Much has been written and is being written about the legal recognition being considered and given, to new (if I can put it that way) kinds of relationships in our society. That is partly because for centuries, legal recognition was given only to marriages. One example is in England, where legal recognition of same sex marriages only happened in 2005. In B.C., marriage-like relationships are legally recognized, as are same sex relationships. It appears, however, that it doesn’t end there. I have written before that the meaning of the term “spouse” is expanding, to the point where our legislation may need to be changed. Two cases, decided earlier this year, illustrate a now fascinating area of our law, which may be lagging behind our 21st Century society!
British Columbia Birth Registration No. 2018-XX-XX5815
This case, decided in the spring, concerns three people (two women and a man) living since 2017 in a Polyamorous relationship. One of the women became pregnant, in the “usual” manner. She had been living with the man since approximately 2005. Though the child’s birth certificate identified the couple as the parents, all three persons applied for a declaration that the third person be also legally recognized as a “parent” to the child. The Attorney General opposed.
The three Petitioners argued, citing the B.C. Family Law Act (“FLA”). The three Petitioners shared parenting duties. They have gone on trips together and, otherwise, have not tried to “hide” their polyamorous relationship.
Our legislation allows assisted reproduction. A child who is conceived through assisted reproduction is the child of its Mother and any person the Mother was married to or was in a marriage-like relationship with. In a surrogacy situation, intending parents and surrogates are permitted to contract out of parentage, so that the surrogate relinquishes her parental rights to the child. But this case is different.
The Attorney General argued, essentially, that there is no legal recognition to a person not a party to the sexual intercourse which brought about the pregnancy.
The Court found that our Provincial legislature, when enacting the new FLA, a few years ago, did not address the issue of polyamorous families, where a child is conceived through intercourse. The Court held that all three persons here are the parents of the child. The Court, in its reasons, said this:
This oversight is perhaps a reflection of changing social conditions
and attitudes, as was found to be the case in A.A. and C.C., or perhaps is simply a misstep by the legislature. Regardless, the FLA does not adequately provide for polyamorous families in the context of parentage.
Han v. Dorje
In this case, from this past spring, the Petitioner applied for an Order allowing her to add to her Petition a claim for spousal support.
A few years ago, Petitioner sought to become a Buddhist Nun and attended a Monastery in New York State. She had met the Respondent, a high lama of the Karma Kagyu School of Tibetan Buddhism, not long before and then decided to pursue the necessary three year program. While there, the Respondent apparently assaulted her and she became pregnant. She then told him in a meeting, that she was pregnant with his child. Though the Respondent initially denied, he committed to assist her financially. She then abandoned her plans to become a Nun and left the Monastery. The Respondent sent her the following sums:
- $50,000 (Cdn) to assist with delivery and post partum care in Seattle;
- $300,000 (Cdn) to assist with the costs of the child’s first year of life;
- $20,000 (Cdn) for a wedding ring;
- $400,000 (US) to assist with purchase of a home for the child and the Petitioner;
The child was born in Richmond, BC in June, 2018. The Petitioner purchased a residence in Richmond (the parties had discussed Toronto). She lost contact with the Respondent in early 2019. Not long after, she launched the action.
The Petitioner, to succeed in a claim for spousal support, has to show she is a “spouse”. Given the low level of communication between the parties, and the small number of in person meetings, it will likely be difficult for her. However, the Court allowed her to add her claim for spousal support in her Petition. The Court made this important comment:
Ms. (The Petitioner’s) claim is novel. It may even be weak. Almost
all of the traditional factors are missing. The fact that (Petitioner) and (Respondent) never lived under the same roof, never shared a bed and never even spent time together in person will militate against a finding they lived with one another in the “elastic” concept of a marriage-like relationship. And if the COVID pandemic has taught us nothing else, it is that real relationships can form, blossom and end in virtual worlds.
These cases are ground breaking and it will be fascinating what is decided in the Han case. Regardless, the cases illustrate the rapidly changing relationships Canadians have with each other. The law will surely change further in the coming years and I note the Court’s mention of “virtual” relationships, which happen already in the Pandemic. Estate Planning will change with the law. While every person should try to do some planning, this is perhaps especially so for persons in such “legally” new relationships.