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.

Separation, Divorce or Restructuring?: An Argument for the Latter

The words we use when talking about legal concepts carry a lot more meaning than the dictionary definition of those words; the words we use often reveal something about how we think about those ideas and the fog of cultural values with which they are associated. Language has a surprising impact on how we understand and interact with the world, and I am often astonished by how much my perception of a particular legal concept can change simply by choosing different words to talk about it.

Take, for example, the language we use to describe the care of children after separation. (I'm choosing my words intentionally here.) The federal Divorce Act talks about these legal concepts in terms of "custody" and "access." This was the language used in the original Divorce Act, which became law in 1968, and was a lazy, unevolved borrowing of the terminology used in the first commonwealth legislation on divorce, the United Kingdom's Divorce and Matrimonial Causes Act of 1857. British Columbia's former Family Relations Act, which became law in 1972, talked about custody and access as well, but included an additional term, "guardianship."

What's custody, then, and what's a custodian, a person who has custody of something? In civil law, custody means the right to possess and control an object. In criminal law, custody means the lawful detention of a person against his or her will. However, custody also carries with it somewhat of a flavour of an obligation to care for the person or thing that the custodian controls. The criminal sense of custody implies a duty to attend to and protect the person in custody, and the civil sense can sometimes imply a duty of preservation.

This duty of care business lies at the heart of guardianship, a concept which comes from the civil law of the Roman Empire and first made its way into English law by way of the Guardians in Socage Act of 1267. Although a guardian can be a guardian of property — this is essentially what a trustee does — we usually use the term in relation to persons, and in family law this means a duty to see to the wellbeing of a child and the preservation of the child's property.

Under the Family Relations Act, however, guardianship took a back seat to custody, largely because the Divorce Act only spoke of custody and the Divorce Act is paramount legislation, meaning that when the two laws conflict, the federal law wins. This had the effect of focussing the legal arguments of separated parents on the possession, rather than the care, of their children. Four things flowed from this in terms of the cultural values relating to separation:

1. Custody was often seen as a property right, which distracted parents and lawyers from the best interests and wellbeing of the parents'  children.  

2. The "right" in question belonged to the parent rather than to the child.  

3. Arguments about custody often resolved into an all-or-nothing proposition, which dramatically heightened the perceived consequences of "winning" and "losing" a custody battle and caused parents to invest tremendous importance in the outcome. 

4. The role of the parent who wound up only with access was inevitably trivialized relative to that of the parent who had custody.

Thankfully, at some point in the early 2000s family law lawyers drafting agreements and, somewhat later, orders, began using less conflict-laden words to describe the legal concepts involved in custody, access and guardianship. Access started to be discussed as "the parent's time with the child," "the time the child is with the parent," or better yet "parenting time" and "caregiving time." Guardianship was framed as "parenting responsibilities" and "decision-making duties." Custody could be referred to as "the primary residence of the child" or "the home where the child usually lives," or something to a similar effect.

This sort of language held the virtues of being child-focussed, rather than parent-focussed, and of talking about the care of children in terms each parent could get behind. It also had the effect of transitioning custody from an all-or-nothing choice between polar alternatives to a more fluid range of potential arrangements. (It was, in my experience, far easier for my clients to agree that the other parent would have the child's primary residence — in appropriate circumstances! — plus a certain amount of time with the child than to agree that the other parent would have custody of the child.) Most importantly, it also made family law disputes easier to settle by pulling the schismatic venom from the old language used to describe the care of children.

What was most interesting, in my view, was that the judges dealing with family law matters got on board with the new approach to language in fairly short order. There were plenty of legal arguments to be made that "primary residence" did not mean custody and that "parental decision-making" did not imply the range of legal rights involved in guardianship, yet these arguments rarely saw the light of day. Judges were actually prepared to make and endorse orders using this sort of language rather than the mildewed and conflictual language of custody and access.

The point I'm trying to make here is that this change of language had a profound impact on how lawyers, mediators, arbitrators and judges approached disputes about children, and it had a consequential impact on how parents viewed these disputes as well. Ultimately, this helped to decrease conflict between parents and made it easier to settle arguments that might have escalated out of control using the old terminology. Interestingly, the new language eventually received the government's seal of approval in 2011 with the new Family Law Act, which talks about parents who are the guardians of the children and in that capacity have "parental responsibilities" and enjoy "parenting time" with their children.

There's another change of language I would like to propose which concerns how we think of family breakdown, particularly in the context of family law.

"Separation," "divorce" and even euphemisms like "family breakdown," "splitting up" and "breaking down" are all ways of talking about the end of a romantic relationship, and reveal quite a lot about how we think about, and the fog of cultural values we associate with, the end of such relationships. These terms are all synonyms for severing, disconnecting, detaching, cutting off, sundering and a host of similar ideas; they imply an terminal ending, the cessation of one state and the commencement of another, entirely different state.

Conceptualizing family breakdown as a conclusive rupture of what was once a whole is fine for couples who are casually dating or in a more serious cohabiting relationship but childless. After all, the people in these relationships have a reasonable interest in entering new relationships and moving on with their lives. However, this way of thinking about family breakdown strikes me as problematic for couples that are financially interdependent and couples who have children, particularly for the latter.

Parents rarely have the luxury of watching their former partner ride off into the sunset and washing their hands of the relationship. Whether the child was intended or not, becoming a parent entails a lifelong commitment to care for and nurture that child and almost always necessitates a lifelong relationship with the child's other parent, and this is where the wheels fall off the concept of family breakdown as terminal end: the legal end of the parents' relationship might be the child's emancipation and achievement of financial dependence, but the emotional end is rarely so definitively achieved. Most parents want to be there when their adult child marries, becomes seriously ill, has a child, graduates university, declares bankruptcy or receives professional accolades. As a result, not only does a parent's relationship with a child never disconnect, detach, sunder or rupture, neither do most parents' relationships with each other.

It's not only emotionally unhealthy to conceptualize the breakdown of parents' relationships as a termination, it's legally unrealistic as well. I worry that thinking of final orders in family law matters involving children as actually "final" is self-deceptive and sometimes grossly optimistic. (This is one of the things that makes family law so different from other areas of the civil law, where cases have a both a beginning and an actual, conclusive end.)

A few years ago, I was talking to Jerry McHale Q.C., a former assistant deputy ministry of the British Columbia Ministry of Justice and presently the Lam Chair in Law and Public Policy at the University of Victoria, about justice reform and he described family justice as essentially involving the "restructuring" of families, and this is the change of language I propose.

Although I'd probably practiced family law for ten years by the time of this conversation, Jerry's insight, as simple as it was, crystallized my approach to family law. It elegantly points out that where a family includes children, the "family" does not separate or divorce or breakdown. Families restructure, and my job as a family law lawyer, mediator and arbitrator was to help families restructure and reorganize themselves. My job was to help my clients work out: how the same pool of property and debt would be used and managed by the couple now that they were living apart; how the same financial inputs that the couple had before living apart would be spent maintaining two separate homes; and, how the same parenting resources and commitments that the couple had while living together would be allocated and optimized now that the couple were living apart.

In essence, thinking of separation and family law dispute resolution processes as "restructuring" recognizes the continuation of the separated family as a family, although a family living in two different homes. I can think of at least five benefits that might arise from the constellation of values this way of thinking suggests:

1. It encourages a recognition and holistic view of the multiple relationships that exist within the family, between parents, between siblings and between parents and children. 

2. It discourages an adversarial approach by recognizing the continuing existence of the family and by framing separation as a transition rather than a termination. 

3. It discourages positional attitudes based on self-interest by recognizing that the constituent elements, financial and parental, that supported the family before separation are the same and only constituent elements available to support the family after separation.

 4. It expands the circle of interested parties, normally limited to the parents who are the combatants in the legal dispute, to include their children.

5. It encourages the legal and mental health professionals involved in family law to conceptualize their roles as supporting the family as a whole through its transition from one home to two, rather than as advancing the interests of only one member of that family.

This seems to me to be a healthier approach to separation and dispute resolution, an approach that is child-centred and emphasizes the wellness of the changing family as a whole, than the present approach which is predicated on conflict and dwells more on the self-interest of the individual parents than on the interests of their children. What do you think?