Publications

Polygamy in Canada: Legal and Social Implications for Women and Children – A Collection of Policy Research Reports

Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada

ENDNOTES

¹ Lee v. Lau, [1967] P. 14.

² Hyde v. Hyde and Woodmansee (1866), L.R. 1 P. & D. 130 [Hyde].

³ Sowa v. Sowa, [1961] 1 All. E.R. 687 (C.A.); Castel and Walker (2001: §16.6).

⁴ Qureshi v. Qureshi, [1971] 1 All E.R. 325; Castel and Walker (2001); U.K. Law Commission (1968: 9-10).

⁵ Ibid.

⁶ Kerr v. Kerr, [1952] 4 D.L.R. 578 (Man. C.A.); Rae v. Rae, [1944] 2 D.L.R. 604 (Ont. C.A.); Douglass (otherwise Hodgins) v. Hodgins (1957), 7 D.L.R. (2d) 57 (Ont. H.C.).

⁷ See, for example, Utah Attorney General (2005). This report discusses problems arising in fundamentalist Mormon groups in North America, including the group in Bountiful, British Columbia.

⁸  Sinha Peerage Claim (1939), [1946] 1 All E.R. 346n; Cheni (otherwise Rodriguez) v. Cheni, [1962] 3 All E.R. 873 [Cheni]; Parkasho v. Singh, [1967] 1 All E.R. 737.

⁹ Ali v. Ali, [1968] P. 564 [Ali]; Mirza v. Mirza (1966), 110 Col Jo. 708; Sara v. Sara (1963), 36 D.L.R. (2d) 499 (B.C.C.A.) [Sara]; Re Hassan and Hassan (1976), 69 D.L.R. (3d) 224 (Ont. H.C.J.) [Re Hassan]; R. v. Sagoo, [1975] 2 All E.R. 926 (C.A.).

¹⁰ Sara, ibid.

¹¹ Re Urquhart Estate (1990), 74 O.R. (2d) 42 (H.C.). Article 75 of the Civil Code of Quebec, S.Q. 1991, c. 64, article 75 provides: “The domicile of a person, for the exercise of his civil rights, is at the place of his principal establishment.” Castel and Walker (2001: §4.1-4.19g) provided a helpful summary of the common-law concept of domicile, the problems with the doctrine, proposals for reform, and statutory provisions governing domicile in Manitoba and Quebec.

¹² China, for example, banned polygamy in 1950. The current prohibition is embodied in article 2 of the Marriage Law of the People's Republic of China, 1980, as amended on 28 April 2001.

¹³ Hindu Marriage Act, 1955, s. 11; Singh (1997: 237-277).

¹⁴ See, for example, Mahiueddin (1997: 16-17).

¹⁵ Nasir (1995: 25). The Iran census of 1976 indicated that the ratio of men with two or more wives to those with only one wife was 11 to 1,000 (Aghajanian 1986: 750).

¹⁶  For a helpful overview of the laws and socio-cultural conditions of countries in which polygamy is legal, see the Emory University Islamic Family Law Web site <http://www.law.emory.edu/IFL/>.

¹⁷ Alexander (1987); Alexander et al. (1979: 402) as discussed and cited in Sanderson (2001) and in Kanazawa and Still (1999).

¹⁸ Betzig (1986) as discussed and cited in Sanderson (2001) and Kanazawa and Still (1999).

¹⁹ MacDonald (1990: 195) as discussed and cited in Sanderson (2001) and Kanazawa and Still (1999).

²⁰ Sanderson (2001) citation omitted.

²¹ Sanderson (2001: 332). A recent high-profile example is the marriage of the King of Swaziland to his 11^th wife, who is pregnant with the King's 25^th child (BBC 2005).

²² See Alexander (1987) and Alexander et al. (1979).

²³ As discussed in Sanderson (2001: 333).

²⁴ Lord Kames (1796: 539) wrote that “polygamy sprang up in countries where women are treated as inferior beings: it can never take place where the two sexes are held to be of equal rank.” Responding to “advocates for polygamy” who supported polygamy as a means to regain male superiority, 18^th-century philosopher David Hume (nd: 108) argued that “this sovereignty of the male is a real usurpation, and destroys the nearness of rank, not to say equality, which nature has established between the sexes.”

²⁵ UNCEDAW (1992: 1). Article 5(a) of the Convention provides: “States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”

²⁶ See, for example, Jennaway (2002: 140-142).

²⁷ Little and Price (1967: 422) wrote that “notions of romantic love and the social aspirations of educated young West Africans largely explains that contemporary popularity of monogamous marriage.” Islamic scholars as well associate companionate marriage with monogamy. In his classic treatise, “Woman and Her Rights,” Ayatullah Muraza Mutahheri (nd) wrote:

Monogamy (Practice of being married to only one woman at a time) is the most natural form of matrimony. The spirit of exclusive relationship or individual and private ownership prevails in it, though this ownership is different from that of wealth or property. In this system the husband and wife each regard the feelings, sentiments and the sexual benefits of the other, as exclusively belonging to him or to her.

²⁸ Syed Mumtaz Ali, President of the Canadian Society of Muslims, was reported to have said that he “knows of some ‘but not too many' Muslims who live in Canada with more than one wife but knows of no situation where the wives are unwilling, or unhappy, participants in the arrangement” (Cobb 2005). Researchers, however, have found that Muslim women living in polygamous marriages in North America are commonly unhappy, and that the addition of a second or third wife is typically very distressing to the “senior wives” and experienced as abusive or traumatic (Hassouneh-Phillips 2001: 735).

²⁹ See, for example, Modernization of Benefits Act, S.C. 2000, c. 12.

³⁰ See, for example, the Children's Law Reform Act, R.S.O. 1990, c.C.12, s.1(1), which provides that “for all purposes of the law of Ontario a person is the child of his or her natural parents and his or her status as their child is independent of whether the child is born within or outside of marriage.”

³¹ Brook v. Brook (1861), 9 H.L. Cas. 193; Art. 3083 C.C.Q. Nationality rather than domicile is the relevant connecting factor in many civil law systems.

³² In Cheni, supra note 8, the court ruled that an Egyptian marriage between an uncle and a niece that would have been within the prohibited degrees of consanguinity under English law would be recognized in England, saying at 883 that “it would be altogether too queasy a judicial conscience which would recoil from a marriage acceptable to many peoples of deep religious convictions, lofty ethical standards and high civilisation.”

³³ Ali v. Canada (Minister of Citizenship and Immigration) (1998), 154 F.T.R. 285 [Ali v. Canada] at para. 7, applying Tse, infranote 37.

³⁴ For example, Australia's Family Law Act, 1975 (Aust1.), which deals with children, property, support, divorce, annulment and other relief, provides in s. 6 that, “[f]or the purpose of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.” See also U.K. Law Commission (1968: 4). See also Private International Law Act, 1995 (U.K.), ss. 5-8; Australia Law Reform Commission (1992: 93-94).

³⁵ Tse v. Canada (Minister of Employment & Immigration) (1983), 144 D.L.R. (3d) 155 (F.C.A.) [Tse].

³⁶ Radwan v. Radwan (No. 2), [1973] Fam. 35; Kenward v. Kenward, [1951] P. 124 (C.A.)

³⁷ Private International Law (Miscellaneous Provisions) Act 1995 (U.K.), c. 42, e. 5.

³⁸ Canada (A.G.) v. Canard, [1976] 1 S.C.R. 170.

³⁹ Criminal Code, R.S.C. 1985, c. C-46, s. 290.

⁴⁰ Bate v. Bate (1978), 1 R.F.L. (2d) 298 (Ont. H.C.).

⁴¹ Ibid.; Divorce Act, R.S.C. 1985 (2d Supp.), c. 3, ss. 2 and 8.

⁴² See, for example, Family Law Act, R.S.O 1990, c. F.3, ss. 1 and 29.

⁴³ Supra note 2.

⁴⁴ Ibid.at 138.

⁴⁵ [1948] 2 D.L.R. 353 (B.C.S.C.) [Lim].

⁴⁶ (1924), 33 B.C.R. 109 (C.A.).

⁴⁷ Lim, supranote 48.

⁴⁸ Ibid.at 358.

⁴⁹ Re Hassan, supranote 9.

⁵⁰ The definition of “spouse” for all purposes of Ontario's Family Law Act, supra note 44, s. 1(2), includes a party to “a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.” In regard to the other province and territories, see Family Property and Support Act, R.S.Y. 1986, c. 63, s. 1; Family Law Act, S.P.E.I. 1995, c. 12, s. 1(1); and Family Law Act, S.N.W.T., 1997, c. 18, s. 1(2), as am. by S.N.W.T. 2002, c.6, s.2(2).

⁵¹ See, for example, Family Relations Act, R.S.B.C. 1996, c. 128, s.1.

⁵² Ontario's Family Law Act, supra note 61, s. 1(2); The Yukon's Family Property and Support Act, supra note 69, s. 1; The Northwest Territories Family Law Act, supra note 69, s. 1(2).

⁵³ Ontario Law Reform Commission (1969-1975). Ontario, Legislative Assembly, Official Report of Debates (Hansard) (March 7, 1978: 436-56), (March 9, 1978: 549-71, (March 16, 1978: 743-770).

⁵⁴ The Family Property Act, S.S. 1997, c. F-6.3, s. 2(1); The Family Property Act, C.C.S.M., c. F25, s. 1(1).

⁵⁵ Peter v. Beblow, [1993] S.C.R. 980.

⁵⁶ Ibid.

⁵⁷ Nowell v. Town Estate (1999) 35 O.R. (3d) 415 (C.A.). appeal to S.C.C. discontinued, [1997] S.C.C.A. No. 642.

⁵⁸ Divorce Act, supranote 60 at s. 2(1).

⁵⁹ Supra note 2.

⁶⁰ See, for example, U.K. Law Commission (1968).

⁶¹ Orford v. Orford (1921), 49 O.L.R. 15 (H.C.); Kahl v. Kahl, [1943] O.W.N. 558 (H.C.); Gaveronski v. Gaveronski (1974), 45 D.L.R. (3d) 317 (Sask. Q.B.); Droit de la Famille - 1005, [1986] R.D.F. 78 (C.S.Q).

⁶² In M.M. v. J.H. (2004), 247 D.L.R. (4^th) 361 (Ont. Sup. Ct. J.), the court ruled that parties to a same-sex marriage are included in the definition of “spouse” in the Divorce Act. In P. (S.E.) v. P. (D.D.), 2005 Carswell BC 2137 (Sup. Ct.), “adultery” was interpreted to include a sexual relationship with a third party of the same sex.

⁶³  Bibi v. Chief Adjudication Officer, [1997] UKSSCSC CG_41_1994 (25 June 1997).

⁶⁴ The Tax Credits (Polygamous Marriages) Regulations 2003 (U.K.), No. 743, s. 50.

⁶⁵ Ali v. Canada, supra note 35.

⁶⁶  See Immigration Act 1988 (U.K.), c. 14, s. 2. In regard to the European Union generally, see EC, Council Directive 2003/86/EC [2003] O.J.L. on the right to family reunification, ch.2, article 4, para. 4, which provides: “in the event of polygamous marriage, where the sponsor already has a spouse living with him in the territory of a Member State, the Member State concerned shall not authorize the family reunification of a further spouse.” In regard to the United States, see U.S., Department of State (nd), which provides: “In cases of polygamy, only the first spouse may qualify as a spouse for immigration.” In regard to Australia, see Department of Immigration and Multicultural and Indigenous Affairs (nd). In New Zealand, the relevant document is NZ (nd).

⁶⁷ Supra note 48.

⁶⁸ R.S.C. 1985, c.I-2, s.19(1)(d)(i).

⁶⁹ 1999 CanLII 7392 (F.C.J.).

⁷⁰ Ibid.at para. 17. Note that this case was decided under the former Immigration Act. The regulations to the Immigration and Refugee Protection Act, S.C. 2001, c. 27, provide that marriage “as in respect of a marriage that took place outside Canada, means a marriage that is valid both under the laws of the jurisdiction where it took place and under Canadian law.” Immigration and Refugee Protection Regulations, SOR/2002-227 at s. 2. Section 5 of the regulations provides:
For the purposes of these Regulations, a foreign national shall not be considered

(a) the spouse or common-law partner of a person if the foreign national is under the age of 16 years; or
(b) the spouse of a person if
(i) the foreign national or the person was, at the time of their marriage, the spouse of another person, or
(ii) the person has lived separate and apart from the foreign national for at least one year and is the common-law partner of another person.

⁷¹ Parkinson (1994: 501) quoting from Devlin (1965).

⁷² See, for example, Parkinson (1994).

⁷³ Criminal Code, supranote 41 at s. 293.

⁷⁴ Section 293 itself does not apply to adultery; see Raney (1898) who states: “In The Queen v. Liston (unreported), tried at the Toronto Assizes in 1893, Chief Justice Armour held that section 278 [predecessor to the current s. 293] of the Code, which is the only section which it could be argued covers adultery, was intended to apply only to Mormons.” See also R. v. Eastman (1932), 58 C.C.C. 218 at 229 and R. v. Tolhurst (1937), 38 C.C.C. 319. Nor does s. 293 apply to unmarried cohabitation: R. v. Labrie (1891), 7 M.L.R. Q.B. 211 (Que. C.A).

⁷⁵ Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

⁷⁶ Criminal Code, supranote 41 at s. 293.

⁷⁷ Charter,supranote 78 at s. 32(1)(a).

⁷⁸ Parties to plural unions might wish to conceal their relationship, because of the potential criminal sanctions. Particularly problematic is that women might be discouraged from seeking spousal support or other relief out of fear that doing so may lead to criminal proceedings against the father of their children and the economic provider of the household.

⁷⁹ Charter, supranote 78.

⁸⁰ Syndicat Northcrest v. Anselem, 2004 SCC 47 at para. 39.

⁸¹ Ibid. at para. 48.

⁸² Ibid. at para. 51.

⁸³ Ibid. at para. 52.

⁸⁴ Ibid. at para. 59 (emphasis in original).

⁸⁵ Charter, supranote 115.

⁸⁶ R. v. Oakes, [1986] 1 S.C.R. 103 at 138-9.

⁸⁷ Ibid.(emphasis in original).

⁸⁸ Reynolds v. United States, 98 U.S. 145 (1878) at 167-8. With respect to the relationship between polygamy and bigamy in the U.S., see “Bigamy,” 10 Am. Jur. 2d, 967 at 969-70, which stated: “At common law, entering into a second marriage while the first remained undissolved was designated as polygamy, but the terms bigamy and polygamy are now used interchangeably.”

⁸⁹ R. v. Nan-E-Quis-A-Ka (1889), 1 Terr. L.R. 211; R. v. Labrie, supranote 76; R.. v. Liston (1893) (Toronto Assizes, unreported) as mentioned in Raney (1898); The Queen v. “Bear's Shin Bone” (1899), 3 C.C.C. 329 (N.W.T.S.C.); The King v. John Harris (1906), 11 C.C.C. 254 (Que.); Dionne v. Pepin (1934), 72 C.S. 393, 40 R. de Jur. 443 (Que. S.C.); and R. v. Tolhurst, supranote 76.

⁹⁰ R. v. Labrie, ibid.; R. v. Liston , ibid.; Dionne v. Pepin, ibid.; and R. v. Tolhurst, ibid.

⁹¹ In the Matter of the Criminal Code, 1892, Sections 275-276, Relating to Bigamy, (1897) 27 S.C.R. 461 at para. 41.

⁹² Bartholomew (1958) citing Burn's Ecclesiastical Law (1842), Vol. 2, 9^th ed., “Concerning marrying again, the former husband or wife being living, see title Polygamy” at 433aaa; as well as the Statute de Bigamis (1276) 4 Edw.1.

⁹³ An Act further to amend the Criminal Law, S.C. 1890, c. 37, s. 11 (1890). Bigamy already was a felony: see An Act respecting Offences relating to the Law of Marriage, R.S.C. 1885, c. 161, s. 4.

⁹⁴ Criminal Code, S.C. 1892, c.29, s. 278.

⁹⁵ Gordon (2002); An Act to Amend Section 5352 of the Revised Statutes of the United States in Reference to Bigamy and for Other Purposes (1882).

⁹⁶ House of Commons Debates (1890: 3162-63) (Sir John Thomson).

⁹⁷ Ibid. at 3163.

⁹⁸ Criminal Code, S. C. 1953-54 , c. 51, s. 243.

⁹⁹ R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.

¹⁰⁰ R. v. Zundel, [1992] 2 S.C.R. 731.

¹⁰¹ Ibid.at 761.

¹⁰² Hogg (1997: 35-23), referring to R. v. Big M Drug Mart Ltd., supranote 101.

¹⁰³ See, for example, Gordon (2002); Bennion (1998); Altman and Ginat (1996); Kilbride (1994).

¹⁰⁴ RJR-MacDonald v. Canada, [1995] 3 S.C.R. 199.

¹⁰⁵ Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835.

¹⁰⁶ Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 107982, c. 11.

¹⁰⁷ Schachter v. Canada, [1992] 2 S.C.R. 679.

¹⁰⁸ Charter, supranote 77 at s. 2(a).

¹⁰⁹ Vallomattom v. Union of India, 2003 SOL Case No. 388 (Supreme Court of India).

¹¹⁰ Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46.

¹¹¹ Reference re Same-sex Marriage, [2004] 3 S.C.R. 698 at para. 22 [Marriage Reference].

¹¹²  Hyde, supra note 2.

¹¹³ EGALE Canada Inc. v. Canada (Attorney General) (2003), 225 D.L.R. (4^th) 472 (B.C.C.A.); Halpern v. Canada (Attorney General) (2003), 65 O.R. (3d) 161 (C.A.); Hendricks v. Québec (Procureur général), [2002] R.J.Q. 2506 (Que. C.A.).

¹¹⁴  Marriage Reference, supranote 113.

¹¹⁵ See, for example, Csillag (2005: L10).

¹¹⁶ EGALE, supra note 184; Halpern, supra note 115; Hendricks, supra note 115.

¹¹⁷ Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes, 1st Sess., 38^th Parl., 2004-2005, cl. 2 which provided: “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.” This Bill was the subject matter of the Reference re Same-sex Marriage, [2004] 3 S.C.R. 698.

¹¹⁸ Divorce Act, supranote 43.

¹¹⁹ Immigration and Refugee Protection Regulations, supranote 72 at s. 5.

¹²⁰ Charter, supranote 77.

¹²¹ Blencoe v. British Columbia, [2000] 2 S.C.R. 307.

¹²² Charter, supranote 77.

¹²³ Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143 (citizenship); Miron v. Trudel, [1995] 2 S.C.R. 418 (marital status).

¹²⁴ Discrimination on the basis of national or ethnic origin was argued in Lavoie v. Canada, 2002 SCC 23, but justified under s. 1. Discrimination on the basis of religion was unsuccessfully argued in Re Bill 30 (Ontario Separate School Funding), [1987] 1 S.C.R. 1148 and in Adler v. Ontario, [1996] 3 S.C.R. 609.

¹²⁵ Ayatullah Muraza Mutahheri (nd). Known as the talaq, this is often described as the husband's unilateral right to divorce by oral declaration.

¹²⁶ al-Hibri (1997: 13) explained: “Justifications for granting the wife judicial divorce include the presence of defects in the husband, insanity, harm, prolonged absence, sexual abandonment, cessation of maintenance and imprisonment of the husband.” Missing from this list is divorce at will.

¹²⁷ A precedent for ordering rectification of a legislative omission is Vriend v. Alberta, [1998] 1 S.C.R. 493, in which the Supreme Court of Canada ordered Alberta's human rights code be rectified by adding “sexual orientation” as a prohibited grounds of discrmination.

¹²⁸ Law v. Canada, [1999] 1 S.C.R. 497 at para. 39.

¹²⁹ Halpern, supranote 115 at para. 117, substituting “monogamous” for “opposite-sex” in the original.

¹³⁰ Halpern, ibid., substituting “religious polygamists” for “same-sex couples” in the original.

¹³¹ Singh v. Canada, [1985] 1 S.C.R. 117 at 118-9, Wilson J.

¹³² Nova Scotia v. Martin, 2003 SCC 54, paras. 109-110.

¹³³ Figueroa v. Canada, 2003 SCC 37, para. 66.

¹³⁴ Oakes, supra note 88 at 138-9.

¹³⁵ Shachar (2000: 385-386). See also Shachar (2001).

¹³⁶ House of Commons Debates (January 30, 2003) at 1050 (Ms. Nathalie Des Rosiers)