Polyamory is a hot topic these days. Societal expectations for relationships seem to be becoming more permissive, and with television shows like “Big Love”, and major news networks publishing polyamory “explainers” (https://globalnews.ca/news/4320857/what-is-polyamory/), polyamory appears to be working its way somewhat closer to the mainstream. It’s clearly not a topic that is going away anytime soon. But polyamorous relationships, just like other more “traditional” relationships, have the potential to break down. And what happens when a spousal polyamorous relationship breaks down? What happens in a polyamorous divorce?
I’M IN A POLYAMOROUS RELATIONSHIP: AM I STILL CONSIDERED A “SPOUSE” BY LAW?
In British Columbia, the Family Law Act sets out two ways in which you can become a spouse: you can marry your partner, or you can live with them for two years in a marriage-like relationship. There is nothing in the Family Law Act that says you can only have one spouse. Therefore, if you reside with more than one person, and you have a marriage-like relationship with each of them, then logic dictates that you can have more than one spouse at a time.
NOT JUST “50/50”: PROPERTY DIVISION & SPOUSAL SUPPORT
If one or both of those relationships were to break down, giving rise to potential Family Law Act claims for spousal support or property division, the matter would become quite complicated rather quickly.
The Family Law Act presumes that property will be divided in two: s. 81 says that “on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.” That presumption clearly cannot work if there are three or more spouses. The court would have to fashion a remedy tailor-made to the circumstances of the parties, using section 95 of the Family Law Act, which allows for the unequal division of family property by order of the court.
In making orders for unequal property division, courts will consider the duration of the relationship, any agreements between the parties, contributions to the career of the other spouse, the incursion of family debt and each spouse’s ability to pay a share of the debt, whether a spouse decreased the value of property in bad faith, tax liabilities, and any factors that would cause significant unfairness. It would be quite tricky to apply these factors to three or more people rather than the usual two. The usual zero-sum analysis simply doesn’t apply.
It’s quite likely that there have already been several polyamorous separations where the parties have had to divide property, but we have not yet seen a public trial decision regarding polyamorous property division or support under the Family Law Act. The uncertainty in how the law would be applied, as well as the cost of a three (or more) party trial, makes it more risky for polyamorous exes to pursue their property and support claims in court.
Anyone who finds themselves in the midst of a separation from a polyamorous marriage-like relationship would be well advised to seek legal counsel to ensure that their interests are protected.
We are pleased to welcome family lawyer Diana Adam to our Edmonton office.
With a background in family and civil litigation, Diana is a confident and committed associate who passionately advocates for her clients every step of the legal process. Diana recognizes the emotional toll family disputes can take. She approaches her client’s issues with a balance of care and candour that is necessary to ensure that they have full information about the process and their options.
In addition to her legal expertise, Diana has a background in psychology and sociology from the University of Windsor. She draws on her prelaw skillset to help her clients stay calm and focused as they navigate the events of a separation and divorce.
Diana practices all aspects of family law, from prenuptial agreements to post-divorce modifications. While armed with the skills necessary to provide resolutions through negotiation, Diana is also a decisive lawyer with the confidence and experience to take a matter to court if that is the best way to achieve results for you and your family.
I recently received some articles about how casual dating apps, like Tinder, have apparently led to a boom in unplanned pregnancies, often where the people dating are not yet in a serious relationship. So, legally speaking, what happens if a casual relationship leads to pregnancy?
Child support obligations will kick in unless it can be shown that the person being asked for child support is not the biological father and has not assumed the role of the parent. It does not matter if the relationship was only a few hours old and the pregnancy was unplanned.
What if the payor parent is already financially responsible for other children when the unplanned child is on the way? By law that is not supposed to be an excuse to pay less support for additional children. Such cases have come before the Alberta courts and their response was basically that the younger children should not be financially penalized because they have older half-siblings.
However, a lower level of child support for the new children might still be justified on the notion that the payor parent truly is stretched too thin to pay the normal level of child support for them. Such an argument requires thorough preparation to have a chance at success, and one should definitely see a lawyer about making it.
Pregnancies from casual/short-term relationships generally do not lead to an obligation to support the other parent per se whereas an obligation of child support can increase or even create a spousal support obligation if the parties have cohabited for a long time before separation.
However, such unplanned pregnancies can drive down any existing spousal or partner support obligations that either parent may have towards former partners. To put it simply, child support trumps spousal support. For specific advice on your situation, please contact legal counsel.
For the first few years of a child’s life, the courts usually take the view that, while it is important for the child to form bonds with both parents, the mother is usually the primary caregiver and so the child should mostly live with mom during those years unless the parents have agreed otherwise. The father will usually receive something called “reasonable and generous parenting time” which means that he will be able to see the child as often as he can with everyone being reasonable. If there are disagreements about what this means, then the court can be asked to impose a more detailed parenting arrangement. In any case, the father can often get incrementally more parenting time such that the child is spending half of his time with the father by his early teens. You can find an overview of how courts decide parenting time in this post.
What is often forgotten is that the father of a child who was conceived through a casual, short-term relationship could have the same parenting rights as the father of a child conceived from a long-term relationship. In practice, achieving this is often difficult because the father in question will often have stayed away from the child, either of his own will or due to the mother’s wishes, for a significant part of the child’s early years. However, if the father does want to be a father to the child and gets appropriate legal advice so that an unfavourable parenting status quo does not develop, then regular and meaningful parenting time between the father and the child can usually be achieved.
Of course, the father in that situation may wish to confirm that he really is the biological father first because if it turns out that he is not the biological father but has been acting as a parental figure for some time anyway, then he may remain obligated to pay child support for some time even if he chooses to stop acting as a parent to the child.