Polygamy Already Here
February 24, 2005 · By Tom Cerber
Karen Selick writes in today’s National Post (print edition only) that Bill 171, the Ontario government’s amendments to Ontario’s Family Law Act, while redefining spouse to include same-sex marriages, maintains the little known clause of that law, 1(2), which reads:
In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid. R.S.O. 1990, c. F.3, s. 1 (2).
Colby Cosh commented on this back in December.
The reason for its inclusion seems to be based on the custom of recognizing marriages from other jurisdictions, namely foreign ones. This has the advantage of not requiring immigrants who are married to remarry when they arrive in Canada. The same principle applies among the provinces. People who get married in New Brunswick automatically have their marriages recognized in British Columbia. But what about Alberta? So far as I know, the Alberta government won’t recognize same-sex marriages performed in jurisdictions like Ontario that make them. It is a hope of same-sex marriage advocates in the US that ones performed in Massachussetts, where it is legal, will be recognized in other states because states in the US apparently have fewer legal means to withdraw these arrangements of mutual recognition of the marriages they perform. Federalism in Canada appears to give provinces greater autonomy on this (and many other) issues. I’m speculating on this comparison and am willing to be corrected.
Even so, will the principle of having marriages from other jurisdictions recognized serve as a point of entry for advocates of polygamy to mount a Charter challenge? Or will advocates of same-sex marriage, who imbibe the rhetoric of inclusion and tolerance, suddenly decide some are more deserving of inclusion than others.
But, from the Criminal Code:
293. (1) Every one who
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time,
whether or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
True enough. I’m not an expert on the Criminal Code, but I suspect the provision in the Ontario Family Law Act includes the provision I mentioned get around that in to provide for immigrants. I’m unsure, but I think that’s why it’s in there. I’m also a little surprised no one’s challenged it. Perhaps because, like the BC Solicitor-General, they’re worried that the SC would actually strike down s. 293 of the Criminal Code and we would have polygamy legalized, in the name of multiculturalism. Though, contrary to the BC S-G, I suspect the court would have equality provisions trump the multicultural argument (i.e., polygamy treats women unequally).
What about those polymorphous “marital” relations that I keep hearing about that are out in the Gulf Islands? Fully consensual equal.
[...] Just so you know, I called it back in February. The Justice Department will only be encouraged by more “postmodern” versions of polygamy, as documented here and here. [...]
[...] think this is a far-out scenario, some financial services are already pondering the implications. Ontario already recognizes polygamous marriages if they were performed outside of [...]