Parenting and Polyamory: What is in the Child’s Best Interests?

In an April 4, 2018 judgment the Newfoundland and Labrador Supreme Court awarded a declaratory order pursuant to section 7 of the Children’s Law Act that three persons be named parents of one child. The current legislation in the province (and in most provinces) does not permit a child to have more than two parents. The three parents in question are a polyamorous family made up of two men and one women. When the woman had a child the family petitioned the court for the declaration recognizing them all as parents.

The court applied a best interests of the child test and determined it was in the best interests of the child for both fathers to have a recognized legal relationship with the child and therefore named them all as parents. The identity of the biological father has never been determined.

The court acknowledged the legislation never contemplated more than two parents. The court recognizes that when there is a gap in the legislation, such as not contemplating more than two parents, the determining factor has to be to protect the best interests of the child.

The court also recognized that it is important to take into account changing cultural norms in ensuring children’s best interests are protected. The court found in this instance the family was stable and provided a positive environment for the child. The court found there was nothing about the family make up which detracts from the best interests of the child. In fact the court supported the idea that to remove the status of one of the fathers would be detrimental to the best interests of the child.

Some specific facts in this case which may distinguish it from others include that there was an equal probability of biological parentage between the two fathers and the stable nature of their home. This could lead future courts to examine the home environment provided by families petitioning for similar treatment. A future court could potentially determine this ruling would not apply in the event the biological parents were clearly known.

Other courts in the country have named more than two parents in differing circumstances but not in a polyamorous family such as this where the family intends to parent together in one household. With this case and similar cases of multiple legally recognized parents across Canada, it may become appropriate to see a matter like this reach the Supreme Court for further clarification.

CC(Re), 2018 NLSC 71. Case Comment by Collin Smith, 2018

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