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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

II. SHOULD CANADA EXTEND FURTHER RECOGNITION TO FOREIGN POLYGAMOUS MARRIAGES?

An issue facing Canada is whether further recognition should be extended to valid foreign polygamous marriages. This question must be considered in light of the multicultural nature of Canadian society, the rights and freedoms in the Canadian Charter of Rights and Freedoms, and the potential for harm to women of refusing to extend recognition to marriages into which they legally entered in their countries of origin. But the potential harm to women in extending further recognition to polygamous marriages must also be considered. Currie (1994: para. 3.1.3) expressed concern that further recognition may somehow “legitimize” polygamous marriages.

Recognizing existing polygamous marriages of immigrants and providing spouses with the benefits and entitlements normally available to spouses defined by Canadian law is an outstanding issue. A legal analysis should be carried out to determine if providing these benefits and entitlements would have the effect of legitimizing polygamous marriages through indirect means. If so, other normal mechanisms to provide assistance to women in polygamous marriages or women who leave polygamous marriages should be assured.

In considering this issue, it is important to keep in mind that most of the incidents of marriage have been extended to unmarried couples, generally on the basis of cohabitation for a certain period.²⁹ In addition, the status of children is no longer affected by the marital status of the parents.³⁰ Therefore, the legal significance of marital status has declined substantially in Canada. Failure to recognize a foreign marriage will not affect issues relating to children of that relationship under Canadian law. And some of the incidents of marriage may be extended to the parties pursuant to the statutory expansion of the definition of “spouse” to include unmarried cohabitants.

Validity of Foreign Marriages

Under Canadian law, a foreign marriage is valid if it is formally valid under the law of the place of celebration and essentially valid under the law of each party's prenuptial domicile.³¹ “Formal validity” refers to such matters as obtaining a licence and having witnesses. Under Canada's conflict of laws rules, the issue of whether the formal requirements of marriage have been met is governed by the law of the place of celebration. “Essential validity” refers to the capacity of a party to marry. A party lacks the capacity to marry if he or she is in a prior existing marriage, is within the prohibited degrees of relationship with the other party, is below the age of marriage, lacks mental capacity, does not consent, or is unable to consummate the relationship (Hahlo 1972: 654). Under Canada's conflict of laws rules, the issue of whether a party had capacity to marry is governed by the law of the party's domicile. The rules governing capacity to marry vary from jurisdiction to jurisdiction, but generally the principle of “universality” is applied to status, that is, a status validly acquired under a party's personal law will be recognized everywhere (Graveson 1953: 118-119). It is possible to refuse recognition to a foreign marriage on the ground of public policy, but this discretion is rarely exercised.³² “Public policy” in the private international law context is construed very narrowly. There is no blanket prohibition against the recognition of foreign polygamous marriages on public policy grounds. On the contrary, they are recognized for many purposes. “[P]olygamous marriages valid in the country where they were entered into and where the parties were domiciled would be recognized as valid by Canadian Courts.”³³ Blom (2003: 382-383) explained the apparent anomaly between the public policy against permitting polygamy on one hand and the application of the universality principle to polygamous marriage on the other.

A polygamous marriage cannot be entered into in England, and the laws that say so can be described as founded on public policy in the private international law sense. However, English law has long regarded parties who were validly, albeit polygamously, married elsewhere as being legal spouses in England for the purposes of remarriage, spousal support obligations, the legitimacy of children, and succession. The fact that the marriage took place in another country is obviously part of the reason why public policy does not intervene here, but so are the very different issues presented by these cases. The question is not as to the parties' ability to marry but as to the consequences of a marriage that has taken place. Protecting the interests of family members is a value shared by English and by the foreign law, and outweighs whatever anomaly is produced in the domestic legal system by recognizing a polygamous union as a marriage.

Common-law countries have long adopted the principle that a polygamous marriage valid by the law of the place of celebration and by each party's personal law will be recognized for many purposes even if the marriage is actually polygamous.³⁴

A foreign polygamous marriage is valid if it is formally valid under the law of the place of celebration and if each party had capacity to enter into the marriage under the law of his or her prenuptial domicile.³⁵ If a party domiciled in a country that permits polygamy enters into a polygamous marriage, that marriage will be valid, provided all the other requirements of a valid marriage are met. On the other hand, a person who is domiciled in Canada does not have capacity to enter into a polygamous marriage. Thus, if a Canadian domiciliary enters into a polygamous marriage in a country that permits polygamy, that marriage will be an invalid polygamous marriage.³⁶ This common-law rule was changed by statute in the United Kingdom.³⁷

The argument for changing the common-law rule was put forward over three decades ago.

The situation in which the rule is most likely to apply is where an immigrant from a polygamous country acquires a domicile in England and then decides to marry. Sociologically it is quite likely that such a person might want to marry a woman from his home country and he might return there on a visit and marry her there under the local law. (It will normally be necessary for the marriage to take place abroad since the woman might not otherwise be admitted to this country.) If the local form was polygamous the marriage would be void under the rule. This would be very unfortunate because the parties would have no reasons to doubt the validity of their marriage. … In Ali v. Ali it was held that where parties contract a valid potentially polygamous marriage before acquiring a domicile in England, the marriage is converted to a monogamous one once a domicile in a monogamous country is acquired. If this rule is applied to the situation where the parties are domiciled in England before the celebration of the marriage one comes up with a solution which respects English social policy without doing violence to the reasonable expectations of the parties: the marriage is valid but is instantaneously converted into monogamous form (Hartley 1971: 305).

The U.K. statute, excerpted in Appendix A, provides that a marriage entered into in a country that permits polygamy by a previously unmarried U.K. domiciliary is not, for that reason alone, void. The statute does not permit U.K. domiciliaries to enter into actually polygamous marriages abroad. But it does modify the choice of law rule in relation to the essential validity of potentially polygamous marriages entered into by U.K. domiciliaries. Canadian domiciliaries may wish to marry among friends and family in countries and under laws that permit polygamy. Provided that such marriages are not actually polygamous and otherwise meet the requirements of a valid marriage, they should be recognized. It could be provided that such marriages would then become monogamous when the parties acquired a domicile in a monogamous country.

Recommendation 1: Canadians with connections abroad may wish to marry among family and friends in countries that permit polygamy. However, under the common law a marriage entered into by a Canadian domiciliary abroad under a law that permits polygamy is void. This common-law rule should be amended to provide that a marriage entered into outside of Canada between parties neither of whom is already married will not be void solely because it took place under a law that permits polygamy and either party is domiciled in Canada. A model for this recommended law reform is ss. 5-7 of the Private International Law (Miscellaneous Provisions) Act 1995, c. 42 (U.K.), set out in Appendix A.

Status Versus Incidents of Status

A valid foreign marriage is not necessarily recognized for all purposes. “Acceptance of the principle of recognition of status does not of itself imply that all the incidents of that status will be recognized” (Graveson 1953: 103). It is important in this regard to distinguish between “status” and “the incidents of status.” Graveson (1953: 2) defined status as:

a special condition of a continuous and institutional nature, differing from the legal position of the normal person, which is conferred by law and not purely by the act of the parties, whenever a person occupies a position of which the creation, continuance or relinquishment and the incidents are a matter of sufficient social or public concern.

Marriage confers spousal status and the incidents of marriage. These “incidents” are the “special rights, duties, privileges or incapacities”³⁸ that flow from the status of marriage. The incidents of marriage are numerous. For example, a person who is validly married and then goes through a form of marriage with a third party may be charged with bigamy.³⁹ A party to a valid subsisting marriage lacks the capacity to marry.⁴⁰ A person must be married in order to obtain a divorce.⁴¹ Spousal status confers relational rights and obligations as well, such as the right to claim and the liability to pay support.⁴²

Applying the principle of universality of status, a marital status validly created under a foreign system of law is recognized in Canada. The incidents of marriage are extended to those in a valid foreign marriage unless there are compelling reasons to refuse recognition for specific purposes. In the 1866 decision in Hyde v. Hyde and Woodmansee,⁴³the English court ruled that it did not have jurisdiction to grant a divorce in the case of a polygamous marriage. However, the court expressly limited its decision to the issue of jurisdiction to grant a divorce and anticipated that some incidents of marriage might be extended to polygamous marriages, specifically mentioning “rights of succession or legitimacy” and “rights and obligations in relation to third persons.”⁴⁴ The limited scope of the Hyde v. Hyde decision has been recognized and acted on by courts, particularly since the 1930s.

Recognition of Valid Foreign Polygamous Marriages

Common-law rules and statutory amendments in some provinces and territories have extended recognition to valid foreign polygamous marriages for many purposes. However, the principle of universality of status has not been applied fully. Failure to give full recognition to valid foreign polygamous marriages means that parties to such a marriage will not have access to the benefits and protections of marriage. Women in such marriages are particularly likely to need the benefits and protections of marriage and to suffer if their marriages are not recognized. Areas in which recognition has been extended and those in which further reform is recommended are discussed below.

The number of polygamous marriages that will raise the issue of recognition is presumably very small. This is because of the principle that a potentially polygamous marriage becomes a monogamous marriage if the parties acquire a domicile that prohibits polygamy or adopt a religion that prohibits polygamy. Thus, the potentially polygamous marriage of parties who immigrate to Canada and acquire Canada as a domicile will be considered monogamous.

But parties to a potentially polygamous marriage who are in Canada as immigrants or as temporary residents or visitors and who do not acquire Canada as a domicile will not have their marriage converted to a monogamous marriage. As for parties to actually polygamous marriages, they would not be permitted to immigrate to Canada as a complete family unit, as discussed below, but if the husband and one wife immigrated to Canada, recognition of the marriage could become an issue. Included in the issues raised in this context would be the rights of the left-behind wife. As well, all the parties to an actually polygamous marriage could have immigrated to Canada under false pretences. Or parties to an actually polygamous marriage could be in Canada as temporary residents or visitors. There are a variety of circumstances, then, in which the claims of parties to a valid foreign polygamous marriage could arise in Canada.

Succession Rights

Both Lim v. Lim⁴⁵ and Yew v. Attorney-General of British Columbia⁴⁶ involved a husband and two wives who entered into a polygamous marriage in a foreign country that permitted polygamy at the time. The court recognized the actually polygamous marriage for the purposes of succession.

Spousal Support Rights and Obligations

In Lim v. Lim, the court ruled, reluctantly, that a second wife was not a “wife” for the purposes of claiming spousal support.⁴⁷ The court also commented on the inconsistency in recognizing an actually polygamous marriage for the purposes of succession, as was done in the Yew case, and at the same time refusing to do so for the purposes of spousal support. However, the court distinguished the two situations, stating that it was bound by Hyde v. Hyde to refuse recognition of the marriage “where the party seeks to enforce a remedy to which, under our law a wife is entitled by reason of the marriage contract, and arising out of the marriage contract.”⁴⁸

In a later Ontario case, a woman who entered into a potentially polygamous marriage was ruled to be a “wife” within the meaning of Ontario's Deserted Wives' and Children's Maintenance Act, and was thus eligible for spousal support.⁴⁹ This ruling was made on the grounds that the potentially polygamous marriage had become a monogamous marriage. However, Cory J., as he then was, suggested that it was unnecessary to follow Hyde v. Hyde when the result would be “tragic and inequitable” as in the earlier Lim v. Lim case. The point stressed in this case is that it would be inequitable to invoke dated precedent to deny support to an economically dependent wife.

Ontario, Yukon, Prince Edward Island and the Northwest Territories include in the statutory definition of “spouse” for the purpose of spousal support a party to an actually or potentially polygamous marriage.⁵⁰ Other provinces and territories should do the same to ensure that parties who have legally entered into marriages in their home countries are not denied support. The potential unfairness of denying support to those who are economically dependent should be addressed.

It should also be noted that parties to polygamous marriages may be entitled to spousal support on the basis of cohabitation. The provinces (except Quebec) and the territories extend spousal support rights and obligations to parties who have cohabited for a certain period.⁵¹ However, most of the relevant statutes apparently limit the application of these rights and obligations to cohabiting couples. Therefore they could probably apply to parties in potentially polygamous marriages only. There is no case law on the application of the statutes to parties in either potentially or actually polygamous marriages.

Marital Property Division

For the purpose of marital property division, Ontario, Yukon, Prince Edward Island and the Northwest Territories include in the statutory definition of “spouse,” a party to an actually or potentially polygamous marriage.⁵² In Ontario, this definition of spouse was first adopted in the 1978 Family Law Reform Act. A review of the Ontario Law Reform Commission reports leading to the 1978 legislation and of the debates in the Ontario Legislature on the measure reveals no discussion of this issue.⁵³ There is no indication in either source, in the Act itself or in the current legislation as to how the marital property regime should be applied to an actually polygamous marriage. The same is true in regard to the other jurisdictions. There is no case law dealing with the application of the 1978 or Ontario's current Family Law Act or the statutes of Yukon, Prince Edward Island or the Northwest Territories to polygamous marriages.

It should also be noted that parties to polygamous marriages may be entitled to a share of property on the basis of cohabitation in some provinces. Saskatchewan and Manitoba extend marital property rights and obligations to cohabitants.⁵⁴ However, the statutes of these two provinces apparently limit the application of these rights and obligations to cohabiting couples. Therefore, they could probably apply to parties in potentially polygamous marriages only. There is no case law on the application of the statutes to parties in either potentially or actually polygamous marriages.

Apart from any potential claim under family property statutes, parties may be able to obtain a share of property or money damages on the basis of “unjust enrichment.” To succeed, the claimant must show that the other party has been enriched, that the claimant has suffered a corresponding deprivation, and that there is no juristic reason for the enrichment.⁵⁵ Such a claim may be brought in the context of unmarried cohabitation.⁵⁶ A successful claim of unjust enrichment was brought against a respondent who had more than one conjugal partner.⁵⁷ This precedent could be used to support the claim of a party to an actually polygamous marriage. However, it would be potentially harmful to leave women in valid foreign polygamous marriages to the uncertainties of claims based on unjust enrichment. Women are more likely to be the party asserting a claim to a share of marital property. Excluding parties to a valid foreign polygamous marriage from provincial martial property schemes is likely to have a disproportionately negative impact on women.

Recommendation 2: Valid foreign polygamous marriages are not fully recognized under Canadian law. Parties to such marriages, particularly women, are likely to suffer if the legal protections of marriage are not extended to them. Provinces and territories that have not already done so should amend marital property laws, spousal support laws, succession laws and related legislation to include in the definition of “spouse” parties to such a marriage. The legislation should indicate how rights and obligations are to be distributed in the case of an actually polygamous marriage.

Divorce and Annulment

Parties to a polygamous marriage may not obtain a divorce under Canada's Divorce Act,⁵⁸ regardless of whether the divorce is actually or potentially polygamous. The refusal to grant a divorce to those in a polygamous marriage is based on the 1866 decision in Hyde v. Hyde and Woodmansee.⁵⁹ The petitioner in that case had entered into a potentially polygamous marriage in Utah and later sought a divorce in England. The court dismissed the claim, reasoning that the English divorce statute was designed for monogamous marriages only, as evinced, for example, by the fact that it provided for divorce on grounds of adultery.

Canada's Divorce Act no longer provides that adultery is grounds for divorce, but under s. 8 of the Act adultery is one way of proving marriage breakdown, currently the sole ground of divorce. Whether the “technical problems” of applying the Divorce Act to a polygamous marriage are insuperable has long been questioned. The U.K. Law Commission recommended that parties to a polygamous marriage be entitled to apply for a divorce in England, provided the jurisdictional requirements were met, if the party seeking a divorce had grounds other than adultery.⁶⁰ Mendes da Costa (1966: 335) argued that “there may be no good reason why, applying established choice of law rules, regard should not be had to the fact of polygamy in the interpretation of such grounds.” Mendes da Costa's argument has even more force today. The term “adultery” in the Divorce Act traditionally has been interpreted as voluntary sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of the marriage.⁶¹ Because civil marriage has now been opened up to same-sex couples, the term “adultery” in the Divorce Act must now be reinterpreted accordingly.⁶² There would seem to be no insurmountable problem in doing the same in regard to polygamous marriages.

In addition to divorce, other forms of “matrimonial relief,” that is, annulment, judicial separation or decree of presumption of death, may be unavailable to parties to a polygamous marriage under the authority of Hyde. Provided the other requirements for the exercise of jurisdiction are met, there seems to be no reason for refusing this relief in the case of valid foreign polygamous marriages.

Recommendation 3: Parties to a valid foreign polygamous marriage, particularly women, are likely to suffer, because they are not able to dissolve their marriage or claim corollary relief under Canada's Divorce Act. Canada should amend the Divorce Act to include in the definition of “spouse” parties to such a marriage. Other forms of “matrimonial relief” should be extended by statute to parties to valid foreign polygamous marriages.

Public Law Benefits and Burdens

A party to an actually polygamous marriage could be included in the definition of “spouse” for the purpose of public law benefits and burdens. Statutory authority to extend benefits and burdens to such parties would be required. The English Court of Appeal ruled that the statutory inclusion of parties to an actually polygamous marriage for the purpose of a government pension for widows did not mean that the same was true in regard to a widowed mother's allowance under the Social Security Contributions and Benefits Act 1992, which did not include parties to a polygamous marriage in its scheme.⁶³

One model for extending public law benefits and burdens to those in polygamous marriages may be found in English legislation. For example, The Tax Credits (Polygamous Marriages) Regulations, excerpted in Appendix A, allocate the individual element of the child tax credit to a child's “main carer” and the family element among members of a polygamous “unit” on a pro rata basis.⁶⁴

Another source of models for public benefits in the case of actually polygamous marriages is the U.K. Law Commission's 1968 report, which canvassed the range of possibilities for allocating social security payments.

a) Contributors with more than one wife should be required to pay an increased contribution, and social security benefits should be payable to each of the wives in full. …
b) Contributors with more than one wife should be required to pay the same contribution as everyone else, but social security benefits should be payable to each of the wives in full. …
c) The social security benefits that would have been payable to one wife should be equally divided between all the wives of a polygamous marriage. …
d) If there is one wife living in England and another (or others) living e.g. in Pakistan, the social security benefits should be payable to the former but not to the latter. …
e) The Ministry of Social Security might be given a discretionary power to select the wife to whom the benefits should be paid. …
f) The husband might be given power to nominate the wife to whom the benefits should be paid, either by a signed writing or by his will (UK Law Commission 1968).

Each possibility was considered problematic to some degree by the Law Commission. Option (c) was considered to possibly “spread the butter too thin,” in the sense that it might result in inadequate support for each wife. However, it may be the most tenable solution for some purposes, and it is apparently the approach taken by the United Nations in regard to employee benefits (Lynch 2004: A15).

Recommendation 4: Parties to a valid foreign polygamous marriage, particularly women, are likely to suffer because the public law benefits and burdens of marriage are not fully extended to them. The provinces, territories and federal government should consider amending the definition of “spouse” for the purposes of public law benefits and burdens to include parties to a valid foreign polygamous marriage. The legislation should indicate how benefits and burdens are to be distributed in the case of an actually polygamous marriage.

Immigration

Parties to an actually polygamous marriage are not entitled to permanent resident status as a family unit in Canada, because of the possibility that they would practise polygamy in this country in violation of the Criminal Code.⁶⁵ This is consistent with current policy of other western countries.⁶⁶

Two recent immigration cases highlight the current approach of Canadian courts to actually polygamous marriages. In Ali v. Canada (Minister of Citizenship & Immigration),⁶⁷ Mr. Ali was denied entry into Canada. The immigration officer asserted that there were reasonable grounds to believe that Mr. Ali would practise polygamy in Canada, which was prohibited by the now-repealed Immigration Act⁶⁸and, of course, by the Criminal Code. In fact, the manual for immigration officers instructed them to turn away potential immigrants if the officers suspected they would practise polygamy in Canada (CIC nd). Mr. Ali, a Palestinian, had two wives he had married in Kuwait. At the judicial review, Mr. Ali submitted that he would not be practising polygamy in Canada, because each wife would have a separate residence in a different province.

Justice Rothstein applied the two-step test for validity of foreign marriage as set out in Tse, and found that this was a valid polygamous marriage. Nonetheless, the immigration officer's determination stood, as Justice Rothstein held that despite the separate residences of the wives, the parties would still be practising polygamy, contrary to Canadian public policy.

In Awwad v. Canada (Minister of Citizenship & Immigration),⁶⁹ another case of judicial review of the decision of an immigration officer, the applicant was the second wife in a polygamous marriage and mother of three children living with the husband and first wife. She argued that the immigration officer should not have taken into account her marital status in denying her application for permanent residence.

The judge found that children are a relevant issue for an application based on humanitarian and compassionate grounds, as this was, so there was no error on the part of the immigration officer. Furthermore, citing Ali, the judge stated: “as a general proposition, a visa officer may consider whether the admission to Canada of parties to a bigamous or polygamous marriage would be contrary to the Immigration Act and the law of Canada.”⁷⁰

The arguments for prohibiting immigration by parties to an actually polygamous marriage are that such marriages are inconsistent with prevailing social values and are likely to give rise to social problems. These were the explicit reasons for France's 1993 immigration law reform.

The rise in African immigration in the '90s increased the incidence of polygamy in France even though it is regressing in that continent's urban areas. This social and economic system is incompatible however with the principles of equality and individual freedom fundamental to the French society. According to the 24 August 1993 law, a foreign resident living in polygamy cannot be granted or renew a residency document. Women as well as children of polygamous families in France meet with many difficulties: women's lack of control of their living space, promiscuity, isolation and financial dependence of the female spouses exacerbating their competition, which in turn encourages natality, degradation of the relationship between the children and the female spouses (EC 2004: 10).

It may also be argued that allowing immigration by all the parties to an actually polygamous marriage would operate as an endorsement of the practice of polygamy. It would at least indicate that such marriages could be accommodated within Canadian society. Although immigration by parties to actually polygamous marriages would probably be very limited, the existence of such marriages within Canada may be “the thin edge of the wedge” that could be exploited by anyone advocating legalization of polygamous marriage within Canada.

On the other hand, it could be argued that opening immigration to those in actually polygamous marriages would not be an endorsement of polygamy at all but only an instance of comity and application of the principle of universality in regard to personal status. In addition, the hardship of left-behind wives, the issue that arose in the Awwad case, should be considered. Immigration policy should not further harm women who may already suffer disadvantages from being in a polygamous marriage. Any change in immigration policy could be coupled with an explicit and clearly enunciated policy against polygamy. The United Nations consistently advocates the elimination of polygamy but at the same time recognizes polygamous marriages for the purposes of its employee benefits program (Lynch 2004). Similarly, Canada could denounce the practice of polygamy while at the same time recognizing that civilized countries do permit the practice. The issue of family status for the purposes of immigration is not a question of whether polygamy should be permitted but rather “the consequences of a marriage that has taken place” (Blom 2003: 382-383).

It could also be argued that there would be a strategic advantage to permitting immigration by those in actually polygamous marriages. Canada has been increasingly active in the global competition for highly skilled immigrants (Dauvergne 2003; Harris 2004). Opening immigration to those in actually polygamous marriages would presumably expand the pool of applicants for immigration to Canada. It may also signal an adherence to religious tolerance and multiculturalism that is attractive to potential immigrants, whether or not they are parties to actually polygamous marriages.

Canada welcomes over 200,000 new permanent residents each year. Citizenship and Immigration Canada reported that “[i]n 2003, a total of 221,352 people became permanent residents of Canada. This number falls within the planned target range of 220,000 to 245,000 new permanent residents” (CIC 2003a). Statistics Canada reports that the population of visible minorities is expected to increase during the period 2001 to 2017 by 56 to 111 percent (Statistics Canada 2005: 5). In 2001, approximately 70 percent of the visible minority population was born outside of Canada. The immigrant population could reach a level accounting for 22.2 percent of the Canadian population by the year 2017. Half of the top 10 source countries for permanent residents (India, Iran, Pakistan, the Philippines and Sri Lanka) permit polygamy to some degree (CIC 2003a). The table in Appendix B to this report gives a breakdown, by religion, of the total population of Canada in 2001.

Statistics Canada reported that the largest gains in religious affiliation between 1991 and 2001 occurred among those who identified themselves as Muslim, increasing from 253,300 in 1991 to 579,600 in 2001 (Statistics Canada nd-a). Muslims represented two percent of the total population in 2001, up from under one percent a decade earlier. The report commented:

Immigration was a key factor in the increases for all these groups. The proportion of immigrants entering Canada with these religions increased with each new wave of arrivals since the 1960s. Of the 1.8 million new immigrants who came during the 1990s, Muslims accounted for 15%, Hindus almost 7% and Buddhists and Sikhs each about 5% .

Canada has had apparent success in attracting immigrants with religious affiliations and from countries that permit polygamy. To continue to develop this stream of needed immigration, a review of the immigration policy relating to actually polygamous marriages may be in order. Potential immigrants who are not forced to break up their legal families to make a new life in Canada may be more enthusiastic about seeking admission to this country and may be more likely to thrive after relocating. Permitting immigration of all parties to an actually polygamous marriage would be controversial, in part because parties cannot enter into polygamous marriages in Canada. It could be argued that immigrants chose to come to Canada, aware of the legal, cultural and social differences, and that they must be prepared to give up many of their own practices and values if they wish to have the benefits of moving to Canada. Legal philospher Patrick Devlin has said:

[I]n England we believe in the Christian idea of marriage and therefore adopt monogamy as a moral principle. Consequently the Christian institution of marriage has become the basis of family life and so part of the structure of our society…. But a non-Christian is bound by it, not because it is part of Christianity but because, rightly or wrongly, it has been adopted by the society in which he lives…[I]f he wants to live in the house [ie. society], he must accept it as built in the way in which it is.⁷¹

Others support a more tolerant approach to those who are parties to a polygamous marriage.⁷² Although the institution of polygamy may be objectionable because of its connection with gender inequality, it is legal in many countries. To address this problem, Canada can support the efforts by such bodies as the United Nations to persuade countries to abolish the practice. Registering our objections to polygamy by refusing to permit immigration of all parties to a valid foreign polygamous marriage, however, would most likely harm women who are parties to such marriages and who are left behind.

Recommendation 5: Parties to a valid foreign polygamous marriage that is actually polygamous are not able to immigrate to Canada as an intact family unit. This rule prevents immigration by parties in such marriages or breaks up the family unit so the husband and one wife can immigrate to Canada. The parties most likely to suffer from this rule are the left-behind wives. Permitting immigration by actually polygamous families would indicate toleration, but not endorsement, of the practice of polygamy within Canada. Canada should consider whether the prohibition on immigration by parties to actually polygamous marriages is necessary.