Polyamory: the Blind Spot of Family Law

Family lawyers are increasingly encountering a certain category of relationships that appear to be unaccounted for in law. Polyamory is a relationship which is not confined to two partners, but rather can vary in terms of scope, commitment, and permanence. The number of possible arrangements are numerous, and can range from a simple, closed triangle of three partners, to a complex, fluid web of relationships that shift and vary in seriousness. While many engaged in polyamorous relationships tend not to bother putting it on the legal books, interesting challenges can arise when partners to such an arrangement decide to seek legal officiality. Matters can also be complicated if one or more children result from a polyamorous relationship. Although little data exists, it is estimated that roughly 1 in 500 in the United States identify as polyamorous, but this contrasts with the number of family lawyers that have encountered polyamory in their professional field: between one third and a quarter, which may indicate that demand for legal services in this unique field are particularly high.

The Gap in Legal Coverage

If both of these aforementioned figures are accurate, then this discrepancy indicates that a shortage of legal services exist specializing in the kind of family law that would meet the needs of this demographic engaged in a diverse range of relationships. This unmet legal need runs the risk of allowing Canadians to fall through the cracks of family law. Despite being few in number currently, approximately four-fifths of Canadians recognize that this number is growing, and a similar proportion agree that polyamory is becoming more publicly acceptable, which means that this service gap will only grow wider as time goes on unless more family lawyers begin to recognize the business opportunity it represents.

Above: several common kinds of polyamorous relationship configurations.

The Intricacies of Polyamory in Family Law

The complexities of polyamorous legal needs are dizzying. Imagine, for example, an open ‘triad’ type relationship where at the centre lie three partners all committed to each other, though each is free to pursue other relationships of varying seriousness. In such an arrangement, how are benefits to be determined? How is annual income tax to be calculated? In the writing of wills, how will an executor be agreed upon? If a child is born to the triad, as was the case in C.C. (Re) 2018 NLSC 71, who can be considered its parents? In many provinces, the possibility of a child having more than two parents is not considered at all. Lastly, if a separation occurs, how much and to whom shall child support be paid, if applicable? Not to mention the tangle of determining what percentage of custody each parent bears. The ability of the legal profession to answer these questions undoubtedly will rely on no small degree of creativity and fresh interpretations of old laws. Regardless of what enfolds in the Canadian court context in this niche field, it is bound to be interesting.

 

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Changes Coming for Common-Law Couples in Alberta

Changes may soon be coming to Alberta’s legal framework surrounding common-law couples and how their assets are divided during separation, according to a new piece of tabled legislation titled the Family Statutes Amendment Act, 2018, which was first revealed on November 21st this year. The piece of legislation seeks to fill a gap in family law, chiefly how property division is to be handled following the breakdown of a common-law relationship. We last covered changes of separation laws in September, when the introduction of the Divorce Act (Bill C-78) shifted the focus of divorce proceedings to the well-being of any children caught in the middle and challenged ‘custody’ as a blanket term.

Common-Law Under the Current Framework

Whether a non-marital adult relationship is considered common-law or not depends on the province in question. In Alberta, a relationship becomes common-law under three circumstances, under which adult partners:

• Live together for three years
• Live together and have a child
• Decide to enter into an interdependent relationship

 

Under the current legal framework, while there are automatic property division mechanism for formally married couples seeking divorce, these provisions are not automatic for common law separations. While there is nothing legally preventing either party from seeking some form of asset division in court, finances are often tight during a separation. This is true for both married and common-law couples. Additionally, child-support ends automatically once a dependent turns 18 years of age, even if the dependent is disabled either mentally or physically in a manner that renders them reliant on their primary caregiver. Extending support for dependents in this situation cannot be done and any division of assets must be performed expensively through independent litigation. Although the rights enjoyed by married and common-law couples are similar, they are not the same in these regards, leaving common-law couples at a disadvantage.

Changes Under Proposed Legislation

The Family Statutes Amendment Act, would repeal and replace the nearly hundred-year-old Married Woman’s Act, which was passed in 1922. This antique law was the original Act which enabled women to sign contracts and own property, provisions which have since been made redundant by newer laws. The intent of the introduced legislation is to ameliorate the gap between the rights extended to married and common-law couples, which it seeks to improve by applying the same property rules to both types of separation and permitting caregivers to apply for support for adult dependents with illnesses or disabilities. In the case of dividing assets, provisions contained within the Matrimonial Property Act pertaining to the division of property would be extended equally to common-law partners undergoing separation. More specifically, this means that property gained during the relationship would be divided equally. This does not apply to property owned or acquired prior to becoming common-law. If passed, these changes are to take effect January 1st, 2020, to allow Albertans time to acquaint themselves with the legal changes.

If you or someone you know are in need of legal representation for a divorce, or is simply in need of independent legal advice for family law, don’t hesitate, contact Right Legal today to find the right lawyer for you.

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