Polyamorous Relationships

Polyamorous relationships are relationships involving more than two adults; someone who identifies as polyamorous is or prefers to be in a relationship with more than one other person at a time. (The "poly" part of polyamorous comes from the Greek word for many, while the "amorous" part comes from the Latin word for love.) Polyamorous relationships are tremendously diverse. They may include adults who are married to each other and adults who have had children together. They may include people who live together and some who don't. The people in a polyamorous relationship may or may not identify as a "family," they may or may not share the same home, and they may or may not own property together. Not only are polyamorous relationships varied and diverse, they can be complicated.

This section provides an introduction to polyamorous relationships and how polyamorous relationships work in the context of family law. Because each province and territory has its own laws about who is entitled to parent children, ask for child support, ask for spousal support, and ask to divide property, the information in this page only applies to people who live in British Columbia. If you live outside of British Columbia and are entering or leaving a polyamorous relationship, you really must speak to a family law lawyer in your area for accurate information about how family law may impact you and your relationship.

Introduction

The social expectations associated with marriage are rather predictable. Although some people have open marriages, where each spouse is free to have relationships with other people, most of the time — the vast majority of the time — married spouses are expected to be emotionally and sexually faithful to each other. This expectation is so common that many married couples don't even talk about it. It's assumed that they'll be faithful to each other. We also expect that they'll provide emotional support for each other — "in good times and in bad, in sickness and in health," as the vow says — and work together as true partners, each making sacrifices for the benefit of the family as a whole.

While the people involved in a polyamorous relationship may share these expectations of their partners, they also may not. Polyamorous relationships vary in terms of the degree of mutual commitment, interdependence, and sexual and emotional fidelity people expect of each other. A polyamorous individual may be simultaneously involved in two or more romantic relationships, without those people being in a relationship with each other, or significant, committed relationships may exist among everyone involved. An individual may be involved in a core relationship with a number of other people that is committed and enduring, while one or more people in that core relationship are involved in peripheral sexual relationships with others. Or, an individual may be involved in a number of concurrent relationships that are more sexual than romantic in nature and involve a lesser sense of interdependence. It's safe to say that no two polyamorous relationships are exactly alike.

Polyamorous relationships have probably existed from the dawn of human history. Even though pair relationships have dominated Western culture since the days of the Ancient Greeks, polygamous marriages are permitted by law, and remain important parts of the cultural fabric, in many countries — particularly in western Africa and in nations governed by sharia law — and are socially accepted but neither legalized nor criminalized in still other countries. Polyamorous relationships, the unmarried cousin of polygamous relationships, are growing in popularity in North America and in Europe, and it appears that more Canadians identify as polyamorous today than ever before.

That being said, the exact number of Canadians who consider themselves to be polyamorous or are engaged in polyamorous relationships is unknown; Statistics Canada doesn't track polyamorous relationships in its population surveys. The limited information available from the United States suggests that in 2009, one in 614 Americans lived in openly polyamorous relationships while in 2010, one in 500 Americans identified as polyamorous. Research conducted by the Canadian Research Institute for Law and the Family in 2016 found that 82.4% of the 547 respondents to a national survey agreed that the number of people who identify as polyamorous in Canada is increasing, and 80.9% agreed that the number of people involved in polyamorous relationships is increasing.

Family law is relevant to people in polyamorous relationships just as it's relevant to people in other kinds of family relationship. If there are children, parenting and child support may be an issue. If an adult is dependent on others, spousal support may be an issue. If property has been purchased or debt incurred, the property interests may be an issue. However, you'll remember the discussion earlier in this chapter about how the rights and responsibilities family law talks about depend on how people fit into terms like spouse, common-law partner, parent, guardian and child. That's where things get difficult for people in polyamorous relationships. British Columbia's Family Law Act, the federal Divorce Act, and the family law legislation of the other provinces and territories are all written on the assumption that adult relationships only come in pairs, and figuring out how the square peg of polyamorous relationships fits into the round hole of pair relationships can be tricky.

Bigamous and polygamous relationships

"Bigamy" means being married to more than one person at the same time, and is a criminal offence under section 290 of the Criminal Code. "Polygamy" means being married to more than two other people at the same time, and is an offence under section 293 of the Code. (Polyandry, incidentally, means a marriage involving more than one man, while polygyny means a marriage involving more than one woman. The relationships you see on television in shows like Big Love and Sister Wives are polygynous marriages.)

Polyamorous relationships don't involve the marriage of the people involved, and aren't captured by either section 290 or 293 of the Criminal Code. While pairs of adults in a polyamorous relationship may be married to each other, no one person is married to more than one other person at a time.

The other distinguishing characteristic of polyamorous relationships is that while polygamous marriages tend to be motivated by religious beliefs and revolve around men — Sister Wives is a very good example of these attitudes, and in fact polygamy was originally criminalized as a response to the historical spread of the fundamentalist Church of Jesus Christ of Latter-day Saints to which Kody Brown and his family are adherents — polyamorous relationships tend to be motivated by beliefs in the importance of freedom of choice, equality among the members of a relationship, and honesty.

Applying family law terminology

The federal legislation on marriage and divorce is a good place to start for understanding how family law terms like spouse and parent apply to people in polyamorous relationships. Section 2 of the Civil Marriage Act defines marriage as "the lawful union of two persons to the exclusion of all others." If that wasn't plain enough, section 2(1) of the Divorce Act defines spouse as "either of two persons who are married to each other."

Legislation like this clearly says that marriages involve two people, and two people only. On the other hand, let's look more carefully at the definition of spouse at section 3 of the Family Law Act:

(1) A person is a spouse for the purposes of this Act if the person

(a) is married to another person, or

(b) has lived with another person in a marriage-like relationship, and

(i) has done so for a continuous period of at least 2 years, or

(ii) except in Parts 5 and 6, has a child with the other person.

We know that "marriage" is out for people in polyamorous relationships because of the definition in the Civil Marriage Act, but you'll see that the definition of unmarried spouse in section 3(1)(b) of the Family Law Act doesn't have a number limit attached to it. In Alberta, on the other hand, section 3(1) of the Adult Interdependent Relationships Act says that an adult interdependent partner includes someone who has lived with someone else in a relationship of interdependence. Section 1(1) of that act offers a definition of that awkward term and says this:

“relationship of interdependence” means a relationship outside marriage in which any 2 persons

(i) share one another’s lives,

(ii) are emotionally committed to one another, and

(iii) function as an economic and domestic unit.

And there's that number limit again, "2 persons." But that's missing from the definition of "spouse" in section 3(1)(b) of British Columbia's Family Law Act. To "live with another person in a marriage-like relationship" doesn't mean to live with just one other person. The British Columbia definition means that a person can be in a spousal relationship with one person while being in a spousal relationship with someone else, and while being in a spousal relationship with someone else as well.

That's really important, because under the Family Law Act, someone who is a "spouse" has the right to ask anyone else who qualifies as that person's "spouse" for spousal support and for the division of property and debt. On top of that, someone who is a stepparent — defined as the "spouse" of a parent — is a "parent" potentially obliged to pay child support for the benefit of the parent's child.

The definition of "parent" is still restricted. The parents of a child conceived by natural reproduction are limited to the birth mother and the biological father under section 26 of the Family Law Act. However, for a child conceived by assisted reproduction, the people who sign an assisted reproduction agreement can agree that the child's parents will include:

• one or two people who intend to have the child,
• a donor of sperm,
• a donor of eggs,
• a surrogate mother, and
• the "spouse" of a surrogate mother,

for a total of six people who can be the "parents" of a child for all purposes of the law of British Columbia. These limits are important, as it is a child's parents who are presumed, in most cases, to be the child's guardians, and it is only guardians who have parenting responsibilities for, and parenting time with, a child.

However, there's a workaround. While parents cannot make an agreement appointing someone who isn't a parent as a guardian of their child, the court can make orders appointing other people as a guardian of a child under section 51 of the Family Law Act, and there is no limit to the number of people who can be appointed as the guardians of a child.

What have the courts got to say about all this?

Not much, to be honest. At least not yet. There have been a few cases — one in British Columbia and one in Nova Scotia — involving people in polyamorous relationships, but the judges hearing those cases didn't have much at all to say about the unusual nature of the relationship between the adults involved.

From the point of view of people in polyamorous relationships in British Columbia, we need to get decisions from the court confirming that:

1. a child can have as many as six parents when the child has been conceived by assisted reproduction, and
2. a person can have more than one spouse at the same time.

We do have government policy that expects a child to have as many as three parents, because that's how Vital Statistics updated their forms when the Family Law Act became law. We also have cases where married spouses delayed getting divorced for long enough that they qualified as the unmarried spouse of the person they moved in with after separating from their married spouse — Austin v Goerz, a 2006 decision of our Supreme Court, is a good example of cases like this — but we don't have cases saying that people can have more than one spouse in other circumstances. Now, the plain language of the Family Law Act says quite clearly that a child can have up to six parents and that a person can have more than one spouse at the same time, but we haven't had a judge say that this is what the Family Law Act says.

Family law agreements

Even though the Family Law Act seems to be pretty flexible as far as people in polyamorous relationships are concerned, there are still problems that need to be worked out. We haven't yet had a court decide how child support should work when there's more than one parent or stepparent from the same relationship who's liable to pay child support. We haven't had a court decide how to apply the Spousal Support Advisory Guidelines when there's more than one spouse from the same relationship who's liable to pay spousal support, or when there's more than one spouse who's entitled to receive it. And we haven't had a court decide how to divide property when there's more than two spouses who're entitled to share the family property.

Even though there are a handful of court decisions involving polyamorous families, the number of those decisions is surprisingly small given what we know about the prevalence of polyamorous relationships in Canada. There are likely three reasons for this.

Firstly, the laws of the other provinces and territories are nowhere near as adaptable to polyamorous relationships as British Columbia's Family Law Act. It may be that when push comes to shove, people simple don't pursue claims in court if they're not going to obviously qualify as spouses, partners, parents and so on under the local legislation. Challenging legislation under the equality provisions of the Canadian Constitution is expensive and time-consuming.

Secondly, it's also possible — in fact, it's quite likely — that people in polyamorous relationships intentionally avoid going to court when their relationships come to an end and resolve their differences in other ways. Polyamorous relationships tend to be very complex in terms of the expectations of family members, their arrangements for covering household bills, assigning responsibility for repairs and maintenance, their living arrangements, and their arrangements for the ownership of property. Dragging these issues through court, even in a province with laws friendly to polyamorous relationships, would be an arduous, costly and protracted affair. Especially if the question of how the law — on basic issues like child support, spousal support, and the division of property — applies to polyamorous families isn't resolved. It makes perfect sense that you'd choose to avoid court and head to mediation, collaborative negotiation or arbitration as infinitely preferable alternatives!

Mediation, collaborative negotiation and arbitration are all private processes. There's no laundry to air on the public record, and no obligation to find a resolution by applying the strict letter of the law. Whether you live in British Columbia or not, these are all better processes than litigation. If mediation or collaborative negotiation are successful, the result will be a separation agreement that everyone will sign; if arbitration is successful, the result will be an award prepared by the arbitrator.

Finally, it also seems likely that people entering polyamorous relationships, especially relationships that involve people living together, buying property together or having children together, would make plans for the management and termination of their relationship well ahead of time. A lot of the contact I've had with people in polyamorous relationships involves helping people plan and sign cohabitation agreements. These agreements aren't particularly common, or particularly useful, for people in pair relationships, but they're indispensable for people in polyamorous relationships.

In my experience, polyamorous relationships rarely "just happen." They tend to be the product of a huge amount of discussion and negotiation — about easy financial and mathematical issues as well as super hard emotional and psychological issues — long before more than two people start seeing each other, never mind start living together. Since people are already spending so much time planning what their relationship will look like, it's easy to turn some of that effort into preparing a cohabitation agreement.

Subject matter of cohabitation agreements

For people in pair relationships, cohabitation agreements usually talk about spousal support and the division of property and debt in the event their relationship ends. They don't talk about parenting children or child support because it's impossible to make decisions about these issues so far in advance. They sometimes talk about how the relationship itself will be managed, but agreements like this are the exception rather than the rule. The social expectations we have about how pair relationships work cover the management of most people's relationships really well.

While cohabitation agreements for people in polyamorous relationships can still talk about spousal support and the division of property and debt, and have the same problems talking about parenting children and child support, their real benefit usually lies in talking about how the relationship will work. Common issues that cohabitation agreements can talk about include:

• Will people have children? If so, will the children be conceived naturally or through assisted reproduction? Will anyone else have parenting responsibilities for the children?
• Will the family live together in one home or in more than one home? How will the family home be bought or rented? How will the mortgage or lease be paid?
• How will the decision to make large repairs be made? How will those repairs be paid for?
• How will the decision to buy appliances and furniture be made? How will those things be paid for and who will own them?
• How will household chores be managed?
• How will household expenses be paid? Will everyone contribute to a joint bank account and, if so, in what amount? Equally or in proportion to people's incomes?
• If someone takes time off work for parental leave or because of illness, what happens to their financial obligations to the household?
• What will the rules be about seeing people outside the relationship? When can someone else spend the night, and does anyone have to agree before someone can spend the night?
• Can new people be added to the relationship? If so, how? Who needs to agree? If a new person is added, how will everyone's financial obligations change?
• Can someone be asked to leave the relationship? How? What sort of notice should they be entitled to? What can they take with them when they leave?
• What should happen when someone decides to leave the relationship? Should they have to give notice? If so, what sort of notice should they have to give? What can they take with them? What can't they take with them?
• What will happen if someone gets sick? Who should be able to make medical decisions if they can't make them for themselves? What will happen if people can't agree on those medical decisions?
• What will happen if someone dies? What will happen to their financial obligations, the property they own and any interests in common property that everyone owns?

What's really important here is to anticipate every kind of problem that might arise during a relationship, talk about those problems ahead of time, and try to make an agreement about how those problems will be handled before moving in together.

Managing negotiations with lawyers

When people in a pair relationship want to sign a cohabitation agreement or a marriage agreement, one of them will usually hire a lawyer to write it up. The draft agreement goes to the other person, who reviews it with their lawyer and gets some advice about whether it's a good agreement or a bad agreement. Quite often the second lawyer has a number of changes to make, and proposes these to the drafting lawyer. After a bit of back-and-forthing, a final draft is ready to sign. Most family law agreements that are written by lawyers include "certificates of independent legal advice." These get signed by the lawyers and the parties, and indicate that each person saw a lawyer about the agreement, and that the lawyer explained to them how the agreement affects their rights and obligations as well as the alternatives to signing an agreement.

The Family Law Agreements chapter talks about this process in a lot more detail, but this is the bare bones of it. No matter whose lawyer drafts the agreement, the other person always has the chance to comment and make changes to the agreement, and both people get legal advice about the meaning and impact of the agreement.

In polyamorous relationships, things are a little more complicated. This is mainly because there are more than two lawyers involved, and each of the lawyers has an obligation to discuss a proposed cohabitation agreement with their clients and suggest changes that make the agreement more fair... or at least more fair from their client's perspective. That's an awful lot of cooks in the kitchen to mess things up, especially when you consider how much more complicated cohabitation agreements for people in polyamorous relationships are compared to cohabitation agreements for people in pair relationships.

Sometimes the best solution is to hire a lawyer whose only job is to take care of the writing part, and doesn't represent any of the parties. This makes the drafting lawyer a lot more neutral. Their job is to talk with the people entering the relationship about the sort of things the agreement can talk about and the things it can't, and then write out the agreement that the people entering the relationship want.

The draft agreement then goes to the lawyers for each of the people entering the relationship. Each lawyer talks to their client about the law, how the proposed agreement would affect their rights and responsibilities, and whether the agreement is fair or not. Based on that discussion, each lawyer then talks to the drafting lawyer about the changes they think are needed to better protect the interests of their client, make the agreement more understandable or make the agreement easier to use. The drafting lawyer then takes everyone's comments and tries to edit the agreement to reflect the changes people want, and lets everyone know if there are any comments that are contradictory. The revised agreement then goes back to each lawyer-client pair for more legal advice and possibly more changes. Those changes go back to the drafting lawyer for further revisions, which hopefully results in a final agreement that everyone is as happy with as possible.

This process is a little complicated and requires that an awful lot of lawyers be hired. However, cohabitation agreements for people in polyamorous relationships are far more detailed than cohabitation agreements for people in pair relationships, they involve more people, they tend to cover many more issues, and the law that needs to be addressed is a lot more difficult to navigate. As a result, it is even more important that everyone has their own lawyer to advise them on how the agreement affects their interests, and this means that there's a lot more lawyers to argue about the details. Getting a neutral lawyer to take care of the writing part and reconciling everyone's comments is often the most efficient way to go, even though it means hiring yet another lawyer.

Choosing a lawyer

If you are entering or leaving a polyamorous relationship, it's critically important that you get legal advice about your situation. You can't assume that the law will apply to you the way it did to friends and family who entered or left pair relationships. The trick, of course, is finding the right lawyer to give you that advice.

The section on You and Your Lawyer in the chapter on Understanding the Legal System has information about how to find and hire a lawyer. However, people involved in polyamorous relationships need to make an extra effort to find family law lawyers who are familiar with this kind of relationship. A lot of lawyers who deal with problems involving these relationships will say so on their website. If you can't find someone who says explicitly that they handle polyamorous family law problems, then call a lawyer outside your hometown, or even outside of British Columbia, who deals with polyamorous families and see if they can refer you to someone. Or, you could also try contacting a family law lawyer whose website says they deal with LGBTQ issues. LGBTQ issues are not polyamorous issues, but lawyers who routinely manage LGBTQ issues in the family law context are more likely to have an idea about how family law works in the context of polyamory.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Criminal Code
• Civil Marriage Act

Links

• Spousal Support Advisory Guidelines
• Legal Aid BC's Family Law website's common questions on Finances & Support
  • See "How is property divided when a common-law relationship ends?" under the heading "Common questions"
• Legal Aid BC's Family Law website's information page "Going through separation"
  • See "Proving you're separated if you and your spouse still live together"

Resources

• "Polyamorous Relationships and Family Law in Canada" from Canadian Legal Information Institute (CanLII)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 11 March 2020.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.