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 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:

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 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 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 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 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 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, 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 more than two people start living together.

Subject matter

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Managing negotiations

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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.