British Columbia Birth Registration No. 2018-xx-xx5815 2021 BCSC 767 ordered the three members of a polyamorous “triad” to be registered as the three parents of a new born baby. The three petitioners commenced living in a committed polyamorous relationship in 2017.
In the fall of 2018 the biological parents had a child and by reason of the provisions of the Family Law act, they are the only legal parents registered on the child’s birth registration.
The three of them however have been equally involved in the child’s caregiving , love and nurturing and they have gone on trips together as a family to visit all of the three petitioner’s families.
The court awarded the third party to the triad be registered on the birth registration as a legal parent.
- S.26 Family law act stipulates that if a child is born through sexual intercourse then the child’s parents are the birth mother and the child’s presumed biological father.
- S. 30 allows for three legal parents if there is a written agreement as to such. This would probably more likely happen in assisted reproduction circumstances
- S. 31 Family Law act sets out the circumstances in which the court may make a parentage declaration, but the law requires there to be a dispute or uncertainty before exercising that statutory jurisdiction. Re Family Law Act 2016 BCSC22 at paras. 42-43.
There was no uncertainty or dispute about parentage in the petition.
Parens Patriae Jurisdiction
The court’s parens patriae jurisdiction may be used to bridge a legislative gap. A.A. v B.B. 2007 ONCA 2 at para. 27, and can do so from changing social conditions.
Here the judge found that there was a gap in the Family Law act with regard to children conceived through sex who have two or more parentn .
TO remedy the gap pursuant to S 1923) of the FLA, exercised the courts parens patria and declared the three petitioners as the child’s legal parents.
In the said AA v BB decision, A.A., B.B. and C.C. sought to have A.A.’s motherhood recognized to give her all the rights and obligations of a custodial parent. Legal recognition of her relationship with her son would also determine other kindred relationships. In their very helpful factums, the M.D.R. Intervenors and the Children’s Lawyer summarize the importance of a declaration of parentage from the point of view of the parent and the child:
- the declaration of parentage is a lifelong immutable declaration of status;
- it allows the parent to fully participate in the child’s life;
- the declared parent has to consent to any future adoption;
- the declaration determines lineage;
- the declaration ensures that the child will inherit on intestacy;
- the declared parent may obtain an OHIP card, a social insurance number, airline tickets and passports for the child;
- the child of a Canadian citizen is a Canadian citizen, even if born outside of Canada (Citizenship Act, R.S.C. 1985, c. C-29, s. 3(1)(b));
- the declared parent may register the child in school; and
- the declared parent may assert her rights under various laws such as the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A., s. 20(1)5.
Perhaps one of the greatest fears faced by lesbian mothers is the death of the birth mother. Without a declaration of parentage or some other order, the surviving partner would be unable to make decisions for their minor child, such as critical decisions about health care: see M.D.R. at para. 220. As the M.D.R. Intervenors say: “A declaration of parentage provides practical and symbolic recognition of the parent-child relationship.” …