Multiple Misfortunes: Legal Challenges for Those in Polyamorous Relationships

I was recently contacted by an individual with an especially interesting legal problem resulting from the particular circumstances of the polyamorous relationship he was involved in that would most certainly not have arisen had he been in a same- or opposite-sex binary relationship. This naturally led me to reflect on the other legal problems people in polyamorous relationships might experience, and these are the subject of this post.

First off, I should say that as far as vanilla family law is concerned, polyamorous relationships are accommodated quite nicely in British Columbia's Family Law Act. I've written about that at length in my post "Polyamory and the Family Law Act: Surprisingly Happy Bedfellows." In a nutshell, people in these relationships would seem to have all of the same rights as anyone who is in an unmarried spousal relationship, as the definition of "spouse" doesn't preclude the possibility of having multiple spousal relationships simultaneously, including with two members of the family who are married to each other. These rights include the right to ask for spousal support, the right to ask for child support and the right to a share of the family property, and can even include rights about the guardianship of non-biological children in certain circumstances. Really neat stuff, and likely unanticipated by the drafters of the legislation.

Things are not necessarily so comfortable for those in polyamorous relationships in other areas of law and life. By and large these problems arise from definitions of "spouse" or "common-law partner," the misleading term used by the federal government to describe unmarried spouses, and assumptions that when it comes to "spouses" and "parents," there are but two of them. The following are a list of potential problems that might arise. Note that whether these are actually problems will depend on the law applicable in your province or territory, and often on the policies and practices of specific organizations.

Marriage

You can't. Well, to be precise, only two of you can marry; any further marriages to persons within the relationship who are married will be void.

There's a bunch of reasons for this. First, I expect that the Marriage Acts of most province says that marriages are between two persons; British Columbia's does. Second, the federal Civil Marriage Act defines marriage as the "lawful union of two persons to the exclusion of all others." Third, the federal Criminal Code makes bigamy a crime. Bummer.

Since members of a polyamorous family cannot marry, or at least cannot all be married, family members other than those who are married to each other will not be eligible for any benefits and entitlements that are reserved for people who are legally married to one another. This may not be a huge problem, as many benefits and entitlements are available to unmarried spouses as well as the married variety, however in most provinces, the right to share in the family property is limited to married spouses. Unmarried spouses can only share in family property the way that married spouses do in Manitoba and British Columbia.

On the up side, if you can't marry, you don't need to get divorced.

Insurance Plans and Benefits

Most private insurance plans limit their coverage to employees, their spouses and their children, and expect that employees will have only one spouse. The same may hold true for provincial public health plans with respect to the family rates they offer. However, it's worth checking whether an additional dependent adult can qualify for coverage under the basic family rate.

Survivor's benefits paid by the Canada Pension Plan and Old Age Security are payable to the spouse or common-law partner — singular — of the deceased person.

Although private pensions plans and retirement savings vehicles like RRSPs only allow for one spousal beneficiary in the event of the owner's death, most plans allow other persons to designate additional beneficiaries. This is meant for children, but can usually be extended to anyone. It will be important to check with your private pension plan administrator to see whether multiple beneficiaries are permitted.

Children

Most provincial Adoption Acts limit adoptions to one or two persons; British Columbia's does. It would also be a bad idea for a non-biological parent to adopt the child of another member of the relationship, as one of the effects of adoption is to strip the biological parent of his or her status as a parent, and of all rights and obligations a parent has with respect to a child.

Parentage is likewise limited to two persons, except in provinces, like British Columbia, that allow a child to have up more than two legal parents where the child is born as a result of assisted reproduction processes. In BC, the Family Law Act allows a child to have up to five parents: one or two intended parents, a donor of ova, a donor of sperm and a surrogate mother.

However, in some provinces it may be possible for non-biological, non-adoptive parents to become a legal guardian of the child, usually by making an application to court. In this way a child could have more than two legal guardians who would all be entitled to make the decisions a parent could make.

Immigration

I'm not going to discuss the federal government's offensive views on "barbaric" — that's the word used in the legislation and press releases — cultural practices; there's actually another, more common problem.

A citizen may sponsor his or her spouse or common-law partner to enter Canada and become a Canadian citizen. The problem here is the federal government's vigilance toward fraudulent marriages. Although people in a polyamorous relationship would likely view themselves as being in a committed, long-term relationship, Citizenship and Immigration does not recognize polyamorous relationships as being spousal or common-law in nature and would view such applications with much scepticism.

(Let me pause here and anticipate certain comments to this post. Yes, I think it is abusive and exploitive to force girls and women into marriage, especially in the case of children. However, I don't think it's for us to judge and label the cultural practices of a community as barbaric. That smacks of arrogance and cultural imperialism; after all, some might say that the federal government's treatment of indigenous peoples is barbaric. Glass houses, yes?)

Entitlements Based on Household Income

People in polyamorous relationships will need to be wary of benefits assessments and legal tests that are based on household income, as the income in question may very well be the income of all cohabiting persons. The benefits that spring to mind in this regard include the Old Age Security Guaranteed Income Supplement, entitlement to welfare benefits and entitlement to legal aid coverage. I'm sure there are others. The legal test I'm thinking of is the test for relief from the fixed child support amounts set out in the Child Support Guidelines on the ground of undue hardship; that test looks at the parents' household standards of living before deciding whether the amount that would normally be paid is too much or too little. Again, I'm sure there are other that I haven't thought of.

Sharing Property

More than two people can be legal owners of most things, including bank accounts, cars, houses and companies. That's not really the problem for polyamorous families. The problem has to do with how the laws about family breakdown divide family property.

Canada Pension Plan credits are often but not always equalized when married or unmarried spouses divorce or separate. The Canada Pension Plan legislation says that these credits can be equalized on the application of "either" spouse or common-law partner, and talks about the entitlements of "the two persons," which implies that CPP credits can only be equalized between two spouses.

As I mentioned earlier, most provinces exclude people who aren't married from their rules about property division. However, in the provinces that give unmarried spouses the same property rights as married spouses, the legislation tends to talk about equal half interests. The British Columbia Family Law Act says that "both spouses" are entitled to family property and that "on separation, each spouse has a right to an undivided half interest in all family property." Now, this doesn't mean that unmarried spouses in polyamorous relationships can't share the family property, but it does mean that it pays to be the first one out. I expect that the first to leave would get half the family property, with the next to leave getting half of the remaining half, and so on.

Anything Else?

I'm sure that there are things I'm overlooking, and I'd really be interested in your input, especially if you are or have been in a polyamorous relationship and have had experienced legal problems as a result of the nature of your relationship.

Federal Government Cracking Down on Sham Marriages

The Globe & Mail today reports that Citizenship and Immigration Canada is working on a plan to reduce the number of marriages entered into for immigration purposes; the Globe article specifically mentions India and China as target countries where fraudulent marriage schemes are common. According to the Globe, regulations to be published later this year will allow Citizenship and Immigration to issue "a new 'conditional' immigration status," which I assume would be a conditional sponsorship approval, and limit sponsoring spouses to one new spouse every five years.

Marriage fraud has been on Citizenship and Immigration's radar for a number of years. Here's an extract from a speech delivered by immigration minister Jason Kenney at a golf club in India on 9 September 2010:

"We aim to reunite our citizens and permanent residents with family members and we recognize that most individuals who apply for family reunification are in genuine relationships.

"But we also aim to protect the integrity of our immigration system and uphold our laws by identifying and addressing fraudulent activity. This includes ensuring that fraudulent marriages are discovered and not used to circumvent our laws.

"Accordingly, if we find evidence during the sponsorship process that individuals are committing marriage fraud, we can and will refuse the application for permanent residence.

"Our officials at missions here and around the world are trained to assess relationships based on customs, traditions and practices of the specific cultures in which they work.

"I can assure you that the Government of Canada is working to limit abuse and fraud, and we will not be limiting immigration to Canada or the protection Canada provides to refugees."

Concerns like these led the ministry to undertake a series of public consultations later that year, the results of which have been published on Citizenship and Immigration's website and include recommendations for a conditional immigration status and limiting the frequency with which new spouses can be sponsored. Here is the summary conclusion drawn from the consultations, with emphasis added:

"In sum, those who participated in the consultation acknowledged concern about marriages of convenience. Most considered the issue to be a threat to the integrity of Canada’s immigration system, and the majority expressed a need for greater public education and awareness. A strong majority felt that the sponsor should bear considerable personal responsibility for ensuring that they were entering into a genuine relationship.

"Of the suggested measures proposed to address marriages of convenience, the leading option was for punishment of individuals found to be committing fraud (i.e. deportation, fines, legal action). Respondents also strongly supported increased investigative or screening measures, while just over half indicated that they were not prepared to tradeoff [sic] longer processing times for more investigations into potential cases of fraud. There was broad support for both the introduction of a sponsorship bar and for a conditional measure. For a conditional measure, the appropriate length suggested by most was for two years or less, followed by moderate support for a period of three to five years."

I have no doubt that marriage fraud is a problem for the federal government inasmuch as it undermines the coherence and public policy objectives of the immigration system. It's also a serious problem when the sponsoring spouse is unaware that the marriage was undertaken for ulterior purposes — the discovery of the other spouse's motives can cause no small amount of financial and emotional harm; see the 2006 case of Raju v. Kumar as an example of the harm which can be wrought.

Update: 1 November 2011

CBC has published an article on the enforcement side of this issue, and reports that through "Project Honeymoon" the Canada Border Services Agency has opened 39 investigations into suspected cases of marriage fraud since 2008, resulting in seven charges and three (count 'em, three) convictions.

Could it be that the rate of marriage fraud simply isn't as high as the immigration minister suggests? Or is it simply a problem of needing sufficient staff to address an problem which is inherently difficult to investigate? According to the CBC:

"... the internal border agency documents — disclosed under the Access to Information Act — acknowledge the cases require considerable resources, and many never make it to court."

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.

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.