However, while people in a traditional two-person relationship can develop legal obligations to one another at common law, polyamorous relationships heretofore have not enjoyed the same legal recognition. If two people live together in a marriage-like relationship for a set period of time, they are considered to be common law partners and if the relationship ends, legal rules will apply.
It’s all rather boring and technical but the gist of it is that common law relationships are not recognized for polyamorous relationships. Nor are polygamous marriages, which are technically illegal.
The polygamy laws in Canada were considered for their constitutional validity in 2011, through a reference question to the Court. The BC Supreme Court ultimately determined that the law was constitutionally valid, as its aim was to protect women and children from harm. However, the ruling is arguably problematic because it states:
I have concluded that this case is essentially about harm. More specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.
These types of arguments, in favour of the “institution” of traditional marriage, are the same type of arguments have have been used to argue against or undermine gay marriage advocacy. Gay marriage was legalized in Canada in 2005.
The decision in the Newfoundland case was focussed around the “best interests of the child,” which the Court concluded could be harmed by denying dual paternal parentage. This adds a layer of complexity to a further challenge to polygamy laws. However, it is clear now that the courts do recognize polyamorous relationships as having validity.
If there is no harm in these three people living together as a family, raising a child as a family, and it is in the best interest of the child, then it tends to undermine the basis for the finding that the polygamy law is about protecting women and children. No one in this polyamorous relationship appears to be abused.
It is possible for the Government to amend the polygamy law such that it prevents the polygamous marriage of children, or people under the age of nineteen. It is possible for the Government to amend the law to clarify that it is only intended to be applied in cases where the polygamous relationship causes harm. Particularly now that Canada has seen its first successful prosecution for polygamy in sixty years with the conviction of Winston Blackmore.
However, Blackmore was convicted in a different context where there was evidence of trafficking of girls to become his wives. There was real evidence of harm.
Before gay marriage was legalized in Canada, homosexual unions were recognized at common law as having many of the same rights as those involving traditional marriage. This was by way of the application of Section 15 of the Charter of Rights and Freedoms, which prevents against discrimination based on sexual orientation.
Legally, polyamory has not been recognized as a sexual orientation in Canada. However, there is a fierce advocacy group in favour of adding a “P to the LGBTQ2S+ moniker. The issue has been discussed in legal journals, so there is a trend that is moving toward recognizing it. And some psychologists agree that it could be considered an orientation. Don’t forget that the DSM-V still refers to transgender as a mental illness, rather than a sexual orientation.
So there is a foundation upon which such a challenge could be brought. But it appears it would require a very strong set of facts, a very healthy relationship, and fierce advocacy for the legal recognition of another form of non-traditional marriage in circumstances that do not create harm.
The issue has not been entirely put to rest by the polygamy reference decision. Rather, the door is still open a crack and it may have been opened just a bit more by this recent decision.
