The New Modern Families…and the Role of the Collaborative Lawyer

Over the past 20 years, there has been a shift away from the nuclear family. Today, the notion of families is ever-expanding and evolving. Families consist of step-parents, siblings and grandparents, half-siblings, interracial parents, adopted siblings, two dads, two moms, and every combination in between. In Canada, we embrace a variety of definitions and combinations of families. Our law, too, is evolving to recognize the changes in the meaning of family, notably the legalization of same sex marriage and the recent receipt of royal ascent to the All Families Are Equal Act, which, in part, ends the obligation for a lesbian partner to adopt a child her spouse gave birth to.

The definition of family is continuing to expand with the rise in polyamorous relationships. People who self-identify as polyamorous have a desire for intimate relationships with more than one partner, with the knowledge and consent of all parties. Some “poly” people have a primary relationship with a person to whom they may be legally married, and have secondary relationships as well. Others have an equal commitment with two or more people and may live all together in a ‘triad’ or ‘quad’. The dynamics and practices between polyamorous couples and groups differs. And so there is no single way to comprehensively define or characterize poly relationships.

The Supreme Court of British Columbia has recognized the legal right of individuals to have multiple conjugal unions between live-in partners, with the condition that they do not marry. The law is clear that families with more than two equal individuals do not have the same legal entitlements as monogamous couples. So when poly relationships breakdown, what does it mean for these families – who may share children, finances and property and make career decisions as a team?

The legislation that governs property and support entitlements provincially and federally does not contemplate more than two people in a relationship. In some cases, step-parents who assume a role as parent may be on the hook for child support. It could be argued a third person caring for a child could be responsible for paying for the child – but what if that person looks for support from the child’s two adopted or biological parents? Would a court legitimize such a claim?

What about parenting arrangements? What if one person leaves and the other two, or three, in a relationship are staying together? Would a court award custody to a person if he or she is not a biological or adoptive parent, but has been significantly involved in raising the child? Again, this is unprecedented legal territory.

What happens with property? In Ontario, only married couples have a legislated right to a sharing of property on separation. Common-law couples who wish to claim an interest property owned by their partner must do so on equitable grounds, by claiming unjust enrichment, or joint family venture. Could polyamorous triads and quads make similar arguments if they contributed money or sweat equity into assets that are not in their name?

And consider spousal support. The law is clear that rights of spousal support arise between two people, whether they were married or common-law. Will the court entertain support obligations between interdependent groups of more than two?

What this boils down to is that the law has not appropriately evolved with polyamory. So far the courts have been clear that relationships involving more than two people are not afforded the same rights as married or traditional common law spouses. Families who are polyamorous and have financial and parenting stakes in each other’s lives need a legal agreement about what will happen upon the breakdown of the relationship to protect everyone involved.

The common image of polyamory invokes an image of polygamy. With media rhetoric centering on sister wives, and the potentially misogynistic forms of a poly lifestyle —as was evident in the recent decision, R. v. Blackmore— consensual polyamorous couples bear the brunt of this issue. It is important to examine this issue with an intersectional lens. Oftentimes, queer and polyamorous identities intersect. In such cases, the exclusion of polyamorous relationships from our legal framework may act as a form of double marginalization – wherein queerness and polyamory are the basis for disenfranchisement. As members of a community that has been historically excluded from legal representation and protection, the intersection of these two forms of marginalization must be highlighted. Recognizing the monogamous privilege of the law, as well as the historical heterosexual privilege of the law, helps to move forward to a far more inclusive collaborative and legal practice.

There exists a compatibility between the ethos of polyamory and the collaborative process. As both are predicated on a commitment to openness, communication and respect. It appears evident that professionals in collaborative conflict resolution have the skills and knowledge best suited for such situations. Furthermore, the time for collaborative lawyers to become aware, educated and accepting of the evolving tenants of human and familial dynamics is now.

Written by: Victoria Smith, Alexa Turner, and Madison Howell