conceived by assisted reproduction. But the question in this case “is whether Part 3 of the FLA comprehensively codifies parentage when a child is conceived through sexual intercourse.” The court concluded that this is not the case; there is a gap that needs to be filled:
[66] As evidenced by Hansard, and by the fact that s. 26 of the FLA carries forward the equivalent provisions in the Law and Equity Act and [Family Relations Act] regarding children conceived through sexual intercourse, the legislature’s attention when drafting the FLA was not on modernizing the provisions relating to children conceived through sexual intercourse. This is further supported by the Ministry of Attorney General’s White Paper on Family Relations Act Reform which was released in July 2010 before the FLA received royal assent. The Ministry explains in the White Paper that “[the Family Law Act] will contain a comprehensive scheme for determining who a child’s legal parents are that takes into account the potential use of assisted conception. This fills gaps in the existing law of parentage…” (at p. 31).
[67] The Attorney General submits that because the FLA provides for a child having more than two parents in certain circumstances, i.e. where assisted reproduction is used for conception, this is not a case where a “modern-day court” can fill a gap in dated legislation. However, I do not think this point helps the Attorney General’s position. While the legislature may have contemplated families with more than two parents in the assisted reproduction context, this does not necessarily mean the legislature contemplated the possibility a child might have more than two parents in other contexts. In fact, it is clear to me that the legislature was not reviewing the concept of parentage in the context of children conceived through sexual intercourse. Those in the petitioners’ circumstances were not put before the legislature for consideration.
[68] For the reasons set out, I find that there is a gap in the FLA with regard to children conceived through sexual intercourse who have more than two parents. 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. This oversight is perhaps a reflection of changing social conditions and attitudes, as was found to be the case in A.A. and C.C. [PDF], or perhaps is simply a misstep by the legislature. Regardless, the FLA does not adequately provide for polyamorous families in the context of parentage. [ellipsis in original]
