In today’s Vancouver Sun, Daphne Bramham writes about a case currently before the British Columbia Supreme Court that challenges the constitutionality of Canada’s prohibition on polygamy and polyandry. The facts are as follows:
Forrest is a 34-year old American female. She lives with Russell, a Canadian, who is sponsoring her for immigration as a common-law spouse. They have two children.
They share a home with Drew and Katy. For the past two years, Forrest has been in an intimate and conjugal relationship with Drew. She generally sleeps with Russel, the person who is sponsoring her immigration, however, when “sleep schedules” permit, she and Drew sleep together. On rare occasions, Drew, Katy, and Forrest sleep together. On other occasions, Drew, Russell, and Forrest sleep together.
Drew and Russel do not have a sexual relationship.
All of the adults are free to date outside the family.
According to the story, an individual named John is filing an affidavit in support of Forrest. John, an American male, lives with Kimberly and Warren. The three of them are raising a two-year old baby. Each has a separate bedroom. They live on a relatively formal biweekly schedule that includes large blocks of family time, undisturbed personal time for each adult, time with the baby for each adult alone, and “date nights” outside the family home for Kimberly with one of the men.
John fears the prospect of being denied permanent residency in Canada.
So, how have Canadian Immigration officers previously ruled (as in, who knows, this case might change things) on the issue of polygamous and polyandrous common-law relationships?
Section 12 of the IRPA provides that a foreign national may be selected as a member of the family class on the basis of their relationship as (amongst other things) the spouse or common-law partner of a Canadian citizen or permanent resident.
Section 119(9) of the Regulations describe who will not be considered a spouse. It states that:
(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
(a) the foreign national is the sponsor’s spouse, common-law partner or conjugal partner and is under 16 years of age;
(b) the foreign national is the sponsor’s spouse, common-law partner or conjugal partner, the sponsor has an existing sponsorship undertaking in respect of a spouse, common-law partner or conjugal partner and the period referred to in subsection 132(1) in respect of that undertaking has not ended;
(c) the foreign national is the sponsor’s spouse and
(i) the sponsor or the foreign national was, at the time of their marriage, the spouse of another person, or
(ii) the sponsor has lived separate and apart from the foreign national for at least one year and
(A) the sponsor is the common-law partner of another person or the conjugal partner of another foreign national, or
(B) the foreign national is the common-law partner of another person or the conjugal partner of another sponsor; or
(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
Section 119(9)(a) thus excludes relationships with minors. Section 119(9)(b) prohibits spouses, common-law partners, and conjugal partners from sponsoring someone when they already have an undertaking to sponsor someone else.
Section 119(9)(c)(i) prohibits a spouse from sponsoring someone if the spouse was already married to someone else during the sponsor’s marriage to the applicant. Section 119(9)(c)(ii) prohibits a spouse from sponsoring a foreign national if the sponsor or applicant is the common-law partner of another person, or the conjugal partner of another foreign national. The same is true if it is the foreign national that is the common-law partner or conjugal partner of someone else.
Section 119(9)(c) clearly excludes polygamous relationships.
But, it also only applies to spouses. What if the sponsor and the applicant are not married, but merely in a common-law relationship? Is this not a huge loophole that would allow Forrest or John to be sponsored?
The answer is no. Section 5.42 of the CIC Manual states why polygamous common-law relationships are excluded. It states that:
5.42. Simultaneous common-law or conjugal partner relationships with two or more people
A common-law or conjugal partner relationship cannot be established with more than one person
at the same time. The term “conjugal” by its very nature implies exclusivity and a high degree of
commitment; a conjugal relationship cannot exist among more than two people simultaneously.
Polygamous-like relationships cannot be considered conjugal and do not qualify as common-law
or conjugal partner relationships.
The Regulations support this conclusion. The regulations define conjugal as:
« conjoint de fait »
“common-law partner” means, in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year.
The legislation does not provide that conjugal relationships have to be exclusive. However, numerous judicial decisions have confirmed the notion that in a conjugal relationship must stress their desire to remain exclusive towards one and other.
Given the legislation, if the goal of Forrest and John is simply to be successful in a permanent residence application, then they do not have to directly address the issue of whether Canada should permit polygamous and polyandrous marriages. All they need to do is show that a conjugal relationship should not be limited to two persons. Currently, there are a list of factors that determine whether a relationship is conjugal, including the requirement of mutual exclusivity between two people. If Forrest and John can convince the court that no factor alone is determinative, but rather that all factors should be taken into consideration and weighed in determining whether a relationship is conjugal, then they should be successful. Doing so will also avoid the necessity of engaging in complex constitutional questions and requiring politicians to amend the legislation.
However, if the goal of Forrest and John is to directly challenge the prohibition on polygamy and polyandry.. then, as Daphne Bramham’s article suggests, they’re in for a battle to change a fundamental moral issue in Canadian society.