About a month ago we released an article titled “Polyamory and Spousal Status”. It talked about how “polyamory” is the term for a consensual, non-monogamous relationship where the involved people have more than one romantic or sexual partner at the same time. We also discussed how polyamory is not illegal in Canada, in contrast to polygamy (which refers to a person being married to more than one spouse, which is punishable as a crime by up to five years imprisonment, under s. 293 of the Criminal Code of Canada).
In everyday lingo, polyamory can typically involve what are known as “throuples” (three parties in the relationship), and “quads” (four parties). And of course the family unit may include a number of children in the mix.
When these families fall apart, there can be short-term legal questions around who is considered to have parental or parent-like rights in connection with the children. This includes how decisions on parenting will be made, how much time the child has with each party, and whether child support will be paid, and in each case by whom. There can also be important day-to-day issues, such as who is eligible to pick up children from school, give medical consent for their treatment to health care providers, and talk to teachers about their academics.
In some scenarios, there can also be broader interpersonal complications, such as legal issues around legal parentage, adoption, and rights arising from assisted reproduction.
In this context it’s important to know that Canadian courts are careful not to stigmatize those in polyamorous relationships, when objectively assessing what’s in the best interests of the children.
For example, in a recent case called D.B. v. E.J. the parents of a 7-year old child with leukemia were in dispute over parenting arrangements, including where the child should reside. In the course of ruling that the child’s best interests would be served by living with the father, the court took pains to list some of the factors it did not consider. The court wrote:
[113] I did not consider the dating practices or sexual proclivities of either party because I heard no evidence of any discernable impact upon [the child] associated with the parties’ personal choices in this regard. Whether either party participated in polyamorous relationships or “friends with benefits” situations did not factor into this decision.
In an interesting aside, in the recent case of K.S.K. v R.V.B. the court likewise made it clear it saw nothing wrong with polyamory, but found it reasonable that the father in a separate couple should insist on monogamy as a condition to reconciliation with the mother.
In that case the parents had split up, but the father remained hopeful they could work things out even though the mother had told him she’d “moved on” with a new partner (“R”). Still, the mother gave mixed messages about potentially working things out, even though she wanted to continue seeing R. The father insisted that any possible reconciliation between them would have to be based in monogamy, which the woman viewed as an abusive “ultimatum”. To this, the court said:
[108] The mother suggested the father was being controlling and abusive, and she suggested to the father that she needed to continue to “see R to heal.” Although many people may choose to be involved in polyamorous relationships, in this case there is no evidence to suggest the father was wrong to suggest to the mother that he expected their relationship to be monogamous if they were to reconcile.
The court went on to untangle their relationship issues, including those involving responsibilities towards the children, in light of the broader facts.
For the full text of the decisions, see:
D.B. v. E.J., 2023 NSSC 346 (CanLII), <https://canlii.ca/t/k0wvm>
K.S.K. v R.V.B., 2024 NSSC 162 (CanLII), <https://canlii.ca/t/k8jdb
