Polyamory is growing in Canada, but the legal system hasn’t caught up

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As non-traditional relationships become more visible across Canada, a growing number of people are entering into polyamorous relationships. The legal system is struggling to keep up.

While polyamory itself is legal, experts say gaps in Canada’s legal framework leave multi-partner families navigating uncertain terrain when it comes to property, parenting and financial protections.

At the centre of the issue is Section 293 of the Criminal Code of Canada, which criminalizes polygamy — but not polyamory.

B.C. family lawyer Marcus Sixta says the distinction is critical.

“If you’re married to more than one person at a time, that’s called polygamy,” he explained in an phone interview with CTVNews.ca Thursday. “Polygamy is illegal in Canada ... punishable by up to five years in prison.”

Polyamory involves multiple consenting adults in a committed relationship without legal marriage between more than two partners. It’s legal across Canada, but how polyamory is covered in family law varies across provinces and territories.

Sixta said his west coast office is seeing more people in polyamorous relationships seek legal advice, as clients try to navigate the lagging legal system.

“The laws are generally slow to catch up with social changes,” Sixta said. “Usually the social changes occur first ... and then there’s pressure on the government to make changes.”

Why prenups become complicated — and sometimes impossible

Polyamorous relationships often fall into a legal grey zone, especially when it comes to agreements like prenups.

A prenuptial agreement is a legal contract made before marriage that outlines how assets, debts and support will be handled if the relationship ends. Since prenups are tied specifically to marriage, they can’t legally apply to multi-partner relationships in Canada.

“If you are contemplating being married to more than one person at a time, that is going to be under the Criminal Code. A lawyer is likely not going to assist you,” Sixta said.

Instead, some polyamorous individuals turn to cohabitation agreements, defined as contracts between unmarried partners. But even those come with complications.

“Every province in Canada has different rules around who is a spouse when you’re not married,” Sixta said, noting that most laws are designed for two-person relationships only.

That leaves lawyers navigating untested territory, and they’re often hesitant to draft multi-party agreements that may not hold up in court, depending on location.

In B.C., the Family Law Act is more flexible. A person can be considered a spouse through marriage or “marriage-like” relationships lasting at least two years (or less, if they share a child). This law can result in multiple overlapping spousal claims. B.C. courts have also recognized more than two legal parents.

In Alberta, as another example, the framework is more restrictive. Instead of the term “common-law spouse,” Alberta uses the legal category of an adult interdependent partner, a classification limited to two-partner relationships and not polyamory. Under the province’s Family Law Act, children can only have two legal parents, although additional guardians can be appointed.

Ontario falls somewhere in between when it comes to relationships. Common-law relationships are recognized, but the law is built for two partners and doesn’t clearly account for multiple partners.

DIY agreements and ‘ethical non-monogamy’ frameworks

In the absence of clear legal tools, many people in polyamorous relationships create their own agreements.

B.C.-based lawyer Cori Molloy says this is common in what’s often referred to as “ethical non-monogamy” -- a broad term for consensual multi-partner relationships.

“It’s quite common in the polyamorous community to create agreements around the structure of the relationship,” she said. “To lay out this framework of how the relationship is going to operate and how each of the parties are going to interact with each other.”

These agreements often focus less on legal rights and more on expectations and boundaries.

Molloy said some are drafted independently using online templates, while others involve legal guidance. But without formal legal recognition, their enforceability is uncertain, leading some lawyers to workarounds.

Toronto-based family lawyer Hilary Angrove told CTVNews.ca in a phone interview she’s seeing this more in her practice.

“I can’t draft a cohabitation agreement for them,” Angrove said. “But if they’ve all bought a house together ... let’s get a co-ownership agreement together.”

Still, the workarounds only go so far.

“There are certain things they’re just not going to be able to benefit from ... like (Canada Pension Plan) splitting, health benefits or spousal support,” she said.

Breakups in polyamory legally ‘untested’

When polyamorous relationships break down, the lack of legal clarity becomes even more apparent.

“The law does not speak to dividing property amongst more than two people,” Sixta said. “You would be in barely untested legal waters.”

In most provinces, family law assumes disputes involve only two partners. That means courts may need to rely on alternative legal principles, such as unjust enrichment.

Unjust enrichment is a legal concept where one party benefits unfairly at another’s expense, Sixta explained. In these cases, courts can impose a constructive trust essentially recognizing that one person has a rightful claim to property, even if their name isn’t on it.

But these remedies are complex, uncertain and often expensive to pursue.

Parenting laws evolving, but unevenly

When children are involved, the legal landscape becomes even more complicated.

Molloy points to a case involving a multi-parent agreement between a married couple and a sperm donor who intended to co-parent a child. After their relationship broke down, the donor sought parenting time in court and the court upheld the agreement.

“Ultimately, the test is always going to be best interest of the child,” Molloy said.

“That was the first time that one of those agreements had been considered,” she noted.

Molly added that many disputes never make it to court, meaning there are fewer opportunities to set legal precedent.

“If it’s possible for people to settle out of court, then usually that’s the better route.”

Risks of going without legal protection

Without clear legal agreements, people in polyamorous relationships face significant risks around finances and parenting.

Even when agreements exist, they may not hold up if they’re deemed unfair.

Sixta explained that courts can overturn contracts if one party was determined to have been pressured into signing, known as undue influence. They can also be overturned if there was inadequate financial disclosure or if a party didn’t fully understand the legal implications, among other reasons.

“It’s very important for people to have independent legal advice,” Sixta said.

Angrove echoed the message: “If you’re in a polyamorous relationship, you can’t just rely on the law the same way ... you have to be more proactive.”