Paternal Polyamory and Polygamy

In the Newfoundland Supreme Court Decision in Re: C.C. (2018 NLSC 71), a judge decided the parental determination case where two male partners who were in an polyamorous relationship with a woman.

Is Canada finally ready for polyamorous families to be legal?

In Re: C.C., Fowler J. found that since both men were in a sexual relationship with the woman they had an equal chance of being the biological father.  They refused parental testing.  The court recognized the fatherhood of both parents.

The parties were not married.

However, section 293 of the Criminal Code of Canada makes Polygamy an offence.   Section 293 states:

 (1) Every one who

(a) practises or enters into or in any manner agrees or consents to practise or enter into

  • (i) any form of polygamy, or

  • (ii) any kind of conjugal union with more than one person at the same time,

whether or not it is by law recognized as a binding form of marriage, or

(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

What is the difference in the eye of the law between the two?  The courts have held that adultery is not a “conjugal union”.  However, the criminal code does ban “any kind of conjugal union”.  Meanwhile, courts are more open to polyamory in the family law context.

CBC’s Fifth Estate recently reported that Polygamy is happening in Canada’s Muslim community, but convictions are rare, which focuses on multiple marriages in Canada’s Muslim community without recognizing that multiple marriages are occurring in other contexts and in other faiths.

Legislative reform is clearly required to bring clarity to this issue, both in the criminal law and family law contexts.

If you have questions about your rights and obligations relating to child custody or access contact Windsor family law lawyers Mary Fox, Tanya McNevin or Thomas MacKay today by calling 519-259-1820.   We serve clients in Windsor, Tecumseh, Lasalle, Essex, Leamington, Kingsville, Belle River and Lakeshore, and throughout southern Ontario.

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