“Polyamory” is the term used for a consensual, non-monogamous relationship where the involved people have more than one romantic or sexual partner at the same time. According to a recent report from the Vanier Institute, one in five Canadians has been in this type arrangement.
In Canada, there nothing illegal about polyamory – in contrast to “polygamy”, which refers to a person being married to more than one spouse. Not only is this form of marriage not recognized under our laws, but it is considered a crime punishable by up to five years’ imprisonment, under s. 293 of the Criminal Code.
A polyamorous union can involve many complexities. From a legal perspective, it can muddy the question of who is a common-law “spouse”, especially if the previously-committed parties decide to part ways, and if they are not aligned as to their relationship narrative.
Case in point: In a B.C. case called Kroetsch v Rahmany the sole threshold issue at trial was whether the man and woman were “spouses” within the definition found in the provincial Family Law Act. The woman claimed they were, and that she was therefore entitled to various rights in connection with how their property, assets and debts would be distributed. As the party making the claim, she had the legal burden of establishing they met the statutory definition, which was that they lived together in a marriage-like relationship for a continuous period of at least two years.
The man conceded that they did live together for 10 months, but argued they did not have any marriage-like relationship either before or after that time, especially since they each had separate residences. The evidence also showed that the man had numerous other sexual partners in the four years he and the woman knew each other.
In an interesting twist, on that last point the woman claimed that the legal definition of “spouse” was nonetheless satisfied, and that the man’s proven infidelity did not diminish that, because they had agreed to be polyamorous.
The court considered the woman’s argument as against the evidence, and ruled as follows:
[60] Having reviewed all the evidence together, I am not persuaded that the parties were spouses for the following reasons.
1. Personal Behaviour
[61] Although they lived together for ten months, the respondent [man] emphasized that their entire relationship was characterized by uncertainty and instability. Their evidence was consistent that they tended to have a huge argument at least once a month. Their major arguments often ended in them sleeping apart. More importantly, the source of tension between them is most consistent with the respondent’s characterization of their relationship. [62] The claimant [woman] does not dispute that volatility, but submits that does not portray the full picture of their relationship. … For instance, she placed emphasis on a conversation they had in a club during one of their international trips very early in their relationship. The respondent admitted to having a history of infidelity, and the claimant indicated she was very open to them being polyamorous. She testified his response was something like “said no girlfriend ever!” and then said he wanted to marry her. [63] The respondent admits he said those words but denied it represented any kind of proposal or a genuine desire to marry her. Instead, he was enthusiastically surprised by her openness to his having other sexual partners.
After considering the evidence that the man bought the woman a “promise” ring, the court continued:
[65] I find neither of these facts provide support that they were in a marriage-like relationship, especially when measured against the uncontested evidence that they fought frequently and intensely about the degree to which the respondent was committed to the claimant. [66] I also find the parties had a significant difference of opinion about their sexual fidelity to one another. The respondent had other sexual partners between November 2015 and February 2019. The claimant testified this does not diminish their marriage-like relationship because they had agreed to be polyamorous. [67] However, I do not find the evidence was consistent that they reached a meeting of minds about what it meant to be polyamorous. Specifically, the claimant became upset on at least two occasions upon learning of the respondent’s having had sex with another woman. She testified the reason she became upset was because the respondent had not adhered to certain conditions she claims they agreed to for one of them to have sex with someone else. The respondent denied there were any conditions placed on him. [68] The fact that his other sexual partners created tension strongly supports a finding that they had not reached a common understanding about being polyamorous. Furthermore, there is no evidence that the claimant ever engaged in other sexual relationships or encounters. [69] Rather than being indicative of polyamory, these facts illustrate there was a high degree of conflict between them about the issue. This more strongly supports the respondent’s perception of their relationship than the claimant’s.
The solution for preventing these kinds of scenarios is a clear separation agreement, which among other things sets out the relationship between all the parties to the polygamous union, along with their respective rights and obligations if happens to end in the future.
If you are in this kind of multi-partner relationship and want to get advice on clarifying your legal situation, give our offices a call.
For the full text of the decision, see:
Kroetsch v. Rahmany, 2023 BCSC 1433 (CanLII), <https://canlii.ca/t/jzss2>
