Bringing international human rights law home: an evaluation of Canada's family law treatment of polygamy *.

I   INTRODUCTION

II  THE CONTEXTUAL REALITY OF POLYGAMOUS FAMILY STRUCTURES

      Polygamous Relationships in the Canadian Context
      Polygyny as a Form of Patriarchy
      Moving Beyond a Harm-Based Analysis of Polygyny in the
      Family Law Context

III INTERNATIONAL HUMAN RIGHTS LAW AND POLYGYNY:
    ASSESSING CANADA'S INTERNATIONAL OBLIGATIONS

IV  WHAT ROLE SHOULD CANADA'S INTERNATIONAL HUMAN RIGHTS
    COMMITMENTS PLAY IN ITS DOMESTIC FAMILY LAW TREATMENT OF
    POLYGAMY?

      International Human Rights Norms as a Legally Coherent
      Approach to the Treatment of Polygamy
      The Role of Rights in Canadian Family Law
      Human Rights and Family Law: A Qualitative Tension?
      Human Rights versus Multiculturalism

        Accepting Dominant Articulations of Religion or Culture
        An Irreconcilable Tension Between Equality Rights and
        Freedom of Religion or Culture

V   A FRAMEWORK FOR THE CANADIAN FAMILY LAW TREATMENT
    OF POLYGAMY

      Non-Recognition at Formation
      Recognition for the Purpose of Relief:
      Responding to Women's Lived Realities

        Child Support
        Spousal Support
        Matrimonial Property Division

V   CONCLUSION

ABSTRACT

Following the re-definition of marriage in Canada to include same-sex couples, there have been renewed questions about the continued legal relevance of other elements in the definition of marriage, including monogamy. As family law moves away from a religious-moral paradigm, it is essential that legislators, policymakers, and courts articulate coherent principles for the treatment of marriage in a pluralist society. This article examines one facet of these issues--Canada's family law treatment of polygamy--and in doing so, argues for the broader application of Canada's international human rights commitments in its domestic family law policy.

Although polygamy remains a criminal offence in Canada, its regulation has been left largely to other areas of the law, particularly immigration and family law. This article examines Canada's family law treatment of polygamy because of the significant role that family law plays in family formation and dissolution. The article begins by discussing the prevalence and nature of multiple-partner unions in Canada, with a specific focus on polygyny (a husband with multiple wives)--the predominant form of multiple-partner unions in Canada. Polygyny is distinguished from other multiple-partner unions, including polyandry and polyamory, because of its gender-discriminatory and patriarchal foundations. These gender inequalities implicate Canada's international human rights obligations to ensure women's right to equality in marriage and family life. After showing why international human rights law can and should inform domestic family law, the article posits a dualistic framework for the Canadian family law treatment of polygyny. This framework would withhold formal marriage recognition at the point of family formation to discourage a gender-discriminatory family practice. However, even where formal recognition is withheld, a rights-based analysis must still account for the rights and interests of those in existing unions. Therefore, the framework also requires that polygynous spouses have access to relief at relationship breakdown, including child support, spousal support and matrimonial property division. The article concludes by analysing polygynous spouses' ability to access such relief within the present legal system and proposes appropriate reforms where access remains limited.

RESUME

A la suite de la redefinition du mariage au Canada pour inclure les couples homosexuels, plusieurs questions ont reapparu sur la pertinence juridique continue d'autres elements dans la definition du mariage, y compris la monogamie. Au fur et a mesure que le droit de la famille s'eloigne d'un paradigme religieux--moral, il est essentiel que les legislateurs, les elaborateurs de politiques et les tribunaux articulent des principes coherents pour le traitement du mariage dans une societe pluraliste. Cet article examine un volet de ces sujets--Le traitement du droit de la famille au Canada vis-a-vis la polygamie--et en faisant ceci, debat l'introduction d'une application plus generale des engagements des droits internationaux de la personne au Canada dans ses politiques domestiques sur les droits de la famille.

Bien que la polygamie demeure toujours une infraction penale au Canada, sa reglementation a ete largement abandonnee pour donner place a d'autres aspects de la loi, en particulier, l'immigration et le droit de la famille. Cet article examine le traitement de la polygamie dans le droit de la famille au Canada a cause du role important que le droit de la famille joue dans la formation et la dissolution familiale. L'article commence en expliquant la prevalence et la nature des unions a multipartenaires au Canada, avec une concentration specifique sur la polygynie (un mari avec plusieurs epouses)--la forme predominante d'unions a multipartenaires au Canada. La polygynie se distingue des autres unions A multipartenaires, y compris la polyandrie, A cause de sa discrimination des sexes et de ses bases patriarcales. Ces inegalites des sexes impliquent les obligations des droits internationaux de la personne au Canada pour respecter les droits de la femme et l'egalite dans le mariage et dans la vie en famille. Apres avoir montre pourquoi la loi sur les droits internationaux de la personne peuvent et doivent informer le droit de la famille au niveau domestique, l'article postule un cadre de travail dualiste pour le traitement du droit de la famille canadien vis-a-vis la polygynie. Ce cadre de travail refuserait de reconnaitre le mariage formel jusqu a la limite de la formation familiale pour decourager une pratique familiale A discrimination sexuelle. Cependant, meme si la reconnaissance formelle est refusee, une analyse basee sur les droits doit encore representer les droits et les interets de ceux qui se trouvent dans ces unions existantes. Donc, le cadre de travail exige aussi que les epouses polygynes aient l'acces A de l'aide au moment de l'effondrement de la relation, y compris la pension alimentaire pour les enfants, la pension alimentaire pour l'epouse et la division des proprietes matrimoniales. L'article conclut en analysant la capacite des epouses polygynes pour obtenir l'aeces dans le systeme judiciaire actuel et propose des reformes appropriees ou l'acces reste limite.

I INTRODUCTION

Until recently, marriage in Canada was defined according to the 1866 decision of Hyde v. Hyde as "the voluntary union for life of one man and one woman, to the exclusion of all others." (1) However, in July 2005, following a series of appellate court rulings that held this opposite-sex definition unconstitutionally excluded same-sex couples, (2) the definition was revised through federal legislation. The Civil Marriage Act now defines marriage as "the lawful union of two persons to the exclusion of all others." (3)

Following the statutory recognition of same-sex marriage, there has been renewed interest in the legal treatment of marriage; specifically, whether other "non-traditional" unions, including polygamy, should be legally recognized. (4) This question has particular relevance in Canada given the presence of a sizeable Fundamentalist Mormon polygynous (5) community in British Columbia, (6) and anecdotal evidence of the practice's emergence among other religious and cultural communities. (7) This question also has relevance in view of the ongoing ambiguity surrounding Canada's criminal law treatment of polygamy. In particular, despite being a criminal offence, (8) there have only been two reported convictions for polygamy under section 293 of the Canadian Criminal Code since the section was enacted in 1892. (9) The last reported conviction was in 1906. (10) Moreover, the de jure criminality of polygamy remains a contested issue with such wide ranging critics as civil libertarians, (11) advocates of religious and cultural freedoms (12) and family law commentators concerned about the effect criminal prosecution may have on families. (13) Recently, various Attorneys General of British Columbia have chosen not to enforce the prohibition, reportedly after receiving constitutional advice that the relevant Criminal Code provisions would not withstand Charter scrutiny. (14) In light of this non-enforcement, the regulation of polygamy has been left largely to other areas of the law, particularly family and immigration law.

This article examines Canada's family law treatment of polygamy because of the significant role that family law plays in family formation and dissolution. In addition to granting formal recognition to certain familial relationships (including marriage) at the time of formation, Canadian family law also extends functional recognition to other family structures (including unmarried cohabitation) for relief purposes. Canadian family law is relatively unique in its significant recognition of, and provision of relief for, de facto unions (i.e. cohabiting parties) in addition to its formal legal recognition of de jure unions (i.e. legally married parties). This robust functional recognition distinguishes Canadian family law from other jurisdictions that retain more marital status-based systems. This distinction is particularly important in the case of polygamous unions because of the legal prohibition of multiple spouses in Canada. Accordingly, while subsequent spouses in polygamous unions are unable to formalize their relationships at the point of formation, this article argues that they should still be able to access relief at the point of relationship breakdown through family law's functional recognition of de facto spousal relationships.

Within any family law discussion of polygamy, its continued criminal prohibition remains significant for both formal recognition and relief purposes. For example, the issue of formal recognition of domestic polygamous unions remains a hypothetical question while the practice is criminalized. A legal challenge to the Civil Marriage Act's definition of marriage as between two persons would require a simultaneous challenge to the Criminal Code provisions prohibiting polygamy, as has been the case in recent challenges to Utah's prohibition of polygamy. (15) Even with the current criminal legislation, however, formal recognition emerges as a contested issue in private international law in cases of polygamous marriages validly entered into in jurisdictions that legally recognize polygamy. (16) In addition to these formal recognition issues, any functional recognition of these currently criminalized family structures, even to provide relief that other similarly situated cohabitants would be able to access, may be regarded by some as tacitly condoning criminal conduct.

Although this article does not undertake an analysis of the criminal law treatment of polygamy per se, it does anticipate some of the implications for family law if the current law were successfully challenged. If the criminal prohibition were struck down, possibly for being overly-broad as currently drafted or too coercive an intervention into individual liberty or freedom of religion, significant questions would emerge regarding the legal recognition of such unions. This article provides some preliminary answers to these questions by highlighting the serious gender inequality concerns associated with the legal recognition of polygamy at the time of marriage formation. In addition, while the criminal prohibition remains, and if it is upheld in the future, the appropriate role of family law vis-a-vis polygamous families will continue to be a pertinent issue. This article maintains that rather than condoning criminal conduct, functional recognition of de facto polygamous spouses for relief purposes serves to protect the same vulnerable family members that many would argue a modern interpretation of the criminal prohibition is aimed at.

In advancing these arguments, this article applies Canada's international human rights obligations to its legal analysis of both formal recognition and functional relief for polygamous families. This analysis maintains that even if the criminal law were struck down, formal recognition of polygamous unions would be inconsistent with Canada's international human rights commitments because of the gender inequalities associated with polygyny. At the same time, Canada is internationally obligated to protect women's rights within existing polygamous unions. In the family law context, these commitments mean ensuring equitable access to relief at relationship breakdown, including child support, spousal support, and matrimonial property division.

This article begins in Part II by discussing the prevalence and nature of multiple-partner unions in Canada, including polygyny (a man having multiple wives), polyandry (a woman having multiple husbands) and polyamory (various multiple-partner arrangements). It distinguishes polygyny--the predominant form of multiple-partner unions in Canada--from these latter practices by discussing its gender-discriminatory and patriarchal foundations. Part III then examines Canada's international human rights obligations with respect to polygyny, specifically that Canada take all appropriate measures to eliminate a discriminatory family practice, while still protecting women's rights in existing unions. Applying this analysis domestically, Part IV argues that an international human rights framework provides a more legally coherent approach to the treatment of marriage in a pluralist society than the dominant religious-moral ideal of monogamy on which Canadian family law was historically predicated. In advocating a human rights approach, this article also responds to some of the oft-cited tensions between human rights and family law. After showing why international human rights law can and should inform domestic family law, Part V develops a dualistic framework for the Canadian family law treatment of polygyny. This framework discourages polygyny at the point of family formation by continuing to withhold formal marriage recognition, while still protecting the rights of women in existing unions by ensuring access to relief at relationship breakdown.

II THE CONTEXTUAL REALITY OF POLYGAMOUS FAMILY STRUCTURES

Polygamous Relationships in the Canadian Context

In considering the appropriate family law treatment of polygamy and other multiple-partner unions, it is essential to canvass the lived reality of these familial structures. Within the Canadian context, the available evidence indicates that polygyny is the predominant form of polygamy practiced. In addition to emerging anecdotal evidence of its presence among some Canadian Muslim groups, (17) polygyny is well documented among fundamentalist Mormons in British Columbia. (18) The types of polygynous families Canadian family law may engage with are: (1) existing domestic de facto polygynous families, (2) future de facto polygynous families that may arise among religious and cultural minorities who practice polygyny and immigrate to Canada, and (3) de jure polygynous families who have entered into legal marriages in another jurisdiction.

In Canada, there is little evidence of polyandry. (19) There may, however, be a growing number of polyamorous relationships that diverge from the traditionally dyadic multiple partnerships of polygyny or polyandry. (20) Polyamorous arrangements "vary as to the number of people involved, the sexes of those involved, the sexualities of those involved, the level of commitment of those involved, and the kinds of relationships pursued." (21) Although the prevalence of such relationships in Canada is unclear, there is a growing, though still marginal, polyamorous movement in the United States. (22) The variance of these relationships both in terms of structure and egalitarian founding principles distinguishes them from the patriarchal norms associated with polygyny. In light of this distinction, scholars argue that polyamory merits close attention in re-thinking monogamous paradigms, particularly in terms of coercive criminal adultery laws and marriage law more generally. (23)

Accordingly, although polygyny raises significant gender equality concerns, it is argued that in most cases polyamory will not. (24) These arrangements implicate individuals' autonomy interests "to choose whether and with whom to form close personal relationships" (25) without necessarily engaging countervailing equality concerns. Whether this autonomy argument should lead to the formal recognition of these relationships remains unclear, however, given the fluidity and marginality of the practice. Even in the United States where these arrangements have growing visibility, the "preferred shape of legal recognition for these relationships has not yet been fully developed within the community itself." (26) Given this state of flux, it is preferable at the current time to leave such relationships in the de facto realm, allowing for social experimentation and the possibility of eventual change.

Polygyny as a Form of Patriarchy (27)

For purposes of legal uniformity, it is essential that any future reform in the legal treatment of multiple-partner unions is attuned to the gender inequalities associated with polygynous unions. Unlike ostensibly more egalitarian polyamorous arrangements, the modern practice of polygyny reinforces patriarchy and undermines women's equality in marriage.

The anthropological and religious origins of polygyny reveal that in some contexts it served a protective function for women and families. For example, within certain African societies, polygyny has been viewed by some as providing marital protection for "surplus" women (given that women tend to out live and marry younger than men). (28) Similarly, under Talmudic law, a man's protective responsibility to his deceased brother's wife was sometimes exercised through the practice of yibum (levirate marriage of a widow to her deceased husband's brother). However, some modern commentators argue that yibum was primarily the product of a patriarchal society in which the continuity of the male dynasty was central. (29) The practice of yibum is now prohibited, according to the Chief Rabbinate of the Herem De Yerushalayim. (30)

Historically, polygyny has also served a restorative function following significant losses of the male population during war. Many reformist Islamic scholars maintain that the origin of the Qu'ranic allowance of polygyny was inextricably linked to the protection of orphans and widows in a post-war context. Sura 4, verse 3 of the Qu'ran reads, "and if ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two or three, or four...." (31) Matalib al-Furqan Parvez, a leading reformist commentator on the Qu'ran, emphasises that this revelation came after the Battle of Uhad where more than ten percent of the Muslim male population was killed, leaving many vulnerable widows and orphans. (32)

Polygyny was also occasionally practised by Protestant denominations following the Thirty Years' War in 1648. (33) As a result of the loss of a substantial segment of the male population, theologians permitted men to take a second wife during the ten-year period following the war. Similar to Islamic requirements to treat multiple wives fairly, Protestant men were instructed to "observe seemly behaviour, to make proper provisions for both wives ... to avoid ill feeling between them." (34)

Unlike these more socially ameliorative instances, Mormon teachings on polygyny were expressly patriarchal from the outset. In his July 12, 1843 revelation that solidified the role of plural marriage in Mormon theology until the 1890s, Joseph Smith stated:

   Under the "law of priesthood" a man "cannot commit adultery
   with that that belongeth to him and to no one else. And if he have
   ten virgins given unto him by this law, he cannot commit adultery,
   for they belong to him.... If any man have a wife ... and he teaches
   unto her the law of my priesthood, as pertaining to these things,
   then shall she believe and administer unto him, or she shall be
   destroyed," saith the Lord your God. (35)

As Irwin Altman and Joseph Ginat note, the revelation was premised on stereotypes of women as dependent and obedient beings whose proper place was in the domestic sphere raising children. (36) Although mainstream Mormonism abandoned polygyny in the 1890s, Fundamentalist Mormons in British Columbia, Utah, and Arizona continue the practice through the "Law of Chastity" in marriage. This doctrine maintains that reproduction is essential to marriage and sexual activity should be limited solely to procreation. In this context, women and girls are deprived of any reproductive choices regarding pregnancy. (37)

It is the more patriarchal form of polygyny that predominates in modern polygynous contexts. In her writing on the tensions between multiculturalism and women's equality, Susan Okin points to interviews with polygynous husbands that reveal how the practice can function to serve men's self-interest while also controlling women. For example, one French immigrant from Mali posed the question:

   [W]hen my wife is sick and I don't have another, who will care
   for me? ... [O]ne wife on her own is trouble. When there are several
   they are forced to be polite and well behaved. If they misbehave,
   you threaten that you'll take another wife. (38)

Even where a marriage is not actually polygynous, the threat of taking additional wives can be used to control and limit women's ability to assert their rights within marriage. (39) Former UN Special Rapporteur on Violence Against Women, Radhika Coomaraswamy, raised this concern in her 2002 report, "Cultural practices in the family that are violent towards women." In the report she notes, "several ... forms of threat or violence are used to ensure that women stay obedient within a marriage, for example the threat of the husband taking another wife." (40) A study of polygyny and wife abuse amongst American sunni Muslim women echoed this theme of disempowerment. (41) In her research, Dena Hassouneh-Phillips found that wives felt disempowered because of their inability to prevent their husbands from taking another de facto wife. Study participants reported that the significance of marriage within Muslim communities and the associated need to maintain the family unit, even when their husband took another wife, led to unhappiness and abuse. (42)

Moving Beyond a Harm--Based Analysis of Polygyny in the Family Law Context

In examining the lived reality of polygynous families, many commentators focus on the harms associated with polygyny including economic strain, (43) competitive co-wife relationships, (44) mental health harms, (45) sexual and reproductive health harms, (46) and harms to children. (47) It should be borne in mind, however, that in the Canadian family law context these harms alone would rarely mandate state intervention or formal non-recognition. With the exception of pro-charge or "no-drop" prosecution policies regarding domestic violence and state intervention in cases of child abuse and neglect, the law generally allows adults to make diverse familial choices, including those that may not be in their best interests.

Indeed, many of the harms associated with polygyny are also present in varying degrees among monogamous, opposite-sex marriages. For this reason, some feminist commentators label the monogamous, opposite-sex family as an "oppressive institution" that is falsely portrayed within "dominant liberal discourse ... as a freely chosen contract between rational, unencumbered autonomous individuals." (48) Similarly, early debates around the issue of no-fault divorce suggested that divorce should continue to be restricted because of its deleterious economic and psychological effects on women and children. (49) It was argued that no-fault divorce meant a "new freedom from family financial obligations" for men, but continued "suffering" for women. (50) However, the Canadian legal response has not been to restrict divorce or discontinue the formal recognition of opposite-sex marriage, bur rather to address and remedy predictors of harm. (51) Advances in child and spousal support, as well as matrimonial property division, have reduced the often gendered financial disparities that exist during marriage and following its breakdown. (52)

While the economic, health and child--related harms of polygyny are important factors to consider, this article's argument for the non-recognition of polygyny stems from the gender-discriminatory and patriarchal nature of the practice. As Part III shows, it is the structural gender--inequality of polygyny that implicates women's internationally recognized right to equality in marriage and family life.

III INTERNATIONAL HUMAN RIGHTS LAW AND POLYGYNY: ASSESSING CANADA'S INTERNATIONAL OBLIGATIONS

Polygyny is the globally predominant form of multiple unions, and as a result international human rights law has specifically responded to these unions in its analysis of "polygamy." (53) This international focus on polygyny is consistent with this article's discussion of the predominance of polygyny among multiple unions in Canada.

As a party to the Convention on the Elimination of Ali Forms of Discrimination against Women (the Women's Convention), (54) the International Covenant on Civil and Political Rights (the Political Covenant), (55) and the International Covenant on Economic, Social and Cultural Rights (the Economic Covenant), (56) Canada is internationally obligated to ensure women's equality in marriage and family life. Article 23(4) of the Political Covenant requires States parties (57) to "take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage, and at its dissolution." (58) This is echoed by Article 16 of the Women's Convention, which calls on States parties to "take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations" in order to ensure "a basis of equality of men and women." (59)

These international human rights treaties define equality in marriage and family life through an equal rights and responsibilities framework. The Women's Convention goes the furthest in enumerating several areas of family life in which rights and responsibilities should be equally shared. Article 16 provides that States parties should "ensure, on a basis of equality of men and women:

(a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;

(c) The same rights and responsibilities during marriage and at its dissolution;

(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;

(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;

(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;

(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;

(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration. (60)

It is this equality of rights and responsibilities that gender--asymmetrical marital practices such as polygyny violate. As Susan Deller Ross notes, when a husband has multiple wives, each wife essentially has only a fraction of a husband. As a result, spousal maintenance and childcare resources are divided unequally vis-a-vis individual polygynous husbands and their respective wives whether during marriage or at its dissolution. (61) Such husbands are able to share only a fraction of their emotional, sexual, and financial attention with each individual wife, meaning that polygynous wives have fewer de facto marital rights and their husbands fewer responsibilities. (62)

For this reason, the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW), (63) the Human Rights Committee (HRC), (64) the Committee on Economic, Social and Cultural Rights (CESCR), (65) and the Committee on the Rights of the Child (CRC) (66) have all stated that polygyny violates the rights articulated in their respective treaties. CEDAW and the HRC have also condemned the practice in their General Comments and Recommendations. In its General Recommendation No. 21, Equality in Marriage and Family Relations, CEDAW stated:

   Polygamous marriage contravenes a woman's right to equality
   with men, and can have such serious emotional and financial
   consequences for her and her dependents that such marriages
   ought to be discouraged and prohibited. (67)

Echoing this statement, the HRC stated in its General Comment No. 28, Equality of Rights between Men and Women:

   It should also be noted that equality of treatment with regard to
   the right to marry implies that polygamy is incompatible with
   this principle. Polygamy violates the dignity of women. It is an
   inadmissible discrimination against women. Consequently, it
   should be definitely abolished wherever it continues to exist. (68)

This growing international consensus around polygyny as a violation of women's human rights has contributed to its restriction by many countries that historically permitted it. Several jurisdictions have introduced spousal notification requirements in which the current and proposed wife must be notified of the intended marriage (Egypt, Morocco, and Sri Lanka). (69) Other jurisdictions have adopted stricter judicial and/or spousal permission requirements that require a husband to show that he has a legitimate reason for taking another wife, and that he is financially capable of supporting her in addition to his existing family (Indonesia, Pakistan, Bangladesh, Malaysia, Singapore, Syria, Yemen, and Iran). (70) Finally, some jurisdictions that formerly permitted polygamy moved long ago to prohibit the practice altogether. For example, in 1926, Turkey introduced civil marriage laws that prohibited polygamy. (71) In Tunisia, polygamy has been prohibited for decades following Islamic legal reasoning that concluded that husbands could not fulfill the Qu'ranic requirement for the equal treatment of wives in the modern context. (72)

Alongside this general trend of discouraging polygyny as a violation of women's rights, international treaty monitoring bodies have also drawn attention to states' obligations to protect women's rights in existing unions. CEDAW has emphasised States parties' obligations to "take measures to protect the human rights of women already in polygamous unions." (73) These concluding observations suggest that international human rights law rejects a purely abolitionist approach, which would refuse to recognize polygamy for any purpose. Rather, an international human rights approach requires protection for women both at the point of marriage formation (i.e. by withholding legal recognition to discourage a discriminatory practice) and at the point of marriage dissolution (i.e. by ensuring access to relief).

IV WHAT ROLE SHOULD CANADA'S INTERNATIONAL HUMAN RIGHTS COMMITMENTS PLAY IN ITS DOMESTIC FAMILY LAW TREATMENT OF POLYGAMY?

International Human Rights Norms as a Legally Coherent Approach to the Treatment of Polygamy

The international human rights analysis of polygamy undertaken by various treaty bodies offers a more legally coherent approach to the practice than the particularized notions of morality that previously informed Canadian law. In Canada, both criminal and family law have historically adopted a strictly abolitionist approach to polygamy by privileging a dominant Judeo--Christian notion of monogamy. The Criminal Code's prohibition of polygamy, enacted in 1892, was a direct response to American efforts at the time to eliminate the practice among followers of the Mormon faith, particularly in Utah. (74) The legislative targeting of members of the Mormon faith was evident in the provision, which expressly referred to Mormons until the Criminal Code was amended in 1954. (75) Indeed, of the seven Canadian cases that have interpreted Canada's criminal prohibition of polygamy, none have referred to the objective of advancing gender equality. (76) At least two cases expressly state that the purpose of prohibiting polygamy is linked to the Mormon practice of polygamy. (77)

Similarly, family law rules regarding essential marriage validity were, until very recently, based on the Hyde v. Hyde definition of heterosexual, monogamous marriage "as understood in Christendom." (78) As the Supreme Court of Canada noted in its 2004 same--sex marriage reference, "Hyde spoke to a society of shared social values where marriage and religion were thought to be inseparable. This is no longer the case. Canada is a pluralist society." (79) With the enactment of the Civil Marriage Act, Parliament moved away from an exclusivist concept of marriage by affirming that "every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination." (80) Clearly, however, the equality rights with which the Act was most concerned were those of same--sex, monogamous couples. While the Act retains a monogamous definition of marriage, it does not articulate any clear rationale for doing so. It is this article's contention that in the context of Canada's pluralist society, its international commitments to women's equality provide such a rationale.

The Role of Rights in Canadian Family Law

In advancing an international human rights approach, it is useful to consider the role that domestic rights--based arguments have already played in the development of Canadian family law. The "constitutionalization" of Canadian family law is most apparent in the numerous challenges under the Canadian Charter of Rights and Freedoms concerning the "exclusionary impact of family law." (81) As family formation has diversified (or at least become less hidden), unmarried and same--sex couples have successfully employed rights--based arguments to challenge traditional definitions of "family" and "spouse." (82)

For a time, however, commentators questioned whether the Charter would have a palpable effect on the perceived "private realm" of the family. (83) Even after accepting feminist objections to the public--private dichotomy, some commentators questioned the validity of conceiving of interdependent family relations in rights terms. (84) Yet to the extent that the state defines, legitimizes or excludes certain forms of "family," the Charter has played a significant role in circumscribing permissible distinctions.

What remains less clear, however, is the role that international human rights commitments should have in this area of law. In a strict sense, international human rights law began to inform domestic family law the moment that the Charter did. As the Supreme Court of Canada expressed in R. v. Keegstra:

   Generally speaking, the international human rights obligations
   taken on by Canada reflect the values and principles of a free
   and democratic society, and thus those values and principles that
   underlie the Charter itself. (85)

This values--based approach to implementing Canada's international commitments was reaffirmed in Baker v. Canada (Minster of Citizenship and Immigration). (86) In Baker, L'Heureux-Dube J. noted for the majority that even where a treaty has not been expressly implemented by Parliament, the values of international human rights law may still "inform the contextual approach to statutory interpretation" as well as the "interpretation of the scope of the rights included in the Charter." (87) Applying what Mayo Moran refers to as "influential authority," Baker "engages the ratified treaty ... at the level of its general values or principles and imposes obligations of justification and respect...." (88)

While it remains the case that ratified, though unimplemented, treaties are not legally binding domestically, (89) they may still form the basis of a common law presumption of conformity between the treaty and relevant legislation. The presumption of conformity states that "Parliament is not presumed to legislate in breach of a treaty...." (90) Most importantly, in the context of women's equality rights, it can be argued that the Charter should be "presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified." (91)

Human Rights and Family Law: A Qualitative Tension?

Despite these general jurisprudential pronouncements on the role of international human rights obligations in constitutional and statutory interpretation, human rights law is still perceived by some as an uneasy fit with family law. Many continue to express concern that the rights paradigm is incompatible with the complex systems of dependency, need, and care that inform the substance and application of family law. (92) As one commentator states:

   [T]he family lawyer seeking to use human rights law can feel a
   little like someone playing tennis with a baseball bat. There
   isn't anything wrong with the tool. The problem is rather that
   it has not been developed for the job for which it is being
   used. (93)

The notion here is that there is a qualitative tension between rights claims and the contextual structure of family law.

Part of this concern arises from a perception of modern family law as "people law" (94)--i.e. law that is concerned with the intimate and often chaotic nature of close relations. This view of family law as a "peculiarly human branch of the law which responds humanely to individual human problems" (95) speaks to the common sense approach often articulated by family law judges. (96) As John Dewar notes, family lawyers and judges are often accustomed to proceeding with each case as it comes and shaping the outcome according to individual circumstances. (97) In contrast, a rights analysis is seen as requiring universal vindication regardless of the particular circumstances. (98)

At first glance, this perceived dichotomy between rights--based and contextual reasoning seems convincing. One would hardly want courts to use the same type of regimented analysis in determining children's best interests as they would in cases involving property rights, for example. As Suzanne Gibson argues:

   When all is said and done, we are simply not willing to hear
   that a judge has narrowed his or her consideration of a child's
   domestic welfare down to the one or two telling facts which would
   allow comparison of one case with another by juridical
   analogy. (99)

The nuances of family life, particularly at the point of relationship breakdown, can seem inimical to a strictly rights-based and precedent-oriented analysis.

However, what these discussions seem to assume unquestioningly is that a case-by-case, contextual analysis is indicative of "family law" generally. While this discretionary approach may characterize legal intervention at the point of relationship breakdown, it is largely inconsistent with the universal rules-based approach to family formation and structure. Marriage validity, for example, is conditional on the satisfaction of rules of essential and formal validity. (100) Essential validity engages issues of capacity (age, sanity, consanguinity restrictions, and both parties being single), consent, and consummation. Although courts may be willing to apply a discretionary analysis in cases involving formal validity (i.e. that a ceremony actually constitutes a marriage), questions of essential validity such as consent or capacity operate on a more universal plane. They are subject to constitutional challenges or legislative reform, but not discretionary judicial waivers through case-by-case analyses. (101) In this sense, the ways in which family law orders relationships at the point of family formation are especially conducive to a rights-based analysis.

Moreover, even at the point of relationship breakdown, intra and inter-relationship equality rights claims can play an important role in ensuring that vulnerable groups and individuals can access relief. Intra-relationship equality claims have been used successfully to challenge discriminatory definitions of "spouse" and "family" that deprived certain groups from accessing relief at relationship breakdown. (102) Likewise, equality concerns have been central to family law developments in the areas of child support, spousal support, and matrimonial property division. Rather than pitting family members against one another as rights--holders and responsibility--bearers, equality rights analyses have introduced greater predictability and fairness to a system that historically disadvantaged primary--caregiver spouses. Particularly in the case of discriminatory family practices, an international human rights analysis can ensure that domestic family law systems respect individuals' rights and respond equitably to families' lived realities.

Human Rights versus Multiculturalism

Beyond this perceived dichotomy between contextual family law and human rights analyses, another oft-cited tension between international human rights law and family law is the notion that respect for cultural and religious diversity mandates the formal recognition of "alternative" family forms, including polygyny. (103) This debate operates both within international human rights law itself (individual equality rights versus the right to freedom of religion and culture), and also as a broader critique of human rights as essentially Western and overly--individualistic. In the family law context, this debate is often particularly contentious. Personal, cultural, and religious expressions of identity place increased pressure on the state to recognize religiously and culturally--informed family practices, regardless of whether they are discriminatory. (104)

These claims can be initially attractive as they seem to provide space for different religious or cultural family practices to co-exist in one domestic framework. On closer examination, however, such arguments are convincing only when one accepts that: (1) cultural or religious endorsements of gender--discriminatory practices are genuine reflections of culture and/or religion and not merely the views of a particular male elite, and (2) there is an irreconcilable tension between respecting culture and/ or religion and protecting gender equality.

Accepting Dominant Articulations of Religion or Culture

Unquestioningly accepting religious or cultural endorsements of gender--discriminatory practices is problematic because doing so fails to engage with context and uses legal authority to entrench elite, and often masculine, representations of tradition. Kenyan legal scholar Celestine Nyamu notes that assertions of culture in defence of gender--biased practices are often the result of "competing efforts to preserve certain social, economic and political arrangements." (105) Being attentive to diverse interpretations of culture and religion is necessary to ensure that the "label of culture" is not "being deployed to stifle desirable and necessary political debate." (106) In this respect, Nyamu criticizes human rights and Women in Development approaches for too often accepting and reinforcing dominant articulations of culture. (107) In vilifying culture as the cause of gender--subordination, these approaches often fail to engage with women's local contexts and allow for more egalitarian norms to develop. In the context of polygyny, it is essential that Canadian policymakers and courts be alert and sensitive to alternative interpretations of culture and religion that challenge the validity of polygyny in modern cultural and faith traditions.

Yet even to get to the point where one can "pierce the veil" of religion or culture, (108) one must be able to overcome culturally relativist approaches to family law. As Michael Freeman writes in the context of children's rights, the logical conclusion of cultural relativism is that "moral principles that derive from the outside culture have no validity, morality has become a slave to custom, the 'ought' has relinquished any transcendental power it may have had to critique the 'is'." (109) The danger with a culturally relativist approach is that it risks sacrificing the inherent dignity and equality of vulnerable individuals in repressive familial structures vindicated through religious or cultural claims. (110) If, as Freeman argues, modern family law is to retain its ability to protect the vulnerable, there must be some basis for judging a practice other than just that it exists. (111)

A culturally pluralist approach can provide a more appropriate balance in recognizing competing values and various conceptions of the "good life," while still protecting certain core principles. (112) Pluralists attempt to resolve conflicts between competing values by developing reasonable rankings of primary values that are sensitive to cultural contexts. (113) This approach is significant because it recognizes the value of cultural and religious identity to individuals (114) while still protecting certain core principles, such as human dignity and equality.

An Irreconcilable Tension Between Equality Rights & Freedom of Religion/ Culture?

Even if one accepts that cultural or religious endorsements of polygyny are legitimate, it does not follow that respect for religious and cultural freedom mandates formal recognition. Debates concerning the legal recognition of polygyny pursuant to religious or cultural freedoms often ignore the distinction at law between belief and practice. While international human rights law clearly protects cultural and religious freedoms, (115) it also recognizes appropriate limitations on the scope of these rights. International and regional human rights bodies have held that the right to manifest one's religion can be limited for legitimate purposes including the protection of health (116) and the protection of gender equality. (117) Thus, while Canada is not permitted under international law to restrict religious belief, it is entitled, and in fact obliged in some instances, to restrict religious practices that undermine the rights of others. (118)

This belief/practice distinction was first applied in the context of polygamy by the United States Supreme Court in its 1879 decision of Reynolds v. United States. (119) In upholding the legislative prohibition of polygamy, the Court noted that while "laws cannot interfere with mere religious belief and opinions, they may with practices." (120) A modern Canadian articulation of this belief/practice distinction is found in the Supreme Court of Canada's 2004 decision in Syndicat Northcrest v. Amselem. (121) There, the Court considered a religious claim by Orthodox Jews who wanted to "set up a 'succah' for nine days a year in the pursuit of their religious beliefs on their co--owned property." (122) In its analysis of freedom of religion, the Court was clear that even where a practice is found to have a "religious essence," courts must still consider how that conduct affects the rights and interests of others. As Iacobucci J. stated for the majority:

   Even if individuals demonstrate that they sincerely believe in
   the religious essence of an action, for example, that a particular
   practice will subjectively engender a genuine connection with
   the divine or with the subject or object of their faith, and even
   if they successfully demonstrate non-trivial or non-insubstantial
   interference with that practice, they will still have to consider
   how the exercise of their right impacts upon the rights of others
   in the context of the competing rights of private individuals.
   Conduct which would potentially cause harm to or interference with
   the rights of others would not automatically be protected. The
   ultimate protection of any particular Charter right must be
   measured in relation to other rights and with a view to the
   underlying context in which the apparent conflict arises. (123)

This contextual application of the belief/practice distinction is crucial to ensuring that women's right to equality in marriage and family life is not automatically trumped by "group" claims. Essentially, the Court's analysis reaffirms the fact that Charter rights are enjoyed by all persons rather than being subject to particular articulations of religion or culture.

This contextual evaluation of the effect of religious practices on others has been applied in other jurisdictions to uphold legislative prohibitions of polygamy. In The State of Bombay v. Narasu Appa Mali, the Bombay High Court rejected a claim that the Prevention of Hindu Bigamous Marriages Act, 1946 violated the Constitution on the ground that it discriminated between Muslims and Hindus. (124) The High Court noted that even if one assumed that polygamy is a recognized institution according to religious practice:

   [A] sharp distinction must be drawn between religious faith and
   belief and religious practices. What the State protects is religious
   faith and belief. If religious practices run counter to public
   order, morality or health or a policy of social welfare upon which
   the State has embarked, then the religious practices must give way
   before the good of the people of the State as a whole. (125)

While the High Court adopted a utilitarian approach to restrict polygamy, its emphasis on the distinction between respecting religious or cultural beliefs and legitimizing harmful practices is significant.

The Mauritius Supreme Court followed a similar, though more expressly human rights--based, line of reasoning in its 1991 decision in Bhewa v. Government of Mauritius. (126) In that case, the Mauritius Supreme Court denied a Muslim community the right to apply personal Islamic law governing marriage, divorce, and inheritance. In doing so, the court discussed the important balance between "the duality of religion and state in a secular system." It concluded:

   The secular state is not anti--religious but recognizes freedom of
   religion in the sphere that belongs to it.... To the extent that it
   is sought to give to religious principles and commandments the
   force and character of law, religion steps out of its own sphere
   and encroaches on that of law--making in the sense that it is
   made to coerce the state into enacting religious principles and
   commandments into law.... (127)

In addition, the Court noted that even if one construed religious freedom in the manner argued by the plaintiff, Mauritian commitments to the Political Covenant required the state to guarantee women's equality in marriage and family life. In particular, the Court held that these obligations require:

   [T]he maintenance of monogamy, including measures designed
   to safeguard the family and to ensure the largest measure
   of nondiscrimination against women, whether as wives or
   daughters. (128)

The Court's reasoning illustrates how national and international commitments to religious freedoms do not require states to legally recognize practices that undermine internationally guaranteed equality rights. While diverse beliefs and individual religious or cultural practices are to be respected, they are not allowed to trump the equality and dignity rights of other persons. In the end, the formal recognition of polygyny thus speaks less to a respect for cultural and religious freedom, and more to an entrenchment of any practice that is labelled "cultural" or "religious."

V A FRAMEWORK FOR THE CANADIAN FAMILY LAW TREATMENT OF POLYGYNY

As Canadian family law moves away from the religious--moral paradigm that once informed it, it is important to identify coherent principles in the continued legal treatment of marriage. It is this article's contention that international human rights law can contribute to such a coherent approach in shaping family law policy more directly. As discussed above, domestic rights-based arguments have already led to many Canadian family law reforms both in terms of the formal definition of marriage as well as in access to relief. The perceived disjuncture between right-based claims and family law has proven illusory for the most part. Accordingly, it is unreasonable to exclude Canada's international commitments from a domestic legal analysis of polygyny. Bringing the international to the local, this Part develops a family law framework that implements Canada's international obligations to discourage polygyny while still protecting the rights of women in existing unions.

Non-Recognition at Formation

While polygamy remains a criminal offence, the issue of formal marriage recognition is largely a moot point. If the criminal prohibition of polygamy were struck down as being unconstitutional, however, significant questions may emerge regarding the civil recognition of domestic polygamous unions. It is this article's contention that in addition to violating Canada's international human rights obligations, the formal recognition of polygamous (and therefore, polygynous) unions would also send a dysfunctional message in legitimizing a discriminatory practice.

This concern about the messaging or expressive function of law emerges from the constitutive role that rules of marriage validity play in defining how society views family, culture, and equality. Arguments made by James Boyd White speak to this expressive function of law. In particular, his notion of "law as rhetoric" refers to the idea of law playing a greater role than simply ordering society and solving disputes. (129) For White, law acts rhetorically in establishing, maintaining, and transforming community and culture, something he refers to as "constitutive rhetoric." (130) This view of law as a dynamic force invites individuals to "test the law in part by asking whether [their] own story, or the story of another in whom [they] have an interest is properly told by these speakers and in this language." (131) In the context of marriage recognition, this view requires one to ask whose voices would dominate and whose voices would be missing in a legal regime that recognizes polygyny at the point of family formation. For White, this rhetorical engagement with the law "means that one question constantly before us as lawyers is what kind of culture we shall have, as well as what kind of community we shall be." (132) As Mary Ann Glendon emphasises, law tells stories about the culture that shaped it and in turn contributes to a sense of "who we are, where we came from, and where we are going." (133)

Canada's historically exclusivist marriage laws told a story of a particular moral--religious conception of family life. With the re-definition of marriage to include same--sex couples, society now hears a story that focuses more on enhancing equality within and between family relationships. As Justice L'Heureux-Dube argues:

   [I]n an uncertain social environment in which the very notion
   of what constitutes a family is controversial, ... if we are
   to be true to our commitment to enhance the quality of justice,
   in the family law context amongst others, the focus of legal
   developments and reforms should be on the notion of equality. (134)

If one is to conceive of the Canadian socio-legal culture as being committed to equality, the continued formal non-recognition of polygamy is essential. While autonomy principles are also central to Canadian family law, the broadly gender--discriminatory nature of polygamy as practiced in Canada mandates against recognition. To respond effectively to this gender discrimination requires limited recognition for the purpose of relief, but also necessitates a gender equality approach at the point of formation.

To be effective, this approach relies in large part on the continued normative significance of formal marriage recognition or non-recognition, as the case may be. This view has been challenged by some family law scholars who argue that the distinctiveness of the "married state" and of "marriage as an institution [has] become far less obvious and important." (135) In Canada, it is undeniable that the law has shifted away from a marital--status--based system to one that recognizes the realities of unmarried cohabitants. (136) The 2001 Law Reform Commission discussion paper, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, raises even broader questions about the continued relevance of marriage where legal systems move to extend greater legal recognition to nonconjugal relationships. (137) As family law systems in Canada and elsewhere have come to endow unmarried, and even non-conjugal, partners with similar legal benefits and obligations as their married counterparts, the question emerges whether the normative value of marriage recognition has lost its place.

The lengthy campaign for same--sex marriage recognition clearly reveals, however, that formal marriage recognition remains normatively significant in Canada. As the Ontario Court of Appeal noted in Halpern, same-sex equality claims involved much more than an argument for equal access "to economic benefits." They concerned the exclusion of same--sex couples from "a fundamental societal institution." (138) In Halpern, "all parties [were] in agreement that marriage is an important and fundamental institution in Canadian society." (139) Outside the courts, many gay rights advocates noted the symbolic importance that the language of marriage provides. For example, as Evan Wolfson argued, "language defines possibility and place, and marriage is part of the vocabulary of commitment and family. We have to use the same language so that everyone else will understand." (140)

The language of marriage thus continues to hold great symbolic and institutional meaning in Canada. Beyond its functional implications in ascribing immediate benefits and obligations, the same--sex marriage campaign illustrates that marriage recognition also plays a culturally constitutive role. If one views the law through the constitutive lens that White urges us to, giving gender--discriminatory family structures this degree of formal legitimacy would send a dysfunctional message. Rather than suggesting that some types of relationships are less worthy than others, as the non-recognition of same--sex couples did, recognizing polygyny would signal that some individuals are less worthy than others.

Within this discussion, it should be noted that although the formal recognition of domestic unions remains a moot point while polygamy is criminalised, the formal recognition of polygamous marriages validly entered into in jurisdictions that permit the practice remains a contested point in private international law. (141) If it is the case that private international law requires recognition and does not allow for a public policy check, this recognition would arise from the general international principle of comity among nations rather than some normative recognition of the practice itself. That being said, the contention that Canada cannot exercise a public policy check to withhold recognition of such marriages deserves further attention. If this were the case and the criminal law prohibition of polygamy was struck down, Canada would be faced with significant questions about how it might regulate immigration by polygynous families. (142) One solution may be to allow their immigration, but only recognize the first marriage as valid. (143) Whichever approach is considered, it is clear that greater attention to these issues is warranted in the Canadian context.

Recognition for the Purpose of Relief: Responding to Women's Lived Realities

Adopting a scheme of non-recognition at the point of family formation does not detract from Canada's obligations to protect the rights of individuals in existing polygynous families. While human rights treaty monitoring bodies have consistently condemned the practice, CEDAW has also emphasised States parties' obligations to "take measures to protect the human rights of women already in polygamous unions." (144)

Some may argue, however, that granting de facto polygamous families even limited recognition for relief purposes is paradoxical given the current criminality of such unions. What these more generic arguments fail to address, however, is who would likely be seeking relief. In polygynous unions, even more so than in monogamous relationships, it would be primarily women seeking relief. If one considers that the Crown would likely have to argue that the criminal law has been retained to protect women's right to equality, a failure to extend relief to these same women would be inherently dysfunctional. (145)

It should be noted that the analytical framework proposed in this article relies on Canadian family law's ability to grant relief to persons in de facto unions at the point of dissolution, while still withholding formal recognition at the point of formation. This analysis is not necessarily transportable, without significant modification, to family law systems that still rely on marital status to grant relief on relationship breakdown. In such jurisdictions, there will be a tension between discouraging a discriminatory practice while still protecting the rights of women in polygynous unions. Even in those jurisdictions that have domestic partnership regimes, such as the French Pact Civil de Solidarite, multiple--party unions are often excluded from the contractual option because of a desire not to countenance polygamy. (146) These efforts to discourage polygyny may further marginalize vulnerable de facto wives if they are not accompanied by family law reforms to ensure equitable access to support and property relief at relationship breakdown.

Child Support

Theoretically, child support is the least challenging Canadian family law relief issue that polygyny raises. Child support orders in Canada are not contingent on marital status, but are based on the principle that "both parents should be responsible for the financial support of a child." (147) In reality, however, the issue of child support in polygynous contexts raises many of the same difficult questions that arise in cases of sequential monogamy where a payor has child support obligations to a series of families.

Under Canada's federal and provincial Child Support Guidelines, a non-custodial parent is assessed according to set table amounts that consider the number of children to be awarded support and the payor's income. (148) This uniform system becomes complicated, however, where individuals re--partner and have ongoing child support obligations to previous and current families. (149) Similarly, a polygynous payor may have multiple sets of children whose standards of living may be significantly lowered if he were forced to pay the full table amount to his non-custodial children.

In theory, these types of difficulties might have been worked out under section 10 of the Guidelines, which allows for departures from the table amount where a court finds that the "spouse making the request ... would otherwise suffer undue hardship...." (150) To date, however, Canadian courts have typically adopted a stringent approach to this section. In Schenkeveld v. Schenkeveld, for example, the Manitoba Court of Appeal made little attempt to interpret section 10 in a way that would accommodate the ongoing needs of the payor's second family. (151) There, the Court held that even though the payor husband was clearly in a "difficult financial position" in supporting his second family, be did not meet the high threshold of "undue hardship." However, as James McLeod argues, rather than tacitly relying on a "first family first" principle, the Court should have adopted a child-centered approach. Adopting this approach, the Court could have found that ordering the full Guideline amount would "amount to an undue hardship if it leaves a payor with insufficient income to provide a similar lifestyle for his or her second-family children." (152)

In the case of polygynous families, McLeod's analysis is particularly pertinent. In many cases, a wife leaving a polygynous union and seeking child support would not qualify as a "first family." The sequential structure that the Court tacitly relied on in Schenkeveld will often not apply in the polygynous context where the payor retains ongoing obligations to the base family unit. Following through on the logic of protecting the rights of those in existing unions, it would be unreasonable to sacrifice the interests of children whose mothers remain in a polygynous union by not allowing a section 10 request where the payor cannot provide a similar or at least adequate lifestyle for these children.

Spousal Support

If Canadian family law is to play an effective role in adjusting relations between several de facto or de jure wives and a husband on whom they have relied wholly or in large part for economic support, greater attention needs to be given to the issue of spousal support. While the theoretical basis for our modern law of spousal support has received much attention, (153) little academic and still less judicial consideration has been given to how spousal support should be applied in the case of multiple, simultaneous "spouses."

Historically, courts were restricted to the narrow definition of "husband and wife" per Hyde v. Hyde in making a spousal support or alimony order as it was then known. In a 1948 decision, Lim v. Lim, the British Columbia Supreme Court held that a second wife validly married to her respondent husband in China was not a "wife" for the purpose of alimony. (154) The Court expressed concern about the reasonableness of denying spousal status to a woman who had validly entered Canada as the respondent's wife and was now seeking the alimony relief that other wives could receive. However, because an alimony award relied at the time on a finding of marriage validity, the Court considered itself bound by the monogamous definition articulated in Hyde v. Hyde. (155)

As the Canadian approach to spousal support has evolved beyond an expressly gendered and status--based system, it is no longer necessary to make a determination of formal marriage validity for the purpose of support. (156) That being said, it likely remains easier for a legally married wife in a polygynous union (usually the first wife) to access spousal support than for her de facto counterparts. A legally married wife in a polygynous union is essentially in the same position as all other legally married parties for the purpose of accessing spousal support. (157) Prior to a legal divorce, she could petition the court for spousal support under provincial/territorial legislation while she and her husband were still spouses under the definition of those Acts. (158) Alternatively, assuming that she is able to seek a legal divorce, she could make an application at the time of, or subsequent to, divorce proceedings for corollary relief under the federal Divorce Act. (159)

For subsequent de facto spouses, however, the issue becomes more complicated. Since there is no legally valid marriage, their ability to access spousal support would be limited to the provincial/territorial schemes that apply to unmarried couples. (160) For the purpose of spousal support, the definition of "spouse" under section 29 of the Ontario Family Law Act, for example, includes unmarried couples who have cohabited continuously for a period of not less than three years, or in a relationship of some permanence if they are the natural or adoptive parents of a child. (161) The British Columbia Family Relations Act includes parties who have lived together "in a marriage--like relationship for a period of at least 2 years...." (162)

One of the ambiguities that these and other similar provincial definitions raise is whether a person (here, the polygynous husband) can have multiple "spouses." Early case law on the question of whether a couple were "cohabiting" as "spouses" for the purpose of support was intricately bound up with marital--based notions of "conjugality." Molodowich v. Penttinen, which the Supreme Court of Canada affirmed in M. v. H. as setting out the "generally accepted characteristics of a conjugal relationship," (163) exemplified this reasoning. In it, the Ontario District Court concluded:

"[C]ohabit" and "conjugal" involve overlapping and interwoven concepts, each word, in a sense, an echo of the other and both an integral and essential element encompassed by the modern day concept of "marriage." (164)

This judicial notion of conjugality and cohabitation as intricately connected to marriage seemed to import all the classic hallmarks of marriage--opposite-sex parties, emotional and/or economic inter-dependency and monogamy. Where a husband was legally married and maintained a spousal relationship with that wife, other de facto wives may have had difficulty reasoning by analogy to a monogamous image of marriage.

The dominant trend in Canadian family law, however, has been to move away from this restrictive marriage--like reasoning to a more functional response to economic interdependency. In 1992, the British Columbia Provincial Court in Basi v. Dhaliwal applied this approach in a multiple--partner case. (165) The Court held that the claimant could qualify as a "spouse" under section 1 of British Columbia's Family Relations Act for the purpose of spousal support even though the respondent was legally married and residing with both "spouses." (166) There, Auxier J. held that the reality of the relationship--an ongoing sexual relationship, sharing of a common principal residence/care for a home and children, and an expectation of "continued mutual dependency"--resulted in the finding of a spousal relationship. (167)

This focus on mutual dependency was affirmed by the Supreme Court of Canada in the M. v. H. challenge to the opposite-sex definition of "spouse" for the purpose of spousal support under the Ontario Family Law Act (FLA). (168) In that case, Iacobucci J. emphasised that "neither opposite--sex couples nor same--sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is 'conjugal'." (169) Rather, conjugal unions in the context of spousal support are defined as relationships in which intimacy leads to the economic meshing of lives. (170) The Court held that this economic interdependency is what the support provisions of the FLA were intended to address.

This opening up of the notion of conjugality has significant consequences for de facto polygynous spouses seeking spousal support. In the post--M. v. H. world, de facto polygynous wives, whose intimate relationships with their de facto husband have led to a relationship of economic inter-dependency, should qualify as "spouses" for the purpose of spousal support under provincial family law schemes. The reality of polygynous families comports with the functional characteristics of a conjugal relationship established in Molodowich and affirmed in M. v. H. De facto polygynous wives and their husband typically share a common residence, have a sexual and personal relationship, perform domestic services, partake jointly in social activities, are economically interdependent, have and care for children, and are perceived socially as a spousal couple (albeit as part of a multiple union). (171)

Recent academic reports on Canada's legal treatment of polygyny raise questions, however, about the soundness of this reasoning. The Bala Report, part of a 2005 series on polygamy commissioned by the Status of Women Canada, concludes that "statutory schemes that allow claims by 'unmarried spouses' for such purposes as family law ... are limited to relationships involving two partners." (172) With the exception of clauses that recognize valid foreign polygamous marriages, the authors conclude that Charter-based arguments would be needed for such laws to be interpreted in a way that "recognize[d] limited claims from polygamous wives." (173) Similarly, the Bailey Report concludes that because most provincial schemes limit the application of the rights and obligations of spousal support to "cohabiting couples," "they could probably apply to parties inpotentially polygamous marriages only" [emphasis added]. (174)

While the Bailey Report notes the dearth of case law on the application of provincial statutes to potentially or actually polygamous marriages, neither it nor the Bala Report adequately address the fact that finding a "spousal" relationship between two parties does not preclude the finding of separate, but contemporaneous "spousal" relationships with other parties. Because polygyny involves one husband with several wives, it can, for legal purposes, be conceived of as a series of distinct "spousal" relationships between the husband and each respective wife. The structural nature of polygyny distinguishes it from more amorphous polyamorous relationships where there may be sexual and relational intermixing and overlap between parties. Superimposing a "spousal" relationship on any two parties in that context would be very different from recognizing distinct spousal relationships in the polygynous context.

However, while it is already the case that de facto polygynous wives can qualify as "spouses" for support purposes under these provincial schemes, legislative clarification to this effect would be preferable to avoid burdening vulnerable parties with the costs of litigating this point. This could be achieved through legislation that extends the Supreme Court of Canada's emphasis on emotional and economic interdependency in M. v. H. to its logical conclusion. (175) Focussing on "interdependency" in close, adult relationships means moving away from the "spousal" model that emerged from the vestiges of status-based alimony regimes. This approach was adopted in Alberta's recently amended Family Law Act, which uses the term "adult interdependent partner" in addition to "spouse" for support purposes. (176)

Yet even if de facto polygynous wives are entitled to claim spousal support, issues of quantum and duration of support are still complicated for polygynous unions because of husbands' likely ongoing support of other wives. Similar to the second family cases referred to in the discussion of child support, the law of spousal support has yet to develop a uniform response to these difficult re--partnering cases. For instance, although the Federal Spousal Support Advisory Guidelines give priority to child support in cases involving children, formulaic solutions have not yet been developed to address second family cases. (177)

In cases of polygynous unions, judicial discretion regarding the duration and amount of spousal support should take into account the needs and interests of additional wives and children. While this approach may mean that the claimant spouse receives a lower level of support, the interests of other polygynous spouses who may be financially reliant on a single husband should not be disregarded where one wife exits the union and seeks relief.

Matrimonial Property Division

The most troubling aspect of the current family law treatment of polygynous families is the inability of de facto wives to access matrimonial property division schemes in most provinces. While Ontario, the Yukon, the Northwest Territories, Nunavut, and Prince Edward Island include parties to an actually or potentially polygamous union from a jurisdiction where the union is legally valid in their matrimonial property definitions of "spouse," (178) de facto polygynous unions formed in Canada or another jurisdiction where they are not legally valid are excluded. With the exception of the Northwest Territories, Nunavut, Saskatchewan and Manitoba, which include unmarried, cohabiting spouses in their matrimonial property schemes, (179) de facto polygynous wives are unable to access these provincial property division schemes.

Without the availability of matrimonial property division, most polygynous wives are left without a proprietary remedy on relationship breakdown. While the Bala Report notes that a constructive trust remedy based on unjust enrichment is available to de facto polygynous wives, (180) this may be more a theoretical than an attainable remedy. As L'Hereux-Dube J. noted in Walsh v. Bona, the exclusion of unmarried couples from matrimonial property schemes means that a claimant is forced "to make out her claim in equity, with all the attendant expenses and problems of proof associated with such a claim." (181) Furthermore, even if the claimant demonstrates unjust enrichment, as a discretionary remedy there is no assurance that a constructive trust would be imposed. (182)

Most troublingly, the exclusion of de facto polygynous spouses fails to track the mutual expectations of the parties that the Supreme Court of Canada found in Walsh v. Bona to be a crucial distinguishing factor between married and unmarried couples. (183) In that case, the Court held that the exclusion of unmarried, cohabiting couples from Nova Scotia's Matrimonial Property Act (MPA) did not violate section 15 of the Charter. In its submissions, the Nova Scotia government urged the Court to "consider the exclusion of unmarried persons from the MPA as arising out of respect for the autonomy and self-determination of those who choose not to marry." (184) The Court adopted this initial intention analysis, departing from the functional analysis it had earlier endorsed in Miron v. Trudel. (185) While those legislatures that include unmarried, cohabiting parties in their matrimonial property regimes have arguably better captured the reality of property equalization at relationship breakdown, it is not necessary to make this point in the context of polygynous families.

Even if one accepts the reasonableness of an initial intention framework, it is clear that any intent--based distinction between married and unmarried couples breaks down in the case of de facto polygynous spouses. The fact that de facto polygynous spouses are not legally married is a result of the law's prohibition of polygamy, not the parties' subjective intentions. In Walsh, Bastarache J. stated for the majority that the pertinent question in assessing the validity of the legislative exclusion was "whether persons entering into a conjugal relationship without marrying are in fact entering into a relationship on the same terms as persons who marry." (186) In the case of polygynous families, the reality is one of husband and wives. Typically, the first marriage is legally recognized and each subsequent marriage is crystallized in a religious or cultural marriage ceremony. Accordingly, while there is no legal formality, their subjective intention and religious or cultural formality should allow such de facto spouses to access matrimonial property division schemes. In sum, those provincial jurisdictions that have not extended matrimonial property schemes to unmarried parties should include de facto polygynous spouses, (187) in addition to de jure polygynous unions validly entered into in foreign jurisdictions, in their definition of "spouse" for the purpose of property equalisation. (188)

While it does not appear that a multi-party formula for division has been developed by any of the legislatures that already include valid de jure polygamous spouses in their matrimonial property schemes, (189) this structural lacuna could be resolved through a division formula that provides for proportional equalization. (190) New Zealand's Property (Relationships) Act, 1976, for example, addresses the issue of sequential and contemporaneous multi-party property claims. (191) The Act provides that if the de facto or de jure relationships were sequential, the claims of the first are dealt with first, and the claims of the second apply to any remaining property. (192) If the relationships were contemporaneous, the Court attempts to determine what property is "attributable" to each claimant and divides it accordingly. Where property cannot be attributed separately, it is divided according to the contribution of each person.

In the Canadian polygynous context, such a model would mean that matrimonial property acquired during the course of a marriage between a husband and first wife would be considered in the calculation of the net family property if that relationship broke down. The net family property calculation for subsequent wives would include only the property acquired during the course of those marriages. Only the property acquired during the marriage between the husband and first wife before his subsequent remarriage would be subject to equal division. After this calculation, all property acquired would be subject to proportional division according to the number of spouses and the lengths of their respective de facto unions. In other words, in cases where there are more than two spouses, it is necessary to take into account the lengths of the unions to ensure that each spouse's matrimonial property entitlement is commensurate with her or his involvement in the polygamous relationship. The actual divisional payment would be awarded only to the exiting spouse with the remaining proportion staying in the polygynous family. The underlying premise of this model, similar to the child and spousal support recommendations, is that the rights and interests of remaining family members in polygynous unions should be respected. Legal intervention in the case of an exiting spouse should not mean that the financial circumstances of remaining spouses and children are disproportionately undermined.

VI CONCLUSION

The recent redefinition of marriage in Canada has provided an important moment of pause for policymakers and commentators in considering the defining qualities of marriage and their continued legal relevance. Significant questions now abound about whether the monogamous definition of marriage, as retained in criminal and family law rules, should continue. Unfortunately, public discourse around the legal treatment of polygamy has too often relied on traditionalist arguments claiming "that it's just always been this way," or what Brenda Cossman has referred to as the "ick factor," that is "a reaction of disgust." (193) Both of these arguments, as Cossman notes, fail to provide a rational basis for the law's current position. They rely instead on the same premises that "have been and are still being used against any and all gay rights." (194)

This article asserts that Canada's international human rights obligations to respect, protect, and fulfill women's right to equality in marriage and family life should inform its family law treatment of polygamy. International human rights law is significant in its ability to inform and shape the legal treatment of polygamy both at the point of family formation and at relationship dissolution. Moreover, in the event that polygamy is decriminalized, it is essential that family law policymakers be attuned to the discriminatory nature of polygyny--the predominant form of multiple--partner unions in Canada. In adopting a long-term strategy to discourage polygyny, a rights--respecting analysis requires non-recognition at the point of marital formation, while ensuring that women and children in de facto unions can still access relief.

Ultimately, the issue of polygamy provides policymakers with an opportunity to consider the role of Canada's international human rights commitments in domestic family law in general. Within family law itself, polygamy raises broader questions about how the law addresses "second family" and other multiple--partner cases. Polygamous family structures raise many of the same pragmatic and theoretical relief challenges that sequential monogamy does. Further, the relief obstacles that polygamous spouses face in accessing matrimonial property division are shared by cohabiting partners in many provinces. Accordingly, considerations of the legal treatment of polygamy reveal some of the more general family law reforms necessary in the cohabitation and "second family" contexts. It is hoped that greater judicial and legislative attention to these difficult family law issues will contribute to a more legally coherent approach to the treatment of marriage and families in a pluralist society.

* The author would like to thank the participants in the 2006 Capstone Academic Stream and Thesis Course at the University of Toronto, Faculty of Law, and the Editorial Board of the University of Toronto Faculty of Law Review for their helpful comments and suggested revisions. The author is extremely grateful to Professor Carol Rogerson for her supervisory guidance and extensive comments and critiques of earlier versions of this article. The author gratefully acknowledges the support of a J.S.D Tory Fellowship in revising an earlier version of this article.

(1) (1886), 1 L.R. (P&D) 130 [Hyde v. Hyde].

(2) EGALE Canada Inc. v. Canada (Attorney General) (2003), 225 D.L.R. (4th) 472, 2003 BCCA 251; Halpern v. Canada (Attorney General) (2003), 65 O.R. (3d) 161; Hendricks v. Quebec (Procureur general), [2002] R.J.Q. 2506. After the same-sex marriage reference to the Supreme Court of Canada was initiated, the Attorney General conceded in a number of provincial cases that the opposite--sex definition of marriage contravened s. 15(1) of the Charter and could not be justified under s.1: Dunbar v Yukon, [2004] Y.J. No. 61 (QL), 2004 YKSC 54; Vogel v. Canada (Attorney General), [2004] M.J. No. 418 (QL) (Q.B.); Boutilier v. Nova Scotia (Attorney General), [2004] N.S.J. No. 357 (QL) (S.C.); and N.W. v. Canada (Attorney General), [2004] S.J. No. 669 (QL), 2004 SKQB 434.

(3) S.C. 2005, c. 33, s.2 [Civil Marriage Act].

(4) See "Same Sex Debate Partly Drove Polygamy Study" Canadian Press (27 February 2005) online: CTV News Online <http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20050227/study_ polygamy_050 227?s_name=&no_ads=>.

(5) Polygamy is ah umbrella term that refers to a party having simultaneous, multiple spouses. Polygyny refers to a husband having multiple wives. Polyandry refers to a wife having multiple husbands. Polyamory refers to an arrangement of multiple partnerships and can include same-sex, opposite-sex, and overlapping sexual relationships.

(6) British Columbia, Life in Bountiful A Report on the Lifestyle of a Polygamous Community (British Columbia: Ministry of Women's Equality, 1993) [Life in Bountiful]. Media reports suggest that there are about 1000 or more people living in the Bountiful, B.C. community. See Erika Sherk, "Leaving Bountiful behind" Capital News Online (27 January 2006) online: Carleton University School of Journalism <http://temagami.carleton.ca/jmc/cnews/27012006/n4.shtml.>

(7) Marion Boyd, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion (Toronto: Ministry of Attorney General, December 2004), online: Ministry of Attorney General <http://www. attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/fullreport.pdf> at 23 [Marion Boyd, Dispute Resolution].

(8) Polygamy remains ah indictable offence under the Criminal Code, R.S.C. 1985, c. C-46, s. 293. Paragraph 293(1)(a) states, "every one who practises or enters into or in any manner agrees or consent to practise or enter into (i) any form of polygamy, or (ii) any kind of conjugal union with more than one person ay the same time, whether or not it is by law recognized as a binding form of marriage ... is guilty of ala indictable offence." Furthermore, paragraph 293(1)(b) holds that anyone who celebrates, assists, or is a party to a rite that purports to sanction polygamy is guilty of ah indictable offence. While these provisions have not been enforced for more than 50 years, their existence informs Canada's immigration policy by preventing polygamous families from emigrating. See "An Ideal Candidate for Immigration is Denied After it is Learned be has Two Wives" National Post (1 February 2005) A7; and Ali v. Canada (Minister of Citizenship and Immigration) (1998), 154 F.T.R. 285.

(9) Criminal Code, S.C. 1892, c.29, s. 278.

(10) Both reported cases involve Aboriginal men: R. v. Bear's Shin Bone (1899), 4 Terr. L. R. 173, 3 C.C.C. 239 (N.W.T.S.C.) and R. v. Harris (1906), 11 C.C.C. 254 (Que. S.C.). See also Law Reform Commission of Canada, Bigamy (Working Paper No. 42) (Ottawa: Law Reform Commission of Canada, 1985) at 23 [Law Reform Commission of Canada, Bigamy].

(11) British Columbia Civil Liberties Association, News Letter, "Annual General Meeting Newsletter, 2001" (2001), online: British Columbia Civil Liberties Association <http://www.bccla.org/newsletter/ 01annual.pdf>.

(12) Mike D'Amour, "Polygamists Defend Lifestyle" The Calgary Sun (1 August 2004) 11.

(13) Angela Campbell, "How Have Policy Approaches to Polygamy Responded to Women's Experiences and Rights? An International, Comparative Analysis" and Martha Bailey et al., "Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada" [Martha Bailey et al., "Expanding Recognition"] in Polygamy in Canada: Legal and Social Implications for Women and Children: A Collection of Policy Research Reports (Ottawa: Status of Women Canada, 2005), online: Status of Women Canada <http://www.swc-cfc.gc.ca/pubs/pubspr/0662420683/200511_ 0662420683_e.pdf> [Polygamy in Canada].

(14) "Hunting Bountiful; Polygamy in Canada (A Polygamous Enclave in British Columbia)" The Economist (10 July 2004) 34. In October, 2006, the B.C. Criminal Justice Branch started a charge assessment review after receiving an RCMP report on the Bountiful community. Attorney General Wally Oppal has indicated that while polygamy charges may be available, the "fundamental issue here is sexual exploitation of children, sexual abuse of children and sexual assaults--if all that is taking place." "Child abuse the big concern at Bountiful: B.C." Canadian Press (23 October 2006), online: CTV News Online <http://www.ctv.ca/servlet/ArticleNews/print/CTVNews/20061023/ bountiful_children_061023/20061023/?hub=Canada&subhub=PrintStory>.

(15) See Bronson v. Swensen, 2005 U.S. Dist. LEXIS 2374 (D. Utah 15 February, 2005) where the plaintiffs challenged the constitutionality of Utah Code Ann. [section] 76-7-101, Utah Const. art. III, [section] 1, and the Utah Enabling Act, ch. 138, [section] 3, 28, Stat. 107, 108 (1894), which prohibit the practice of polygamy by outlawing bigamy, polygamy, and plural marriage. The plaintiffs (a husband, wife, and proposed wife) challenged the laws after being refused a marriage licence.

(16) Bailey et al., "Expanding Recognition", supra note 13 at 6-15, which argues that Canada can not use domestic public policy as a means to deny recognizing foreign de jure polygamous marriages. See also Nicholas Bala et al., "An International Review of Polygamy: Legal and Policy Implications for Canada" in Polygamy in Canada, supra note 13 at 43 [Bala et al., "An International Review of Polygamy"] which states, "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."

(17) Marion Boyd, Dispute Resolution, supra note 7 notes that in the consultation stage, "many participants mentioned that although polygamy and performing polygamous marriages are offences in the Criminal Code, police are reluctant to lay charges. The Review received anecdotal evidence from a number of sources that polygamous marriages are being performed in Ontario and concern was raised about the situation of women whose spouses marry more than once."

(18) Life in Bountiful, supra note 6.

(19) Amy Kaufman, "Polygamous Marriages in Canada" (2005) 21 Can. J. Fam. L. 315 at 316 citing Philip L. Kilbride, Plural Marriage for Our Times: A Reinvented Option (Connecticut: Bergin & Garvey, 1994) at 42.

(20) Polygyny and polyandry involve concurrent, though discrete dyadic, relationships between one person (in polygyny, a husband) and other plural spouses (the wives). The polygynous familial structure does not result in sexual overlap between the multiple wives, as a polyamorous relationship would.

(21) Maura Strassberg, "The Challenge of Post-Modern Polygamy: Considering Polyamory" (2003) 31 Cap. U.L. Rev. 439 at 440. See R. v. Labaye, [2005] 3 S.C.R. 728, 2005 S.C.C. 80 where the Supreme Court of Canada ruled that the operation of consensual, adult group sex clubs did not pose a harm to "individuals or society." The Court noted, "Butler is clear that criminal indecency or obscenity must rest on actual harm or a significant risk of harm to individuals or society" at para 70.

(22) Ibid. at 489.

(23) See Elizabeth Emens, "Monogamy's Law: Compulsory Monogamy and Polyamorous Existence" (2004) 29 N.Y.U. Rev. L. & Soc. Change 277; Kelsi Brown Corkran, "Exclusion and Expression in Marriage" (2005) 6 Geo. J. Gender & L. 471.

(24) See D. Marisa Black, "Beyond child bride polygamy: polyamory, unique familial constructions, and the law" (2006) 8 J.L. & Fam. Stud. 497.

(25) Law Commission of Canada, "Beyond Conjugality: Recognizing anal Supporting Close Personal Adult Relationships" (Ottawa: Law Commission of Canada, 2001) at 17.

(26) Strassberg, supra note 21 at 447.

(27) This section draws on Rebecca J. Cook & Lisa M. Kelly, Polygyny and Canada's Obligations Under International Human Rights Law (Ottawa: Department of Justice, 2006), online: Department of Justice Canada <http://www.justice.gc.ca/en/dept/pub/poly/>.

(28) Esther M. Kisaakye, "Women, Culture and Human Rights: Female Genital Mutilation, Polygamy and Bride Price" in Wolfgang Benedek, Eshter M. Kisaakye & Gerd Oberleitner, eds., Human Rights of Women: International Instruments and African Experiences (New York: Zed Books, 2002) 268.

(29) Esther Sivan, "Study on the Lack of Equality of Women in Israel in Matters of Personal Status--Marriage and Divorce--With Proposals on how to Achieve Freedom of Religion and Equal Rights for Women in Israel" (Jerusalem: Joint Project of the Hebrew University of Jerusalem and Hemdat--Council for Freedom of Science, Religion and Culture in Israel, 2000) at 13.

(30) Ibid.

(31) A. Yusuf Ali, "The Holy Qu'ran: Text, Translation and Commentary" Sura 4, verse 3 (1983) as cited in Amira Mashhour, "Islamic Lave and Gender Equality--Could There be a Common Ground? A Study of Divorce and Polygamy in Sharia Law and Contemporary Legislation in Tunisia and Egypt" (2005) 27 Hum. Rts. Q. 562.

(32) Urfan Khaliq, "Beyond the Veil? An Analysis of the Provisions of the Women's Convention in the Law as Stipulated in Shari'ah" (1995) 2 Buff. Jour. Int'l L. 1 at 31.

(33) Irwin Altman & Joseph Ginat, Polygamous Families in Contemporary Society (Cambridge: University of Cambridge Press, 1996) at 42.

(34) Ibid.

(35) Ibid. at 27.

(35) Ibid.

(37) Daniel Woods, "Bountiful, B.C.: It's a Remote Town in an Idyllic Valley Where Polygamy is the Norm and the Neighbours Don't Seem to Mind, But are There Darker Secrets Lurking Within?" Saturday Night (4 August 2001) 26 at 26.

(38) Susan Okin, Is Multiculturalism Bad for Women? (Princeton: Princeton University Press, 1999) at 13.

(39) Women Living Under Muslim Laws, Knowing Our Rights: Women, Family, Laws and Customs in the Muslim World (London: Women Living Under Muslim Laws, 2003) at 197 [Knowing Our Rights].

(40) UN Special Rapporteur on Violence Against Women, Cultural Practices in the Family that are Violent Towards Women, UN ESCOR, 2002, 48th Sess., UN Doc. E/CN.4/2002/83 at para 63.

(41) Dena Hassouneh-Phillips, "Polygamy and Wife Abuse: A Qualitative Study of Muslim Women in America" (2001) 22 Health Care for Women International 735.

(42) Ibid. at 741.

(43) Adrien Katherine Wing, "Polygamy from Southern Africa to Black Britannia to Black America: Global Critical Race Feminism as Legal Reform for the Twenty-first Century" (2001) 11 J. Contemp. Legal Issues 811 at 838; Susan Deller Ross, "Polygyny as a Violation of Women's Right to Equality in Marriage: An Historical, Comparative and International Human Rights Overview" (2002) 24 Delhi Law Review 22 at 30; Vinee Beiser, "The Perils of Polygamy: An Incest Case in Utah Highlights the Controversy Over 'Plural Marriage'" Maclean's (26 July 1999) 32; Woods, supra note 37 at 30.

(44) Altman & Ginat, supra note 33 at 341.

(45) Alean Al-Krenawi, "Women from Polygamous and Monogamous Marriages in an Out-Patient Psychiatric Clinic" (2001) 38 Transcultural Psychiatry 187; R. Ghubash, E. Hamdi, & P. Bebbington, "The Dubai Community Psychiatric Survey: Prevalence and Socio-demographic Correlates" (1992) 27 Social Psychiatry and Psychiatric Epidemiology 55.

(44) Lisa M. Kelly, "Polygyny and HIV/AIDS: A Health and Human Rights Approach" (2006) 31 Journal for Juridical Science 1.

(47) Varghese I. Cherian, "Academic Achievement of Children From Monogamous and Polygynous Families" (1989) 130 The Journal of Social Psychology 117; A. Al-Krenawi, J.R.Graham & V. Slonim-Nevo, "Mental Health Aspects of Arab-Israeli Adolescents from Polygamous Versus Monogamous Families" (2002) 142 Journal of Social Psychology 446; Salman Elbedour, William Bart & Joel Hektner, "Intelligence and Family Marital Structure: The Case of Adolescents from Monogamous and Polygamous Families Among Bedouin Arabs in Israel" (2003) 143 Journal of Social Psychology 95; Salman Elbedour et al. "The Effect of Polygamous Marital Structure on Behavioural, Emotional, and Academic Adjustment in Children: A Comprehensive Review of the Literature" (2002) 5 Clinical Child and Family Psychology Review 255.

(48) Martha Bailey, "Pelech, Caron and Richardson" (1989-90) 3 C.J.W.L. 615 at 616.

(49) Lenore Weitzman's findings in The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (New York: Free Press, 1985) galvanized debate around economic remedies for divorce.

(50) Ibid. at 374.

(51) In the divorce context, there have been efforts to reduce conflict by moving away from an adversarial model to allow for "desk divorces" by way of affidavit submissions. The 1985 Divorce Act R.S., 1985 (2nd Supp.), c. 3 [Divorce Act] encourages settlement and the use of alternate forms of dispute resolution by requiring counsel to advise their clients of the benefits of negotiating support and custody matters, and to inform them of mediation facilities. Similarly, ongoing parental contact is encouraged to reduce the negative predictors on children.

(52) Carol Rogerson, "The Canadian Law of Spousal Support" (2004) 38 Fam. L. Q. 69 at 105-108; Carol Rogerson & Rollie Thompson, "Spousal Support Advisory Guidelines: A Draft Proposal" (Ottawa: Justice Canada, January 2005); Federal Child Support Guidelines, S.C. 1997, c. 1, s. 11, R.S., c. 3 (2nd Supp.) (annex to Divorce Act, ibid.)

(53) For further discussion of polygyny as a violation of International human rights law, see Cook & Kelly, supra note 27.

(54) Convention on the Elimination of All Forms of Discrimination against Women (New York: UN, 1979), 34 UN GAOR Suppl. (No. 21) (A/34/46) at 193, UN Doc. A/Res/34/180 [Women's Convention].

(55) International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, arts. 9-14, Can. T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force 23 Match 1976, accession by Canada 19 May 1976) [Political Covenant].

(56) International Covenant on Economic, Social and Cultural Rights, GA Res. 2200 (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc.A/6316 (entered into force 3 January 1976, accession by Canada 19 May 1976).

(57) The term "States parties" is used by international human rights treaty bodies to refer to states that are parties to particular international human rights instruments.

(58) Political Covenant, supra note 55, Art. 23(4).

(59) Women's Convention, supra note 54, Art. 16.

(60) Ibid.

(61) Ross, supra note 43 at 34.

(62) Ibid.

(63) CEDAW has condemned polygyny in numerous concluding observations. For example, see Burkina Faso, 31/01/2000, UN Doc. A/55/38, paras. 281-282; Cameroon, 26/06/2000, UN Doc. A/55/38, para. 54; Democratic Republic of the Congo, 01/02/2000, UN Doc. A/55/38, paras. 215-216; Egypt, 02/02/2001, UN Doc. A/56/38, para. 352-353; Guinea, 31/07/2001, UN Doc. A/56/38, paras. 122-123; Indonesia, 14/05/98, UN Doc. A/53/38, para. 284(a); Iraq, 14/06/2000, UN Doc. A/55/38, para. 191; Israel, 12/08/97, UN Doc. A/52/38 Rev.1, Part II, para. 163; Jordan, 27/01/2000, UN Doc. A/55/38, paras. 174-175; Namibia, 12/08/97, UN Doc. A/52/38/Rev.1, Part II, para. 110; Nepal, 01/07/99, UN Doc. A/54/38, para. 153; Nigeria, 07/07/98, UN Doc. A/53/38/Rev.1, para. 153; Senegal, 12/04/94, UN Doc. A/49/38, para. 721; United Republic of Tanzania, 06/07/98, UN Doc. A/53/38/Rev.1, para. 229; Uzbekistan, 02/02/2001, UN Doc. A/56/38, paras. 187-188 as cited in Center for Reproductive Rights and University of Toronto International Programme on Reproductive and Sexual Health Law, Bringing Rights to Bear: An Analysis of the Work of UN Treaty Monitoring Bodies an Reproductive and Sexual Rights, (2002) at 38) [Center for Reproductive Rights, Bringing Rights to Bear].

(64) The HRC has recommended in several of its concluding observations that States take steps to abolish and prevent the practice. For example, see Democratic Republic of the Congo, 27/03/2000, UN Doc. CCPR/C/79/Add.118 at para. 11; Gabon, 10/11/2000, UN Doc. CCPR/CO/70/G AB, para. 9; Libyan Arab Jamahiriya, 06/11/98, UN Doc. CCPR/C/79/Add.101, para. 17; Nigeria, 24/07/96, UN Doc. CCPR/C/79/Add.65, A/51/40, para. 291; Senegal, 19/11/97, UN Doc. CCPR/C/79/Add 82, para. 12 as cited in Center for Reproductive Rights, Bringing Rights to Bear, ibid. at 42.

(65) The CESCR has condemned polygamy as being incompatible with the rights protected under the Economic Covenant. For example, see Cameroon, 08/12/99, UN Doc. E/C.12/1/A dd.40, paras. 14 and 33; Kyrgyzstan, 01/09/2000, UN Doc. E/C.12/1/Add.49, paras. 16 and 30; Nepal, 24/09/2001, UN Doc. E/C.12/1/Add.66, paras. 10 and 13; Nigeria, 13/05/98, UN Doc. E/C. 12/Add.23, para, 22; Senegal, 24/09/2001, UN Doc. E/C. 12/1/Add.62, paras. 15 and 39 as cited in Center for Reproductive Rights, Bringing Rights to Bear, ibid. at 45.

(66) The CRC has expressed concern about the affect of polygyny on children and recommended policy and legislative reforms to discourage the practice. See Djibouti, 28/06/2000, UN Doc. CRC/C/15/ Add. 131, para. 34 as cited in Center for Reproductive Rights, Bringing Rights to Bear, ibid. at 40.

(67) General Recommendation 21, Equality in Marriage and Family Relations, UN CEDAWOR, 13th Sess., UN Doc. A/47/38, (1994) at para 14.

(68) General Comment No. 28: Equality of Rights Between Men and Women (Article 3), UN HRCOR, 68th Sess., UN Doc. CCPR/C/21/Rev.1/Add.10 (2000) at para. 24. For a discussion of the legal trend toward marital equality and the regulation of marriage generally, see Arlette Gautier, "Legal Regulation of Marital Relations: An Historical and Comparative Approach" (2005) 19 Int'l J.L. Pol'y & Fam. 47.

(69) Knowing Our Rights, supra note 39 at 201; Jamal J. Nasir, The Islamic Law of Personal Status, 3rd ed. (The Hague: Kluwer Law International, 2002) at 67-68.

(70) Ibid. See also Seyed Nasrollah Ebrahimi, "Marriage Law of Iran Under Islamic Perspectives" in Andrew Bainham, ed., International Survey of Family Law (The Hague: Martinus Nijhoff, 2005) 315 at 349-352.

(71) Abdullahi An-Na'im, ed., Islamic Family Law in a Changing World: A Global Resource Book (London: Zed Books, 2002) at 49.

(72) David Pearl & Werner Menski, Muslim Family Law, 3rd ed. (London: Sweet & Maxwell, 1998) at 242.

(73) Concluding Observations of the Committee on the Elimination of Discrimination against Women: Burkina Faso, UN CEDAWOR, UN Doc. A/55/38 (2000) at para. 282.

(74) Law Reform Commission of Canada, Bigamy, supra note 10 at 22.

(75) Criminal Code, S.C. 1953-54, c. 51, s. 243.

(76) R. v. Nan-E-Quis-A-Ka (1889), 1 Terr. L.R. 211; R. v. Labrie (1891), 7 M.L.R. Q.B. 211 (Que. C.A.); R. v. Liston (1893), 34 C.L.J. 546n (Ont. Q.B.) [Liston]; The Queen v. "Bear's Shin Bane" (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.) [Dionne]; and R. v. Tolhurst (1937), 38 C.C.C. 319. See discussion in Bailey et al., "Expanding Recognition", supra note 13 at 17-24.

(77) In Liston, ibid., Armour C.J.O. held, "s. 278 of the Code, which was the only section which could be argued to cover adultery, was intended to apply only to Mormons." See also Dionne, ibid.

(78) Hyde v. Hyde, supra note 1 at 133.

(79) Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698 at para. 22.

(80) Civil Marriage Act, supra note 3, Preamble.

(81) Lisa Glennon, "Targeting the Exclusionary Impact of Family Law" in Family Law and Family Values, Mavis Maclean, ed., (Oxford: Hart Publishing, 2005) 157.

(82) Miron v. Trudel, [1995] 2 S.C.R. 418, 124 D.L.R. (4th) 693 [Miron v. Trudel]; M. v. H., [1999] 2 S.C.R. 3 [M. v. H.]; Halpern v. Canada (A.G.) (2003), 225 D.L.R. (4th) 529 (Ont. C.A.). See also Glennon, ibid. at 158-171 for a discussion of the use of the Charter's equality guarantees to protect same-sex couples in the marriage context.

(83) Stephen Toope, "Riding the Fences: Courts, Charter Rights and Family" ( 1990-1991) 9 Can. J. Fam. L. 55.

(84) Ibid. Toope cites other scholars, including Rollie Thompson, who have questioned the soundness and highlighted the complexities of rights discourse in the family realm.

(85) [1990] 3 S.C.R. 697 at 750. For a discussion of the role of international human rights law in domestic Canadian law, see Irit Weiser, "Undressing the Window: Treating International Human Rights Law Meaningfully in the Canadian Commonwealth System" (2004) 37 U.B.C.L. Rev. 13.

(86) [1999] 2 S.C.R. 817 [Baker v. Canada].

(87) Ibid. at para. 70.

(88) Mayo Moran, "Authority, Influence, and Persuasion: Baker, Charter Values and the Puzzle of Method" in David Dyzenhaus, ed., The Unity of Public Law (Oxford and Portland Oregon: Hart Publishing, 2004) 389 at 408.

(89) A.G. Canada v. A.G. Ontario (The Labour Conventions Case), [1937] A.C. 326; Francis v. The Queen, [1956] 2 S.C.R. 618. When Canada ratifies an international treaty, it is legally bound in international law. However, because Canada is a dualist country, ratified treaties are not considered legally binding domestically without domestic legislative implementation. Dualism refers to the idea that international and national laws are distinct and separate legal systems. Therefore, international law must be incorporated into national law to become binding domestically in dualist states. In contrast, monist states consider international law and national law to be part of a single legal system. There is no Canadian legislation expressly incorporating the Women's Convention into domestic law.

(90) Daniels v. White, [1968] S.C.R. 517 (S.C.C.) at 541.

(91) Slaight Communications Inc. v. Davidson [1989] 1 S.C.R. 1038 quoting from In Reference re Public Service Employee Relations Act, [1987] 1 S.C.R. 313.

(92) For a discussion of these views, including the tensions between the liberal notion of the rights--bearing "citizen" and the complexities of dependency and tare in family life, see Susan Boyd, "The Impact of the Charter of Rights and Freedoms on Canadian Family Law" (2000) 17 Can. J. Fam. L. 293 at 297-298.

(93) Claire Archbold, "Family Law-making and Human Rights in the United Kingdom" in Mavis Maclean, ed., Making Law for Families (Oxford: Hart Publishing, 2000) 185 at 186.

(94) Ibid. at 192.

(95) W.R. Atkin & G.R. Austin, "Family Law in Aotearoa/New Zealand: Facing Ideologies" in J. Eekelaar & T. Nhlapo, eds., The Changing Family: Family Forms and Family Law (Oxford: Hart Publishing, 1999) at 305 as cited in Archbold, ibid. at 192

(96) Archbold, ibid. at 192.

(97) John Dewar, "Family Law and its Discontents" (2000) 14 Int' J.L. Pol'y & Fam. 59 at 72.

(98) Ibid.

(99) S. Gibson, "Social Work, Law--Jobs and Modern Law" in M. Maclean & J. Kurczewski, eds., Families, Politics and the Law (Oxford: Clarendon Press, 1994) as cited in Archbold, supra note 93 at 193.

(100) In Canada, essential validity, which concerns the legal capacity of parties to marry, is governed by federal legislation, though the provinces have jurisdiction over rules of formal validity, which involve the ceremonial and evidentiary requirements parties must satisfy. See Berend Hovius, Family Law: Cases, Notes and Materials, 3rd ed. (Toronto: Carswell, 1992) at 108.

(101) In Lim v. Lim, [1948] 1 W.W.R. 298 (B.C.S.C.) [Lim] the Court would not recognize a second wife as a legal wife for the purpose of support. While the Court was concerned about preventing polygynous wives from accessing the benefits that other wives had, the Court nevertheless felt bound by the Hyde definition.

(102) See e.g. Miron v. Trudel, supra note 82; M. v. H., supra note 82.

(103) Patrick Parkinson, "Taking Multiculturalism Seriously: Marriage Law and the Rights of Minorities" (1994) 16 Sydney L. Rev. 437.

(104) For a discussion of the relationship between culture and human rights, see Philip Alston, "The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights" in Philip Alston, ed., The Best Interests of the Child (Oxford: Clarendon Press, 1994) 1.

(105) Celestine Nyamu, "How Should Human Rights and Development Respond to Cultural Legitimization of gender Hierarchy in Developing Countries?" (2000) 41 Harv. Int'l L. J. 395 at 405.

(106) Ibid. at 404.

(107) Ibid.

(108) Madhavi Sunder, "Piercing the Veil" (2003) 112 Yale L.J. 1399.

(109) Michael Freeman, "Cultural Pluralism and the Rights of the Child" in John Eekelaar and Thandabantu Nhlapo, eds., The Changing Family: International Perspectives on the Family and Family Law, (Oxford: Hart Publishing, 1998) 289 at 296-297. See also Amy Guttman, "The Challenge of Multiculturalism in Political Ethics" (1993) 22 Philosophy and Public Affairs 171.

(110) This leads in turn to what Ayelet Shachar refers to as the "domestic impunity" fallacy. Vulnerable individuals within a minority group are forced to exit the group if they wish to access the equality rights guaranteed within the dominant culture. Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women's Rights, (Cambridge: Cambridge University Press, 2001) at 40.

(111) Freeman, supra note 109 at 297.

(112) Ibid. at 299-304.

(113) Ibid. at 294-295.

(114) Monique Devaux, Cultural Pluralism and Dilemmas of Justice (Ithaca and London: Cornell University Press, 2000) at 35.

(115) Political Covenant, supra note 55, Article 18 (1) states, "everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance." Article 18(3) states, "freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."

(116) Pichon and Sajous v. France, no. 49853/99, [2001] X E.C.H.R. 371 (limiting the right of conscientious objection for the protection of health); Singh Bhinder v. Canada, Communication Nos. 208/1986, UN Doc. CCPR/C/37/D/208/1986 (1989) (law requiring all persons to wear hard hats for public health and safety interests is a justified limitation on freedom of religion).

(117) Leyla Sahin v. Turkey [GC], no. 44774/98, [2005] XI E.C.H.R. (limitations on wearing religious headscarves in public permitted for the purpose of protecting gender equality). Within Canada's constitutional framework, this balance between respect for multicultural heritage and women's equality is also evident. As Lorraine Weinrib notes, "[although] Charter interpretation must be consistent with the 'preservation and enhancement of the multicultural heritage of Canadians,' the reading of all Charter guarantees must effectuate their equal guarantee to men and to women." Lorraine Weinrib "Charter precludes unequal regimes" Law Times (3 October 2005).

(118) Cook & Kelly, supra note 27 at 1-2.

(119) (1879) 98 U.S. 145.

(120) Ibid.

(121) Syndicat Northcrest v.Anselem, [2004] 2 S.C.R. 551.

(122) Ibid. at 563.

(123) Ibid. at 585-586.

(124) The State of Bombay v. Narasu Appa Mali, 1954 A.I.R. 39 (Bombay) 84.

(125) Ibid. at 86.

(126) Bhewa v. Government of Mauritius, [1991] LRC (Const).

(127) Ibid. at 308.

(128) Ibid. at 309.

(129) James Boyd White, "Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life" (1985) 52 U. Chi. L. Rev. 684.

(130) Ibid. at 684.

(131) Ibid. at 697.

(132) Ibid.

(133) Mary Ann Glendon, Abortion and Divorce in Western Law (Cambridge, Mass.: Harvard University Press, 1987) at 8.

(134) Justice Claire L'Heureux-Dube, "Making Equality Work in Family Law" (1997) 14 Can. J. Fam. Law 103 at 105.

(135) Anne Barlow et al., Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century (Oxford: Hart Publishing, 2005) at 86.

(136) Nicholas Bala & Rebecca Jaremko Bromwich, "Context and Inclusivity in Canada's Evolving Definition of the Family" (2002) 16 Int'l J.L. Pol'y & Fam. 145 [Bala & Bromwich].

(137) Law Commission of Canada, "Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships" (Ottawa: Law Commission of Canada, 2001). See also Bala & Bromwich, ibid. for discussion.

(138) Halpern v. Canada (A.G.) (2003), 225 D.L.R. (4th) 529 (Ont. C.A.) at paras. 106-107.

(139) Ibid. at para. 107.

(140) Evan Wolfson as cited in Debra McCallister, "The Attorney General: Guardian of the Public Interest in Charter Litigation" (2003) 21 Windsor Y.B. Access Just. 47 at 85-86.

(141) Bailey et al., "Expanding Recognition", supra note 13 at 6-16.

(142) Bala et al., "An International Review of Polygamy", supra note 16 at 40.

(143) Immigration policies that allow a husband to sponsor and/or immigrate with only one wife (the wife of the husband's choosing) have been criticized because they often result in the older, more vulnerable wife being left isolated in her home country. See Prakash A. Shah, "Attitudes to Polygamy in English Law" (2003) 52 I.C.L.Q. 369. The fact scenario in Bibi v. The United Kingdom, Appl 19628/92, 29 June 1992 (Eur. Comm. H.R.) illustrated this vulnerability in the immigration context. In that case, the European Commission of Human Rights considered a claim of involuntary family separation brought by the child of a Bangladeshi polygynous wife. The petitioner claimed that her Article 8(1) right to respect of family life under the European Convention had been violated by United Kingdom immigration legislation that prohibited the entry of more than one spouse per immigrant. In that case, the claimant's father had already brought his second wife to the U.K. along with his children, thus separating them from their mother, who was forced to remain in Bangladesh. In the Canadian immigration and refugee context, see Federal Court decisions remitting cases back to the Immigration and Refugee Tribunal in part for their failure to adequately consider allegations by claimants' of their potential subjection to forced polygynous marriages: Otti v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1297; T.G. v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 1110.

(144) Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Burkina Faso, UN CEDAWOR, UN Doc. A/55/38 (2000) at para. 282.

(145) This Part only discusses child support, spousal support, and matrimonial property division. Some commentators, including Nicholas Bala, argue that similarly robust recognition with respect to other public benefits schemes will likely be insignificant in overall terms. There is no evidence, however, that polygamy is widely practiced in Canada or that there is a burgeoning polygamous population that would access such benefits.

(146) Loi no 99-944 du 15 novembre 1999 Relative au Pacte Civil de Solidarite, J.O., 16 November 1999. See Rebecca Probert, "From Lack of Status to Contract: Assessing the French Pact Civil de Solidarite" (2001) 23 J. Soc. Welfare & Fam. L. 157 at 258-260.

(147) Canada, Federal/Provincial/Territorial Family Law Committee, Summary Report and Recommendations on Child Support (Ottawa: Department of Justice, Communications and Consultation Branch, January 1995) at 3-15.

(148) Ibid.

(149) For a discussion of the complexities in the legal treatment of "second families" see D.A. Rollie Thompson, "The Second Family Conundrum in Child Support" (2001) Can. J. Fam. L. 227.

(150) Federal Child Support Guidelines, SOR/97-175, amended SOR/2005-400, s. 10.

(151) Schenkeveld v. Schenkeveld (2002), 23 R.F.L. (5th) 352 (Man. C.A.). See also James McLeod, "Schenkeveld v. Schenkeveld (Annotation)" (2002), 23 R.F.L. (5th) 353.

(152) McLeod, ibid. at 353.

(153) Rogerson, supra note 52.

(154) Lim, supra note 101.

(155) Ibid.

(156) Rogerson, supra note 52 at 70-73. Every province and territory, except Quebec, extends spousal support to unmarried couples.

(157) Martha Bailey et al. "Expanding Recognition", supra note 13 states that, historically, parties to an actual or potential polygamous marriage could not obtain a divorce under English law. The refusal to grant a divorce to those in a polygamous marriage flowed from the Hyde v. Hyde and Woodmansee precedent. In Hyde, the petitioner entered a potentially polygamous marriage in Utah and sought a divorce in England. "The court dismissed the claim holding that the English divorce statute was designed for monogamous marriages as evidenced by the fact that adultery was a grounds for divorce. However, Bailey et al. note that adultery no longer operates in Canadian divorce law as a fault ground, though it is an indicia of marriage breakdown. Given the re-interpretation of adultery to accord with same-sex marriage [S.E.P. v. D.D.P, [2005] B.C.J. No. 1971], Bailey et al. argue that similar conceptual adjustments of divorce should be made for those legal wives/husbands in polygamous marriages.

(158) The maintenance provisions of the Divorce Act, supra note 51 are paramount over provincial legislation; see Richards v. Richards (1972), 7 R.F.L. 360 (S.C.C.).

(159) Divorce Act, ibid., s. 15.2.

(160) Every province and territory, except Quebec, extends spousal support to unmarried couples.

(161) Family Law Act, R.S.O. 1990, c. F. 3, s. 29.

(162) Family Relations Act, R.S.B.C. 1996, c. C-128, s. 1.

(163) M. v. H., supra note 82 at para. 59.

(164) Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.).

(165) Basi v. Dhaliwal, 1992 CarswellBC 1259.

(166) Ibid. at para. 4.

(167) Ibid.

(168) M. v. H., supra note 82.

(169) Ibid. at para. 59.

(170) Ibid.

(171) Ibid., however the Supreme Court of Canada stressed that relationships do not need to meet all these criteria for individuals to qualify as "spouses."

(172) Bala et al., "An International Review of Polygamy", supra note 16 at 43.

(173) Ibid.

(174) Bailey et al., "Expanding Recognition", supra note 13 at 10.

(175) Brenda Cossman and Bruce Ryder argue this point compellingly in "What is Marriage--like Like? The Irrelevance of Congugality" (2001) 18 Can. J. Fam. L. 269.

(176) Family Law Act, S.A. 2003, c. F-4.5, s. 46; Adult Interdependent Relationships Act, S.A. 2002, c. A-4.5, s. 3(1), which states that a person is an "adult interdependent partner" if "(a) the person has lived with the other person in a relationship of interdependence (i) for a continuous period of not less than 3 years, or (ii) of some permanence, if there is a child of the relationship by birth or adoption, or (b) the person has entered into an adult interdependent partner agreement with the other person under section 7." Subsection (2) goes on to state, "Persons who are related to each other by blood or adoption may only become adult interdependent partners of each other by entering into an adult interdependent partner agreement under section 7."

(177) Rogerson & Thompson, supra note 52, online: Executive Summary <http://www.justice.gc.ca/en/ dept/pub/spousal/project/spousal_support_advisory_guidelines_e.pdf>.

(178) Family Law Act, R.S.O. 1990, c.F.3, s. 1; Family Property and Support Act, R.S.Y. 1986, c. 63, s. 1; Family Law Act, S.N.W.T. 1997, c. 18, s. 1(2); Family Law Act, R.S.P.E.I. 1988, c. F-2.1, s. 1(2).

(179) Family Law Act, S.N.W.T. 1997, c. 18, s. 1; Family Property Act, S.S. 1997, c. F-6.3, s. 1; Family Property Act C.C.S.M. 2002 c. F-25, s. 2(1).

(180) Bala et al., "An International Review of Polygamy", supra note 16 at 44.

(181) Nova Scotia (Attorney General) v. Walsh, [2002] 2 S.C.R. 325 at para. 99 [Walsh v. Bona].

(182) See e.g. Sorochan v. Sorochan, [1986] 2 S.C.R. 38, which suggests that monetary damages, rather than a constructive trust, may be awarded as a remedy for unjust enrichment. Peter v. Beblow, [1993] 1 S.C.R. 980 sets out the factors indicating when a constructive trust will be awarded as a remedy for unjust enrichment. It also shows that unmarried cohabitants can access to remedies for unjust enrichment.

(183) Ibid.

(184) Ibid. at para. 34.

(185) Miron v. Trudel, supra note 82.

(186) Walsh v. Bona, supra note 181 at para. 35.

(187) A preferable scheme is to extend matrimonial property regimes to all unmarried couples. However, where provincial legislatures choose not to extend their matrimonial property schemes to include unmarried, cohabiting couples, they should at the least include de facto polygamous spouses. As a threshold protection, courts or legislatures could require claimants to show evidence that their union was formed through a religious or cultural rite or ceremony purporting to create a polygamous union.

(188) Only the North West Territories, Nunavut, Saskatchewan, and Manitoba have extended their matrimonial property legislation to unmarried couples for the purposes of property equalisation. See supra note 179. Newfoundland & Labrador, and Nova Scotia have "opt in" schemes. The remaining provinces, however, do not provide subsequent polygynous spouses access to an equal division of property.

(189) Bailey et al., "Expanding Recognition", supra note 13 at 10-11.

(190) Domestic Relations Bill, 2002, online: Government of Uganda <http://www.kituochakatiba.co.ug/ dorebil.htm> provides conceptual guidance for developing a multi party framework. Its matrimonial property scheme operates through a shared matrimonial property regime.

(191) Property (Relationships) Act, 1976 (N.Z.), 1976/166, ss 52A & 52B, online: Government of New Zealand <http://www.legislation.govt-nz/browse_vw.asp? content-set=pal_statutes>.

(192) For a discussion of these sections of the New Zealand legislation and their impact on multiple-party property claims see Bill Atkin, "The Challenge of Unmarried Cohabitation--The New Zealand Response" (2003-04) 37 Fam. L. Q. 303 at 321-322.

(193) Brenda Cossman, "Room in the bed for everyone: Reconsidering the Similarities Between Polygamy & Same-Sex Marriage" Xtra (13 April 2006), online: Xtm Magazine <http://www.xtra.ca/public/viewstory.aspx?SessionId=e6aa3fa1-a62b-46d 9-bcef-8890add20178&AFF_TYPE=1&STORY_ID=1572& PUB_TEMPLATE_ID=7>.

(194) Ibid.

LISA M. KELLY, B.A. (British Columbia), J.D. (Toronto).