Three-parent families treated like any other in parenting disputes
As featured in Canadian Affairs | January 16, 2025
Written by Meagan Gillmore
A B.C. judge’s recent decision to increase parenting time for a father in a three-parent family shows increased acceptance of non-traditional families, lawyers say.
“The courts treated this exactly the same as they would any other family, and that was the right thing to do,” said Michelle Kinney, a family and fertility lawyer in Victoria, B.C.
The case considered how much time a sperm donor who was a legal parent should get with his child after his relationship with the child’s mothers deteriorated.
The judge found concerns about the father’s parenting were “an exaggeration and are misplaced.” He ordered that the father get increased time with the child.
Pre-conception agreements
Lawyers praised the judge for not questioning the man’s status as a parent. “It’s good that we start recognizing that all families should be recognized and honoured,” said Catherine Wong, a fertility and family lawyer in Vancouver.
B.C.’s Family Law Act allows people who donate sperm or eggs to be the legal parents of children conceived through assisted reproduction.
However, this is not automatic. For a donor to become a parent, there must be an agreement made before a child is conceived that says who the child’s parents are. A child conceived through assisted reproduction can have three legal parents.
These agreements, known as pre-conception agreements, are “legal contracts that people sign before a child is conceived … that set out the rules and responsibilities of each party and the intentions of a relationship between the party and the child and the parties with each other,” said Wong.
Pre-conception agreements can be made between the woman who gives birth to the child, her partner and the donor. Or they can be between a donor, the donor’s partner and the woman who gives birth to the child.
In this case, two married women entered a pre-conception agreement with a friend. The agreement said they would all be legal parents of any children conceived using his sperm. It also said the three would share parenting time equally and live together, or close to each other.
The three began living together in January 2021. In October 2022, the relationship between the married couple and the child’s father dissolved, and he moved out. Their son was born in November 2022.
Since then, the married couple have restricted the father’s time with the child. The father was asking for more time with his son. The mothers refused to increase his time with their son, citing safety concerns.
The judge said there was little evidence to support this claim. “The child’s health and emotional well-being will be enhanced by increasing [the father’s] time with the child,” the judge wrote.
Best interests of the child
Courts look at what is in the child’s best interests when making decisions about how much time children will spend with each parent.
Cori Molloy, the lawyer for the father, praised the decision
The decision “reinforces that a child’s best interests are served by fostering parental relationships with each of their multiple parents,” she said in an emailed statement to Canadian Affairs.
Parenting disputes have different dynamics when more than two parents are involved, she says.
“In many traditional two-parent cases, you will often see each side present opposing views of what is in the best interests of the child,” she said. “In a multi-parent scenario, the challenges are amplified as the dynamics of two parents aligned against one make it even more daunting for the ‘outsider’ parent’s voice to be heard by the court.”
The lawyer for the other parents declined to be interviewed.
Parents and donors
Fertility lawyers say the case provides clarity about how courts will treat pre-conception agreements during a parenting dispute.
Kinney, who helped craft B.C.’s Family Law Act, says this is the first case in the province that deals with multi-parent parenting agreements. “It’s groundbreaking,” she said.
B.C. was the first Canadian province to allow for children to have three legal parents. B.C. law is clear that this only applies in assisted reproduction. Surrogates can also enter into agreements to be legal parents.
Most parents who conceive using a sperm or egg donor do not make the donor a legal parent of the child, Kinney says. Being a donor and a parent are legally two different things, she says.
Being a parent means someone has legal obligations to their child, like child support, she says. “Once you’re a parent, you’re a parent. It’s immutable. Parent is a legal status, and it cannot be changed except by adoption or court order. Once you’re not a parent, you’re not a parent except by adoption or court order.”
“A donor is someone that gives genetic material,” said Wong. “It has no other relationship, generally speaking.”
But little case law exists about how multi-parenting agreements will work when the relationship between the parents ends.
“Most of the time in fertility law, we’re dealing with what you might say is ‘happy law,’ said Matthew Wiens, a fertility lawyer in Saskatoon, Sask. Fertility lawyers typically help people start families. Disputes are typically settled through mediation.
This case is not binding in Saskatchewan, but could be helpful for lawyers and families there, says Wiens. Saskatchewan also allows children to have three or four parents.
Parents who choose to form multi-parent families need to ensure they communicate clearly with each other, he says. “You’re entering into almost a divorce situation by design, that scenario where you’re having one child, two households, potentially,” he said.
All parents need to be clear about how they expect their child to be parented, he says. Making these agreements can be helpful for parents, even if they never have a dispute.
“Having gone through that process will have forced the parties to talk through some of those issues,” he said.
B.C.’s family law could be changed to include even more types of families, says Wong. “We can find a way to make the law work for everyone.”
