Monogamy, Polyamory, and Polygamy in Canada: negotiating the expansion and recognition of legal parentage

Several Canadian jurisdictions have recently revised their family law legislation to make it possible for a child to have more than two legal parents, affirming many queer family structures. As a result, Canadians are now faced with reimagining fundamental questions about kinship, parentage, and legal recognition. Thus, this paper asks two interrelated questions: what does the expansion of legal parentage tell us about the Canadian state’s interest, and investment, in the governance of kinship? And, what are the possibilities, and challenges, for re-imagining kinship, intimacy, and parentage? I ask these questions through a critical discourse and intersectional analysis of three court cases concerning multi-parentage and multi-conjugality. First, Reference re: Section 293 of the Criminal Code of Canada, also known as Canada’s infamous “Polygamy Reference”. Second, two cases where polyamorous parents were recently granted legal parentage: 2011 BCSC 1588, C.C. (Re), 2018 NLSC 71 and British Columbia Birth Registration No. 2018-XX-XX5815, 2021 BCSC 767. Although the latter two cases do not indicate a groundswell, they illustrate a shift in how parentage can be captured by the law. And yet, in the background of these cases (and relevant legislative amendments), lives the ugly step-sister of multi-parent families and multi-conjugal relationships: polygamy. In the Polygamy Reference, Chief Justice Bauman ruled that Canada’s Criminal Code prohibition of polygamy (s.293) is consistent with Canadian Charter of Rights and Freedoms. He argued that in a “free and democratic society” criminalizing polygamy supports the “institution of monogamous marriage” and advances Canada’s international human rights obligations. I argue that the expansion of legal parentage (and its subsequent negotiation of who constitutes a family) also requires the enforcement, or re-enforcement, of the familial other; the kinship system against which ‘good’ and ‘ethical’ multi-parent families are measured. In Canada, the condemnation of polygamy as a patriarchal, oppressive, and marginalizing institution is the foil. Further, Canadian discourses surrounding polygamy draw on racialized and gendered constructions that prop-up the idealized, white, monogamous, heterosexual, and homonormative Canadian family. While the idealized Canadian family is white, monogamous, and heterosexual, liberalism’s desire to govern kinship requires a modest expansion of the ideal family to include the idealized queer family. The idealized queer family is not heteronormative but homonormative, a form which asseverates white Canadian nationalism by venerating Canadian discourses of inclusion, diversity, and monogamy (or “monogamish” relationships) without reorganizing the relationship between the family and the state or relationships within families themselves.