HomeCommentaryApplying the law (or not) to “a child born of a three-way”

Applying the law (or not) to “a child born of a three-way”

In a decision delivered in April 2018, a Newfoundland court recognized three legal parents (two fathers and one mother), based on the throuple’s sexual relationship 

The case starts with a Newfoundland throuple—two men and a woman in a sexual relationship—who had a child in 2017.[1] The identity of the mother is clear, both biologically and in law. However, the men could not both be recognized as fathers in Newfoundland law.

So the throuple petitioned a judge to declare both men to be fathers, whatever the statutes say. Though there have been earlier “three-parent” cases, such as A.A. v B.B.(2007) in Ontario, this is the first known case to involve a three-some seeking to be co-parents to a naturally conceived child.

The trio came to court claiming ignorance of paternity. Their ignorance, Justice Fowler observed, “seems to be the adhesive force which blends the paternal identity of both men as the fathers of J.A.” The judge commented further, “I can find nothing to disparage that relationship from the best interests of the child’s point of view.”

Genie or judge?

The legal issue is whether the court had authority to declare both men to be fathers. The Children’s Law Act, the Vital Statistics Act, and the Family Law Act are all structured around the basic reality that a child has two parents, thus “the provincial legislation does not offer much comfort to the Applicants in this matter,” writes the judge. So how did the judge get to his decision in their favour?

Justice Fowler invoked the court’s parens patriae jurisdiction—its common law authority to ensure that a vulnerable individual’s rights are protected in a situation where they would otherwise not be. In modern Canadian family law, the rule is that a court may exercise its parens patriae jurisdiction where there is a gap in legislation, where a circumstance arises that is not covered by a relevant statute, rather than dismiss the case without resolution or remedy. Where a statute applies, however, the judge must follow what the statute prescribes.

Justice Fowler decided there is a gap in the legislation because it supposedly does not contemplate “a child born of a three-way relationship.” He is wrong, biologically and legally.

What the law says

Part I of the Children’s Law Act  (CLA) governs the legal status of children and parents. The basic principle stated in section 3 is that children are legally what they are naturally – “the child of his or her natural parents.” The exception is when an adoption order is made. Notably, section 3 is never mentioned in the judgment.

Part II of the CLA sets out rules for establishing parentage and is focused on determining who a child’s natural parents are. It deals with maternity and paternity separately. It allows anyone with an interest in settling a question of paternity to ask a court to declare “a man is or is not the father of a child.” The Act presumes (in section 10) that a man who was married to or cohabiting with the child’s mother at the relevant time is the child’s father, but that presumption can be rebutted by evidence that someone else is likely the father.

The CLA contemplates (in section 10) that circumstances may “give rise to a presumption that more than one man may be the father.” In such a circumstance, section 10 states, no presumption about paternity can be made and “no one is recognized in law to be the father unless the court so finds under subsection 7(2).” Subsection 7(2) says a court may declare “a man” to be “the father” if the judge is persuaded that the man in question likely is the child’s biological father. A declaration made under section 7 may be nullified if new evidence becomes available.

Section 8 of the CLA permits a judge to give a party leave to obtain a genetic test. Consent to a genetic test is required. If a person refuses to submit to a genetic test, the court may infer what it will from the refusal.

So the law prioritizes biology, though not always. Section 12 states that a man who is married to or cohabiting with a woman who becomes pregnant via artificial insemination or IVF is the father of the child, even if the woman uses another man’s sperm, “if he consents in advance.” Here, the law does not prioritize biology in deciding who is the father, but makes the husband or cohabiting partner responsible for her child if he consents to her using assisted reproduction.

In any event, the law is clear about a judge’s options where paternity is uncertain because a woman is sexually involved with two men. Either “no one is recognized in law to be the father” (section 10(2)) or the court may find a man to be the father, on a “balance of probabilities” (section 7(2)). It’s one or none.

Had Justice Fowler refused to declare both or either of these men to be the father, one of more of the parties could have chosen to introduce evidence regarding paternity. Had they chosen not to do so at this hearing, any of the three could still seek recognition of paternity in the future, should one of them have a change of mind.

Ignoring the law

Justice Fowler disregarded what the Children’s Law Act instructed him to do. However, he attempts a justification.

Justice Fowler claims provincial legislation doesn’t apply. “There is little doubt that the legislation in this Province has not addressed the circumstance of a polyamorous family relationship as is before this Court and that what is contemplated by the CLA is that there be one male and one female person acting in the role of parents to a child,” he writes.

There are two responses to this “legislative gap” justification.

First, what is contemplated by the CLA is not that only one male and one female person will ever “act in the role of parents,” certainly that is not the case for many children. Rather, the CLA says that for the purpose of establishing parentage under Part I and II, and the related purpose of registering the child’s parents under the Vital Statistics Act, a child has one mother and one father, whatever the extraneous sexual relationships of the father or mother.

Second, the law of paternity in the CLA plainly covers situations where paternity is uncertain because a woman is sexually involved with more than one man.

Justice Fowler continues, “[The CLA speaks to] a ‘man’ in the singular and at no time is there a reference which would lead one to believe that the legislation in this Province considered a polyamorous relationship where more than one man is seeking to be recognized in law as the father (parent) of the child born of that relationship.”

Justice Fowler, finding no mention of polyamory in the CLA, too easily concludes that it has not “considered” three-somes, thus finding a “gap.” It might make more sense to ask whether legislators ever turned their minds to alternative relationships. The applicants have no interest in providing evidence that legislators had considered it, though, because their case hinges on the gap theory. Since the CLA accounted for in vitro fertilization already in 1988, and the Act was amended seven times between 2001 and 2013, it seems highly unlikely that legislators never considered such a possibility. Yet Newfoundland’s legislators have not removed the two-parent principle from the CLA or the Vital Statistics Act.

Even if most or all legislators never thought of such a circumstance, however, the CLA would still apply. It plainly deals with uncertain paternity. The legislature is not required to and cannot foresee every potential circumstance that could give rise to uncertain paternity, let alone set out specific rules for each. Thus, judicial speculation about what did or did not enter the minds of legislators cannot be the basis for finding a “gap” in legislation. The fact that a statute does not explicitly address a particular detail of the factual matrix before the court does not mean that the statute leaves gaps. It simply means that some facts are legally irrelevant. In this case, the fact that the mother’s two male lovers consider themselves to be part of a throuple is irrelevant to determining paternity under Part II of the CLA.

The “best interests of the child” principle 

Justice Fowler tries to bolster the argument for why he has authority to declare two men to be fathers by citing the “best interests of the child” principle. This gives the appearance that he is following the CLA, rather than rewriting it to reach his preferred outcome. However, the “best interests” principle is taken from Part III of the Act, which governs custody and access. Typically, this Part of the Act applies when parents split up. The basic rule is that “the father and the mother of a child are equally entitled to custody of the child” (emphasis added).

Where an application is made to a court under Part III “in respect of custody or access to a child,” the application is to be determined “on the basis of the best interests of the child.” Part I and II of the CLA, governing a child’s legal status and rules for establish parentage, respectively, do not include such a rule. The inquiries regarding parentage under Parts I and II are factual and the answers are fact-based, not interests-based: A child’s mother and father are not who a judge thinks are most deserving or would be the best parents for a child.[2]

However, if a dispute as to custody and access (sadly) arises, then a judge is to apply the “best interests” principle in the context of Part III and with the guidance given in section 31(2), which considers the child’s relationship with other family members (besides mother and father) and other factors. Parents themselves are expected to exercise custody and access rights under a separation agreement in the best interests of the child, by for example encouraging the child’s continuing relationship with “the other” parent. What is in the child’s best interests depends on many factors.

In this case, Justice Fowler uses this principle from Part III of the CLA to essentially rewrite the rules for establishing paternity in Part II. Even so, however, the judge discounts or ignores the implicit judgement of the legislature that it is in a child’s best interests to have only one legally recognized mother and father,[3]both of whom (ceteris paribus) are equally entitled to custody. Part III of the Act depends on Parts I and II, not the other way around. And Part III is fully consistent with the two-parent rule. It is misleading to suggest otherwise.

Justice Fowler declares, “Society is continuously changing and family structures are changing along with it. This must be recognized as a reality and not as a detriment to the best interests of the child.” This is perhaps more striking than his two-dad declaration. He observes that Newfoundland does not recognize multiple dads or three-way parenting. But, he declares, it must recognize “changing family structures,” substituting his judgment about what the law should be for the collective judgment of the legislature. Would he have said the same under slightly different circumstances? What if there were four parties in the sexual relationship? What if there were one man and two women or two men and three women petitioning for legal parenthood?

Meanwhile, he comments that the uncertain paternity of the child “seems to be the adhesive force” blending the paternal identity of both men. If ignorance is the binding force in this now legally recognized family arrangement, what happens if the truth inadvertently comes out, or the child demands to know the truth?

What is certain is that this ruling leaves more questions than answers.

This article was originally published by Cardus, here. Thanks to Andrea Mrozek of Cardus for her edits.

[1]The case is (C.C. (Re), 2018 NLSC 71). The decision was delivered April 4, 2018.

[2]See C.C. v M.B. (2003 NLSCTD 14). A mother opposed a man’s application for a declaration of paternity of her child, arguing that it was not in the child’s best interests. The argument was rejected. The judge wrote, “Part II of the Children’s Law Act, which deals with ‘establishment of parentage’, makes no reference whatsoever to the best interests of the child. It is only after an application is made pursuant to s. 27 [custody or access] of the Children’s Law Act that the merits of an application […] must be determined on the best interests of the child.”

[3]For same-sex partners in Newfoundland to be legally recognized as the parents of the same child, one or both must be an adoptive parent. The right of same-sex couples to adopt was won through Charter litigation in other provinces. In this case, however, the judge does not claim that the Charter requires all three polyamorous persons to be recognized as the (non-adoptive) parents.

 

 

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