Analysis: Some will consider it a win for free love, some a blow to the Christian institution of monogamous marriage

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Those who have battled for years against the Bountiful polygamous community in the Creston Valley are probably horrified — the B.C. Supreme Court has recognized a threesome as “parents.”

Justice Sandra Wilkinson approved adding a third adult to a toddler’s birth certificate saying the Family Law Act needs to recognize polyamorous families.

Some will consider it a win for free love, some a blow to the Christian institution of monogamous marriage. And lawyers will have another estate to sue in inheritance disputes.

The legislation came into force in 2013 after the widely publicized Nov. 23, 2011 reference decision by the chief justice of the court supporting the criminal law against polygamy as a result of concerns in Bountiful.

But Wilkinson considered that irrelevant — noting the bill was debated earlier and received royal assent on Nov. 24, 2011.

Wilkinson concluded there was a gap in the Family Law Act “with regard to children conceived through sexual intercourse who have more than two parents.”


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“Put bluntly, the legislature did not contemplate polyamorous families. … This oversight is perhaps a reflection of changing social conditions and attitudes … or perhaps is simply a misstep by the legislature.  Regardless, the FLA does not adequately provide for polyamorous families in the context of parentage.”

The family wanted the justice to declare the law violated the Charter of Rights and Freedoms but she declined.

“Critical questions have not been asked or explored. Given the limited record before me, this is not an appropriate case to recognize family status as an analogous ground.”

In the anonymized ruling, Wilkinson said a woman named Olivia should be added as a parent along with the biological parents to the birth records of Clarke, born in 2018.

She explained that a couple, Eliza and Bill, had lived together since the turn of the century but Olivia entered their life in 2013 and, in 2016, they became a threesome.

Olivia, Bill and Eliza were in a committed loving relationship,“ known in the polyamory community as a triad,” when Bill impregnated Eliza in 2017, Wilkinson added:

“The petitioners live openly as a polyamorous family to their families and friends. While at first, they were apprehensive about the reactions of others, those close to them have been supportive of their relationship and family structure. However, in certain employment circumstances, they still choose to be private about their polyamorous identities out of fear of reprisal and discrimination. It is not disputed that Clarke is being raised by three loving, caring, and extremely capable individuals.”


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After his birth, however, the adults were told three “parents” could not be listed on Clarke’s birth records

Though allowed for assisted reproduction, at the five-day trial in January the Attorney General opposed the concept of biological parents-plus suggesting “guardianship” would be a better solution.

Wilkinson disagreed: “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. … This difference should not be minimized … parentage determines lineage and a child’s rights on intestacy, citizenship, potential access to parental leave, and certain financial obligations, among other things. However, and perhaps most importantly, the key difference between parentage and guardianship is that parentage is immutable: the relationship between a parent and their child cannot be broken … guardianship is not a ‘cure-all’ for Olivia.”

The government also argued the court did not have the authority to make the parenthood declaration because she was effectively granting a substantive right not approved by the Legislature.

“It is the Attorney General’s position that the FLArequires parties to have made a preconception agreement (or at least have preconception intention) for a third person to be recognized as a parent,” Wilkinson said.

“The Attorney General highlights this trend in the case law. However, as I have found the legislature did not contemplate polyamorous families when drafting the FLA, it would be erroneous to extend the preconception requirement beyond the assisted reproduction context. Further, the rationale for a preconception requirement makes much more sense in the assisted reproduction context where parties are engaging a donor or surrogate who may or may not want to be a parent, and the parties may or may not want the donor or surrogate to be a parent.”


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Wilkinson did not address the Charter of Rights and Freedoms’ issue, saying she was exercising her jurisdiction under parens patriae — Latin for “parent of his or her country” — her power to act for those unable to care for themselves.

Under that umbrella, she said: “The court has broad discretion to fill gaps that have arisen from changing social conditions.”

The justice awarded costs against the province, and the family celebrated her ruling in a statement:

“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. 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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