In December 2022, the Supreme Court of Justice of Colombia released an unexpected decision: two men, who had been in a polyamorous relationship with a third man for more than a decade, were entitled to the latter’s survivor pension benefits.
The pension plan had originally denied the partners’ application for survivor benefits and had sought to give them to the deceased member’s mother. The family’s fourth partner wasn’t entitled to a share because he hadn’t been living with the plan member for long enough.
In the context of pension benefits, recognition of polyamorous relationships is rare. In Ontario, when a plan member dies before receiving their first pension payment, their spouse is entitled to a pre-retirement death benefit. If they have no spouse, the benefit passes to a designated beneficiary or the estate.
Ontario’s Pension Benefits Act defines a ‘spouse’ as either of two persons who are married to each other; or who aren’t married to each other and are living together in a conjugal relationship, continuously for a period of no less than three years; or who are in a relationship of some permanence, if they’re the parents of a child.
This definition — ‘either of two persons’ — suggests only two people can be in any given spousal relationship, though courts have recognized individuals can have multiple spousal relationships at the same time. This generally involves being married to one person and in a common-law relationship with another.
In 2014, Ontario amended its Pension Benefits Act to clarify that when a member has both a married and a common-law spouse, the common-law spouse is entitled to the death benefit — that is, a spouse is entitled to the benefit as long as they aren’t living separate and apart from the plan member. This is known as the ‘spouse in the house’ rule, which also applies to joint and survivor benefits.
Living separate and apart is more than living in different homes. Courts will consider numerous factors, including spousal communication, joint social activities and public presentation. But the law is silent on what happens if a plan member isn’t living separate and apart from either their married spouse or their common-law spouse.
Some provinces, such as Quebec and Saskatchewan, have addressed this issue by prioritizing the married spouse when it comes to survivor benefits. In those provinces, a common-law spouse is only entitled to survivor benefits if the member had no married spouse. While these laws provide more clarity in certain circumstances, they don’t help if a plan member is in common-law relationships with multiple partners. These laws also fail to consider the full spectrum of modern family structures.
In British Columbia Birth Registration No. 2018-XX-XX5815, the Supreme Court of B.C. considered whether a child, Clarke’s, birth registration should list three individuals as his legal parents: Eliza, his biological mother; Bill, his biological father; and Olivia, Eliza and Bill’s partner. The three adults had been in a polyamorous relationship since before Clarke’s birth and Olivia had acted as Clarke’s parent for his entire life. All three adults agreed Olivia should be recognized as one of Clarke’s mothers. The court granted the petition, acknowledging Eliza, Olivia, Bill and Clarke were a family and that legal recognition of such would be in Clarke’s best interests.
In the pensions and benefits context, recognizing the relationship between polyamorous partners differs from recognizing the relationship between a child and their biological parents’ polyamorous partners. For example, adding Clarke as a beneficiary to Olivia’s plan is similar to a child receiving benefits from one or two step-parents’ plans, which is commonly done.
In addition, a child’s entitlements under a parent’s pension or benefits plan end once the child ceases to be a dependant. A spouse may retain entitlements for their entire life, which is undoubtedly more expensive. Some may argue it’s unfair if monogamous members must subsidize polyamorous members’ coverage, but there are ways around that.
On a practical level, health benefits plans could calculate premiums based on the member’s total number of additional beneficiaries, be they spouses or dependant children. A member with two spouses and two children could pay similar premiums to a member with no spouse and four children, while a member with neither spouse nor child would pay less.
Courts have recognized pension and benefits schemes involve members cross-subsidizing each other and the fact that some members come out ahead of others isn’t discriminatory.
In 2022, the Federal Court of Appeal considered whether it’s discriminatory that single Canadians can’t designate a beneficiary for Canada Pension Plan survivor benefits and effectively subsidize partnered Canadians’ CPP benefits. The court found such rules are only discriminatory when the legislative scheme targets groups for illegitimate reasons extraneous to the scheme.
Currently, polyamorous pension plan members can try to secure entitlements for all of their partners, but the process is administratively burdensome and doesn’t provide full spousal protection. First, the member would have to have their married spouse waive their entitlement to the pension death benefit. The member would then have to list all of their partners as designated beneficiaries who are each entitled to a percentage of the benefit.
This solution falls apart if the plan member fails to update their paperwork after starting or ending a relationship and it still wouldn’t entitle their partners to any joint and survivor pension benefits. Other solutions, such as contracts between the member’s spouses to share the benefits, are difficult because of statutory prohibitions on assigning pension benefits.
In Birth Registration, the B.C. court found in drafting the Family Law Act, the legislature didn’t contemplate polyamorous families. “This oversight is perhaps a reflection of changing social conditions and attitudes . . . or perhaps is simply a misstep by the legislature,” wrote the court. “Regardless, the [Family Law Act] does not adequately provide for polyamorous families in the context of parentage.”
Similarly, legislation across the country doesn’t adequately provide for polyamorous families in the context of pensions.