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. Polyamorous relationships are tremendously diverse. They may include adults who are married to each other and adults who have had children together. The people in a polyamorous relationship may or may not identify as a family, they may or may not live together, and they may or may not own property together. Not only are polyamorous relationships diverse, they are 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 must speak to a family law lawyer in your area for accurate information about how family law may impact you and your relationship.

Introduction

Polyamorous relationships vary in terms of people's expectations of commitment, interdependence, and sexual and emotional fidelity. An 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 pair or polyamorous relationship that is committed and enduring, while one or more members of that relationship maintain 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 likely existed from the dawn of human history. Even though pair relationships have dominated Western culture since the days of the Ancient Greeks and Romans, 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 others. 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 that 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 identification of property rights 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 an offence under section 290 of the Criminal Code. Polygamy means being married to more than two other people at the same time, and is a criminal 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 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 a belief 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 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 because of the definition in the Civil Marriage Act, but you'll see that the definition of unmarried spouse in section 3(1)(b) 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 unusual 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 British Columbia definition of "spouse" in section 3(1)(b) of the 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 being in a spousal relationship with someone else.

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. Although, for a child conceived by assisted reproduction, the people who sign an assisted reproduction agreement can agree that the child's parents will include:

1. one or two people who intend to have the child;
2. a donor of sperm;
3. a donor of eggs;
4. a surrogate mother; and,
5. the "spouse" of a surrogate mother,

for a total of six potential parents who are "parents" 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 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 child's guardian under section 51 of the Family Law Act, and there are no limits on the number of people who can be appointed as the guardians of a child.

What have the courts got to say about this?

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Family law agreements

Even though the Family Law Act turns out to be pretty flexible as far as people in polyamorous relationships are concerned, there are still problems. We haven't yet had a court decide how child support should work when there's more than one parent 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 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 in family property.

Even though there are a handful of court decisions involving polyamorous families, the number of decisions is surprisingly small given what little we do know about the prevalence of polyamorous relationships. There are likely two 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 purse claims in court if they're not going to qualify as spouses, partners, parents and so on under the local legislation.

Secondly, it is also possible that people in polyamorous relationships consciously choose to avoid 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, the arrangements for covering household bills, assigning responsibility for repairs and maintenance, and the 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, expensive and time-consuming affair. Especially if the basic law on things like child support, spousal support and the division of property isn't resolved. It makes perfect sense that you'd choose to avoid court and head to mediation, collaborative negotiation and arbitration as inifinitely preferable alternatives.

Even better than mediation and arbitration leaving a relationship, however, is signing a cohabitation agreement entering a relationship.

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 any more formalized relationship begins.

Resources and links

Legislation

• Family Law Act
• Family Law Act Regulation
• Divorce Act
• Income Tax Act
• Wills, Estates and Succession Act
• Adult Guardianship Act
• Old Age Security Act
• Employment and Assistance Act
• Canada Pension Plan

Links

• Legal Services Society'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"
• Canada Pension Plan Survivor's Pension
• Legal Services Society's Family Law website's information page "Going through separation"
  • See "Proving you're separated if you and your spouse still live together"

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 27 February 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.