Who Gets to Be A Parent?

When I started practising family law in 2013, most of the files I encountered dealt with divorce—emotionally draining and sometimes volatile cases of families dissolving. As a member of the 2SLGBTQIA+ community, I realized that my work could also help people understand the different ways people come together to build their families and that biology, while significant, isn’t necessarily the defining factor. Over time, I built a fertility law practice, and my caseload of “non-traditional” families grew: ones with same-sex parents and gender-non-conforming members, as well as families with more than two parents, including polyamorous ones. In short, I worked with the entire spectrum of families that exist in Canada.

In 2018, along with three other lawyers, I started working on a case in which three members of a polyamorous triad wished to be registered as the parents of a baby named Clarke. In situations where a child is conceived via intercourse, as Clarke was, B.C.’s Family Law Act only recognizes a maximum of two parents, the biological mother and father, on a birth registration. If a child is conceived using assisted reproduction technology, like IVF, the law recognizes a maximum of three parents, provided they sign an agreement before conception. In the case of Clarke, his family—two biological parents and, my client, a non-biological parent—all wished to be legally recognized.

In practice, my client was a parent: she was engaged in daily caretaking and decision-making. The family celebrated birthdays and holidays together. She even induced lactation so she could feed Clarke. She did all the things a loving parent would do—and more—and, still, her role wasn’t recognized under the law. This meant she didn’t receive the same benefits as other parents: she could not qualify for paid parental leave or childcare-related tax relief. She couldn’t put Clarke on her work’s family health plan. And she wouldn’t be able to give consent for treatment if he was hospitalized. Perhaps most importantly, Clarke’s own experience of his three-parent family would be denied by the world at large.

In the end, the judge ruled that all three members of the triad should be registered as Clarke’s parents, which she found was in the child’s best interest. But even though the case set a provincial precedent that a child conceived through sexual intercourse can have more than two parents, the law still doesn’t say all children in B.C. can have three parents. Had Clarke been conceived through assisted reproduction (and with an agreement in place), all three parents could have been listed on his birth certificate without any court intervention. It is absurd that the method of conception of a child determines who can be its parent. And in a time when one in five Canadian adults practise some form of consensual non-monogamy, poly parents should not have to mount expensive, lengthy court processes just to be seen as equal to the nuclear families down the street.

Across the country, parentage laws vary wildly: at the moment, Saskatchewan and Ontario are only two Canadian provinces that legally recognize more than two parents per child conceived by sexual intercourse. In Manitoba, the province’s Family Maintenance Act, passed in 2022, states that a child can have no more than two parents. And in Quebec, a case similar to Clarke’s is currently making its way through the Supreme Court, with a decision expected in the coming months. Outside of Canada, progress is being made in jurisdictions like California (the first U.S. state to pass a law that recognized multi-parent families) and Cuba (which changed its Family Code in 2022 to include “multiparenting”).

Right now, lawyers and advocates across Canada are revisiting the definition of parentage. In late 2020, the British Columbia Law Institute formed a committee to review who qualifies to be a parent under the province’s Family Law Act. It brought together fertility and family lawyers (including me), counsellors, doctors and representatives from B.C.’s Vital Statistics Agency (which registers births, marriages and deaths). Overall, the group recommended that parentage should be more intention-based—that the law should recognize people who are actively parenting children, even if they are not genetically related. Many family law cases involve parents who are trying to shirk their parental duties; the law should reward people who want to take on those responsibilities. Other recommendations were more specific: one was to amend the Family Law Act to include more gender-neutral terminology, like “the person who gave birth to the child” and “the person whose sperm resulted in the conception.” (The current terms—“birth mother” and “biological father”—encourage outdated assumptions about parents’ respective roles and genders.)

It’s entirely possible that full judicial reform may take years, proceeding on a similar path as same-sex marriage. (Decades of successful individual cases, then provincial buy-in, then eventually, full legalization in 2005.) In the meantime, more visibility around poly families will help to change hearts and minds. They are still excluded from the definition of “family household” by the Canadian census. And in my own practice, I’ve met plenty of people in poly relationships who are still wary of “outing” themselves for fear of stigma. The more everyone understands that these families are just like others—planning holidays, negotiating bedtimes with toddlers—the easier it will be for the law to evolve along with them.

Catherine Wong is a family law lawyer and mediator at Saltwater Law in Vancouver