11 October 2014

Polyamory and the Family Law Act: Surprisingly Happy Bedfellows

In summer of 2013, the Canadian Polyamory Advocacy Association asked me if I could speak to a convention they were hosting on the subject of polyamory and British Columbia's new Family Law Act. Of course I said yes.

The Family Law Act is the province's general law about family and family breakdown. In the old days, this area of the law used to be called the law of husband and wife or the law of domestic relations. "Domestic relations" isn't such a bad term, because the range of legal issues and interested parties the law addresses isn't just about husbands and wives. The Family Law Act applies to:
  • people who are, or used to be, married spouses;
  • people who are, or used to be, unmarried spouses, which usually means that the couple lived together for at least two years in a "marriage-like" relationship;
  • people who are parents of a child together;
  • people who are family members when family violence is or may be a problem; 
  • people parents ask to become guardians of their children; and, 
  • anyone, such as a grandparent, who has an interest in caring for or spending time with a child.
Besides, we're well past the age of Leave it to Beaver, where all couples were straight, married and had two children. Family law just isn't as it used to be.

Anyhow, as I was preparing my presentation, I was struck by how very well the Family Law Act fit with the circumstances and legal interests of people involved in polyamorous or polyfidelitous relationships. Far from the moralizing finger wag of the federal Civil Marriage Act, the new provincial law practically throws the door open to non-binary spousal relationships! To be fair, I expect that this result was unanticipated, but it is nonetheless welcome and astonishingly progressive.

Who is a "spouse"

Not too long ago, the only kind of legal "spouse" there was, was a married spouse. That's still the case under the federal Divorce Act, which defines spouse as "either of two persons who are married to each other."

In 1972, the provincial Family Relations Act, which was brand new at that point, gave unmarried couples who'd lived together for at least two years the right to claim spousal support from each other, and in 1978, the law was changed to define "spouse" as including married spouses and people who had lived together for at least two years in a marriage-like relationship.

We sometimes used to call unmarried couples in long-term relationships "common-law spouses," but this term was horribly misleading as many people in such relationships believed themselves to actually be married and in need of a divorce when they split up. The term actually actually refers to a common law rule from the middle ages that allowed to people to express their commitment to each other before friends and family and be validly married to each other without the necessity of a priest's incantations and wand-waving.

Under the Family Law Act now, spouse includes married spouses as well as:
  • someone who "has lived with another person in a marriage-like relationship" and "has done so for a continuous period of at least two years;"
  • someone who "has lived with another person in a marriage-like relationship" for less than two years and "has had a child with the other person;" and,
  • people who used to be spouses.
What being a "spouse" gets you

During the spousal relationship, someone who is a spouse is obliged to provide the other spouse with the "necessaries of life" under the Criminal Code. The old common law rule is a bit more specific and requires husbands to provide their wives with adequate food, clothing and shelter, although he had a fair bit to say about what standard "adequate" meant.

After the spousal relationship ends, married spouses can use the Divorce Act to ask for spousal support, and for custody and child support for step-children as well as the couple's own children.

Under the Family Law Act, married spouses and unmarried spouses can ask for orders about spousal support, child support, parenting arrangements and contact, and married spouses and unmarried spouses who have been together for at least two years can also ask for orders about family property and family debt.

Other laws give spouses other rights, such as the family rate for the Medical Services Plan, the right to the Old Age Security spousal allowance or to share in each other's Canada Pension Plan credits. The key question you have to ask for all of these laws, including the Divorce Act and the Family Law Act, is this: "do I qualify as a spouse under this particular law?"

Spousal relationships

Under the federal Divorce Act and Civil Marriage Act, only two people can be legally married to each other. In fact, the Criminal Code makes it an offence for someone who is married to "go through a form of marriage with another person." Each person is a "spouse" of the other person:


A and B are each in a married spousal relationship with the other. Because of the legislation, it is not possible for A or B to be also in a married spousal relationship with anyone else.

Under the Family Law Act, and the old Family Relations Act, someone could qualify as an unmarried spouse while still being a married spouse. Most of this time, this happened when a married person had separated, started a new relationship, and lived with the new person for long enough to qualify as an unmarried spouse without being divorced from the first spouse. A number of my clients were quite unhappy to find themselves in this position. Here's how the spousal relationships work in a case like this:


A is in a married spousal relationship with B, but also in an unmarried spousal relationship with C.

Now you might think that the Family Law Act definition of an unmarried spouse as someone who "has lived with another person in a marriage-like relationship" would restrict unmarried spousal relationships to only one other person. In fact, I think it does. However, nothing in the act says that you can only be in one spousal relationship at a time!


Assuming that A, B and C have all lived together for at least two years in marriage-like relationships, A is in an unmarried spousal relationship with B and in a separate unmarried spousal relationship with C. B is in a spousal relationship with A and in another spousal relationship C. C is likewise in a spousal relationship with A and in a spousal relationship with B.

In fact, things could be yet more complicated, as long as each relationship meets the criteria of (a) living tother (b) for at least two years in a (c) marriage-like relationship. Here's a diagram of the spousal relationships among four people in a polyamorous relationship:


In this case, A is in three simultaneous relationships, one with B, another with C and yet another with D.

Lest anyone get too hung up on what "marriage-like" means, that's been addressed by the British Columbia Court of Appeal in a 1998 case called Takacs v Gallo as describing the couple's relationship with and commitment to each other, including whether the couple does chores for each other, sleeps together, shares financial obligations, goes to social functions together and so on.

Children

Under the Family Law Act, parents who live together are presumed to both be guardians of their children. This extends to people who are parents and had a child using a means of assisted reproduction. In fact, as a result of ss. 20, 29 and 30, a child could have up to five parents, all of whom are the child's guardians:
  • up to two people who intended to have the child;
  • a donor of sperm;
  • a donor of ovum; and,
  • a surrogate mother.
If a member of a polyamorous relationship happens not to qualify as the guardian of a child, the person can apply for a court order making them a guardian under s. 51.

Being a guardian is important, as only guardians have parental responsibilities, which means the right to make parenting decisions about all of the important aspects of a child's life, from choice of school to choice of health care, as well as having day-to-day care and control of a child.

Child support

Under s. 146 of the Family Law Act, the people who may have to pay child support include parents, guardians with parental responsibilities and stepparents. A parent, as we've discussed, includes biological parents as well as parents through assisted reproduction. A guardian includes people who aren't parents. Stepparent means people who qualify as the spouse of a parent and lived with the parent and the parent's child.

As a result, anyone in a cohabiting polyamorous relationship who qualifies as the spouse of someone in the relationship will be a stepparent of the person's children and be obliged to pay child support. Someone who is the parent of a child of a person in a polyamorous relationship will have to pay child support as you'd expect.

Spousal support

Under s. 160, if a spouse is entitled to receive spousal support, the other spouse has a duty to pay it. In a polyamorous relationship, this means that a dependant spouse might be entitled to collect spousal support from each other person with whom the dependant spouse is in a spousal relationship.

Family property and family debt

This is where the Family Law Act gets tricky.

Under s. 80, "spouses are both entitled to family property and responsible for family debt," and on separation "each spouse" gets "an undivided half interest in all family property ... and is equally responsible for family debt." "Both" means that there are two spouses in a spousal relationship, which is reinforced by the idea that each is entitled to "half" of the property and debt. I don't think that this section necessarily deprives any of the spouses in a polyamorous relationship of a property right, but it does mean that it's best if the relationships collapses all at once rather than one spouse at a time.

If the relationship collapses all at once, each spouse is entitled to half of the family property accumulating with each other spouse. A gets half of the property with B and half of the property with C. B gets half of the property with A and half of the property with C, and C gets half of the property with A, and half of the property with B. Once it all shakes out, everyone has an equal interest in all of the family property, and a three-way split it is.

On the other hand, say the spousal relationship between A and B craps out while the spousal relationship between A and C and B and C survives. A and B each take half of the family property, and C gets nothing until C's relationship with A or B terminates; when C's relationship with A terminates, C gets only half of A's half share! Instead of getting 50% of the total property, C gets 25% of the property. In other words, if you're in a polyamorous relationship and things are going sour, it's best to be the one who gets out first.

Cohabitation agreements

Interesting stuff, isn't this? Anyhow, what it all boils down to is that, apart from some awkwardness in relation to dividing property, people in polyamorous spousal relationships seem to be subject to pretty much the same legal rights and responsibilities as people in binary spousal relationships.

Because the law applies to people polyamorous relationships almost as it does to people in binary relationships, and because people in polyamorous relationships generally tend to enter them in a fully conscious manner, knowing what it is they're getting into, it makes sense that the people involved would also plan for the breakdown of their relationship. This will not only allow everyone to make make arrangements about:
  • having children, and the parentage of children if assisted reproduction is going to be used;
  • child care responsibilities during the relationship;
  • contribution to household expenses and household chores;
  • management of household finances, including joint accounts;
  • purchasing new assets, and how those assets will be owned; and,
  • new partners entering the relationship and existing partners exiting,
it'll help everyone figure out how those problems about the sharing of family property and family debt I just mentioned will be handled. A cohabitation agreement will help everyone manage the relationship and navigate the tricky thicket of legal issues that will arise when one or more partners leave.

As it happens, I know a number of talented lawyers who have prepared cohabitation agreements for people involved in polyamorous relationships, namely barbara findlay, Agnes Huang, Samantha Simpson and Zara Suleman, and I know a few others who are good lawyers as well and would be up to the challenge. Feel free to contact me for a referral.

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