Supreme Court Releases Decision in Polygamy Reference

On 24 November 2011, the Chief Justice of the Supreme Court of British Columbia released his decision in Reference re: Section 293 of the Criminal Code of Canada, otherwise known as the Polygamy Reference. The British Columbia Attorney General asked the court to declare whether the prohibition on polygamy under s. 293 of the Criminal Code was consistent with the basic freedoms guaranteed by the Charter of Rights and Freedoms.

The decision is a masterwork of legal analysis and I won't offer it the indignity of a synopsis. Suffice it to say that the government won.

On the main question, the constitutionality of s. 293, the Chief held that:

"[1359] For the reasons I have given, s. 293 is consistent with the Canadian Charter of Rights and Freedoms except to the extent that it includes within its terms, children between the ages of 12 and 17 who marry into polygamy or a conjugal union with more than one person at the same time.

"[1360] For greater clarity, as I have indicated in my reasons, the inconsistency does not extend to persons who marry into polygamy before the age of 18 but are 18 years of age or older at the time of the laying of the Information in respect of conduct that occurred at or after 18 years of age."

To cure this minor defect, the Chief elected to limit the meaning of s. 293 to exclude its application to minors between 12 and 17 years of age:

"[1362] ... I would read down 'every one' in s. 293 to exclude the noted group of potential accused persons."

The Chief distilled the evidence presented and reasons for his conclusion in the introduction to his judgment:

"[5] I have concluded that this case is essentially about harm; more specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.

"[6] Based on the most comprehensive judicial record on the subject ever produced, I have concluded that the Attorneys General and their allied Interested Persons have demonstrated a very strong basis for a reasoned apprehension of harm to many in our society inherent in the practice of polygamy as I have defined it in these reasons.

"[7] I turn to some of the harms that are reasonably apprehended to arise.

"[8] Women in polygamous relationships are at an elevated risk of physical and psychological harm. They face higher rates of domestic violence and abuse, including sexual abuse. Competition for material and emotional access to a shared husband can lead to fractious co-wife relationships. These factors contribute to the higher rates of depressive disorders and other mental health issues that women in polygamous relationships face. They have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts. They tend to have less autonomy, and report higher rates of marital dissatisfaction and lower levels of self-esteem. They also fare worse economically, as resources may be inequitably divided or simply insufficient.

"[9] Children in polygamous families face higher infant mortality, even controlling for economic status and other relevant variables. They tend to suffer more emotional, behavioural and physical problems, as well as lower educational achievement than children in monogamous families. These outcomes are likely the result of higher levels of conflict, emotional stress and tension in polygamous families. In particular, rivalry and jealousy among co-wives can cause significant emotional problems for their children. The inability of fathers to give sufficient affection and disciplinary attention to all of their children can further reduce children’s emotional security. Children are also at enhanced risk of psychological and physical abuse and neglect.

"[10] Early marriage for girls is common, frequently to significantly older men. The resultant early sexual activity, pregnancies and childbirth have negative health implications for girls, and also significantly limit their socio-economic development. Shortened inter-birth intervals pose a heightened risk of various problems for both mother and child.

"[11] The sex ratio imbalance inherent in polygamy means that young men are forced out of polygamous communities to sustain the ability of senior men to accumulate more wives. These young men and boys often receive limited education as a result and must navigate their way outside their communities with few life skills and social support.

"[12] Another significant harm to children is their exposure to, and potential internalization of, harmful gender stereotypes.

"[13] Polygamy has negative impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice. It generates a class of largely poor, unmarried men who are statistically predisposed to violence and other anti-social behaviour. Polygamy also institutionalizes gender inequality. Patriarchal hierarchy and authoritarian control are common features of polygamous communities. Individuals in polygynous societies tend to have fewer civil liberties than their counterparts in societies which prohibit the practice.

"[14] Polygamy’s harm to society includes the critical fact that a great many of its individual harms are not specific to any particular religious, cultural or regional context. They can be generalized and expected to occur wherever polygamy exists."

On the secondary question, the Attorney General's request for the court to determine the elements of the conduct s. 293 seeks to prohibit, the Chief held that:

"[1363] ... [T]he elements of the polygamy offence (s. 293(1)(a)(i)) and those of the conjugal union offence (s. 293(1)(a)(ii)) are the same:

1. an identified person, who
2. with the intent to do so,
3. practices, enters into, or in any manner agrees or consents to practice or enter into,
4. a marriage, whether or not it is by law recognized as a binding form of marriage, with more than one person at the same time.

"[1364] Section 293 does not require that the polygamy or conjugal union in question involved a minor or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power or undue influence."

This should be of assistance in any future attempt to prosecute a charge of polygamy.

This decision also offers helpful definitions of legal terminology in relation to marriage which I suspect will be of interest to readers of this blog, in particular the anonymous commentator who believes that British Columbia's legislation sanctions polygamy by allowing married persons who are not yet divorced to enter into unmarried common-law "spousal" relationships (see the comments to this post for further discussion of this point):

"[135] Polygamy is an umbrella term that refers to the state of having more than one spouse at the same time. It includes both polygyny and polyandry. Polygyny is the practice of a male having multiple female spouses. Polyandry is the converse, a female with multiple male spouses. ...

"[138] Polyamory is subject to varied definitions but refers generally to consensual relationships in which participants have more than one partner. ...

"[139] Bigamy is the act of entering into a marriage when one of the spouses is already married. It is criminalized by s. 290 of the Criminal Code:

290. (1) Every one commits bigamy who

(a) in Canada,

(i) being married, goes through a form of marriage with another person,

(ii) knowing that another person is married, goes through a form of marriage with that person, or

(iii) on the same day or simultaneously, goes through a form of marriage with more than one person; or

(b) being a Canadian citizen resident in Canada leaves Canada with intent to do anything mentioned in subparagraphs (a)(i) to (iii) and, pursuant thereto, does outside Canada anything mentioned in those subparagraphs in circumstances mentioned therein.

"[140] 'Form of marriage' is defined in s. 214:

“form of marriage” includes a ceremony of marriage that is recognized as valid

(a) by the law of the place where it was celebrated, or

(b) by the law of the place where an accused is tried, notwithstanding that it is not recognized as valid by the law of the place where it was celebrated;

"[141] Bigamy is an indictable offence, and offenders are liable to imprisonment for a term not exceeding five years (s. 291).

"[142] The offence of bigamy focuses on attempts to enter into multiple marriages by means of the civil marriage process. Its commission involves perpetuating a fraud against the state in that the state’s marriage requirements are employed for a marriage that is a nullity. As the Law Reform Commission of Canada observed in Bigamy, Working Paper 42 ... at 11:

This is why the prohibition of bigamy seems justified, since by assuming all the ritual and official characteristics of marriage, such conduct destroys the meaning of the institution itself. Aside from its duplicity, a bigamous marriage is a valid marriage in all respects: this is what makes it a real threat to the institution.

"[143] Bigamy frequently also involves a deception against one of the individuals involved.

"[144] In Canada, bigamy is distinguished from polygamy by the requirement of multiple state sanctioned marriages. Individuals who enter into multiple marriages but do not attempt to do so through the civil marriage process are not captured by the bigamy offence."

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The Other Side of the "Sham" Marriage

The BBC has posted a great article about the burgeoning "wedding detective" trade in India, where there are apparently around 15,000 businesses willing to investigate a potential bride or groom. Most of the time these folks will be hired by the bride's family to investigate the groom and authenticate family status, verify income and capital assets, check for other wives or a history of infidelity, and verify sexual orientation. Says the BBC:

"The vast majority of enquiries come from parents who want to assess the 'character' of their future son-in-law ...
"The nature and scope of investigation depends on the moral or cultural values of parents. Someone from a more traditional Indian family might want to check up on whether a bride or groom drinks or smokes.

"Others might be keener to learn whether there are any past relationships, something which can still be frowned upon in India. Conducting a review of a groom's financial dealings and business assets is also common."

Because it is still fairly common for the bride to move in with her in-laws after marriage investigations can sometimes address the character of the potential mother in law:

"'We study the mother-in-law,' says [one detective]. 'How many times does she get angry, how many times does she throws the vessels out, how many times does she go shopping, what does she spend her money on. We understand everything about her and then put it in writing.'"

If only I'd known. Apparently, these investigations can become extraordinarily elaborate, involving "spy cameras hidden in watches, key chains, lockets and shirt buttons," complicated ruses and creative disguises:

"It is normal practice for [another detective] to wear disguises. He dresses as beggars, watchmen and drivers to gain access to a subject's house and life. There is no limit to what persona he might take on. [The detective] once posed as a pimp, after the parents asked for a 'honey trap' test."

Now, detectives are also hired in matrimonial matters in Canada, however here it's usually on an after-the-fact basis... or so I thought. For example, the oddly-named Deception Investigations claims to specialize in "domestic and matrimonial issues" and will surreptitiously investigate your beloved to determine whether he or she is having an affair, hiding assets and so forth, and also offers to chase people down who are in arrears of support. Much the same services are offered by Shadow Investigations and Advanced Surveillance Group.

However, reading Deception's website more closely reveals that they also offer "pre-marital screening." Another company, Surrey Private Investigator, offers the same sort of service under the curious heading "Relationship Investigations:"

"Does your lover have a secret past? Before you become involved with a person, you may decide to conduct a pre-relationship investigation for the purpose of looking into the background of the person with whom you share romantic interests or plan to marry. Isn't it important that you know if they are really who they say they are."

The website of Pinnacle Investigations is much more detailed about the services they offer:

"... A thorough back check is the key to making the right decisions when entering into new relationships where even the slightest suspicions are encountered. ... We conduct property searches, bankruptcy and judgment searches, lien searches, lifestyle checks and mystery shopping. ..."

Now, I can guess what "lifestyle check" is code for, but "mystery shopping" baffles me unless your fiancé or fiancée is a prostitute. Interestingly, Golden West Investigative Group takes a less literate, darker perspective on pre-marital inquiries, and seems to adopt the groom's perspective:

"When entering a partnership relationship (proposed marriage), there are times that one of the parties may be coming into the new marriage with considerably more assets than the other. It is becoming more common to have pre-nuptial agreements in such cases. It is also becoming more common for the party with the greater asset base to hire a firm like Golden West Investigative Group Ltd to conduct a thorough investigation and surveillance to make sure that everything is on the up and up before the marriage occurs. This may sound like a lack of trust but some people have enough assets to be an EASY MARK for a few unscrupulous people. It is sad... but so true in today's world of wealthy entrepreneurs. If you are entering a new relationship, be sure you know who your other future half really is."

It seems that the cultural background which makes the BBC story so charming isn't so far off from the values of the cynical but engaged in British Columbia!

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Marriage and the Material Girl/Boy

The LA Times has reported on a study published in the Journal of Couple & Relationship Therapy, "Materialism and Marriage: Couple Profiles of Congruent and Incongruent Spouses," which found that "couples where both spouses are materialistic were worse off on nearly every measure." Says the Times:

"Statistical analysis of the research showed that couples who say money is not important to them score 10% to 15% better on marriage stability and other measures of relationship quality than couples who are openly materialistic.
"The study also found that couples in which only one partner is materialistic fare better than couples in which both partners are materialistic."

Well, they do say that money can't buy happiness, and that's certainly true during a relationship and after its collapse. I see some unusual things as a divorce lawyer, but it's always a surprise when I run into people who are more troubled by the potential damage to their material wealth than the prospect of losing contact with their children; what's not surprising at all is that people with this sort of attitude would have especially fractious marriages.

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Mexican Proposal for the Ultimate Starter Marriage

The BBC has reported on a novel bill introduced to Mexico City's Legislative Assembly of the Federal District by Lizbeth Rosas Montero, a member of the Party of the Democratic Revolution, which would allow newly weds to enter into a marriage contract giving them two years to decide whether to call it quits or renew their vows. Says the BBC:

"Half of all marriages in Mexico City currently end in a split.
"[Montero] believes the contracts, allowing couples to 'renew or dissolve' the marital link after a pre-arranged term, would lead to more harmonious relationships and reduce the workload on family judges.
"Terms governing healthcare provision, the way children are educated, how much money was needed to support the family, and how dependents would be looked after in the case of a break-up would be set out in advance."

This is an interesting idea, which would seem to take the most useful features of a marriage agreement and add a fixed date when the parties would review not just the continuing fairness of their agreement but the continuing value of their relationship. Although I'm certainly in favour of reducing the court's workload, I'm not sure the idea has much potential for Canada given the ease with which couples are presently able to divorce under our present no-fault system.

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That's an Expensive Headache: Wife Receives Damages for Husband's Indifference

The Guardian has reported on the curious case of the French wife who sued for divorce based on, I assume, a violation of the duties of marriage under Article 242 of the French Civil Code. What makes the case interesting is the judge's decision to fine the husband 10,000 euros to compensate the wife for the particular violation complained of, namely "lack of sex over 21 years of marriage."

Under the antique English common law, marriage came with an abundance of rights and duties. The husband had the duty to provide his wife with the necessities of life and had the right to her domestic services, the right to her property and income, and the right to have her live with him and have sex with her as he wished, called consortium. It seems that the French civil code developed in a similar manner. Title V concerns the law on marriage, including the obligations marriage gives rise to (Chapter V) and the rights and and duties of spouses (Chapter VI), and Title VI concerns the law on divorce.

In this case the husband was sued for breach of Article 215 (Title V, Chapter VI), which provides that:

"Spouses mutually oblige themselves to a community of living."

The judge held that sexual relations are a part of a "community of living," and the Guardian quotes the judge as saying that:

"A sexual relationship between husband and wife is the expression of affection they have for each other, and in this case it was absent. By getting married, couples agree to sharing their life and this clearly implies they will have sex with each other."

Interestingly, from the size of the award, one can deduce that the going rate for sex in marriage is about 1.3 euros a day or about $1.80 Canadian at today's rate.

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Damned if You Do, Damned if You Don't

The BBC and Los Angeles Times are reporting on a new study showing that both marriage and divorce increases the chance of weight gain. Not necessarily a tragedy, depending on your perspective on the issue and aesthetic preferences, but interesting nonetheless.



The 22-year-long study showed that people who marry get plumper faster than those who don't, and that the likelihood of weight gain increases again on divorce. According to the study, marriage increased the chance of weight gain in women by 33 to 48%, while divorcing women had a 22% chance of weight gain. For men, 28% were more likely to gain weight after marriage and 21% were more likely after divorce.

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Decision Released in Marriage Commissioner Reference

The Saskatchewan Court of Appeal has just released its decision in a reference from the provincial government, In the Matter of Marriage Commissioners Appointed Under the Marriage Act, 1995.

This reference resulted from the enactment of the federal Civil Marriage Act in 2005 which redefined marriage to include same-sex unions. The Saskatchewan government asked the Court of Appeal whether a legislative amendment to allow marriage commissioners to refuse to perform same-sex marriage ceremonies would be constitutional. In a nutshell, the court said no, holding that to do so would violate the equality rights of gays and lesbians in a manner that couldn't be justified on Charter grounds. This is the summary released by the Court of Appeal:

"The reasoning of the Court is grounded in section 15(1) of the Charter. This provision prohibits discrimination based on various characteristics including sexual orientation. The Court ruled that a law empowering marriage commissioners to deny their services to gay and lesbian individuals would clearly violate section 15(1) as it would treat them differently than other people and would do so in a discriminatory fashion based on their sexual orientation.

"The key issue in the case, according to the Court, was whether this violation of rights could be justified as being reasonable within the special meaning of that term as it is used in section 1 of the Charter. In this regard, the Court held that accommodating the religious beliefs of marriage commissioners could not justify discrimination against gay and lesbian couples. The Court emphasized that marriage commissioners act as government officials, not private individuals, when they perform marriage ceremonies. It also pointed out that the obligation to solemnize same-sex marriages does not affect or interfere with the core elements of a commissioner’s religious freedom: the freedom to hold beliefs and the freedom to worship. In addition, the Court underlined that allowing marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle that government services must be provided to all members of the public on an impartial and non-discriminatory basis."

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Polygamy: The Legal Background

As you probably know, there's a hearing underway to determine whether the Criminal Code provisions criminalizing polygamy are consistent with the Charter of Rights and Freedoms. If so, we may well see prosecutions brought against some of the fine folks of Bountiful, British Columbia. There's a fascinating legal background to the hearing that the media really isn't covering, I suspect because it's probably only interesting to law nerds like myself.

A Recent History of the Common Law on Domestic Relations

Once upon a time, in Europe following the collapse of the Roman Empire to be specific, marriage was an important private economic institution and largely functioned free of control by the church or state. Marriage, and the financial and familial obligations it entailed, was the basic socioeconomic unit of feudal Europe. Upon marriage, a man and a woman were considered to be a single legal unit under the control of the husband: all of the wife's property passed into her husband's control, wives lost the power to conduct business in their own names, a wife lost the right to retain the wages paid for her labour, and husbands became able sue on behalf of their wives ...and solely liable for suits brought against them. In return, she was entitled to be provided with the necessities of life, although the quality and sufficiency of those necessities lay at her husband's discretion.

As with other social institutions, I suspect that the relative importance of marriage can be gauged by the depth and richness of the common law principles which evolved to regulate it. The common law relating to marriage is indeed quite rich and deep, and depicts marriage on the one hand as a quasi-commercial enterprise governed by the law of contracts and on the other as bedrock upon which stood one's reputation and standing in the community.

One could sue, for example, for breach of promise to marry, jactitation of marriage, criminal conversation, harbouring a spouse, and a miscellany of other matrimonial torts. Breach of promise to marry was based on the law of contracts. Jactitation of marriage concerned the false boasting of married status, thereby decreasing the marketability of the person alleged to be married to the boaster. Criminal conversation and harbouring a spouse had to do with the luring of a spouse away from a marriage thus depriving the other spouse of the benefits of the marriage contract, his "conjugal right" to his wife's services and company.

Marriages were entered into by oral agreement and did not require religious solemnization. The role of the church largely lay in determining who might marry, the circumstances in which marriages might be dissolved and addressing other largely social questions.

The law on marriage was thus governed by two masters, the ecclesiastic law on entering and exiting a marriage and the civil common law on the rights and obligations flowing from marriage. This changed dramatically in the early sixteenth century, following the Protestant Reformation in Europe and the Henrician Reformation in England, when government took upon itself the right to manage marriage and divorce. Unfortunately, one major element of Catholic dogma which survived the reformations was idea that marriages were indissoluble, as a result of which getting a divorce in England required the passage of a private act of Parliament!

The Legislation on Marriage and Divorce

The first Parliamentary law on marriage was passed in 1753, in the form of Lord Hardwicke’s Act for the Better Preventing of Clandestine Marriages, to address the unfortunate habit the youth of England and Wales had developed of marrying in Scotland where a costly marriage licence was not required. Prior to this, oral marriage contracts, marriages per verba de praesenti, created a binding marriage; now, the parties had to marry in a church (with exceptions for Jews and Quakers), with the publication of banns and a state-issued marriage licence.

The first Commonwealth law on divorce was England's 1857 Divorce and Matrimonial Causes Act, which allowed people to be divorced by court order and stripped what little jurisdiction remained to the church, and revoked many of the older matrimonial torts:

"As soon as this Act shall come into operation, all Jurisdiction now exercisable by any Ecclesiastical Court in England in respect of Divorces à Mensâ et Thoro, Suits of Nullity of Marriage, Suits of Jactitation of Marriage, Suits for Restitution of Conjugal Rights, and in all Causes, Suits, and Matters Matrimonial, shall cease to be so exercisable, except so far as relates to the granting of Marriage Licences, which may be granted as if this Act had not been passed."

(If you were curious, and I know you are, a divorce à mensâ et thoro terminated the spouses' obligation to live together and the husband's obligation to provide the wife with the necessities of life without actually giving the parties a divorce; this is the origin of the much-misunderstood judicial separation. A divorce à vinculo matrimonii was required to actually terminate a marriage.)

The UK Divorce and Matrimonial Causes Act was absorbed by the Province of Canada (the pre-confederation political unit formed of Upper Canada and Lower Canada by the 1840 Act of Union) and by the Colonies of British Columbia and Vancouver as a result of the proclamation of Governor Sir James Douglas in 1858.

Marriage and Divorce at the Dawn of the 20th Century

Given the complexity of the common law on marriage and divorce, it's not terribly surprising that the legislation on these subjects would assume a similar quality, and by 1900 we had the federal and provincial Divorce and Matrimonial Causes Acts, the federal Offences in Relation to Marriage Act and the provincial Marriage Act. Marriage remained a tremendously important institution, one with profound social and economic consequences, and these laws sought to protect it.

Under the provincial Divorce Act of 1897, a husband could apply for a divorce on the basis of his wife's adultery. A wife, on the other hand, could apply for a divorce on the basis of her husband's incestuous adultery, rape, adultery coupled with cruelty, or adultery coupled with his abandonment of her for at least two years without reasonable excuse.

The provincial Marriage Act of 1867 allowed religious officials and government-appointed registrars to marry "any two persons" not under a legal disability to contract the marriage, providing that persons under the age of 21 had the consent of their father to the marriage. The act made it a crime to make a false statement to procure a marriage or to perform a marriage between persons not qualified to marry.

The federal Offences in Relation to Marriage Act of 1886 made it a crime to:

1. pretend to solemnize a marriage;
2. procure someone to solemnize a marriage who was not authorized to do so;
3. procure a feigned marriage; or,
4. marry someone while being married to someone else, in other words, to enter into a bigamous marriage.

About the same time, similar provisions were being introduced to the criminal law in Canada.

Bigamy, Polygamy and the Criminal Code

Sections 290 to 293 of the federal Criminal Code are titled "Offences Against Conjugal Rights." Section 290 says that every married person who goes through "a form of marriage" with another person and every person who goes through "a form of marriage" with a married person has committed bigamy, punishable under section 291 with jail for up to five years. Section 293 says that people who practice polygamy or "any kind of conjugal union with more than one person at the same time" has committed an offence.

It's a bit difficult to tell these sections apart. Bigamy and polygamy are rooted in the Greek word gamos, meaning marriage. The prefix "bi" means two, and the prefix "poly" means many; accordingly, the dictionary definition of bigamy is being married to two people, and the definition of polygamy is being married to many people. (Polyandry means having many husbands and polygyny means having many wives.) Bigamy is the traditional criminal offence, however, having been made a felony punishable by death by the first Parliament of James I in 1604, and continued in the 1861 Offences Against the Person Act with less severe consequences.

The historical intention seems to have been preserved in the Criminal Code. Section 290 clearly focuses on marriage as the problem created by bigamy; the offence lies in marrying someone knowing him or her to be married, or a married person marrying again while aware that his or her previous marriage subsists. Section 290(2) excuses the bigamous conduct if the married party genuinely believes his or her spouse to be dead.

Section 293 on the other hand, seems aimed at criminalizing polyamorous conduct; the offence of polygamy lies in the parties' agreement to live together in a marriage-like relationship, although, to be clear, a form of marriage ceremony isn't strictly required. This seems to be the core of the problem the Crown is targeting in the present hearing, and the resulting question of whether the criminalization of this sort of conduct is consistent with the Charter guarantee of freedom of religion.

In the legal climate prevailing in 1604 and 1861, the criminalization of bigamy made sense. Bigamous marriages could have disastrous social and economic consequences for the innocent party, and the criminal law fit neatly with the common law principles that had accumulated in respect of the rights and obligations marriage entailed. The criminalization of polygamy, assuming that issues about marriage aren't really the problem the law was intended to address, is about the legislation of morality and the enforcement of conformity. In the nineteenth century, I'm sure this made sense; today I'm not so sure.

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The Ins and Outs of Separation... Part IV:Section 57 Declarations

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

A "section 57 declaration" is a judicial declaration, pursuant to s. 57 of the Family Relations Act, that a married couple have "no reasonable prospect of reconciliation with each other" and is often made when a couple have started a legal action. This sort of declaration probably seems a bit pointless, and it would be completely pointless except for s. 56 of the act:

• s. 56(1) says that a married spouse is entitled to "an interest" in the family assets when declaration under s. 57 is made
• s. 56(2) says that the interest is "an undivided half interest in the family assets as a tenant in common"

While a couple are married, the legal ownership of their assets is as the asset is owned. If the car is registered in Jane's name, it's Jane's car as far as ICBC, her creditors and her trustee in bankruptcy are concerned. Although s. 56 of the Family Relations Act says that Jane and John are each presumptively entitled to half the value of Jane's car (and s. 65 allows either of them to ask for more than half), the value won't distributed until trial or settlement. The effect of a s. 57 declaration is to divide the legal ownership of the car right away; it crystallizes each spouse's presumptive one-half interest in the family assets until the property is dealt with at trial or settlement.

The legal effect of a s. 57 declaration

As you likely guess, s. 57 declarations can be really important. The declaration:

1. converts the ownership of property spouses own as joint tenants into equal ownership as tenants in common;
2. where property is owned by only one spouse, vests a half interest in each spouse as tenants in common;
3. fixes the pool of property available for distribution between the spouses; and,
4. sets a date for the valuation of the property, including the presumptive termination date of each spouse's interest in the other spouse's pension.

Let me explain the bit about owning property as joint tenants and tenants in common. When two or more people own something as joint tenants, they all own the whole thing. There isn't one-half or one-quarter to point to and say "this part here is mine." When a joint tenant dies, his or her interest simply evaporates and the surviving joint tenants continue to own the whole property. When two or more people own something as tenants in common, however, they each own their individual slices of the pie. They can sell or borrow against their shares of the property as they each see fit, and when a tenant in common dies, his or her interest transfers to his or her estate, to be dealt with according to the tenant's will.

Let me also explain the bit about fixing the pool of property available for division. Although property acquired after the date of a s. 57 declaration often remains the separate property of the spouse who bought it, this isn't the case for property bought with a family asset. In general, if the new property is bought with a family asset, like a new car bought using the family car as a trade-in, the new property will also qualify as a family asset and be subject to division.

When you want a s. 57 declaration and when you don't

You would particularly want a s. 57 declaration if your spouse has lots of creditors who might want to seize your spouse's property or if your spouse is likely going to go bankrupt. Once a s. 57 declaration has been made, a creditor can only take your spouse's half of the family assets and only half will vest in your spouse's trustee in bankruptcy.

On the other hand, might not want a s. 57 declaration if your spouse is likely to die and you and your spouse own valuable assets, like the family home, as joint tenants. If your spouse dies while you are joint tenants, you would continue to own the whole property after your spouse's death; if you have a s. 57 declaration, you will own the property as tenants in common and after your spouse's death, you would keep your half of the property while your spouse's half would go to his or her estate.

The law about s. 57 declarations can be complicated, and you really must speak to a lawyer to get proper advice about when you should be asking for a s. 57 declaration and when you shouldn't.

Update: 9 January 2011

Curiously, I've just bumped into two cases which illustrate the importance of s. 57 declarations, both of which concern pensions.

In Peck v. Peck, the parties separated in 2003 but a divorce action didn't get started until 2009. The wife sought a share of the husband's pension, and the husband argued that her interest in his pension should have ended in 2003 when they separated, not six years later when a s. 57 declaration was made in the divorce action. The court held that there was no reason to depart from the asset division scheme set out in the Family Relations Act and divided the pension as of the 2009 triggering event.

Similarly, in Wong v. Wong, the parties separated in 2005 but a divorce action didn't get going until 2008. At the trial in 2010, the husband asked the court to value his pension from the date of separation, not five years later at the trial. The court held that there was no reason to depart from the usual practice of dividing the pension as of the triggering event. In this case, the triggering event was the divorce trial as there hadn't been an earlier s. 57 declaration.

Update: 13 January 2011

And yet another recent case in a similar vein!

In Johnston v. Johnston, the parties married in 1985 and separated in 2005. The wife received half of the husband's pension accumulating during this period, as well as during the five year period which elapsed between separation and trial as there had been no prior triggering event. (In a somewhat unusual circumstance, the court also awarded the wife a half share of the husband's pension which accumulated during the three years that the parties lived together before marrying.)

Future posts

Separation is a surprisingly broad topic. If there's a topic you'd like me to discuss, please say so in a comment to this post.

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CBC Reports Continuing Government Concern with Fraudulent Marriages: Sham, wow.

CBC has published a story on the federal government's recent interest in "cracking down" on marriages of convenience, marriages entered into for immigration purposes rather than conjugal. Although Citizenship and Immigration Canada has been aware of the issue for quite some time, the ministry has recently launched an online survey on the subject and the minister, Jason Kenney, has held public meetings in Montreal and Vancouver to collect opinions.

It's difficult to pick out exactly what the government's concerns are, although the CBC's summary of a 2007 CIC report uncovered by intrepid journalist David McKie says that:

"The investigation produced shocking revelations about the number and nature of the marriages, including ties to the sex trade, narcotics trafficking, embezzlement and human smuggling."

The more pressing problem, I think, is the emotional toll taken when the immigrating spouse finally arrives in Canada, after years of arguing with the CIC to obtain permanent resident status, only for the sponsoring spouse to discover that their marriage is a sham. As an earlier CBC story put it:

"The most common type of fraud occurs after Canadians sponsor foreign spouses to live with them. After being granted permanent residence, the new arrival lands in Canada and abandons the sponsor."

Assuming that the government's concern is to prevent this sort of mischief, the next question to address must involve the means available to government to combat marriage fraud while respecting the traditions of arranged marriage common to many cultures. How do you winnow out arranged marriages entered into in good faith from those entered into for immigration purposes alone?

Apart from (1) delaying citizenship status by two or three years from the date of immigration or the commencement of the spouses' cohabitation and (2) more strictly evaluating the formal validity of marriages, I really don't know what can be done about this difficult problem from a regulatory standpoint. (Aggrieved spouses can seek some relief through the courts, with occasional success as demonstrated by the 2006 case Raju v. Kumar, but this is a time-consuming and costly process with no guarantee of success.) I would be hesitant to resolve the problem by entirely shifting the burden to the sponsoring spouse on a sort of caveat emptor basis, but with the attention this problem has begun to receive I trust that potential sponsors will be more skeptical of the marriage proposals they receive.

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The Ins and Outs of Separation... Mostly the Outs

Separation, in the sense of ending a relationship, is actually rather straightforward. What's required is a decision by one person to end the relationship and the announcement of that decision to the other person, although sometimes the announcement is made nonverbally... by moving out.

This post talks about some common misunderstandings about separation and then about how to do it.

The Legal Separation

There's no such thing as a "legal separation" in British Columbia. You don't need a document to say you're separated; you don't need to see a lawyer and you don't need to see a judge to separate.

In fairness, there used to be something called a judicial separation or a divorce a mensa et thoro (a divorce from bed and board). Judicial separations were once required to relieve a married couple of their common law duty to live together and support each other, but this sort of half-divorce hasn't been available for many, many years.

Separation Agreements

Sometimes people mean a separation agreement when they talk about a "legal separation." A separation agreement is a contract which records a couple's settlement of the legal issues resulting from the end of their relationship. Although you don't need a separation agreement in order to separate, separation agreements are an excellent way to avoid court.

How to Separate

A couple is separated once either or both people decides that the relationship is over, announces that decision and terminates the marriage-like aspects of the relationship, such as sleeping together, eating together, doing household chores for the benefit of the whole family and so forth.

The decision to separation only needs to be made by one person; the consent or permission of the other person is not required. The reason why a decision is required at all is to distinguish couples who live separate and apart for reasons like employment from couples who live separate and apart because they've split up.

Staying Under the Same Roof

Most couples move out and find new places to live after they separate. Some couples continue living together after they've separated, usually because living together is so much cheaper than living apart. The court will consider couples who have split up but continue to live under the same roof to be separated looking at things like:

1. whether the couple have stopped sharing the same bed or bedroom;
2. whether the couple have stopped having sex together;
3. the extent to which each person does their own chores;
4. whether the couple have opened separate bank accounts and begun to separate their finances; and,
5. whether the couple have stopped going to social functions as a couple.

Separation and the Legal End of a Relationship

For all unmarried couples, including common-law spouses, separation is all that's required to legally end a relationship.

Married spouses, on the other hand, must get a divorce to legally end their relationship... no matter how long they've been separated. There is no such thing as an "automatic divorce." A married couple will be married until they divorce, whether they've been separated for one year or thirty.

This difference is important for unmarried couples because certain limitation dates begin to run from the date of separation, the most important of which involve the right to apply for spousal support and, although this isn't quite accurate, the right to apply for child support for children brought into the relationship.

Future Posts

A future post will discuss a perennially popular topic, sex and new relationships after separation. Separation is a surprisingly broad subject. If there's a topic you'd like me to discuss please say so in a comment to this post.

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The Ins and Outs of Separation... Part III:The Whens

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

Although a lot of people get hung up identifying the date of separation, getting the date precisely right is only critical in one specific situation: when spousal support is an issue for unmarried spouses. I'll discuss the date of separation in relation to married spouses first and then get to this issue involving unmarried spouses.

Divorce and the Date of Separation

Under the Divorce Act, there is only one ground for divorce: breakdown of the marriage. There are three reasons why marriage breakdown may have occurred: separation for a period of not less than one year, adultery or cruelty.

Most divorces are based on the spouses' separation. To calculate the required one year period you have to know when you separated, and the court forms used to claim a divorce, the Notice of Family Claim (Form F3) and the Counterclaim (Form F5), will ask you to state the date of separation. Under s. 8(2)(a) of the Divorce Act, the date of separation is the date when the spouses began to "live separate and apart."

Separation

I've written about how separation happens in previous posts. Here's a quick recap.

• The spouses don't have to agree to separate. All it takes is one spouse recognizing that the marriage is at an end and saying so.
• Merely living apart doesn't mean a couple have separated for the purposes of divorce. There must be a belief that the marriage is at an end.
• On the other hand, it isn't necessary for a couple to actually live apart; many separated couples continue to live under the same roof.

As a result, I think it's safe to say that the formal "date of separation" is the date on which a spouse forms the conclusion that the marriage is at an end and takes steps to terminate the marriage-like quality of the relationship. To avoid arguments about the date of separation, it's best if there is some sort of objective marker of separation, such as (a) a communication of the spouse's conclusion that the marriage is over, or (b) a spouse moving out.

Disputing the Date of Separation

Spouses rarely wind up arguing about the exact date of separation because in the vast majority of cases it's not very important. You don't need to be separated for one year before beginning the law suit claiming the divorce; most people have been separated for far more than a year when the court is finally asked to make a divorce order.

If the exact date of separation is argued, it's probably as a defence to the underlying divorce claim, to say, for example, that the spouses have not be living separate and apart for one year when the court is asked for the divorce order or that the spouses were not living separate and apart at the commencement of the law suit claiming the divorce. Arguments like these really only wind up postponing the inevitable and won't be effective to permanently block the divorce order.

If the exact date of separation is not argued, the date set out in the Notice of Family Claim or Counterclaim will do. The court rarely undertakes its own enquiry into the factual accuracy of the claimed date of separation.

Unmarried Spouses and Spousal Support

The Family Relations Act, at s. 1, says that a "spouse" includes someone who is married as well as someone who:

"... lived with another person in a marriage-like relationship for a period of at least two years if the application under this Act is made within one year after they ceased to leave together ..."

This is important because it defines how unmarried couples can qualify as common-law spouses (living together in marriage-like relationship for at least two years) and it says when a person loses the right to apply for an order based on the spousal relationship (one year after the date of separation). To be clear, this definition really only affects a common-law spouse's ability to apply for spousal support and a small number of personal protection orders, because orders about children rest on the definition of "parent", which has a different test, and because common-law couples cannot apply for orders about the division of assets under the act.

When a common-law spouse has a claim for spousal support, the date of separation is very important, more important than it is for married spouses: if the claim for spousal support is not made within one year from separation it cannot be made at all.

The date of separation for unmarried spouses is determined as it is for married spouses. When did one or both spouses reach the conclusion that the relationship was over? If just one spouse made this decision, when was the decision communicated? When did the marriage-like quality of the relationship end?

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Vanier Institute Issues Report on Canadian Families

The Ottawa-based Vanier Institute has published a study on Canadian families based on the 2006 census. According to the CBC article on the study:

• 40% of marriages now end in divorce
• one in ten people live in an unmarried, common-law relationship
• 16.5% of same-sex couples marry

I'm sure there's more to the Institute's 211-page study than the CBA has reported; read the summary to learn more. You can also visit the website of Statistics Canada and get your data right from the horse's mouth.

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CBC Reports on Fraudulent Marriage

CBC has reported today on the case of a Victoria woman who says that her husband duped her into marrying him just so he could immigrate to Canada. Although people enter into sham marriages all the time, it is always tragic when the sham is known only to one of the spouses.

When an innocent spouse has suffered real harm as a result of the deception, however, the court is usually happy to try to redress those wrongs. In the case of Raju v. Kumar, for example, a 2006 case of our Supreme Court, the court awarded damages to compensate the innocent spouse for her

"hurt feelings, humiliation, inconvenience and postponement of the opportunity to marry another man while she was still capable of bearing children"

as a result of the husband's misrepresentations which induced her to marry him.

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The Ins and Outs of Separation... Part II:Sex and New Relationships

Questions about sex and new relationships following separation are very, very common... Is it adultery to have sex with someone else after separation? If you're living with someone new, can you be in a common-law relationship before you've divorced? Is it okay to have sex with the spouse you've separated from? Thankfully the answers are pretty simple.

Sex with spouses

Yes, it's okay to have sex with your spouse after you've separated. It happens all the time. There are three things to be aware of.

First, from a legal point of view, s. 8(3)(b)(ii) of the Divorce Act says that married spouses can live together "with reconciliation as its primary purpose" for up to a total of ninety days following separation without stopping the clock on the one-year period of separation that has to pass to get a divorce. (Once more than ninety days have passed, the one-year period starts to run from the last separation.) Honestly, though, I don't see this as much of a problem. Spending the night with your spouse isn't going to count toward the ninety days unless you spent the night for the "primary purpose" of reconciliation rather than sex, which I rather doubt.

Second, if the legal ground for your divorce is based on your spouse's adultery or your spouse's cruelty toward you, you need to know that you may have been considered to have forgiven or "condoned" your spouse's misconduct if you have sex with your spouse after separation. Under s. 11(2) of the Divorce Act, an act of adultery or cruelty that has been condoned cannot be used as a ground for divorce.

(There aren't any legal problems with unmarried spouses or partners having sex after separation since a divorce isn't necessary to end unmarried relationships.)

Third, from an emotional point of view, you might want to think about what having sex with your spouse will do to the progress you've been making in getting over that relationship and building a life for yourself that doesn't include him or her. Lots of people are able to handle the messiness of sex with a separated spouse; other people find it to be emotionally difficult.

Sex with other people

As long as you're married, having sex with someone who isn't your spouse counts as adultery. If you're separated at the time however, no one except your in-laws or the Pope is going to care.

I suppose it's true that your spouse could claim adultery as the ground for your divorce, but if you've already separated from your spouse, your marriage would seem to have already come to an end for an entirely different reason than your adultery. Apart from this one issue about the legal ground for your divorce, having sex with someone else isn't going to have an impact on how your divorce is handled. It isn't relevant to whether spousal support is payable or not, how much child support will be paid, how property will be divided or what the parenting arrangements are going to look like.

(There's no such thing as adultery for unmarried couples, since you have to be married in order for sex with someone other than your partner to count as adultery.)

New relationships

As I often tell my clients, there's nothing a separated married person can't do that a single person can, except to get married. Apart from that, a separated married person can see other people, date other people, have children with other people and live with other people.

What's interesting about all of this is that there's nothing stopping a person who's married to someone qualifying as someone else's common-law spouse. Under the Family Relations Act, "spouse" includes, in addition to people who have been married, people who have lived together in a "marriage-like relationship" for at least two years. In other words, if it's taking awhile to get your divorce and you've moved in with someone else, you could have two legal spouses: the person you're still married to and the person you've been living with. Surprise!

I talk about the legal consequences of having two spouses in the Marriage & Divorce > Separation chapter of my website.

Future posts

Separation is a broad subject. If there's something you'd like me to discuss, please say so in a comment to this post. Click on the "separation" label below to read other posts about separation.

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CBC Reports on Fraudulent Marriage

CBC has reported today on the case of a Victoria woman who says that her husband duped her into marrying him just so he could immigrate to Canada. Although people enter into sham marriages all the time, it is always tragic when the sham is known only to one of the spouses.

When an innocent spouse has suffered real harm as a result of the deception, however, the court is usually happy to try to redress those wrongs. In the case of Raju v. Kumar, for example, a 2006 case of our Supreme Court, the court awarded damages to compensate the innocent spouse for her

"hurt feelings, humiliation, inconvenience and postponement of the opportunity to marry another man while she was still capable of bearing children"

as a result of the husband's misrepresentations which induced her to marry him.

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Remarrying After a Void Marriage

Not every marriage needs to end in death or divorce. Some marriages are voidable and others are void from the get go. How do you remarry if you're in a marriage which is void or might be voidable?

A marriage may be voidable if:

1. the marriage was a sham;
2. a male spouse was under the age of fourteen or a female spouse was under the age of twelve at the time of the marriage;
3. one or both spouses didn't consent to the marriage, or agreed to the marriage as a result of fraud or misrepresentation;
   
4. a male spouse was impotent or a female spouse was sterile at the time of the marriage; or,
   
5. the marriage cannot be consummated as a result of a spouse's medical or mental condition.
   

If a party to a voidable marriage wants to remarry, a judge must either declare the marriage to be void, annulling the marriage, or make a divorce order. With the court order in hand, go to your local branch of the Vital Statistics Agency and get your marriage licence!

A marriage may be void if:

1. one or both spouses were under the age of seven at the time of the marriage;
2. the spouses are within the prohibited degrees of consanguinity set out in the federal Marriage (Prohibited Degrees) Act;
3. one or both spouses didn't have the mental capacity to marry at the time of the marriage; or,
4. one or both spouses were married at the time of the marriage.
   

Marriages which are void are void ab initio, from the very beginning, as if they were never celebrated. As a result, you don't need either an annulment or a divorce; your marriage never existed in the first place! You can proudly declare yourself to be unmarried when applying for your marriage licence.

If you run into a situation where you need proof that your marriage was void, the only solution I can think of would be to commence a Supreme Court petition proceeding asking for a judicial declaration that your marriage is void.

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New Random Answers to Random Search Terms

I am able to review the search terms that lead people to my website. Every now and then, a search term is particularly unusual or suggests an answer that doesn't, and perhaps shouldn't, appear in the website. In this irregular feature, I will randomly reply to these search terms. New Random Answers will reappear at unpredictable intervals.

These search terms are all about marriage and divorce.

(Remember, the law that's being applied here is the law of British Columbia, Canada, and the laws of one jurisdiction are often very different from the laws of the next.)

>> consequences of getting remarried without getting divorced

This one's easy enough: your new marriage won't be valid.

Without a divorce, any other marriage is technically bigamous under the Criminal Code yet also void under the common law.

>> how many years after separation are you considered divorced

Never. Until you get that divorce order you're still married. No marriage is over until a court has made a divorce order, no matter how much time has passed since the spouses separated.

>> is it ungodly to attend a person's third marriage

I don't normally pronounce on religious issues, but this search term was too hard to pass up. If it is ungodly, perhaps you need to find a new religion if you're really prepared to put your religious scruples above your loyalty to a friend and a celebration of his or her happiness.

>> use of the divorce act for common law relationships canada

Also easy: none.

The federal Divorce Act only applies to people who are married to each other or who used to be married to each other. Unmarried couples, including couples who qualify as common-law, only have the provincial Family Relations Act and a few other laws to rely on in resolving the issues arising from their separation.

>> common law marriage divorce needed to end relationship

Common-law couples are not married; there is no such thing as a common-law marriage.

All "common-law" status means is that a couple qualify as "spouses" within the meaning of a particular law. Some laws, like the Family Relations Act and many other provincial laws, define a spouse as someone who is married or someone who has lived in a "marriage-like relationship" with another person for at least two years. Other laws have different definitions of spouse. Most federal laws, for example, only require that the couple have lived together for one year, while laws about welfare eligibility require an even briefer period of cohabitation.

Since common-law couples aren't married, there's no need for them to get a divorce to formally end their relationships. A common-law relationship is over when the couple separates. There's no magic to it, nor any need for a court order.

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Big Love Busted!

The CBC has today reported that Winston Blackmore and James Oler, the rival leaders of the religious community of Bountiful, British Columbia have each been charged with polygamy, an offence under the Criminal Code.

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The Validity of Same-Sex Marriages

There's a new and entirely unnecessary controversy brewing about same-sex marriages, and the media headlines I've seen suggest that Canada is somehow changing its position on same-sex marriage as a result of the divorce action of a foreign same-sex couple who married here. Apparently a Department of Justice lawyer argued that their marriage wasn't valid in the first place.

Okay, hold on people. Take a breather. It's not what the media seems to think, and the lawyer from Justice was right.

This is a problem about the "conflicts of laws" — the law dealing with how the laws of one sovereign state interact with the laws of another sovereign state — not a change in policy of a conservative government. The two basic rules about the validity of foreign marriages are these:

1. The legal capacity of a couple to marry is governed by the law of the "matrimonial domicile," the state where the spouses wind up living after they are married. (If the law of Country A says that people named John can only marry while wearing pink underwear in months beginning with the letter "M", this requirement of marriage applies to all of the residents of Country A, including those who got married in Countries B, C and D.)
2. The formalities of the marriage ceremony are governed by the law of the place where the marriage occurs, the "lex loci celebrationis." (If the law of Country B says that marriages may only be performed by mechanics waving squirrels, a marriage in Country B must be performed by a mechanic waving a squirrel to be valid in Country B or in Country A.)

In other words, a foreign same-sex couple will only enter into a valid marriage in Canada if their home country, the country which is their matrimonial domicile, recognizes that same-sex couples can marry. If the home country doesn't recognize the fundamental legal capacity of gays and lesbians to marry, a Canadian marriage, though legal and recognized here, won't be legal and recognized there.

To be clear, this isn't a result of the Harper government and a nefarious and regressive intention to undermine the marriages of awesome people like Dan Savage, it's about the basic rules of international law ... and those are somewhat beyond the influence of the Canadian government. (Dan, this isn't a problem with the laws of our country, it's a problem the with laws of your country.)

Have a look at my website for more information about the validity of marriage generally, including the validity of foreign marriages.

Update: 13 January 2012

The CBC reports that Canada is amending the Civil Marriage Act to ensure that the marriages of foreign couples are recognized in this country and quotes the Ministry of Justice thusly:

"I want to make it very clear that, in our government’s view, these marriages should be valid. We will change the Civil Marriage Act so that any marriages performed in Canada that aren't recognized in the couple's home jurisdiction will be recognized in Canada," he said in a statement.

"This will apply to all marriages performed in Canada. We have been clear that we have no desire to reopen this issue – both myself and the prime minister consider this debate to be closed."

This will not, of course, affect the international conflicts of law rules or compel countries with less egalitarian laws to recognize Canadian marriages, but it will clear up any confusion about the domestic validity of the marriages of foreign same-sex couples.

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