A B.C. Supreme Court justice has declared a woman has the legal right to act as a third ‘full parent’ in a polyamorous relationship involving a two-year-old boy — the ruling points to a gap in current legislation, resulting from either a legislative misstep or ‘changing social conditions.’
A woman in a polyamorous “triad” with two other people has won her legal bid to become a third “full parent.”
The B.C. Supreme Court decision, handed down April 23, but released on Monday, describes three adults, Olivia, Eliza and Bill — whose names were anonymized by the court — living together in a committed polyamorous relationship since 2017.
When Eliza and Bill conceived a child in 2018, it was agreed that Olivia would be involved in the child’s life as a “full parent.”
In naming themselves a “triad,” the three adults described themselves as having an equal relationship with one another and the child.
“Olivia went as far as inducing lactation so she would also be able to feed Clarke when he was born,” wrote Madam Justice Sandra Wilkinson, referring to the anonymized child. “In fact, Olivia was the first parent to feed Clarke after he was born.”
All three were open with their families about their polyamorous relationship and went on several vacations together as a family unit after the boy was born.
That openness, however, didn’t always transfer into the workplace “out of fear of reprisal and discrimination,” wrote the justice.
In opposing naming Olivia as Clarke’s legal parent, B.C.’s attorney general submitted that “the difference between being a ‘parent’ and being a ‘guardian’ is nominal, and that a parentage declaration would not give Olivia many more, if any more, substantive rights,” the ruling said.
The judge disagreed, noting there are “clear and tangible differences between being a parent and being a guardian” and that the symbolic recognition of a parent-child relationship “should not be minimized.”
Naming the woman a “full parent” would provide the family with security, peace of mind and validation of the role Olivia plays in Clarke’s life, she wrote in her ruling.
Moreover, who gets to become a parent impacts a child’s lineage, rights around inheritance and citizenship. Naming Olivia Clarke’s second mother would ensure financial obligations to the boy, give him access to her extended health plan at work, and give Olivia access to parental leave, according to the court decision.
Lawyers for the attorney general warned that if Olivia were to be made a full parent, it would open up the floodgates for future parentage declarations.
But the judge said it’s “uncommon for an individual to come to court wanting a parentage declaration” and parents more often come to court “trying to skirt their responsibilities, instead of secure them.”
In her ruling, the judge directed the British Columbia Vital Statistics Agency to amend the boy’s birth registration so that Olivia is named as Clarke’s legal parent alongside Bill and Eliza.
Ultimately, Wilkinson wrote, her decision stemmed from the court’s legal requirement to consider the best interests of the child.
There is a gap in B.C.’s Family Law Act, the judge wrote in her ruling; specifically, current legislation fails to spell out parentage rights when a child is conceived through sexual intercourse and has more than two parents.
“Put bluntly, the legislature did not contemplate polyamorous families,” Wilkinson wrote, chalking up the omission to either legislative misstep or “perhaps a reflection of changing social conditions and attitudes.”
In the end, she found that “the court has broad discretion to fill gaps that have arisen from changing social conditions.”
The judge did not consider the parents’ alleged charter violation, noting that for such a challenge to be successful, it would require calling expert witnesses and bringing a broader set of research and critical questions before the court.
