26 November 2010

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.

22 November 2010

The Revenge of Facebook, Part I

I've often thought of writing about the modern mischief Facebook seems to egg on, but it's always seemed too easy a target. The notion of being "unfriended" just isn't as funny as it used to be. And then along comes Nesbitt v. Neufeld, a November 2010 decision of the Supreme Court of British Columbia, and I am reminded that there are still lessons to be learned.

Dr. Nesbitt and Ms. Neufeld had been engaged it what the judge described as "protracted family court litigation" and resulted in Ms. Neufeld having primary care of the child, with Dr. Nesbitt having supervised access. I'm sure the litigation rankled. In any event the recently-published decision of Mr. Justice Crawford concerns not the family law litigation but an action in which Ms. Neufeld sought damages for defamation and breach of privacy from Dr. Nesbitt.

Ms. Neufeld's complaints centred around a variety of publications the court found to be authored by Dr. Nesbitt, including the "Wicked Wendy Neufeld" website (some related material can still be found on blogspot) featuring material from the family law litigation and some of her private communications, and a Facebook page titled "Wendy Neufeld Support Group" containing hurtful and sarcastic comments. To quote the judge, "that Dr. Nesbitt would dress his vitriol in such shabby clothing shows again a complete lack of social awareness."

Anyhow, the point here is that we as a society are well past the posting of anonymous pages on telephone poles. We live in the internet age where the scurrilous vituperations of an aggrieved individual are spewed across the globe for all to read in a second, and, just as the audience is massive, all that's required to discover it is a single ego-search. Hit PRINT and the broadcast is there to be attached to your next affidavit as Exhibit "A". Again, here's Mr. Justice Crawford:
"In this age of instantaneous broadcast to an innumerable number of people over the Internet, courts have acknowledged the aggravating factor this can have in determining whether the conduct at issue is defamatory and if so what the quantum of an award of damages should be."
The judge decided that Dr. Nesbitt had taken his custody fight with Ms. Neufeld "far outside the ordinary confines of the family court litigation," and awarded damages of $40,000 to Ms. Neufeld for breach of privacy and defamation, plus her special costs of the litigation on the basis that Dr. Nesbitt's conduct was "deserving of the Court's reproof."

I have to admit that I see things like this fairly frequently in my practice, sometimes as a result of wounded feelings, but sometimes and far worse as a result of a desire for revenge or retaliation. I won't moralize and tsk-tsk about the stupidity of such websites, blogs and Facebook pages; that ought to be obvious. Just remember that it's as easy to find and print these things as it is to post them, and I guarantee that they will find their way into an affidavit at the most inconvenient time possible.

15 November 2010

Changes to Supreme Court Chambers Practice

Changes continue to be made to the rules governing chambers practice in the Supreme Court. The most recent are set out in a civil Practice Direction (PDF), PD 28, and an Administrative Notice (PDF), AN 7. Both apply to family law matters.

PD 28 says this:
  • Supply an extra copy of the Notice of Application (or Petition) with the Application Record, marked to show which orders will be spoken to at the hearing.
  • Application Records will be accepted for filing between 9:00am three business days before the hearing and 4:00pm on the day that is one business day before the hearing. Application Records that are filed after 4:00pm will not be placed on the hearing list.
  • Applications can be adjourned by filing a Requisition (Form F17) at any time before 9:00am on the day of the hearing. If you can't file the Requisition by the deadline, you'll have to show up in court and ask the judge or master for the adjournment.
  • Applications that have been adjourned can be set for hearing again by filing a Requisition two business days before the new hearing date. The Requisition must: state the new date, time and place of hearing; briefly describe the nature of the application; give a time estimate; and, state whether the application is within the jurisdiction of a master.
The other civil practice directions which apply to family law matters are set out on the Supreme Court's website with the table of family law practice directions.

AN 7 says this:
  • All briefs, records and submissions that are filed in a bound format must have a cover page.
  • The cover page must: give the style of cause, including the court file number and registry; describe the nature of the material (ie: "Rule 11-3 Summary Trial Application" or "Claimant's Argument"); give the contact address and telephone number for the parties or their lawyers; state the time, date and place of the appearance for which the materials are filed; state the name of the party or lawyer filing the materials; and, where the materials relate to a hearing, give a time estimate for the hearing.
In case that was confusing, AN 7 has a helpful example of an approved cover page. I have posted a template of the form in the Resources & Links > The Courts chapter of my website (scroll down to the "Downloads" segment).

For more information on the new Supreme Court Family Rules, click on the "court rules" label below.

13 November 2010

Legal Aid News and Updates

LSS Launches Legal Advice Telephone Service (updated 24 November 2010)

On 1 November 2010, the Legal Services Society, the organization that provides legal aid in British Columbia, launched the Telephone Advice Line, rebranded as the Family LawLINE shortly thereafter, to answer questions about family law issues. The Family LawLINE is staffed by two lawyers who are available from 9:30 to 12:30 on business days. The service is intended for people who do not have a lawyer and do not qualify for representation through legal aid.

Callers must meet the legal aid eligibility criteria for legal advice, a different standard than the eligibility criteria for legal representation, and will be screened before being put through to one of the lawyers.

To contact the Family LawLINE, call:
604-408-2172 if you're calling from the Lower Mainland
1-866-577-2525 if you're calling from elsewhere
I understand that calls will not be put through after 12:00.

This is not exactly a replacement for the former LawLINE, one of the services axed with the budget cuts implemented on 1 April 2010, but it's a start.

West Coast LEAF Publishes Report

On 9 November 2010, West Coast LEAF and the Canadian Centre for Policy Alternatives published a new report on legal aid in this province titled Rights-Based Legal Aid: Rebuilding BC's Broken System (PDF). The report provides a detailed review of the funding cuts suffered by the Legal Services Society since 2002 and the consequences of those cuts, and offers some recommendations about how to fix things.

LEAF recommends that the provincial legal aid system be revamped to provide services whenever human dignity is at stake and funding a mix of specialized legal aid clinics, private lawyers paid through a tariff system and staff lawyers in community-based non-profit organizations. The report is well written and deserves a read.

LEAF's other work on family law, legal aid and legal services includes:

08 November 2010

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.

05 November 2010

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."


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?