In Canada, family laws create rights and obligations for couples that live together (“cohabit”) or have children together. Many provinces and territories provide further family law rights and protections to couples that choose to legally marry.
It is a common misconception that cohabiting “common-law” spouses have the same rights as married spouses, but there are important differences and these differences vary across the provinces and territories.[1] For example, for the purposes of paying spousal support, the Ontario Family Law Act,[2] (FLA) considers “spouses” to include married couples as well as unmarried couples that have cohabited for at least three years, or shorter if they are parents of a shared child. On the other hand, the FLA only provides married spouses the right to equalize or share family property.
Many couples, whether cohabiting or married, enter into domestic contracts (called “marriage contracts” or informally “prenups” for married couples, and “cohabitation agreements” for unmarried couples) to vary the default rights and obligations provided in the legislation to better fit their relationship’s specific needs.
But how do family laws apply if three people are living together in a romantic triad? Would they be able to vary their rights and obligations the same way with domestic contracts?
These are important questions facing polyamorous families.
What is polyamory?
“Polyamory” refers to having more than one intimate relationship at once in a way that is agreed to by all parties, whether or not marriage is involved.[3] A group of people connected by polyamory is called a “polycule”, although members of a polycule often do not identify as a single “family”, especially if they maintain multiple households.
Polyamory is distinct from “polygamy”, which involves a person being married to more than one person at once. Polygamy is a criminal offense in Canada under sections 290and 293 of the Criminal Code of Canada.[4]
Polyamory has been a relatively uncommon practice in Canada and as such there is little if any family case law on the subject. A 2010 study found that only 1 in 500Americans were openly polyamorous, however a 2016 survey of Canadian polyamorists found that over 80% of respondents agreed or strongly agreed that polyamory was increasing in Canada.[5]Another survey showed that Polyamorists in Canada tended to be younger and have higher incomes than the general Canadian population.[6] In other words, polyamorists tend to be at the age where they are forming families and family commitments, and should understand how family law applies to their families.
Polyamorous relationship structures come in many shapes and sizes. For example, a three-person structure with persons A, B, and C could either be a “triad”, where A, B, and C are all romantically connected to each other, or a “vee”, where Ais romantically connected with B and with C, but B and C do not have a romantic relationship with each other. There are many more possibilities when four or more people are involved, so this blog focuses on three-adult family structures.
As this blog explains, federal and provincial statutes do not adequately address polyamorous living situations, but domestic contracts can be tailored to fit each unique situation. This blog focuses on provincial laws, specifically Ontario, as federal legislation only governs married couples and since Canada does not allow polygamous marriage, all polyamorous structures will contain at least one non-marriage relationship.
Polyamory and Spousal Support
I was unable to find any case law regarding spousal support in a polyamorous relationship breakdown, and the Ontario legislation is unclear as to how it would be handled. Pursuant to the FLA, a person may claim spousal support if they were living with their ex-partner for three years, or if there is a child of the relationship. John-Paul Boyd, Counsel at Wise Bickman Barkauskas and former Executive Director of the Canadian Research Institute for Law and the Family, points out that nothing in the FLA appears to prevent a person from bringing spousal support applications against multiple people, including when leaving polyamorous relationships.[7] However, I would caution polyamorists from relying on the statute for spousal support obligations for the following reasons:
· The preamble of the FLA equates spousal relationship with marriage[8].Having multiple concurrent marriages is criminalized and stigmatized in Canada, implying the FLA may not recognize multiple concurrent spouses.
· Sections 29 and 30 of the FLA on spousal support obligations use language of “either of two persons” and “the other spouse”,[9]which imply a single relationship between two people to the exclusion of others.
Based on the foregoing, it is likely that if two parties were married or lived together as common-law spouses before the third one joined the household, the third would have no recognition as a spouse and thus no entitlement to receive spousal support (nor obligation to pay it). It is also likely that if the third person left the household, the remaining two would attempt to deny any spousal relationship with the third to avoid paying spousal support.
Polyamory and Family Property Legislation
Family property rights under the FLA only apply to married spouses. This includes the right to equalize net family property upon divorce or death,[10] and protections such as the equal right to possession of the matrimonial home.[11]
As such, it is clear what property rights polyamorous families can expect at the breakdown of a relationship. If none of the parties are married, then a party wishing to make a property claim at relationship breakdown would be limited to common law equitable remedies such as unjust enrichment or establishing that a business was a joint family venture, like any other unmarried person. If two of the parties in a triad are married to each other, those parties could seek equalization of net family property between them if they divorced just like a divorcing monogamous couple, but the third party would be excluded from this and would need to seek equitable remedies.
Domestic Contracts and Polyamory
Given that support and property provisions in the FLA do not apply well to polyamorous families, if parties to a polyamorous family wish to have a clear agreement and mutual understanding of their rights and obligations on a breakdown of the relationship(s), they should consider domestic contracts.
Domestic contracts in Ontario are governed by Part IV of the FLA. Section 52 sets out that marriage contracts are available between married spouses, and Section53 states that cohabitation agreements are available to “Two persons who are cohabiting or intend to cohabit and are not married.”[12]“Cohabit” is defined in Section 1 as “to live together in a conjugal relationship, whether within or outside marriage,” [13] but “conjugal” is not defined in the FLA.
The wording is clear that a domestic contract must be between two persons, but also suggests that a person can enter multiple domestic contracts at once as long as the relationships are “conjugal”. The features of a conjugal relationship were set out in Molodowich v Penttinen, [1980] OJ No 1904, and include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple.[14] The list includes “an attitude of fidelity”, but interestingly there is no mention of exclusivity. In M v H, [1999] 2 SCR 3, the Supreme Court reviewed and affirmed these factors, noting that not every factor will be present, and flexible analysis is key as “the relationships of all couples will vary widely.”[15]In the case of M v H, the Supreme Court extended the definition of “conjugal relationship” to include same-sex couples and not just opposite-sex couples.
Given the Supreme Court’s flexible and progressive analysis of conjugality in M v H, I hope (although it has not yet been tested) that an Ontario court would uphold a domestic contract where members of a polyamorous family intentionally and cooperatively entered multiple domestic contracts at once.
Implementing Polyamorous Domestic Contracts
Polyamorous relationships are complex and unique to each polycule, and polyamorous domestic contracts are no different. As domestic contracts are only available between two people, a separate contract is needed for every married/conjugal couple. This means that in a polyamorous household of three adults, there could be up to three domestic contracts (one between each pair). Ideally, the contracts should refer to each other and be harmonized to anticipate any order of relationship breakdown. Furthermore, with the added complexity and lack of caselaw in the area, it is imperative that each party retains experienced family law counsel to assist with the drafting and preparation of such a contract.
Polyamorous or not, we encourage everyone who is getting married or who lives with or is considering moving in with their partner(s) to ensure they understand their rights and obligations on cohabitation and marriage. Contact us to schedule a one-hour consultation to understand your rights and obligations and if a domestic contract is right for you.
[1]For a review of how common-law partner rights vary across Canada, see Laurence Breton & Margo Hilbrecht, The Rights of Common-Law Partners in Canada(Ottawa: Vanier Institute for the Family, November 2023), online: https://vanierinstitute.ca/resource/the-rights-of-common-law-partners-in-canada/. This report
[2] Family Law Act, RSO 1990, c F 3, s 29[FLA].
[3]John-Paul Boyd, Polyamory in Canada: Research on an Emerging Family Structure (Ottawa: Vanier Institute for the Family, April 2017), online: https://vanierinstitute.ca/resource/polyamory-in-canada-research-on-an-emerging-family-structure/.
[4]Criminal Code of Canada, RSC 1987, c C-46, s 290, 293.
[5]John-Paul Boyd, “Polyamorous and Non-Dyadic Relationships” in Joanna Radbord,ed. LGBTQ2+ Law: Practice Issues and Analysis (Toronto: Emond, 2020),279 at 280.
[6]John-Paul Boyd, Polyamoryin Canada: Research on an Emerging Family Structure (Ottawa: VanierInstitute for the Family, April 2017), online: https://vanierinstitute.ca/resource/polyamory-in-canada-research-on-an-emerging-family-structure/.
[7]John-Paul Boyd, “Polyamorous and Non-Dyadic Relationships” in Joanna Radbord,ed. LGBTQ2+ Law: Practice Issues and Analysis (Toronto: Emond, 2020),279 at 280 at 300.
[8]FLA, RSO 1990, c F 3, Preamble.
[9]FLA, RSO 1990, c F 3, s 29-30.
[10]FLA, RSO 1990, c F 3, s 5.
[11]FLA, RSO 1990, c F 3, s 19.
[12]FLA, RSO 1990, c F 3, s 52-53.
[13]FLA, RSO 1990, c F 3, s 1.
[14]Molodwich v Pentinnen, [1980]O.J. No. 1904,17 R.F.L. (2d) 376 at para 16.
[15]M v H, [1999] 2 SCR 3at paras 59-60.