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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

5. ANALYSIS AND RECOMMENDATIONS: LEGAL AND SOCIAL POLICY ISSUES

Concerns about Polygamy for Women, Children and Society

While there are significant limitations to the existing social science research on polygamy in terms of methodology and sample size, a significant amount of research from a number of countries strongly suggests that, in comparison to monogamy, polygamy is associated with significant negative outcomes for women and children. Polygamous relationships appear significantly more likely than monogamous relationships to be characterized by physical and emotional abuse of women. Many women in polygamous unions experience a diminished sense of self-worth and suffer from competition with the other wives. Children are significantly more likely to have a distant relationship with their father, and to experience academic difficulties.

Polygamy is not, of course, the only type of non-traditional relationship associated with negative outcomes, and some children raised in polygamous families grow up to be emotionally healthy and productive adults. Children raised in step families, for example, are also, on average, more likely to have behavioural and emotional problems than children raised by both of their parents in a monogamous marriage. Unmarried cohabitation is associated with higher rates of spousal violence and relationship breakdown than traditional marriage. Children raised by a lone parent may be more likely to live in poverty than children raised in two-parent families. However, at least in the context of Canada's social and economic structure, polygamy has some unique features that result in negative social, emotional and economic effects for women and children. The problems with polygamy are profound and inherent in the relationship, and are often caused by the polygamous relationship, not merely associated with it.

Polygamy also places an economic burden on modern states like Canada, as the very large families that often result almost inevitably look to the government for support. It is well documented in the United States that since Fundamentalist Mormon men marry only one wife legally, the other "celestial wives" often claim public assistance from the state as single mothers. Some of the largest polygamist families in Colorado City, Utah, reportedly collect over a million dollars in public assistance each year (Rower 2004). Rower reports that 33 percent of Colorado City residents receive food stamps, while the Arizona state average is only 4.7 percent.

As discussed in Section 2, there are well documented concerns about female adolescents and young adults in Fundamentalist Mormon communities in North America being coerced into marrying much older men. Though less well documented, there are also growing concerns about teenage boys being forced to leave these communities with no family support and minimal education. It seems inevitable that, if a modern community not decimated by war is going to widely practise polygamy, significant numbers of males must be forced from the community.

In Canada, there are media reports of young men and boys, some only 14 or 15 years old, who have chosen to leave Bountiful, because they did not wish to participate in polygamous or assigned marriages. While the media reports do not state that the boys were expelled, the boys describe their parents ordering them not to return or to communicate with younger siblings. As well, in some cases, leaving may be pre-emptive. A young male who is a former Bountiful resident, for example, is quoted as stating in an April 2005 newspaper article that he left because "They were going to kick me out anyway" (Armstrong 2005). At the public conference organized by The Bountiful Women's Society in April 2005, women in polygamous unions accused the media of perpetuating the "myths" that boys are forced from Bountiful and that the Bountiful polygamists abuse the welfare system (Hutchison 2005). These reports, however, would not appear to be "myths" but, rather, seem to be the inevitable consequence of polygamy.

There are also serious social concerns if some, usually wealthy or at least powerful, men have multiple wives, forcing men who would otherwise marry to remain single. The Canadian political theorist Tom Flanagan worries about the inequities which polygamy creates between men in a society, observing that if polygamy is widely practised, there will be a significant group of men without families, who are likely to be socially disruptive. Flanagan (2001) argued that polygamy produces brutal societies "dominated by a warrior cult of violent masculinity."

Issues Raised by Same-Sex Marriage: Canada

The 1866 English case of Hyde v. Hyde stated that "marriage as understood in Christendom, may…be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."⁵⁸ That case dealt with the issue of whether the English courts would recognize a potentially polygamous marriage entered into in Utah for the purpose of granting a divorce in England. The definition of marriage articulated in Hyde was quoted in Canada for well over a hundred years. In the past few years, however, a series of challenges by gays and lesbians has resulted in a judicial change in that definition. It was accepted in cases like the 2003 Ontario Court of Appeal decision in Halpern v. Canada (Attorney General)⁵⁹ that the traditional definition of marriage violates the Canadian Charter of Rights and Freedoms s. 15 by discriminating on the basis of sexual orientation. This new definition of marriage developed by the courts in cases like Halpern is now being recognized in legislation with Bill C-38 (2005) providing that "[m]arriage, for civil purposes, is the lawful union of two persons to the exclusion of all others."⁶⁰

In the public debate about same-sex marriage, it has been asserted that changing the definition of marriage to include same-sex marriage may be a "slippery slope" that will result in further challenges to the definition of "marriage" and the courts may force Canadian society to accept polygamy (Coyne 2005; Ward 2005). At the same time as politicians were discussing the relationship between polygamy and same-sex marriage, a survey carried out on behalf of the Vanier Institute of the Family found that 80 percent of Canadians disapprove of polygamy and would not accept it being practised. Though 20 percent stated that they would tolerate it, only four percent personally approve of the practice for themselves or others. In contrast, the survey found that 50 percent of Canadians agree that same-sex couples should be allowed to marry (Bibby 2005).

The debates about same-sex marriage and polygamy are clearly distinguishable. Same-sex marriage does not affect the concept of monogamy. The acceptance of polygamy as a legitimate form of marriage, in contrast, would do away with the concept of monogamy. Since marriage is already structured to involve only two people, the recognition of same-sex marriages will have no economic costs. In contrast, recognizing polygamous marriages would have significant potential ramifications in terms of additional costs to the state, as well as potential costs to employers for pension and insurance plans that provide benefits to the "spouses" of employees.

More significant than the economic issues are the concerns about the social and psychological costs of polygamy for women and children. There is no evidence that same-sex marriage harms children, and much evidence that it benefits those same-sex partners who choose to marry. By way of contrast, as discussed in Section 2, there is a significant body of research from a number of countries about the negative effects of polygamy on children in terms of their emotional development and educational achievement. Polygamy also has significant psychological and emotional costs for women. Furthermore, the fight for same-sex marriage was based on equality arguments, and failure to recognize same-sex marriage was shown to be discrimination on the basis of sexual orientation. Recognition of polygamy would promote gender inequality.

While the historical argument that marriage must be monogamous because it is inconsistent with the Christian idea of marriage is no longer persuasive in Canada, there are still strong social and economic policy reasons for rejecting polygamy in this country.

Possible Charter Challenges to Canada's Polygamy Laws

Arguments can be made in Canada about the unconstitutionality of the laws about polygamy. Both the Criminal Code s. 293, which creates the offence of polygamy, and the definition of civil marriage, which excludes polygamy, could face a challenge. In any such challenges, the criminal law, which creates a state-imposed penalty, will be subjected to a higher degree of constitutional scrutiny than the civil marriage law, though many of the arguments about the invalidity of these two different types of laws will be similar. The Attorney General of British Columbia has reportedly received a legal opinion that s. 293 of the Criminal Code violates the Charter, while the federal Minister of Justice has received opinions that this law is valid. Ultimately, the controversy about the constitutionality of Canada's polygamy laws can only be resolved by the Canadian courts. However, the jurisprudence from every other country that has dealt with the constitutionality of their polygamy laws has uniformly upheld prohibitions on polygamy, and it is our view that these laws are also constitutionally valid in Canada.

A challenge to the Criminal Code s. 293 and the civil definition of marriage may be brought under the Canadian Charter of Rights and Freedoms s. 15 equality guarantee or under the s. 7 liberty guarantee. However, the strongest arguments in favour of the unconstitutionality of these laws are likely based on the s. 2(a) right to freedom of religion.

Under s. 15 of the Charter, polygamists may argue that the polygamy prohibition is discriminatory. Although parallels have been drawn between polygamy and same-sex marriage, in that they both involve changes to the traditional definition of marriage, sexual orientation has been recognized as a prohibited ground of discrimination, because it is an inherent aspect of a person's identity. In contrast, the practice of polygamy is a particular type of chosen behaviour, one that is prohibited by law. Prohibiting polygamy does not discriminate against an individual based on certain inherent characteristics, but rather proscribes certain behaviour. Additionally, polygamy is inconsistent with the fundamental Charter guarantees of equality of men and women. Polygamy is almost always an unequal relationship, since, as it is invariably practised, men are permitted to marry several women, while women are permitted only one husband. Polygamy conflicts with gender equality as the reality of polygamous relationships is that their inherently patriarchal nature places women in a subordinate position.

Polygamists might also try to argue based on s. 7 of the Charter that their right to "liberty and security of the person" includes the right to live in polygamous relationships without criminal prosecution. American polygamists have already attempted to use the liberty right provided for in the Fourteenth Amendment of the United States Constitution as a basis for arguing that anti-polygamy laws are invalid, though as noted above they have failed.⁶¹ In Canada, polygamists are similarly unlikely to succeed using the liberty argument, as the negative effect polygamy generally has for children will require a balance between the rights of parents and concerns about children as an integral part of the section 7 analysis.

The strongest Charter based freedom of religion arguments are likely to be made by Fundamentalist Mormons in the context of a prosecution under the Criminal Code s. 293. Their argument would, for example, be stronger than that of a Muslim facing prosecution under this provision, as the Fundamentalist Mormon faith actually requires the practice of polygamy if directed by one of their leaders or "prophets," while Islam only allows for the practice of polygamy but does not require it.

It is noteworthy, that courts in the United States,⁶² Mauritius⁶³ and India,⁶⁴ as well as the European Human Rights Court,⁶⁵ have rejected freedom of religion arguments challenging polygamy laws. Most of these challenges were raised by Muslims, but as discussed, American courts have specifically and recently rejected freedom of religion arguments raised by Fundamentalist Mormons regarding polygamy.

Canadian jurisprudence suggests that while no person shall be compelled to change his or her beliefs, the courts will very carefully scrutinize claims under s. 2(a) of the Charter where religious practices may be harmful to children. The Supreme Court of Canada in the 1995 case of B.(R.) v. Children's Aid Society of Metropolitan Toronto⁶⁶ rejected a claim by Jehovah's Witness parents that the Charter was violated by child protection laws that allowed for a court order to be made for their child to have a medically necessary blood transfusion, contrary to the religious beliefs of the parents. Four justices held that freedom of religion should not be interpreted to allow for the right to harm another person. Five justices concluded that the parents' right to freedom of religion was violated, and held that s. 1 is the appropriate provision to balance state and individual interests, concluding that the limits in child welfare on the s. 2(a) parental right to freedom of religion were justified under s. 1 of the Charter, because the protection of children is "a pressing and substantial objective." While the issues raised by polygamy are quite different from those which were before the Supreme Court in B.(R.), that decision demonstrates that concern about the welfare of vulnerable and dependent individuals may outweigh Charter-based rights of adults to freedom of religion.

Rejection of constitutional challenges to Canada's polygamy laws would be consistent with jurisprudence and policies in other free and democratic societies. It would also be consistent with the trend in many societies that had long traditions of unequal treatment of women, but are gradually moving toward recognition of gender equality and the prohibition of polygamy. Conversely the decriminalization or legalization of polygamy would send a very disappointing signal to human rights activists around the world who have been struggling to end the unequal treatment of women in polygamy.

Canada has had a policy of not permitting Family Class sponsorship of immigration for polygamous spouses, and of making it difficult for those in polygamous marriages to immigrate to Canada. If Canada's polygamy laws were ruled unconstitutional, this would almost inevitably require a change in immigration policy. Canada would then be distinguishing itself from other Western countries, making it more attractive to those who practise or who wish to practise polygamy. In particular, Canada would become attractive to Fundamentalist Mormon polygamists as polygamy is likely to continue to be illegal in the United States and a significant Fundamentalist Mormon community is already established in Bountiful (Armstrong 2005). There is already considerable movement between the communities of Bountiful and American polygamist communities, which would undoubtedly dramatically increase if polygamy was removed from the Canadian Criminal Code. Further, if Canada were to be the only western country to allow immigration of polygamists, there would probably be significant immigration by polygamous families from Africa and Asia. If polygamy is not illegal, there would certainly be an increase in the number of polygamous family in Canada, with their attendant social and economic costs to Canadian society.

At the international level, there is a clear movement toward the legal abolition of polygamy to promote the interests of women and children. Canada is widely known for its leadership in promoting the rights of women and the recognition of human rights. Canada should be very reluctant to alter this reputation by decriminalizing polygamy.

Recommendations for the Federal Government

1. The Criminal Code s. 293, making it an offence to enter into a polygamous marriage or live in a polygamous union in Canada, should be maintained.
   
   
2. The constitutional validity of the Criminal Code s. 293 can only be decided by the courts. It is, however, important for the federal government to defend this provision in any litigation, as this law promotes gender equality, and serves to protect women and children.

The Need for Sensitive Enforcement

We believe that Canada's polygamy laws are constitutionally valid, and there continued existence has important symbolic, educational and policy functions. However, aggressive enforcement of the criminal law would not be appropriate, and would be contrary to the interests of the vulnerable women and children who are at present living in polygamous families. Utah Attorney General Mark Shurtleff has noted some of the difficulties in dealing with the much larger Fundamentalist Mormon polygamous community in his state, where the criminal laws against living in polygamous unions are clear and have been held to be constitutionally valid. He observed that dealing with polygamy is not a matter of simply arresting all those who practise it because, if he were to use that approach, 20,000 children in his state would be affected ("Dr. Phil" 2005). While the polygamous communities in Canada are much smaller, a policy of widespread arrests would be devastating for the children of polygamous marriages if it meant that many children would have both parents arrested. Such an aggressive approach would also risk creating a public relations disaster, as occurred in Short Creek, Arizona in 1953.

There are concerns that aggressive investigation and prosecution of polygamy cases might force polygamy further underground, which would make it more difficult to help vulnerable woman and children. Currently, though the Fundamentalist Mormons in Bountiful are private about their affairs, some of them openly admit that they practise polygamy. Arguments have been made that women and children would be better served if polygamy were decriminalized, so polygamous marriages could be better monitored for abuse and exploitation of women and children. Alyssa Rower (2004: 729), an American commentator, has advocated in favour of legalizing polygamy as the most effective way to expose polygamous families to greater scrutiny. She has argued that this would permit, where warranted, prosecution for such criminal activities as child abuse, incest or marriage to an underage "wife." She suggested that legalizing polygamy would mean that "[f]undamentalists could join mainstream society and live under mainstream laws." Even, however, if polygamy were to be decriminalized, polygamists in Fundamentalist Mormon communities are unlikely to become more open and less distrusting of outsiders. As no member of the Fundamentalist Mormon community in Canada has ever been prosecuted for polygamy, it is doubtful that the criminal law has had a major role in causing the community to be secretive.

Aggressive investigation and the enforcement of the Criminal Code polygamy provisions through widespread arrests would be problematic, and would jeopardize the welfare of vulnerable women and children. On the other hand, prosecutions are appropriate in cases where minors have been placed in an arranged polygamous union, or where adult women are coming forward to complain of being forced into a polygamous union. Further, it would be appropriate to prosecute the male community leaders who publicly advocate polygamy, live in polygamous unions and have arranged for women to enter into polygamous marriages with other men in their communities.

Assistance, counselling and support should be provided for women and children who wish to leave their polygamous families, but feel trapped because of their limited financial resources and minimal education. Young adult males who wish to leave, or are forced to leave, these communities also need assistance. In some cases this may involve providing legal assistance so civil and family law remedies (including child support) can be pursued.

The British Columbia government should cease funding any independent school that encourages the practice of polygamy. Already in 1993 the Committee on Polygamous Issues was critical of the Ministry of Education's lack of scrutiny of the Bountiful Secondary-Elementary School. It has been reported that the Ministry only evaluates the Bountiful Secondary-Elementary School during pre-announced visits and through the use of standardized tests for which students can be specially prepared by their teachers. The educational standards at the school appear to be inadequate, and because it is controlled by the community's religious leaders, the school is indoctrinating children and isolating them from the broader society. Media reports have been highly critical of this funding, on the grounds that the school is being used to teach polygamy, sexist and racist attitudes, and that it does not prepare students for life outside that specific community (British Columbia Civil Liberties Assocation 2004; CUPE BC 2004; Bains 2003). As polygamy is illegal, government funding should not be provided for independent schools that encourage this practice.

Recommendations to Provincial Governments Where Polygamists Reside

3. Prosecutions for polygamy should take place with sensitivity to the effect of enforcement of the law on the children and vulnerable women.
   
   
4. Prosecutions are most appropriate against male community leaders who live in polygamous unions and have arranged for women to enter into polygamous marriages with other men in their communities. Prosecutions for polygamy are appropriate in cases where older men have entered into polygamous unions with minors, or where adult women are coming forward to complain of being in a polygamous union.
   
   
5. In the absence of evidence of abuse or neglect, child protection workers and law enforcement officers should not remove children from polygamous families from the care of their mothers.
   
   
6. Counselling, support and education should be made available for women, children and young men who want to leave polygamous communities.
   
   
7. Child welfare and education laws should be effectively enforced in regard to all children, including those children living in polygamous families.
   
   
8. Government funding should not be provided for education that supports polygamy (i.e., the present policy of British Columbia in funding the independent school in Bountiful should be reviewed), and school attendance laws should be enforced to ensure that children of polygamous families receive appropriate education.

Limited Recognition of Polygamous Marriages

Though parties to a polygamous marriage may be excluded from being sponsored to immigrate to Canada under the Family Class of the Immigration and Refugee Protection Act, 2001, they have, on occasion been permitted entry on "humanitarian and compassionate" grounds. Though the exact number is unknown, it is also possible that a number of persons living in polygamous unions have gained entry under other grounds or are illegally in Canada.

In Ontario, spouses in polygamous marriages that were validly entered into in foreign countries are given legal recognition for purposes of making statutory claims on death or after separation. This limited recognition of foreign polygamous marriages provides a degree of acceptance for the reality that there are Canadians who are in polygamous marriages, as well as plural wives living in other countries who might make claims against husbands resident in Canada. This provision raises constitutional and political issues about potentially unequal treatment of domestic and foreign polygamous relationships. The provisions of Ontario's Family Law Act and Succession Law Reform Act can only be used by those whose polygamous marriages were celebrated in a foreign jurisdiction that recognizes polygamy, and is therefore unavailable for the protection of those who enter polygamous marriages in Canada or in another jurisdiction that does not permit polygamy. This could be the basis for an argument by Canadian polygamists that they are denied protection relating to property and spousal support that is available to persons who were party to a polygamous marriage, but who married in a foreign state that recognizes the validity of such marriages. Further, this provision would allow those who entered into polygamous marriages in foreign countries to benefit from a practice that is outlawed by Canada's Criminal Code. In our view, however, these differences in treatment are constitutionally and politically justified on the ground that this is consistent with principles of private international law about establishing the validity of a marriage, and it is a fair resolution to the problems inherent in international differences in marriage laws. It is also necessary to protect vulnerable women and children who relied on the laws of the jurisdiction where the polygamous marriage was performed and that likely does not violate the Charter or strengthen claims within Canada to challenge s. 293 of the Criminal Code.

Apart from Ontario legislation, statutory schemes that allow claims by "unmarried spouses" (often called "common law spouses" in Canada) for such purposes as family law, succession and such social benefits as the Canada Pension Plan are limited to relationships involving two partners. There may, however, be Charter-based arguments to interpret such laws to recognize limited claims from polygamous wives to protect vulnerable women. These arguments would be more likely to succeed if seen as protecting vulnerable women (i.e., under the equality provisions of s. 15 of the Charter) than if made on the broader basis of recognizing polygamy (i.e., under the religious freedom provisions of s. 2 of the Charter). A woman who could establish that she was coerced to enter and remain in such a relationship would also have a stronger argument. If such arguments are accepted, benefits would presumably have to be divided on a per capita basis to protect all the wives, without imposing unfair burdens on an estate or the government.

There may also be limited circumstances in which a woman who lived in a polygamous union in Canada, such as a Fundamentalist Mormon marriage, can claim certain limited rights arising from the union. One would certainly expect that if a Canadian court had jurisdiction over a case involving a claim to child support by a wife in a polygamous relationship, she would be entitled to succeed, as child support claims do not depend on marriage. Further, property claims that are intended to recognize contributions to the acquisition or maintenance of property without regard to marital status (such as the constructive trust) should succeed; the husband should not be able to rely on the fact that this was an illegal union to deny this type of equitable relief to recognize contributions.

Preventing the formation of any new polygamous relationships is an important goal, but the reality is that there are women and children in Canada living in these relationships, or may be living in other countries and want to make claims against "husbands" in Canada. It is submitted that the American cases that have dealt with issues related to individual children have taken the correct approach. The fact that a mother is living in a polygamous relationship should be viewed as a negative but not determinative factor in making a decision based on the best interests of a child; these decisions require consideration of all the child's circumstances. Limited recognition of polygamous marriages, for example for inheritance purposes, is appropriate, but Canadian law should, in general, not recognize polygamous marriage.

Recommendations to the Federal Government

9. As long as polygamy remains a criminal offence, it should be retained as a basis for excluding immigrants.

Recommendations to the Federal and Provincial Governments and the Courts

10. As there may be refugees and others in Canada who are in polygamous relationships, in appropriate civil cases (e.g., inheritance) the law should offer limited recognition of rights to protect the vulnerable women and children who have lived in polygamous relationships. There may also be vulnerable individuals in polygamous relationships who reside overseas and should be entitled to seek limited relief in Canadian courts against a partner who resides in Canada. A primary concern in deciding how to deal with participants in polygamous unions is that the vulnerable should not be penalized and the innocent should not be stigmatized or revictimized.

Conclusion: The Need for Further Research

At present, there is no justification for changing the Canadian polygamy laws. There are strong public policy arguments against changing the definition of marriage to include a union of more than two individuals. In our view, the present civil and criminal laws prohibiting polygamy are constitutionally valid, as the practice of polygamy has significant negative consequences for women and children, and is contrary to the fundamental Canadian view of marriage as a partnership of equals. Changing the definition of marriage to allow same-sex partners to enter into a monogamous partnership raises very different issues, and should not lead to the legal or social acceptance of polygamy. Although Canadian law and policy should discourage the formation of new polygamous relationships, the reality is that there are women and children in Canada living in these relationships who should not be revictimized by the justice system.

These recommendations must be viewed as tentative, as there is a need for more extensive social science and legal research in Canada about the effects of polygamy on women and on male and female children. As well, more research is required specifically about the different groups that practise polygamy in Canada as the existing research focusses almost exclusively on Fundamentalist Mormons.

Recommendation to the Federal and Provincial Governments

11. There is a need for more research on the nature and extent of polygamy in Canada, including studies on the effects of polygamy on women and children.