Judge de­clares three adults le­gal par­ents of child

National Post (Latest Edition) - - CANADA - Michael MacDonalD

ST. JOHN’S, N.L. • In what is be­lieved to be a le­gal first in Canada, a court in New­found­land and Labrador has rec­og­nized three un­mar­ried adults as the le­gal par­ents of a child born within their “polyamorous” fam­ily.

Polyamorous re­la­tion­ships are le­gal in Canada, un­like bigamy and polygamy, which in­volve peo­ple in two or more mar­riages.

In this case, the St. John’s fam­ily in­cludes two men in a re­la­tion­ship with the mother of a child born in 2017.

“So­ci­ety is con­tin­u­ously chang­ing and fam­ily struc­tures are chang­ing along with it,” says the de­ci­sion, by Jus­tice Robert Fowler of the New­found­land and Labrador Supreme Court’s fam­ily di­vi­sion. “This must be rec­og­nized as a real­ity and not as a detri­ment to the best in­ter­ests of the child.”

The April 4 de­ci­sion says the un­con­ven­tional fam­ily has been to­gether for three years, but the bi­o­log­i­cal fa­ther of the child is un­known. The fam­ily mem­bers are not iden­ti­fied in the de­ci­sion, re­leased Thursday.

It’s not the first time a Cana­dian court has rec­og­nized that a fam­ily can have three legally rec­og­nized par­ents. In 2007, for ex­am­ple, the On­tario Court of Ap­peal rec­og­nized two women in a re­la­tion­ship as the moth­ers of a child whose bi­o­log­i­cal fa­ther was al­ready deemed a le­gal par­ent. But the three adults in that case were not in a re­la­tion­ship.

The three peo­ple in the New­found­land case turned to the courts af­ter the prov­ince said only two par­ents could be listed on the child’s birth cer­tifi­cate.

Lawyers for the prov­ince’s at­tor­ney-gen­eral ar­gued that the pro­vin­cial Chil­dren’s Law Act does not al­low for more than two peo­ple to be named as the le­gal par­ents of a child.

The lawyer for the fam­ily, Tracy Ban­nier, said the law has not kept up with changes in so­ci­ety.

“It wasn’t that the leg­is­la­tion was specif­i­cally pro­hibit­ing any child from hav­ing more than two par­ents,” she said Thursday. “It’s just that the leg­is­la­tors at the time sim­ply didn’t con­sider a fam­ily struc­ture with more than two par­ents. Be­cause it didn’t pro­hibit it, there was a gap in the leg­is­la­tion.”

In his de­ci­sion, Fowler said his de­ci­sion hinged on what was in the best in­ter­ests of the child.

Fowler said the child was born into a sta­ble, lov­ing fam­ily that has pro­vided a safe and nur­tur­ing en­vi­ron­ment.

When the Chil­dren’s Law Act was in­tro­duced about 30 years ago, he said, it did not con­tem­plate the “now com­plex fam­ily re­la­tion­ships that are com­mon and ac­cepted in our so­ci­ety.”

“I have no rea­son to be­lieve that this re­la­tion­ship de­tracts from the best in­ter­ests of the child,” Fowler’s de­ci­sion says.

“On the con­trary, to deny the recog­ni­tion of fa­ther­hood (parent­age) by the ap­pli­cants would de­prive the child of hav­ing a le­gal pa­ter­nal her­itage with all the rights and priv­i­leges as­so­ci­ated with that des­ig­na­tion.”

Toronto-based lawyer Adam Black said the most sig­nif­i­cant le­gal im­pli­ca­tions of this case will arise when polyamorous re­la­tion­ships break down.

“How do we use the cur­rent model to re­solve the is­sues that arise when there are three par­ents, par­tic­u­larly with re­spect to is­sues of prop­erty and sup­port — the fi­nan­cial side of the break­down?” said Black, a part­ner in the fam­ily law group at Torkin Manes LLP.

“For me, this is very much un­charted wa­ters. It’s a new fron­tier in fam­ily law.”.

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