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Polygamy in Canada: Legal and Social Implications for Women and Children – A Collection of Policy Research Reports
An International Review of Polygamy:
Legal and Policy Implications for Canada
EXECUTIVE SUMMARY
There has been growing concern and controversy about polygamy both in Canada and around the world. In many countries where polygamy has traditionally been practised, there has been increasing advocacy for the abolition or limitation of polygamy to protect women from abuse and promote gender equality. A number of Western countries face a different issue as growing immigrant populations from Asia and Africa have brought with them their attitudes and practices concerning family life, including polygamy. In the United States, there is increasing concern about the practice of polygamy and other abuses of women and children in Fundamentalist Mormon communities in a number of Western states. In Canada, there is concern about the practice of polygamy by Fundamentalist Mormons in the area of Bountiful, British Columbia, and questions have arisen about the constitutional validity of Canada's laws prohibiting polygamy.
Status of Women Canada contracted the Canadian Research Institute for Law and the Family to conduct an international review of polygamy, examining the social, legal and policy implications for Canada. This paper is one of four prepared under contract with Status of Women Canada to help inform politicians, practitioners and the public, and to help shape public policy. The paper seeks to set the present controversy in Canada in a broader international context, discussing social science literature and legal developments in other countries, and relating this international material to the situation in our country.
Summary of Concerns and Recommendations
A fundamental consideration in determining Canada's approach to polygamous marriages should be the social, psychological and economic impact this practice has on women and children. Both internationally and in Canada, social science research and media reports suggest that polygamy is often exploitive of women. The practice of polygamy is also contrary to notions of gender equality that are fundamental to Canadian society. Evidence also suggests that polygamy has significant negative effects on children, as children of polygamous families are more likely to experience emotional difficulties and have lower educational achievement than children in monogamous families. Questions have also been raised about high levels of child abuse, neglect and exploitation in polygamous families. In Fundamentalist Mormon communities in North America, a significant number of reports indicate that adolescent girls and young women are being coerced, physically but more commonly psychologically, into polygamy. Adolescent boys and young adult males are also harmed by polygamy, in particular if they are expelled from their communities and families as adolescents so they do not compete with older male community members for brides. As well, polygamy is associated with economic costs to society, as many polygamous families are unable to support their many children.
In 1985, the Law Reform Commission of Canada proposed that the polygamy provisions of the Criminal Code should be repealed, as the Commission concluded that polygamy is "a marginal practice which corresponds to no meaningful legal or sociological reality in Canada." Since then, however, there has been a much greater awareness of the number of individuals living in polygamous families in Canada, as well as an apparent increase in their numbers through both immigration and the high birth rate associated with polygamy. Further, much of the research about polygamy and its negative effects on women and children has only been published in the last two decades. Since 1985, Canada has provided significant social and legal recognition to monogamous relationships outside the traditional definition of marriage (i.e., common-law couples and same-sex families). Decriminalizing polygamy would be a very significant change from the present law, as the participants in such unions would no longer be living in a relationship that is legally prohibited and they would likely be eligible for an extended recognition as "spouses" for a range of legal purposes.
At the international level, over the last century, there has been a movement toward the elimination of polygamy, based on concerns about the gender inequality inherent in polygamy and its harmful effects on women and children. In light of this international trend, if Canada were to decriminalize and legally recognize polygamous unions, it might be taken as a signal that Canada is unconcerned with gender equality and child welfare, since polygamy has been linked with negative effects for both women and children. The Criminal Code s. 293 prohibits polygamous marriages or cohabitation in a polygamous union. If polygamy is inherently exploitive of women and damaging for their children, as the research suggests, then its practice needs to be prohibited. While the existence of Criminal Code s. 293 does not mean that all those in polygamous unions belong in prison, we recommend that this provision should remain as an integral part of Canada's policy of discouraging polygamous marriages. Although not enforced by criminal prosecutions, the Criminal Code s. 293 plays an important symbolic and educational role, proclaiming Canada's disapproval of this type of relationship. While the question of constitutional validity of the prohibition against polygamy can only be decided by the courts, in our view s. 293 is likely valid as it promotes gender equality and protects women and children.
Although the elimination of polygamous unions in Canada is desirable, such relationships should be discouraged in a manner that is sensitive to the positions and needs of those vulnerable individuals who have been pressured to enter polygamous unions, and to the needs of the children who are born of such unions. The indiscriminate arrest of any adult living in a polygamous union is not desirable, particularly if the result is that children would be taken from both of their parents. While prosecutions under s. 293 should take place, they are appropriate only if there are complaints of women being coerced into these relationships. To limit the number of polygamous unions established in Canada, the Canadian government should continue its immigration policy of exclusion of those who practise polygamy. There should, however, continue to be limited legal rights for those who lived in polygamous unions to protect the vulnerable, for such purposes of inheritance and child support, including limited recognition of polygamous marriages entered into in jurisdictions where polygamy is a valid form of marriage.
These conclusions should be viewed as tentative. There is a need for further Canadian research on the effects of polygamous unions on women and children, including research into how many polygamous households have been established in Canada.
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