The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
J.M. and J.E. are the two male partners in a polyamorous relationship with C.C., the mother of A., a child born of the three-way relationship in 2017. The relationship has been a stable one and has been ongoing since June 2015. None of the partners in this relationship is married and, while the identity of the mother is clear, the biological father of the child is unknown….
In the present case, the child, A., has been born into what is believed to be a stable and loving family relationship which, although outside the traditional family model, provides a safe and nurturing environment. The fact that the biological certainty of parentage is unknown seems to be the adhesive force which blends the paternal identity of both men as the fathers of A. I can find nothing to disparage that relationship from the best interests of the child's point of view….
In relation to the CLA [Children's Law Act, which does not provide for more than two parents], it is safe to say that at the time of its introduction approximately 30 years ago, there was no contemplation of the now complex family relationships that are common and accepted in our society…. [T]he main concern [of the statute] was to bring about equal status for children born inside and outside of marriage…. I am of the opinion that when the CLA was enacted in this Province it was never the intention of the legislature to discriminate against any child but clearly to bring about equal status for all children notwithstanding their parentage
I find on the evidence before me that there is [therefore] a gap in the CLA, which was not intentional but which acts against the best interests of a child born into such a polyamorous relationship as is before the Court. To deny this child the dual paternal parentage would not be in his best interests. It must be remembered that this is about the best interests of the child and not the best interests of the parents….
To remedy the gap I am issuing a declaration that both J.M. and J.E. are the fathers (parents) of the child, A., born of the polyamorous relationship with C.C., the mother of the child.
The court relied on a 2007 case which similarly found a "gap" in an Ontario statute requiring the parents to be of opposite-sex, and which held that the gap should be filled by allowing two lesbian women to be recognized as a child's mothers.