A recently landmark ruling from Newfoundland is reported to be the first in which Canadian courts have recognized three unmarried adults as the parents of a child.

An unusual situation

While the case is an unusual one, it provided the court to rule on the rights on un-traditional parents. The facts of the case involve two men and a women (the “parents”) involved in what is known as a polyamorous relationship – one in which three people have a sexual relationship. The relationship led to the birth of a child in 2017. While it was clear who the mother was, there was no effort taken to determine who the biological father was, with the  men wanting them both to be recognized as fathers, something not recognized under Newfoundland law.

No legislative help

The problem with the parents wishes is that legislation has been pretty strict on limiting the number of parents a child can have to two. Upon noting this the judge said “the provincial legislation does not offer much comfort to the Applicants in this matter.”

Lawyers for the province argued that the Children’s Law Act (the “CLA”) simply doesn’t allow for a child to have three parents except for the case in which an adoption order is made by a new parent. The CLA also sets out procedures for determining that a man is not a child’s father (in situations where a child is living with the child’s mother but is determined not to be the child’s father). It also allows a judge to name a man as a father if the court is persuaded that he is likely the biological father. Finally, the CLA authorized the court to give a party leave to obtain a genetic test to determine who the father of a child is.

Invoking parens patriae

The judge thought both men should be recognized as parents, writing “I can find nothing to disparage that relationship from the best interests of the child’s point of view.” The judge decided to invoke what is known as its parens patriae jurisdiction, which is a common law authority allowing a judge to make decisions to ensure that vulnerable people’s rights are protected. Parens patriae is most commonly used in cases where there are gaps in legislation. It doesn’t apply, though, when legislation covers the issue at hand. In order to invoke it, the judge would have to find a gap in legislation.

Finding a gap

The judge reached the conclusion that the gap in the legislation exists in its failure to mention situations where a child may have two fathers. The CLA as it is written only addresses determining who a single father is, or shifting the status of father from one person to another (with the exception of adoption). This was enough for the court to invoke parens partia. In its decision, the court noted the evolving societal understanding of marriage, writing the act does not embrace the “now complex family relationships that are common and accepted in our society.” The court added,  “There is little doubt that the legislation in this Province has not addressed the circumstance of a polyamorous family relationship as is before this Court and that what is contemplated by the CLA is that there be one male and one female person acting in the role of parents to a child.”

The experienced and compassionate team of family law lawyers at Borden Family Law routinely deal with difficult and nuanced situations. By focusing exclusively on family law we are able to apply our in-depth knowledge of the family law system to your case. We understand that the stress and financial impact of family law matters can be difficult for our clients. We help our clients through this by working to determine what is best for children in a matter, and focusing on that throughout our work on an issue. Please call us at 905.576.6090 or reach us online to see how we can help you today. Please remember to ask about our flat fees.