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Polyamory and Legal Parentage: The Possibilities of C.C. (Re) and BCSC 767 for Expanding Conceptions of Kinship in Canada

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Abstract

On April 4, 2018, Newfoundland and Labrador Supreme Court Justice Robert Fowler issued a landmark decision in C.C. (Re) [2018] NLSC 71 Carswell Nfld 110 making three adults—in a polyamorous relationship with one another—the legal parents to their young daughter. This was a significant decision in Canada, since Newfoundland and Labrador was the first jurisdiction to grant legal parental status to adults in a polyamorous relationship. In 2021, British Columbia’s Supreme Court made a similar decision in British Columbia Birth Registration No. 2018-XX-XX5815, 2021 BCSC 767. While these cases seem progressive, proponents of the legal and social expansion of parentage should remain cautious. The decisions’ potential for changing the landscape of family law and social perceptions of non-dyadic parenting are stymied by the persistence of privatised sex and gender norms and racialised constructions of sexuality.

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Notes

  1. [2018] Carswell Nfld 110.

  2. Supra n 1 at 8.

  3. Generally, parens patriae is invoked in cases where appointing counsel for a child is required to protect and represent their interests (e.g., in the case of a custody dispute). See “Legal Representation of Children in Canada” for more information (Government of Canada 2023).

  4. 2021 BCSC 767.

  5. Supra n 4 at 1.

  6. Supra n 4 at 49, 92.

  7. 2016 CarswellOnt 8390 (S.C.J.) Historically, provincial courts have played a critical role in widening conceptions of close personal relationships and conjugality in Canada, though Saskatchewan followed in 2020 (of its own accord) as did Manitoba in 2021.

  8. Molodowich v Penttinen, 1980 CanLII 1537 (ON SC) [Molodowich] (defining the parameters of conjugality), M. v. H., [1999] 2 S.C.R. 3 [M. v. H.] (rights of same-sex couples under Canada’s Constitution), and Halpern v. Canada (Attorney general), 2003 CanLII 26403 (ON CA) [Halpern] (dismantling the federal prohibition on same-sex marriage).

  9. The details of the cases are drawn from both legal decisions and available Canadian news media articles. In both cases, the parents have chosen to remain relatively anonymous. In BCSC 767, the petitioners’ and child’s names are pseudonyms.

  10. Supra n 1 at 34.

  11. Supra n 1 at 8.

  12. Supra n 1 at 9.

  13. Supra n 1.

  14. Supra n 1 at 10.

  15. Supra n 1 at 19.

  16. Supra n 1 at 20.

  17. Supra n 1 34.

  18. Supra n 1 at 33.

  19. Until the 1990s, Canadian common law dictated that a child born outside of marriage was filius nullius (a “child of no one”). This presumption had severe social and legal consequences because illegitimate children had no inheritance rights and no right to parental support. Additionally, parents had no custodial or guardianship rights of their own illegitimate children (see Mykitiuk 2001).

  20. Supra n 1 at 33.

  21. Supra n 1 at 38.

  22. Supra n 1 at 39.

  23. Supra n 1 at 40.

  24. Supra n 4 at 8.

  25. Supra n 4 at 9.

  26. Supra n 4 at 10.

  27. Supra n 4.

  28. Supra n 4 at 1.

  29. Supra n 1 at 69.

  30. Supra n 1 at 71.

  31. Supra n 1 at 69.

  32. Supra n 1 at 78.

  33. [L.R.] 1 P. & D. 130.

  34. Supra n 32 at 134–5.

  35. Subsequently, Hyde laid the foundation for the definition of marriage between “one man” and “one woman” until Canada’s Civil Marriage Act in 2005.

  36. Canada. Parliament. Debates, 6th Parl., 4th Sess., (1890): 585.

  37. Reference re: Sect. 293 of the Criminal Code of Canada 2011BCSC 1588.

  38. Supra n 35 at 555.

  39. Supra n 35 at 1352.

  40. Supra n 35 at 1352.

  41. Supra n 35 at 1350.

  42. Supra n 35 at 1351.

  43. The term “monogamish” was coined by Dan Savage (an American sex columnist and personality). Savage used the term to describe his own marriage where he, and husband Terry Miller, “[allow] occasional infidelities, which they are honest about.” See Oppenheimer, Mark. 2011. “Married, with Infidelities.” New York Times Magazine June 30, 2011. https://www.nytimes.com/2011/07/03/magazine/infidelity-will-keep-us-together.html

  44. The heteronormal family is comprised of a husband, wife, and their biological offspring. In the West, this family type is conceptualised as the normal and natural kinship structure (Cossman 2005).

  45. Supra n 1 at 35.

  46. Supra n 1 at 34.

  47. Supra n 1 at 34.

  48. Supra n 1 at 35.

  49. I draw on Alexa DeGagne’s description of “queer” to describe activism that “challenge[s], complicate[s] and dismantle[s]” normative categories of race, gender, sexuality, class, and ability that reproduce hierarchies of oppression and power (2015, 6-7).

  50. Supra n 4 at 8.

  51. Supra n 4 at 11.

  52. Supra n 4 at 11.

  53. Supra n 4 at 13.

  54. Supra n 4 at 13–14.

  55. Supra n 4 at 15.

  56. Supra n 4 at 41.

  57. Supra n 4 at 41.

  58. Supra n 4 at 41.

  59. Supra n 4 quoting Cabianca, at 37.

  60. Supra n 4 at 41.

  61. Supra n 4 at 92.

  62. Supra n 4 at 16.

  63. Supra n 4.

  64. Legal apparatuses like the Indian Act were also a means through which the Canadian state gained and maintains title to Indigenous lands. For example, the former Sect. 12.1.b of the Act (amended in 1985 under Bill C-31, and again in 2010 under Bill C-3) stripped Indigenous women, who married and had children with non-Indigenous men, of their right to pass on Indian legal status. The same rule did not apply to Indigenous men who married, and had children with, non-Indigenous women. As Thompson explains, this law weakened Indigenous communities’ claims to land, resources, and rights by diminishing the population of people who had status to do so. In 2010, the Gender Equity in Indian Registration Act (Bill C-3) received royal assent. The amendments corrected the “third generation” cut-off that Bill C-31 did not remedy and therefore ensured that the grandchildren of women who had lost status were eligible to receive it. Still, Bill C-3 did not create equal “entitlements” for grandchildren of matrilineal descent with those of patrilineal descent. This inequality was litigated in Descheneaux v. Canada, 2015 QCCS 3555, which resulted in Bill S-3, Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) in 2017. In Descheneaux v. Canada, the court ruled that Indian Act provisions regarding registration “unjustifiably violated equality provisions under Sect. 15 of the charter because they perpetuated a difference in treatment between Indian women as compared to Indian men and their respective descendants.” In response, Bill S-3 set out to remove gender-based discrimination in Indian registration (See: Government of Canada. “Background on Indian Registration.” https://www.rcaanc-cirnac.gc.ca/eng/1540405608208/1568898474141).

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Acknowledgements

This article’s arguments and research first took shape in my doctoral dissertation. Although evolved since then, I profited from the readership and advice of my dissertation committee on the initial formulation of these ideas and interventions during my defense. I am grateful to members of my committee (Dr. Lois Harder, Dr. Janine Brodie, Dr. Catherine Kellogg, Dr. Francesca Scala, and Dr. Fiona Nicoll) and colleagues who read and offered feedback on early versions of this paper (Dr. Eloy LaBrada, Dr. Daisy Raphael, Dr. Miranda Leibel, and Drew Brown). I am also thankful for the Editorial Board of Feminist Legal Studies and the anonymous reviewers who provided generative and generous suggestions to refine and strengthen my arguments. Any errors or omissions are my own.

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  1. Sally Horsfall Eaton Centre for Studies in Community Health, School of Disability Studies, Toronto Metropolitan University, 99 Gerrard Street East, Room SHE-576, Toronto, ON, Canada

    Margot R. Challborn

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Challborn, M.R. Polyamory and Legal Parentage: The Possibilities of C.C. (Re) and BCSC 767 for Expanding Conceptions of Kinship in Canada. Fem Leg Stud (2023). https://doi.org/10.1007/s10691-023-09539-4

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