26 February 2015

Multiple Misfortunes: Legal Challenges for Those in Polyamorous Relationships

I was recently contacted by an individual with an especially interesting legal problem resulting from the particular circumstances of the polyamorous relationship he was involved in that would most certainly not have arisen had he been in a same- or opposite-sex binary relationship. This naturally led me to reflect on the other legal problems people in polyamorous relationships might experience, and these are the subject of this post.

First off, I should say that as far as vanilla family law is concerned, polyamorous relationships are accommodated quite nicely in British Columbia's Family Law Act. I've written about that at length in my post "Polyamory and the Family Law Act: Surprisingly Happy Bedfellows." In a nutshell, people in these relationships would seem to have all of the same rights as anyone who is in an unmarried spousal relationship, as the definition of "spouse" doesn't preclude the possibility of having multiple spousal relationships simultaneously, including with two members of the family who are married to each other. These rights include the right to ask for spousal support, the right to ask for child support and the right to a share of the family property, and can even include rights about the guardianship of non-biological children in certain circumstances. Really neat stuff, and likely unanticipated by the drafters of the legislation.

Things are not necessarily so comfortable for those in polyamorous relationships in other areas of law and life. By and large these problems arise from definitions of "spouse" or "common-law partner," the misleading term used by the federal government to describe unmarried spouses, and assumptions that when it comes to "spouses" and "parents," there are but two of them. The following are a list of potential problems that might arise. Note that whether these are actually problems will depend on the law applicable in your province or territory, and often on the policies and practices of specific organizations.

Marriage

You can't. Well, to be precise, only two of you can marry; any further marriages to persons within the relationship who are married will be void.

There's a bunch of reasons for this. First, I expect that the Marriage Acts of most province says that marriages are between two persons; British Columbia's does. Second, the federal Civil Marriage Act defines marriage as the "lawful union of two persons to the exclusion of all others." Third, the federal Criminal Code makes bigamy a crime. Bummer.

Since members of a polyamorous family cannot marry, or at least cannot all be married, family members other than those who are married to each other will not be eligible for any benefits and entitlements that are reserved for people who are legally married to one another. This may not be a huge problem, as many benefits and entitlements are available to unmarried spouses as well as the married variety, however in most provinces, the right to share in the family property is limited to married spouses. Unmarried spouses can only share in family property the way that married spouses do in Manitoba and British Columbia.

On the up side, if you can't marry, you don't need to get divorced.

Insurance Plans and Benefits

Most private insurance plans limit their coverage to employees, their spouses and their children, and expect that employees will have only one spouse. The same may hold true for provincial public health plans with respect to the family rates they offer. However, it's worth checking whether an additional dependent adult can qualify for coverage under the basic family rate.

Survivor's benefits paid by the Canada Pension Plan and Old Age Security are payable to the spouse or common-law partner — singular — of the deceased person.

Although private pensions plans and retirement savings vehicles like RRSPs only allow for one spousal beneficiary in the event of the owner's death, most plans allow other persons to designate additional beneficiaries. This is meant for children, but can usually be extended to anyone. It will be important to check with your private pension plan administrator to see whether multiple beneficiaries are permitted.

Children

Most provincial Adoption Acts limit adoptions to one or two persons; British Columbia's does. It would also be a bad idea for a non-biological parent to adopt the child of another member of the relationship, as one of the effects of adoption is to strip the biological parent of his or her status as a parent, and of all rights and obligations a parent has with respect to a child.

Parentage is likewise limited to two persons, except in provinces, like British Columbia, that allow a child to have up more than two legal parents where the child is born as a result of assisted reproduction processes. In BC, the Family Law Act allows a child to have up to five parents: one or two intended parents, a donor of ova, a donor of sperm and a surrogate mother.

However, in some provinces it may be possible for non-biological, non-adoptive parents to become a legal guardian of the child, usually by making an application to court. In this way a child could have more than two legal guardians who would all be entitled to make the decisions a parent could make.

Immigration

I'm not going to discuss the federal government's offensive views on "barbaric" — that's the word used in the legislation and press releases — cultural practices; there's actually another, more common problem.

A citizen may sponsor his or her spouse or common-law partner to enter Canada and become a Canadian citizen. The problem here is the federal government's vigilance toward fraudulent marriages. Although people in a polyamorous relationship would likely view themselves as being in a committed, long-term relationship, Citizenship and Immigration does not recognize polyamorous relationships as being spousal or common-law in nature and would view such applications with much scepticism.

(Let me pause here and anticipate certain comments to this post. Yes, I think it is abusive and exploitive to force girls and women into marriage, especially in the case of children. However, I don't think it's for us to judge and label the cultural practices of a community as barbaric. That smacks of arrogance and cultural imperialism; after all, some might say that the federal government's treatment of indigenous peoples is barbaric. Glass houses, yes?)

Entitlements Based on Household Income

People in polyamorous relationships will need to be wary of benefits assessments and legal tests that are based on household income, as the income in question may very well be the income of all cohabiting persons. The benefits that spring to mind in this regard include the Old Age Security Guaranteed Income Supplement, entitlement to welfare benefits and entitlement to legal aid coverage. I'm sure there are others. The legal test I'm thinking of is the test for relief from the fixed child support amounts set out in the Child Support Guidelines on the ground of undue hardship; that test looks at the parents' household standards of living before deciding whether the amount that would normally be paid is too much or too little. Again, I'm sure there are other that I haven't thought of.

Sharing Property

More than two people can be legal owners of most things, including bank accounts, cars, houses and companies. That's not really the problem for polyamorous families. The problem has to do with how the laws about family breakdown divide family property.

Canada Pension Plan credits are often but not always equalized when married or unmarried spouses divorce or separate. The Canada Pension Plan legislation says that these credits can be equalized on the application of "either" spouse or common-law partner, and talks about the entitlements of "the two persons," which implies that CPP credits can only be equalized between two spouses.

As I mentioned earlier, most provinces exclude people who aren't married from their rules about property division. However, in the provinces that give unmarried spouses the same property rights as married spouses, the legislation tends to talk about equal half interests. The British Columbia Family Law Act says that "both spouses" are entitled to family property and that "on separation, each spouse has a right to an undivided half interest in all family property." Now, this doesn't mean that unmarried spouses in polyamorous relationships can't share the family property, but it does mean that it pays to be the first one out. I expect that the first to leave would get half the family property, with the next to leave getting half of the remaining half, and so on.

Anything Else?

I'm sure that there are things I'm overlooking, and I'd really be interested in your input, especially if you are or have been in a polyamorous relationship and have had experienced legal problems as a result of the nature of your relationship.

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