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A British Columbia Supreme Court judge has ordered that all three members of a polyamorous “triad” should be registered as parents of the two-and-a-half-year-old boy they are raising together as a family.
In a decision released Monday, Justice Sandra Wilkinson said a “gap” in the provincial law dealing with parentage of children prevented a woman known as Olivia from being legally recognized as the mother of the child she considers her son.
Olivia has been in a romantic relationship with Bill and Eliza since 2016, two years before Eliza gave birth to Bill’s baby, Clarke. The parties have been anonymized by an order of the court.
But because Clarke was conceived through sexual intercourse, B.C.’s Family Law Act left no room on his birth certificate for anyone but a birth mother and a “presumed” biological father.
“I find that there is a gap in the [Family Law Act] with regard to children conceived through sexual intercourse who have more than two parents,” Wilkinson wrote.
“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.”
Legal system grappling with modern family
The decision is one in a series of rulings in cases that have played out in courts across Canada in recent years as the legal system grapples with the changing makeup of the modern family.
They include a 2007 decision in which the Ontario Court of Appeal found in favour of a same-sex female couple who wanted both of their names listed as mothers alongside the name of the man who helped them start a family.
And more recently, another B.C. Supreme Court judge ruled that a man who donated his sperm so members of a female same-sex couple could get pregnant could have his name listed on the birth certificates of the children born to each of the women.
In that case, the ruling centred around written and verbal agreements that made it possible for more than two people to be registered as parents under the section of the law dealing with assisted reproduction.
According to Wilkinson’s ruling, Olivia knew Eliza and Bill were trying to have a child when she joined their relationship.
Once Eliza got pregnant, it was accepted that Olivia would be a “full parent.”
“Olivia went as far as inducing lactation so she would also be able to feed Clarke when he was born,” Wilkinson wrote.
“In fact, Olivia was the first parent to feed Clarke after he was born.”
If Clarke has been conceived through assisted reproduction — such as a sperm donor or surrogate parent — Olivia, Bill and Eliza might have been able to draw up an agreement to all be declared parents under a different section of the Family Law Act.
But Wilkinson said that option wasn’t open to a child born through sexual intercourse.
‘A lifelong immutable declaration’
Olivia’s lawyer, Catherine Wong, said she was “elated” by the decision.
“It’s a sign we’re seeing that the law is actually catching up to the reality of polyamorous families or multi-parent families in British Columbia,” Wong said.
“In that sense, it’s a very important case because it recognizes the diversity of families in B.C. and that the law was not working for all families until now.”
In 2018, in what was believed to be a Canadian first, a court in Newfoundland and Labrador allowed three members of a polyamorous relationship to be declared parents of a baby.
But in that situation, the relationship involved two men and one woman, and — unlike the present one involving Clarke — it wasn’t known which of the men was the biological father.
B.C.’s Attorney General objected to having Olivia declared as Clarke’s third legal parent, arguing that it would “open the floodgates for parentage declarations in the future.”
But Wilkinson said that wasn’t likely to happen.
In fact, the judge noted, many people come to court trying to avoid parental responsibilities — not embrace them.
Lawyers for the Crown also claimed there was only a nominal difference between having Olivia declared a parent or a legal guardian.
But Wilkinson said a declaration of parentage “is a lifelong immutable declaration of status.”
In a statement to CBC News, Olivia, Bill and Eliza said they hoped the decision would provide “a stepping stone for other non-traditional families in similar situations.”
“Prior to this decision, Olivia had no legal rights as a parent and we had become accustomed to making sacrifices as a result of not fitting into the traditionally held definition of family,” they said.
“We are excited to see the law begin to catch up with the way increasing numbers of people are building families.”
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