In a recent decision of the BC Supreme Court, British Columbia Birth Registration No. 2018-XX-XX5815, 2021 BCSC 767, the Court determined that all three parents in a polyamorous “triad” be named legal parents of their two-year-old son. This matter came before the Supreme Court of British Columbia as a result of the parents recognizing a gap in the Family Law Act that did not allow all three of them to be named the legal parents of their child.
The three parents had been involved in a romantic relationship since 2016. In 2018, two of the three parents conceived the child without the use of assisted reproduction. The soon-to-be-parents concluded that they all three wanted to play an equal role in parenting the child. However, as the child was conceived through sexual intercourse, the Family Law Act did not allow all three parents in this polyamorous relationship to be named the legal parents of the child.
According to s. 30 of the Family Law Act, a child is legally allowed to have three parents, but only if the child is conceived through assisted reproduction (surrogacy, adoption, etc.). The court agreed that there is a gap in the Family Law Act, as the legislation fails to consider polyamorous parents.
Prior to the Supreme Court of British Columbia provided meaningful comments that address important distinctions found in Part 3 of the Family Law Act. The court found that the distinction between parentage and guardianship is that parentage is a lifelong relationship between a parent and their child and that guardianship ends when childhood ends. Based on the foregoing distinction, the Supreme Court of British Columbia rejected an argument that “the difference between being a ‘parent’ and being a ‘guardian’ is nominal, and that a parentage declaration would not give the third parent many more, if anymore, substantive rights.
The Court provided the following regarding the meaningful distinction between a ‘parent’ and a ‘guardian’:
“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.”
Further, Part 3 of the Family Law Act empowers the Court, in the majority of cases, to make parentage declarations. But the Supreme Court of British Columbia’s authority relies on finding that there is (1) a dispute or (2) any uncertainty as to whether a person is or is not a parent. In this case, there is neither a dispute nor uncertainty about Clarke’s parentage. Though section 31 of the Family Law Act is broad enough to allow the court to fix errors, the court cannot make parentage declarations that are not already outlined in the Family Law Act.
Although the Supreme Court of British Columbia did not have the overarching power to make a parentage declaration in this matter, the Supreme Court of British Columbia found that their “parens patriae jurisdiction may be used to bridge a legislative gap”. As such, the Supreme Court of British Columbia affirmed that they have the discretion to bridge gaps in the law that have come to light from evolving social conditions, such as evolving family dynamics.
Upon review of the Family Law Act, the British Columbia Supreme Court recognized the failure of the legislation to consider polyamorous family dynamics. The Honourable Justice Wilkinson’s determination in this matter reflects the evolving nature of family dynamics and the ability of the court to assist with addressing legislative gaps. As a result of this decision, it is now possible for three legal parents to be appointed by the court with regard to a child conceived in a polyamorous relationship.