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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

1. THE CONTEXT OF THE POLYGAMY CONTROVERSY IN CANADA

The Intent and Scope of This Study

There has been a growing concern and controversy about polygamy around the world. In many of the 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; the practice of polygamy is profoundly patriarchal, and both reflects and reinforces gender inequality. A number of Western countries with a tradition of monogamy now 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 by the leaders of Fundamentalist Mormon groups in a number of Western states, though the practice of polygamy by this religious group has gone on for over 100 years.

In Canada, there has been growing concern and controversy about polygamy for a number of reasons that reflect developments in other countries, as well as some developments that are more uniquely Canadian. The most publicized concern is the practice of polygamy by Fundamentalist Mormons in the area of Bountiful, British Columbia. While this group has been practising polygamy in Canada for over 50 years, the issue has received attention only over the past decade and a half, with former members of the community raising concerns about both the practice of polygamy and abuse within the community. Uncertainty about the constitutional validity of Canada's laws prohibiting polygamy and concerns about how to enforce the law have made authorities in British Columbia reluctant to act. There have also been reports about some immigrant families, principally Muslims, practising polygamy in Canada, and questions have been raised about how polygamy should be taken into account in immigration policy. Further, with the debate about the redefinition of marriage to include same-sex partners has come the question of whether marriage should also be legally redefined in Canada to include polygamy. It has been argued that the inclusion of same-sex partners within marriage is, at least historically, without much precedent, but polygamy has a very long history and is still widely practised in many countries.

With the growing controversy and concern about polygamy, it is understandable that Status of Women Canada would want some research done on this issue to help inform politicians, practitioners and the public, and to help shape public policy. This paper is one of four prepared under contract with Status of Women Canada on issues related to polygamy. This 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.

Section 1 provides an introduction and sets the context for this study of polygamy. Section 2 surveys social science literature and media reports about the effects of polygamy on women and children in Canada and other countries. Section 3 summarizes legal issues that have arisen in other countries related to polygamy, with a particular focus on countries that have legal systems most like Canada's. Section 4 discusses the current legal and policy issues concerning polygamy in Canada. Section 5 considers how the information and developments of other countries shed light on the current controversies in Canada, offering legal analysis and policy recommendations for this country.

It is important to mention the limitations of this study. There was only a very limited time to organize and carry out the research for this paper, and to complete the analysis and writing. There is a very large international literature on some aspects of polygamy, especially its historical origins and first-person accounts of its practitioners, and we did not review it all. Further, although we had some informal contacts with individuals both concerned with the practice of polygamy in Bountiful and supportive of it, as well as with some Canadian professionals who had experiences with polygamy, we did not do any systemic empirical research of our own. One main recommendation is the need for further research about the practice of polygamy in Canada and elsewhere, as there are great limitations to the existing literature and reporting on polygamy.

Polygamy in Context: History

There is a long social, religious and legal history of polygamy. Polygamy was practised by many figures in the Old Testament of the Bible, including Abraham, David and Solomon. The Koran also accepts the practice of polygamy, though it does not require it, as a way to provide care for widows and orphans. "If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two, or three, or four; but if you fear that you shall not be able to deal justly, then only one" (4:3). The Koran also recognizes the challenges of living in a polygamous marriage. "You cannot be equitable in a polygamous relationship, no matter how hard you try" (4:129). In a primitive agrarian or hunting-based society with a high male death rate, especially due to war, and economic support only available to those who lived in a household, polygamy served useful social functions. Polygamy was widely practised, especially in Asia and Africa, but also among some of the Aboriginal peoples of North America.

Although polygamy was practised among some early Christians, and is still practised by some Christians, the early Christian Church rejected polygamy as inconsistent with the ideal of marriage as a love-based partnership of equals.

As is more fully discussed in Section 3, while polygamous marriages are legal in many countries, with the growing acceptance of the principle of gender equality, there has been a definite trend over the last century toward prohibiting polygamy. Societies that introduce laws to prohibit this practice, however, recognize the need to protect those who are vulnerable and, for example, prohibit polygamous marriage as of a particular date, but continue to give full marital status and rights to those who entered into a polygamous marriage prior to that date.

Polygamy in Canada: An Introduction

Until the recent debate over same-sex marriage, the accepted definition of marriage in Canada was based on the 1866 English case of Hyde v. Hyde.¹ "Marriage…may…be defined as the voluntary union…of one man and one woman to the exclusion of all others."

Individuals cannot enter into a valid polygamous marriage in Canada, and since 1892 it has been a criminal offence to enter into a polygamous marriage or reside in a polygamous union in Canada. There are only a couple of reported prosecutions for polygamy, however, and these occurred about a century ago, and involved Aboriginal peoples. 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" (LRC 1985: 23). 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.

It is estimated that there are about 1,000 Fundamentalist Mormons living in polygamous unions in the area of Bountiful, British Columbia, and some neighbouring areas in Alberta. While there have been police investigations into polygamy and allegations of abuse in this community, there have been no prosecutions for polygamy, at least in part because of concerns about the constitutional validity of Canada's laws on polygamy. As discussed in Section 3, it is important to note that American laws on polygamy have consistently withstood constitutional challenge, though Canada's law has yet to withstand constitutional scrutiny in the courts.

In the 1980s, Muslim polygamous marriage emerged as a major issue in Western Europe. In Canada there has not been any documentation of Muslims practising polygamy. However, when this issue is raised in the media, vague reference has been made to a small number of Muslims practising polygamy in Canada, and our conversations with professionals confirm that there are polygamous Muslim families in Ontario. Muslim polygamous marriages have been documented as an issue in the context of immigration to Canada. Though a party to a polygamous marriage does not qualify as a "spouse" under the Immigration and Refugee Protection Act, 2001, there have been reports of cases in which Muslim and Fundamentalist Mormon parties to such unions have attempted to gain or have gained admission to Canada under other immigration categories.

Though the actual number of polygamous marriages in Canada is unknown, the reality is that they exist. To avoid placing hardship on those already in a vulnerable position - plural wives and their children - foreign polygamous marriages that were validly entered into are accorded limited legal recognition in Ontario. Under provincial law in Ontario, the definition of "spouse" for purposes of separation and succession law includes those in polygamous marriages, if the marriage is valid in the foreign jurisdiction in which it was celebrated. As well, a woman living in a polygamous union in Canada would very likely be able to make child support claims and seek the same property relief as ordinary common-law spouses using the doctrine of the constructive trust.

Social Science Questions: The Effects of Polygamy on Women and Children

A fundamental consideration in determining Canada's approach to polygamous marriages should be the social, psychological and physical impacts this practice has on women and children. Our review of the international social science literature addresses the following research questions.

• What are the social, economic, health and psychological effects on women living in polygamous relationships? What are the policy implications of this information for Canada?
  
  
• Do polygamous relationships promote inequality between women and men?
  
  
• What are the social, economic, health and psychological effects on children living in polygamous relationships? What are the policy implications of this information for Canada?
  
  

Three Major Legal Questions: Distinct but Linked

This paper addresses three major legal questions to inform the manner in which polygamous marriages are dealt with in Canada. The three questions relate to freedom of religion, multiculturalism and enforcement of the law.

The first question concerns the scope of the right to freedom of religion. While individuals are free to hold any religious beliefs, the question of whether Canada should tolerate the practices of religious minorities that conflict with mainstream beliefs and are associated with significant negative effects for women and children is contentious. One difficult issue associated with polygamy is the extent to which children born into these communities are indoctrinated with a belief in polygamy from birth rather than freely choosing to practise polygamy. In particular, Fundamentalist Mormon communities have been characterized as "cults" where children are raised within an extremely insular community that entirely shapes their perception of the world. This may deprive them of the opportunity to make fully informed decisions about their own lives. Should Canadians be willing to tolerate polygamy, the question of how it should be regulated will arise.

The second question is whether Canada, as a multicultural state, should recognize and regulate practices, like polygamy, that are acceptable by immigrant groups in their countries of origin but are contrary to traditional Canadian behaviour. This question has already arisen in other contexts. Arranged marriages, for example, are common in South Asian communities and that practice has been accepted in Canada, as long as the consent to marry is genuine. In contrast, the practice of female genital mutilation is not accepted, though it may still be occurring in Canada. There is a debate about whether Sharia family law arbitration, as well as polygamy, should be permitted. Like polygamy, Sharia family law arbitration is the subject of considerable contemporary debate.

The third question concerns how present Canadian laws prohibiting polygamy should be enforced. The laws on polygamy are intended to benefit women and children, and to prevent a practice that is associated with significant harms to them. However, the actual enforcement of these laws may have negative effects on those who are most vulnerable in polygamous unions - women and children. Issues of enforcement are complicated by the fact that women who enter polygamous unions, and their children, often do not see themselves as "victims," and resist state interference in their family lives.