By Monique Shebbeare
In British Columbia Birth Registration No. 2018-XX-XX5815, 2021 BCSC 767 – a case in which I was honoured to be one of the three lawyers each representing one of the parents involved – the court granted a parentage declaration to the third parent in a polyamorous family where only two parents were legally recognized at birth. The court used its parens patriae jurisdiction to act in the best interests of a child to remedy a gap in the law – to declare Olivia a legal parent and order the Vital Statistics Agency to amend the birth registration. The Vital Statistics Agency didn’t take a position, but the Attorney General of BC opposed the petition.
Facts of the case
Olivia (seeking parentage), Eliza and Bill were living together in a committed polyamorous relationship when their first child was born. As the Justice Wilkinson explained, they are a “triad”, meaning they each have a relationship with one another and each of their relationships with each other are considered equal.
Their child, Clarke, was conceived through sexual intercourse with Eliza and Bill as the biological parents. In the decision, the judge explained that they didn’t feel the need to “nail down” Olivia’s relationship with the child until after the child was conceived, and they agreed during the pregnancy that Olivia would be a full parent, even going so far as to induce lactation so she could breastfeed. Since birth, all three parents have been living and parenting together, with the support of their family and friends.
The original birth registration could not include Olivia
When Clarke was born, they would only register Eliza and Bill as parents. Under the parentage provisions of BC’s Family Law Act, there are different parentage regimes for children conceived through sexual intercourse and those conceived through assisted reproduction. For children conceived through sexual intercourse, the legal parents are the birth mother and the presumed biological father (presumed, because there are various situations where a man is presumed to be the biological father such as if he is married to or in a marriage-like relationship with the birth mother at birth or 300 days before birth – no DNA test is required unless there’s a dispute).
For assisted reproduction, it is possible to have more than 2 parents in certain situations, but not so for children conceived through sexual intercourse.
Court’s decision to declare Olivia a legal parent
The court used its parens patriae jurisdiction to fill a gap in the law in the best interests of the child. Justice Wilkinson found that when the Family Law Act was passed in 2011, the legislature was very focused on assisted reproduction when it came to parentage. For children born through sexual intercourse, the legislature just brought forward the substance of the old law. The legislature had not considered polyamorous families, where a child born through sexual intercourse might have more than two parents. Therefore, there was a gap in the law when it came to children born through sexual intercourse who have more than two parents. A few other important points the court made clear:
- A declaration of parentage is really important because it is a lifelong immutable declaration of status for both the parent and the child. It goes beyond the many important things becoming a legal guardian can do, “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 both practical and symbolic.
- The best interests of a child are always a consideration when making decisions that affect children.
In this case, all of the parents agreed that Olivia should be a parent, and the court found that there were all very capable parents raising Clarke in a loving and supportive family. The declaration of parentage would secure Olivia’s legal obligations to Clarke. Olivia and Clarke’s relationship would be on par, and not need to be differentiated from, Clarke’s relationships with Eliza and Bill. The declaration of parentage would give the family “security, peace of mind, and validation of the role Olivia plays in Clarke’s life.”
The parents had also argued that s. 26 of the Family Law Act was unconstitutional on the basis of the equality rights under s. 15 of the Charter because it discriminated against them on the basis of family status in not recognizing them all as parents. However, family status has not yet been recognized as an analogous ground under the Charter, despite being discussed in several cases. The court found the record in this case was not robust enough to meet the high bar for establishing a new analogous ground of discrimination which would have far reaching implications for all future Charter cases.
The family’s reaction to the decision
Olivia, Bill and Eliza have this to say about the court decision:
“We are truly grateful for the ongoing support and acceptance of our friends and family. We’ve been engaged in the process to obtain this declaration of parentage for 3 years and we are elated and relieved by Madame Justice Wilkinson’s decision.
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. Unlike guardianship, this declaration of parentage is a lifelong immutable declaration of status that provides our family a level of reassurance often taken for granted by others. We are excited to see the law begin to catch up with the way increasing numbers of people are building families. We hope that this decision provides a stepping stone for other non-traditional families in similar situations and are optimistic for a future where polyamourous families don’t have to exist in the grey areas anymore.”