Baby Clarke was born at home, under the care of a midwife, after a tiring 20-hour labour. His birth mother, Eliza, got out of the tub where Clarke had been born and lay down on the bed, exhausted. Bill, Clarke’s father, cut the umbilical cord, and the newborn was quickly wrapped up in a blanket and handed to Olivia, Bill and Eliza’s partner and the baby’s second mother. Olivia, remembering her prenatal classes, knew that Clarke would soon begin to instinctually search around for a breast. Sure enough, with a little repositioning, Clarke latched and began to nurse. Even with all her preparation, including inducing lactation so that she could also nurse the baby, Olivia found this first moment as a mother a beautiful surprise.
In a British Columbia court this week, two and a half years since Clarke’s birth, a judge legally recognized that Olivia is, indeed, the child’s mother.
“Clarke is being raised in a loving and supportive family by three highly capable parents,” Justice Sandra Wilkinson wrote in her ruling. “I exercise my parens patriae jurisdiction and declare that Olivia is Clarke’s legal parent.”
This declaration ended a long and difficult fight for the family, whose recognition as three equal parents was vigorously opposed in court by the province. It also marks a small step forward in a much larger legal and cultural movement that matters to many queer and polyamorous families across Canada and the world: The recognition that family is complex, diverse and built on relationships of care and commitment as much as biology and tradition.
When Olivia began her relationship with Bill and Eliza (all pseudonyms adopted by the court to shield their identities), she knew they were planning to have a baby. The three formed a triad, a polyamorous relationship in which all three partners are romantically involved with each other, and agreed that Olivia would have a role as a parent. Soon after, Eliza became pregnant. Knowing that other multi-parent families in B.C. had been recognized as equal parents, they hoped to appear before a judge and have Olivia recognized as well.
“The ruling recognizes that family is built on relationships of care and commitment as much as biology and tradition.”
By this time, however, they had already tripped over the details of the B.C. Family Law Act, which lays out the rules for who can be considered a parent. The 2011 act does allow for multi-parent families, but only in cases that involve assisted reproduction—any child conceived by sexual intercourse, as Clarke was, has no more than two parents. If Olivia, Eliza and Bill had wanted to follow the scheme of the act, they would have had to write a formal agreement before Clarke was conceived, then conceive the baby by some means other than sex and present the fiction that Bill and Olivia were the “intended parents” of the baby and Eliza was their surrogate.
When the triad went to court to ask a judge to validate Oliva as a parent, they were met by opposition from the attorney general’s office, which argued that under the law only Bill and Eliza could be Clarke’s parents because he had been conceived through sexual intercourse.
The triad’s lawyers responded with three arguments. First, they said, the Family Law Act gives a judge the right to make a decision about parentage when there is uncertainty—and Olivia’s ambiguous legal relationship to Clarke created an uncertainty the judge could remedy by declaring her his legal parent. Second, the legal principle of parens patriae allows a judge to make decisions in the best interests of a child whenever there is a gap in the law. Third, denying Olivia status as a parent would violate her rights under the Canadian Charter of Rights and Freedoms, because, they said, family status should be a protected ground akin to sexual orientation.
Justice Wilkinson dismissed the first and third arguments. There is no ambiguity or uncertainty in Clarke’s parentage, she wrote; he is clearly Eliza and Bill’s biological child. As for a challenge to the Charter, that would simply take far more evidence, preparation and expert testimony than the triad’s lawyers had been able to muster.
The second argument, however, was persuasive. “The evidence indicates that the legislature did not foresee the possibility a child might be conceived through sexual intercourse and have more than two parents,” Wilkinson wrote. “Put bluntly, the legislature did not contemplate polyamorous families.”
“Frustratingly for the family, the case does not change the law or create an easy remedy for others.”
By stepping into the gap left by the Family Law Act and declaring Olivia a parent, Wilkinson solved the question of Clarke’s parentage. But frustratingly for the family, who had hoped to set a precedent for other polyamorous families, the case does not change the law or create an easy remedy for others.
“While this decision is very positive, I want us to be aware that it required multiple lawyers, great time, energy, resources and significant dedication by the family,” wrote one of the triad’s lawyers, Zara Suleman, in an email. “Most families will not have the ability to pursue such claims. Most polyamorous, multi-parent or diverse families will continue to fall through this legal ‘gap’ unless we see some immediate law reform.”
But Clarke’s case was not entirely without broader benefit. As well as testing a legal strategy other families could imitate, their case took one small step in a legal movement recognizing not only that children can have multiple parents, but that parentage is not tied only to biology.
For the past two decades, a combination of court cases and legislation in Canada has established the rights of gay and lesbian couples to be equal parents of a child, and of multi-parent families to form in cases of assisted reproduction, where a sperm donor, egg donor or surrogate is made an additional parent. In 2017, a Newfoundland court took things one step further, allowing two fathers in a polyamorous relationship with a woman to be equal parents to her child, since the parents had left paternity deliberately ambiguous. Clarke’s case extends this boundary once again, establishing that Olivia can be a full parent even though there is neither assisted reproduction nor any ambiguity about biological parenthood.
“Non-traditional families have always existed. And what we are seeing from this case is the court recognizing that these families do exist,” says Catherine Wong, a queer family lawyer in Vancouver who also represented Clarke’s family in the case. “What we’re seeing is a move from a biological imperative toward what we call ‘social parenting’ or ‘intentional parenting.’”
While Wilkinson doesn’t explicitly mention queerness, the judgement speaks to an important queer reality, says Wong: The complexity and importance of non-biological family ties.
“One thing that distinguishes myself and my queer friends is that, in addition to a biological family, we have what we call a ‘chosen family,’” she says. “This case also recognizes that there are kinship structures that exist outside of biology.”
Carrie Ichikawa Jenkins, a philosophy professor and writer at the University of British Columbia who studies love and romantic relationships, says the legal progress on recognizing diverse families follows a slow cultural shift in what constitutes family.
“This case also recognizes that there are kinship structures that exist outside of biology.”
“There’s a sort of rolling change that has been happening in our culture for quite some time,” she says. “I think what we can see in a case like this is the legal system de jure catching up with what is already de facto going on.”
Jenkins points out that Justice Wilkinson’s choice to give Olivia the title of mother, and not simply guardian, matters culturally as well as legally. Categories like “mother,” “marriage” or “love” help us classify what kinds of families and relationships are valuable and worthy of respect.
“These categories carry a huge amount of emotional, political and moral weight,” she says. “Legal statuses that merely mimic some of the formal rights of marriage or parenthood just don’t carry that same weight. So giving out a watered-down status, one that lacks all that raw power that comes with the really important category, is a way of excluding people from what really matters.”
Language matters to Olivia, too. “Before, there was an undercurrent of imposter syndrome when I mentioned the term ‘mother,’” she says. “This feeling that when I would tell someone that I was his mother, they would feel I wasn’t really. Being able to unwaveringly say that helps.”
Olivia says that besides her partnership with Bill and Eliza, she also has a caring biological family that she’s grateful for. But her experiences in queer community have taught her that it is care—not genetics—that is most important.
“Biology might play a part in what makes up a family, but there are a lot of parts that don’t have anything to do with biology,” she says. “And that’s the kind of support that a family should provide.”
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