The Problem of “relationship overlap” in Saskatchewan

As many of you blog readers well know, I have been criticized (I believe unfairly) because I have not taken up the cause of what appears to be a problem of “relationship overlap” and the division of marital property in Saskatchewan.  Earlier I wrote that I could recall penning a letter to Premier Brad Wall; and, could not at the time recall receiving a response.  That really pricked at my conscience, but family responsibilites and a needed rest over the holidays prevented me from digging into my files and searching my computer for answers.

Well, dear blog readers, and those who have been harmed by Section 51 under the Saskatchewan Family Property Act, here is the response I received in March 2009 to my February 7, 2009, letter to Premier Brad Wall on this matter:

March 10, 2009

Nancy Mereska
Coordinator
Stop Polygamy in Canada
Box 136
TWO HILLS AB T0B 4K0

Dear Ms. Mereska:

Thank you for your letter of February 7, 2009, to Premier Brad Wall, which has been forwarded to me for response.  I understand you are concerned that Sharia Law allowing polygamy is written into the marriage statutes in Saskatchewan.

Polygamy is illegal in Canada under the Criminal Code.  Further, Saskatchewan’s Marriage Act, 1995 reinforces the federal prohibition through the procedures under that Act in place to prevent a person from being legally married to more than one person at a time.  Polygamy is prevented by requiring every person wanting to marry under the Act to obtain a marriage licence and declare their current marital status.  A marriage licence will only be issued to persons who declare themselves to have one of the following marital statuses: 1) never married; 2) widowed; 3) divorced; or 4) their previous marriage was annulled.  Persons who have had a previous marriage dissolved through divorce or annulment must provide a copy of their Certificate of Divorce or Decree of Nullity of Marriage.

In Saskatchewan it is possible to enter into a spousal relationship without that relationship being solemnized under The Marriage Act, 1995The Family Property Act provides framework to deal with situations where spousal relationships overlap in time.  This most commonly occurs when two people married under The Marriage Act, 1997 separate without going through the formal divorce procedures for a number of years.  The separated spouses may enter into new common law spousal relationships prior to the finalization of the divorce of the previous marriage.  The Family Property Act ensures that the assets from both relationships are divided fairly between the parties.  However, the common law relationship cannot be solemnized under The Marriage Act, 1995 until a Certificate of Divorce is issued in relation to their previous marriage.

Thank you for providing me an opportunity to discuss this important issue with you.

Yours sincerely,

Don Morgan, Q.C.

Minister of Justice
and Attorney General

cc:  Honourable Brad Wall, Premier of Saskatchewan
——————————
The ban against the practice of polygamy is a Federal Statute in Canada, but it is up to each Province and Territory to legislate marriage laws pertaining to marriage; e.g. when Canada passed laws allowing gays and lesbians to marry, the Province of Alberta (where I live) used the “notwithstanding” clause and did not legislate marriage laws that include gays and lesbians.

In re-reading Honourable Don Morgan, Q.C., Justice Minister for the Province of Saskatchewan’s letter, I, too, find Section 51 troublesome. This means that property is divided fairly not only between the legally married spouses but the division is extended to include anyone that one of the spouses decided to live common-law with without having divorced his/her previous spouse.

Also, this being the case, Muslim Sharia Law does not have to be implemented in order for Muslim polygamy (or any other type of polygamy for that matter) to take place in Saskatchewan, because The Family Property Act Section 51 allows for the “fair” distribution of property whatever the word “fair” means here.

I am certainly not a lawyer, so if I am misinterpreting this law, please correct me. Nor do I know if other Provinces in Canada have such laws. Clearly, there is a problem here regarding “relationship overlap.”

But, my advice to those who have badgered me for months regarding this issue wanting me to take up their banner, is still the same–you live in Saskatchewan. If you have been harmed by Section 51 of The Family Property Act, please gather your resouces and support and work to change this law.

From the criticisms I have received, both men and women feel they have been harmed by this law. I certainly would not want to see my husband start living with another woman without a divorce; and, when it came time for the divorce, see part of my property rights that I achieved through my marriage be given to his common-law spouse. Nor would I start living with another man without divorcing my husband first.

Frankly, this is both a social and legal problem. Either as a society, we return to our basic Christian values of monogamy, or we’ll continue seeing our culture erode into a convoluted mess where social problems we never dreamed could happen will happen.

And, my biggest concern re Saskatchewan’s Section 51 is, what about the children who are involved in this mix? Someone has to draw a line in the sand somewhere–and those of you who have been harmed by Section 51 need to start drawing that line.

I hope someone points out this letter to Saskatchewan Premier Brad Wall.

Nancy Mereska, President
Stop Polygamy in Canada

5 responses to this post.

  1. Posted by Vicki on January 11, 2011 at 3:13 am

    Polygamy Canada Saskatchewan Reference and Brad Wall Letter
    Stop polygamy in Canada has a valuable and informative web-site. I have been researching North American polygamy including Saskatchewan’s state sanctioned polygamy legislation for over a decade and have remained silent. I believe the vast majority of Canada would highly disagree with Justice Minister Morgan’s and Premier Brad Walls alleged promotion of polygamy. I have also been a victim of polygamy as have my children. My opinions on the Saskatchewan polygamy are developed after careful study. There are serious ramifications of this Attorney Generals authorization of polygamy in Saskatchewan and for the rest of the country because Canada uses case law in decisions for both criminal and family court matters across all of Canada.
    If any justice officials are aware of Federal Criminal Code violations in Saskatchewan they may have a legal, ethical and professional obligation to report it.
    Ironically, the Saskatchewan Attorney General provides consent for polygamy in his quote:
    “The separated spouses may enter into new common law spousal relationships prior to the finalization of the divorce of the previous marriage.”
    It should say “may not enter” into a spousal relationship prior to divorce of the existing marriage. It isn’t a “previous marriage” while it remains. It’s an existing marriage with the rights and obligations of marriage. A married person can not enter into a “common law marriage.”

    http://www.attorneygeneral.jus.gov.on.ca/english/family/divorce/

    The above link from the Attorney Generals office in Ontario states:
    “Separation agreements and court orders can resolve some family matters when you separate but they do not legally end your marriage.”
    No-one who remains married in Canada can BEGIN a spousal relationship (no overlap) until the date of their divorce. Both common law spousal relationships and civil marriage relationships are eligible to BEGIN only after divorce has occurred. (No overlap spouses).
    This doesn’t prevent some other kind of relationship, but it isn’t a spousal relationship and any property claims isn’t divided as a “matrimonial property” claim precisely because it isn’t a spousal relationship. It could be an adulterous relationship. But it isn’t spousal.
    Contrast the Saskatchewan Attorney Generals alleged abuse of authority with federal law specifically criminalizing this action:
    (ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or
    If one re-reads The Attorney Generals statement enough times, it still won’t make sense. It’s illegal. It is a direct and flagrant violation of the Criminal Code of Canada. Married people are married until divorced. It doesn’t matter what any eventual supreme court decides, or what would happen if new Criminal Code is written at a later date, its illegal now. This statement required a federal investigation, since obviously the top law enforcement officer of Saskatchewan isn’t going to charge himself. Nor are the local police who only act on the advice of the Attorney Generals office.
    The Federal law against polygamy automatically necessitates criminal charges against anyone in a position of authority who authorizes plural spouses within the same timeframe. If the Attorney General of Saskatchewan believes marital separation constitutes divorce, he is sadly mistaken. The same goes for any queens bench justices.
    To legally end your marriage in Canada, you must have a divorce. Divorce legislation makes it mandatory for lawyers and especially justices dealing with potential divorce to take all possible steps to reconcile differences between separated spouses and the prevention of divorce. To have a justice official circumvent this process by authorizing the separated spouses to have new spouses is just plain wrong. Canadians don’t take kindly to abusers of authority authorizing spouses to take new spouses during any of the time they can still legally reconcile their marriage.
    The “experts” in the BC reference case who claim there is no polyandry polygamy in Canada could likely provide “expert” witness to there also being no known cases of separated couples who reconciled their marriages.
    If separated spouses choose to get divorced, Canada has no fault divorce legislation and it costs around 100 dollars to file. If any not divorced and therefore married “cohabitant” wants to claim property from their married or unmarried cohabitant, that’s specifically what unjust enrichment laws are for. Not marital property law court. If two people have children, family courts have different legislation that covers that matter exclusively.
    My research indicates the majority of Canadians do not object to provincial authorities declaring spousal status, rights and obligations upon cohabitants under certain circumstances. It is when they remain married or separated and lay retroactive legal claim to additional spouses in the same period of time, Canadians become upset. It’s also illegal.
    If married persons who cohabitate with unmarried persons wish to go to court for property claims they are free to use some sort of civil unjust enrichment or other civil law property legislations, but not Family law courts and family law legislation. In Canada, there are family values and human dignity rights that are protected by the Criminal Code of Canada.
    I disagree with your claim that this is a matter to be resolved only by Saskatchewan victims of polygamy. If as you claim, your interests are to stop polygamy in Canada, then you and other activists must oppose any Canadian state sanctioned polygamy. If polygamy is allowed to continue any longer in Saskatchewan Canada, it is only a matter of time until this right is allowed across all of Canada. Canada has “equality of treatment” legislation that Mr. Blackmore and other alleged polygamists are certain to invoke.
    Let’s assume the Premier of Saskatchewan didn’t know about his law and hears about it. He then asks his top legal advisor some questions. I will “hypothesize” fictional questions the Premier of Saskatchewan might ask his Attorney General and also hypothesize fictional potential answers:
    Q) Mr. Morgan, how many family court case laws exist in Saskatchewan where this province has authorized and forced unmarried persons to be the same time spouses of married persons?
    A) Two or more.
    Q) How many of these cases exist in the other provinces?
    A) None
    Q) Why not?
    A) That’s simple. Other family law jurisdictions don’t allow legal sanctioning of multiple spouses in the same time period. They would just call it adultery. Adultery could be grounds for a divorce for sure. Here, were just dividing up the marital property as if they were actually eligible for marriage using a time overlap technique. So were good.
    Q) Did these family law cases involve religious motives for polygamy?
    A) No way. Just the usual marital relationship matters. We aren’t discriminating against multiple religiously authorized spouses. We even offer them significantly more rights than they can get anywhere else in the whole country.
    Q) Do we recognize plural spousal relationships?
    A) Yep. But we are just authorizing “overlap”, usually.
    Q) What’s that?
    A) Well, that’s where we authorize, with heavy duty binding authority, for married persons to become the common law spouses of other people prior to divorce. We even make it legal for unmarried persons to basically marry a married person. They don’t even have to want to. So, it’s all equal. If you re-read my response to Nancy you will see that right away. We have only done it retroactively so far though, so there really isn’t a problem. Well, not for the married people. They’re the ones we authorized. They wanted it. Well, I guess we also provided the consent for the unmarried spouses too. Come to think of it, we probably provided the consent for both of the first-in spouses plus the latter spouses. It really gets complicated when there are a lot of spouses and it starts to hurt my head. Basically, we provided all the consents though.
    B) Do other provinces do that?
    A) Nope. That could be the problem here. They only authorize one marital relationship at a time. Same as marriage law. I wonder if those loonies are following the criminal code. I might have read somewhere that they also think it shows a lack of good faith or some other irrelevant term.
    Q) Are you saying we authorize and recognize plural marital relationships?
    A) Yes.
    Q) Is that illegal under the Criminal Code of Canada?
    A) Yes. No. Maybe. It seems like it is. But we could argue that provinces have the right and indeed the obligation to divide spousal property amongst common law marriages and civil marriages. That confuses the matter right there. A lot of folks can’t cipher the meaning or the subtleties of marital and divorce law after that. We can say we just do it different and married folks don’t need to get divorced first before being eligible to have more legally recognized spouses. I already told them that. It’s called overlap in legal terms. I think I coined that one. Because we do it retroactively it isn’t really a problem, usually. I mean, who is going to charge us? Not me. The Mounties could be a problem. But not the provincial police forces. They always contact us in matters like this and we tell them whether to pursue charges or not. So, were good.
    Q) There have been murder and all sorts of cases in Canada where the judges and prosecutors got it wrong. Do you think that happened here? Like we don’t have it right?
    A) I can’t believe how those Russians came back so strong after that 3-0 lead.
    Q) Do you think the fact there are only 2 case laws like this in Canada and they both come from Saskatchewan, indicates it must be illegal to authorize more than one spouse at a time between individuals?
    A) We might be okay especially if we use the word “fair” division a lot. The people like that word. Also “equal”, they like that.
    Q) My question is, is it illegal for us or any justices to authorize concurrent spouses as in covering the same time period, prior to divorce? I read your statement about “finalized divorce”. Is there any other kind of divorce? Anyways, is it illegal?
    A) No to both questions.
    Q) Why not?
    A) We and the judges are really just authorizing overlap. That doesn’t require divorce. The whole marriage and divorce thing doesn’t really enter into it, probably.
    Q) Why are we authorizing same time multiple marital relationships? It’s obviously illegal. I believe it’s a highly unpopular cause to pursue.
    A) I already told you, to divide the marital property! Plus, the NDP actually did it first back in 2001.
    Q) What are the odds that you are correct and the other provinces are wrong?
    A) 10:1. I know that one because there are ten provinces in Canada.
    Q) So, in Saskatchewan, are married persons not really spouses of others at the same time unless we say they are?
    A) Absolutely. That’s the best part. We let em know when they get to court if they were spouses all along but just didn’t know it. You know, in the event they wanted to invoke the polygamy thing. But that is at the discretion of the Queens Bench Justices. We just support them. If the RCMP charges them I guess they could charge some of us too. Now that I read it again, they could charge everyone who was party or provided consent. But, we should be okay. You see, it’s really the Queens Bench justices that sanctioned it. They are the ones who used binding authority! Now that I look again, the legislation doesn’t actually say multiple spouses are allowed. It just says if it happens, then we could divide the marital property. It doesn’t actually say how it could happen. We could deny we provided consent too.
    Q) Did you tell anyone in public that we also allow it?
    A) Just Nancy. That might not have been a good idea. Maybe I can overlap it and it won’t have happened.
    Q) Why aren’t there more than two cases like this across the country in the past 100 years?
    A) Well, for obvious reasons polygamists don’t usually come right out in family court and ask for the authorization. That’d just be crazy. It could get’em five years in a federal prison. If a person in authority authorized the multiple spouses they could get five years too. Do you think I’m an authority? Anyways, plus like I already told you, other provinces don’t allow it, probably because of that Criminal Code thing. We can’t change the Criminal Code but if we step up the promotion, there could be a lot more business coming our way than those two cases.
    Q) Does conjugal union mean spousal relationship?
    A) That’s exactly what it means. In Saskatchewan married people got even more rights than everybody else in Canada. Civilly married people can’t civilly marry again, not until divorce occurs. That law lets all the folks including future spouses know where they stand legally and stuff like that. But we got a competitive advantage over the rest of Canada with the extra spouses’ thing for married folks.
    Q) Does this mean polygamists can live in Saskatchewan under the protection of our legislation and judicial precedence cases?
    A) Why not. Probably. But, if we really wanted to, we could probably charge them. Heck, anyone can charge anyone, usually. It would help if we knew what they looked like. Anyways, I am on public record from a couple years ago as telling them they aren’t actually welcome here. I think I said it to the press too so that’s on the record. I might have also said it would be hard to prosecute them; I would have to check on that. You know, if this becomes a problem.
    Q) How many players can one CFL team have on the field at the same time?
    A) 13 or lots more if they are overlapped. But, we can make legislation that authorizes the whole bench if the games are played at home.
    Q) Have you read the anti polygamy law in Canada?
    A) You mean s.291?
    Q) No. That’s bigamy isn’t it?
    A) Probably.
    Q) So, this whole thing doesn’t sound right. Are you expecting a not good visit from the Mounties? Also, did you know separated spouses can even live under the same roof? Do you understand that only divorce or death ends a marital state of being?
    A) I think we should use words like fair marital property distribution a lot and use the overlap thing. It sounds really good. Really bring out the provincial authority thing too. Maybe we can muster our ammo and rattle our sabres at the feds. If that doesn’t work we can probably make the word spouse mean something different.
    Q) Don’t say we again. Did you say the NDP brought in this legislation?
    A) It was probably somewhere between Romanow and Calvert that the legislation came in probably.
    Q) That figures. Anyways, you got to go now. Maybe I’ll see you and the judges around when you get out?
    A) “Overlap.”
    Q) Wait. Before you go I want to ask you something. Did we trample on any of the polygamists or bigamists rights?
    A) No way. Their laughing that way.
    Premier…I just bet they are.
    I apologize for making light of such a serious as cancer situation, and the characterization above is 100 percent fictional. I was just trying to think how a leader of a province might ask about polygamy if they had no strong knowledge of it. I It is relatively rare so many may not understand it.
    I don’t know Mr. Wall at all. To my knowledge, Mr. Wall is a happily married man. He probably lives with the normalized dignity that his spouse is not also the legal spouse of another person. By all accounts in the press he is a good guy of strong moral character.
    However, one wonders if Premier Brad Wall would hypothetically condone his own wife, if they were not divorced, to be authorized by some abuse of authority to “become the same time spouse” of another person who didn’t consent to that either. Also, if he himself remained married then cohabitated with a single person, would he want to initiate his good faith with a divorce first? That would be the morally correct thing to do. Family values.
    In Saskatchewan only, both he and his spouse do not need to divorce, nor have to consent for the other to become the legally recognized spouse of another, during the time they remain married. He might not know that at the time though, because it could be retroactive. Overlap. The new spouse doesn’t need to consent either to “become the spouse of a person who has a spouse”. (s.51 Saskatchewan Family Property Act.
    Here’s a potentially tricky situation that might keep Mr. Wall up at nights. Under the Criminal Code of Canada, Mr. Wall could then become a “party to a consent” to multiple spouses in s.293 and risk criminal charges for participating in a consent to polygamy. So could his Attorney General. Of course, also hypothetically, his Attorney General could have a change of attitude and not wishing to be charged with authorizing further polygamy; hypothetically decide to approve polygamy charges against his premier.
    Alternately, the Saskatchewan Attorney General could say he is just “fairly” distributing “matrimonial property” between multiple spouses that “overlapped”. Maybe say the Criminal Code doesn’t apply to Saskatchewan residents. Overlap.
    Apparently, protection for family values and the sanctity and finality of marriage and divorce between two spouses does not exist in Saskatchewan.
    It is hard to imagine legislation interpretation in North America that is more illegal or supplies a higher degree of abuse of power.
    The Attorney General of Saskatchewan speaks to prevention of bigamy in his letter to you Nancy. In my opinion, in the same letter he very clearly speaks to his sanctioning of polygamy. s.51 could also be interpreted to approve bigamy because it doesn’t say how any person(s) “becomes the spouse of a person who has a spouse”.
    In all other provinces in Canada, any married person who is not divorced and cohabitates with another person is only living in adultery. They are not “spouses with marital rights, protections and obligations”. They can only become eligible to initiate another spouse after the date of their divorce. There is no “legal recognition of retroactive overlap” allowed under Canadian federal criminal code law s.293. In fact, it is specifically and without question a prohibited action by an authority.
    Cohabitants become eligible to count time together towards common law spousal status only after the date of their divorce. Married persons who cohabitate in adultery with other(s) person(s) have recourse to unjust enrichment law in Canada, to recover any potential property rights. This is not a family/marital law matter. It shouldn’t add burden to the courts to adjudicate these unmarried potential property matters because their have apparently only been two cases in Canada. When the province of Saskatchewan claims they are also spouses at that time, they are sanctioning polygamy which is a criminal act and an abuse of authority.
    Is it possible his Justice Minister has misinformed or not discussed with the premier the Canadian Criminal Code and Federal Law against polygamy? Or, as is potentially accurate, does Premier Brad Wall personally and publically condone multiple spouses?
    Maybe that question already got answered by his justice minister on his behalf.
    Polygamy is illegal in Canada under the Criminal Code. 293 of the Criminal Code reads:

    (1) Every one who

    (a) practices or enters into or in any manner agrees or consents to practice or enter into

    (i) any form of polygamy, or

    (Writer note: This includes consent of any individuals to become spouses of any other person while married and not divorced or single; or a binding authority claiming to have the power to authorize these marital rights and obligations and make them binding)

    (ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or

    (Writer note: this includes “over-lap common law spouses” as Attorney General Don Morgan describes them. Case Law in Saskatchewan and Don Morgan’s statement indicates there is no numerical limit to the number of civil marriage and common law marriage “overlaps” that can occur prior to divorce)

    (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii), is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

    (Writer note: The Saskatchewan Family Property Act only appears to grant state sanctioning of polygamous relationships. Mr. Morgan however, confirms it with his “over-lap” interpretation. Upon further research I have determined that the Family Property Act does not actually authorize provincial justices to impose simultaneous spousal relationships. Any individual justice or justice minister who interprets the legislation in this polygamous manner becomes subject to federal criminal code charges themselves. The reply letter to Nancy however, clearly indicates the Attorney General and Minister of Justice for Saskatchewan does support legal sanctioning of plural spouses and with binding authority upon the individuals.

    Saskatchewan, through its Attorney Generals statements, provides very troubling interpretation of this provinces pro-polygamy stance in the following statement:

    “The separated spouses may enter into new common law spousal relationships prior to the finalization of the divorce of the previous marriage. The Family Property Act provides framework to deal with situations where spousal relationships overlap in time”.

    The very fact that the province of Saskatchewan recognizes and with binding judicial authority “spousal” relationships within their family law that overlap in time is a frighteningly unique occurrence in Canada. (2 cases) The door to “entering new spousal relations prior to divorce” is actually clearly shut very tightly and further nailed with lots of nails via the Criminal Code of Canada.

    In North America a divorce only legally occurs upon a specific date signed and designated by an authorized justice of family law courts. It can only be after that date that a “common law” marriage can begin its “cohabitation countdown in time” for legal recognition as spouses. To use binding authority to recognize and sanction “overlap” is to countenance polygamy in the extreme. It also “retroactively” criminalizes the parties who would otherwise only have cohabitated in adultery.

    In Canada, polygamy as recognized in civil (not family) law courts could potentially be argued as recognizable if spousal relationships occurred in a jurisdiction that allows polygamy, however, Canadian federal legislation prohibiting polygamy and sanctioning of polygamy is binding across all of Canada. The logic of this limited Canadian recognition in Ontario and full recognition and authorization to boot in Saskatchewan is difficult to fathom. If terrorism and/or stoning are legal in jurisdictions that allow it, should Canadians also recognize them as legal?

    For added shock value, in the Saskatchewan case laws I can find it was the civilly MARRIED persons who laid legal claim (and were authorized and recognized by Saskatchewan Queens Bench justices) to having more than one spouse at a time while under Canadian Marriage law. The unmarried cohabitants vociferously denied consenting to become the spouse of a person who had a spouse! The province of Saskatchewan provided the consent for them in binding authority because as it is now known; this is just using binding authority to authorize “overlap” marital status.

    In at least one Saskatchewan polygamy case law, the unmarried cohabitant who refused to consent to become the spouse of a person who has a spouse, requested financial assistance and interveners in his challenge under the Constitutional Questions Act. Although this is often granted because it involves constitutional matters only, requests were denied by the same justice.

    Public court documents further reveal that the unwilling partner to polygamy was educated by a Saskatchewan Queens Bench Justice to “not lose any sleep” over being party to a multiple spousal relationship in his Saskatchewan family law courts.

    He would just have a forced “wife” who simply happened to have another husband, by choice, at the time. No biggie. No loss of dignity for him or his children. Really, just a surprise state imposed contract. Saskatchewan doesn’t really have to adhere to the Criminal Code because of the “overlap”.

    The Saskatchewan Premier Brad Wall via his chief justice official may have coined a new phrase for legalized polygamy. Polygamy can apparently now be legalized if they are “spousal relationships that over-lap in time”. There can be no doubt whatsoever that certain Muslim, Sharia and FLDS members will utilize this “non-religion” based legislation in defense of their polygamous intent in Canada and the USA. Either that, or immigrate to Saskatchewan. Then, after having their relationships sanctioned in a “jurisdiction that allows it”, they can move elsewhere if they wish. Overlap.

    It is interesting to note that Canadian Federal immigration laws preclude persons who are married and also claim to have simultaneous common law spouses from immigrating to Canada. They call them polygamists. I recently observed a Canadian blog site where a person claiming to be “Winston” and “Canada’s biggest polygamist” then thanked a contributor for submitting Saskatchewan legislation interpretation and case law that allows polygamy.

    In Canada, Marriage Law and its attendant Provincial Family Law legislation dictates that persons who are married receive spousal rights and obligations until the date of divorce. At that time all marital obligations are resolved either by agreement between the spouses or under provincial adjudication of marital rights and obligations. Eligibility to take a new spouse in marital law includes that a previously married person must be divorced. How strange and illegal is that when a married person does not require divorce before becoming eligible to initiate another spouse as long as it is a common law spouse?

    If Winston Blackmore, certain Muslims, Sharia law and other proponents of polygamy wish to find an alleged ally in Canadian state law, then they need look no further than Saskatchewan and Premier Brad Wall’s justice administration.

    In Saskatchewan married persons may not take another civilly married spouse until divorced, however Premier Brad Walls’ Justice Minister blatantly states that new common law spouses may be had, and prior to the date of divorce. This polygamous activity is thereby sanctioned by the Saskatchewan Premiers’ top legal advisor justification above.
    The most recent version of Saskatchewan’s Matrimonial Property Act is called the Family Property Act. The legislation recognizes the marital rights and obligations of men and women who are civil marriage partners or partners in marital like relationships often called common law marriages. It also confers upon Queens bench justices the ability to determine spousal status upon residents of that province. For example a civil marriage would be judiciously declared void (as in never existed) if one person was married to another person and then became married again, without divorcing in the same time frame. In all cases, Canadian law defines marriage as the union of two persons to the exclusion of others, until divorce or death occurs. Or overlap in Saskatchewan.
    Saskatchewan’s legislation differs from all other Canadian provincial legislation in that it provides legal sanctioning of and recognition of polygamous relationships, during the same time period where polygamous persons claim (and do have) existing additional husbands, wives/spouses. Although Mr. Wall and Mr. Morgan claim it is illegal to have more than one spouse at a time under civil contract, they claim their province is within its rights to grant or authorize plural spousal status to married persons who have “extra spouses” at the same point in time. Conversely, they claim to have the right to force unmarried person to “become the spouse of a person who has a spouse” . (S.51 Saskatchewan Family Law Act) Not had a spouse, has a spouse.
    In the rest of Canada any married person who claimed in family court to have a simultaneous spouse would have their “subsequent marital relationship” declared void. If a person(s) in authority purported to sanction this, they would be charged with polygamy.
    If any two parties claimed to have “concurrent spouses” at the same point in time, they would be liable for criminal prosecution in 9 out of ten provinces. Any “religious or Canadian state authority” that authorized this polygamist union would themselves be subject to criminal charges of polygamy.
    The legal recognition and authorization of marital rights and obligations to multiple spouses at the same time is in reality a sanctioning of polygamous unions.
    Attorney General Don Morgan and Premier Brad Wall correctly point out that Federal legislation governs Marriage law in Canada and provinces adjudicate those laws and are responsible for administrating them. Divorce is likewise administered by provincial legislation.
    “Over-lap of marital like relationships” is not a term used in Family law legislation anywhere I can find in North America. According to Canadian federal anti-polygamy legislation, any authority most specially including a state or provincial Justice Minister, religious authority, or Queens Bench Justice in Canada, must themselves be the subject of polygamous charges in the event they forced non consenting persons and used binding authority to create multiple conjugal relationship obligations over the same period in time.

    Somehow, Saskatchewan has become confused with the important difference between granting marital rights and obligations to common law couples who are not married to others, with authorizing married persons to claim multiple spouses.

    Ontario and NWT family law legislation allows family law courts to recognize persons as being spouses and the subsequent division of marital property amongst polygamous persons if the polygamous union took place in a jurisdiction that allows it. These jurisdictions have been the subject of dispute, but most certainly do not include North American countries. This legislation is also quite likely illegal according to the Criminal Code of Canada. However, this is still a far cry from stating that a Canadian jurisdiction authorizes polygamy.

    If Saskatchewan alone is excluded from Federal legislation and continues to sanction and recognize polygamous unions; and in so recognizing them and assisting in declaring these relationships as valid family forms in family law legislation, then polygamous relationships would likely be valid in Ontario and the North West Territories, if they occurred first in Saskatchewan.

    Further research into Saskatchewan’s family legislation reveals that the Matrimonial Property Act was renamed the Family Law Act in 2001. The section 51 was changed from the plain meaning of the 1980 legislation to include a new definition and potential sanctioning of court recognition of polygamous unions. The earlier legislation dealt with marital property between spouses. Subsequent spouses (where one or more spouses had become divorced and remarried) had rights that were subject to the previously adjudicated marital rights from the first spouses under s.51).

    The current legislation changed the meaning to include recognition of “subsequent spouses” but now it means persons who have an existing marriage, as opposed to the original that dealt with marital property of those who had a previous spouse. In short, as Don Morgan points out, by judicially recognizing “overlap”, cohabitants are authorized or forced by the province to become spouses during the entire time they are also married and not divorced from a spouse.

    It is at this point that the anti-polygamy legislation kicks in to protect Canadians from abuse of power and decriminalization of polygamy:

    (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii), is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

    According to Mr. Morgan the Saskatchewan Family Property Act grants state sanctioning and binding authority for polygamous relationships. The province is party to the consent. They are in fact the consenting party. Here is what a Saskatchewan family law judge has said in relation to bigamy and polygamy:

    “The formation of a common-law relationship is not hindered by the existence of a subsisting marriage.” For those of us who wonder at this wordsmithing; “subsisting” means existing.

    This judicial thought sounds illegal and not at all consistent with federal anti-polygamy legislation which appears to makes it illegal to authorize multiple same time conjugal unions:

    (ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or

    Research reveals there are at least two existing case laws from Saskatchewan Queens Bench courts that provided binding and unilateral consent for men to become the spouse of a woman who already had a civil marriage spouse under Canadian marriage law. In one case the man was deceased prior to the legal action and in the other the man also did not consent to “become the spouse of a person who has a spouse” (s.51 Saskatchewan Family Property Act) There are zero other case laws in Canada where provincial family law has recognized and authorized polygamous unions that occurred in North America.

    In recognizing the polygamous union as existing at any point in time prior to divorce occurring, the provincial authorities allegedly did not consider the Canadian federal anti-polygamy legislation. More shocking is that they appear to have abused their powers in complete defiance of federal anti-polygamy legislation contained in s.293 of the Criminal Code of Canada.

    However even polygynous, polygamous, polyamorous and polyandrous relationships may not be “polygamy” as it is captured by section 293, if they do not rely on an influential authority or do not purport to be binding on the participants. Obviously, the Saskatchewan Family Property Act uses binding authority to determine who is and who is not spouses, with or without the consent of the individuals. By the act of providing legal recognition of marital like “over-lap” in time, as the Saskatchewan Justice Minister calls it; polygamy, Sharia law, polyandry, polygyny and related names for polygamy receive state sanctioning in Saskatchewan.

    Here is where the plot thickens and one begins to wonder if the “fix-is-in” for legal polygamy in Canada’s future. Right now it’s still illegal.

    The Federal Attorney General has stated he believes “state-sanctioned” polygamy should be exempt from interpreting s.293. He also states polyandry should be included in any future changes to the legislation. Right now, hey are both included in the anti-polygamy legislation.

    He isn’t saying if state sanctioned means sanctioned by a different country or sanctioned by a province.

    The BC Attorney General states that polyandry and same sex spouses should be exempt from s.293 in any future legislation. He has likely been told polyandry doesn’t exist by experts.

    By cleverly positioning the proposed changes of s.293 to include only patriarchic polygny it leaves the door wide open for a male to claim his harem has chosen their relationship freely and are fully consenting and are also free to “marry” his other spouses as well. It can’t be patriarchic if partners are equal. His harem can state they are equals in the relationships and that they understand they are free to “marry” others at any time they choose to make that decision. Perhaps a written and signed affidavit stating this consent to equal rights would be all that is required to authorize polygamous relationship as non-patriarchic. It would probably help if the women also became the spouses of each other. No biggie, Overlap.

    It is no secret that BC Canada intends to introduce new family law legislation patterned on that of Saskatchewan. Will the legislation force marital status, obligations and rights during the “overlap in time” to cohabitants who remain married to others during this “overlap”?

    The legislation is allegedly intended to reduce the number of common law marriages that currently rely on “unjust enrichment” processes to divide property by granting them equal rights and obligations to married persons. No-one is arguing this provincial jurisdiction.

    The argument comes when the province does not recognize the date of divorce as the date upon which cohabitants become “eligible” to begin the time commitment required of common law marriages as civil marriage does. There can be no overlap. In civil marriage, no married person is eligible to become married again until divorced. Nor should they be allowed to be eligible to take another spouse in any legal form until divorced. Retroactive marriage status should only occur between persons who were eligible to marry.

    Can a married person live apart from their wife or husband, cohabitate with a ten year old and become their spouse in two years? Nope. Eligibility criteria kicks in. The same rules of marriage eligibility must apply to all spouses. People must have the dignity of consenting to become the spouse of a person who has a spouse. Then they need to get it authorized. Then, they can think about their choice during five years in prison.

    In the rest of Canada and USA states that extend identical to civil marriage “rights and obligations” to common law spouses they only begin to count cohabitant time together AFTER divorce has occurred. Other Maritime Canadian case law has stated there can be no requisite “good faith” where one or more persons remain married and not divorced.

    Saskatchewan family law legislation also lacks the good faith requirement of the other provinces. As such, victims of Saskatchewan polygamy laws have no recourse to the laying of criminal charges against polygamists because provincial prosecutors would advise civic police officials that it is not illegal to have multiple spouses in Saskatchewan.

    Will all unmarried Canadian persons who cohabitates with a married person be forced to “become the spouse of a person who has a spouse” (s.51 Saskatchewan Family Property (Act). Since consent is not required in Saskatchewan it could be argued by polygamists across Canada that this same legislation intent need be applied evenly and equally across the board in Canadian law.

    Most puzzling is the Premiers apparent stance that married persons cannot take another civil spouse until divorced, but they can take another identically recognized spouse in simple cohabitation. This is certain to infuriate people who demand equality before the law and will now want plural civil marriages authorized just as Saskatchewan recognizes the plural mix of civil and cohabitation spouses. Overlap.

    In closing, although lengthy, this is my conclusion:

    All organizations and institutions in Canada who wish to stop polygamy from becoming legalized and wish to enforce the current s.293 Criminal Code of Canada must do all they can to bring Saskatchewan Premier Brad Walls government sanctioning of polygamy to the attention of the Federal Attorney General and he needs to direct the Federal RCMP to follow the natural course of investigation. Charges should be laid against the abusers of power and restitution should follow to victims of this legislation. There can be no restitution that would erase the family problems, indignity and human rights violations that come from being forced to become the spouse of a person who has a spouse; however, this is often the case in these matters.

    For too long Canadian police investigators have cited reluctance of witnesses to publically admit to polygamy. Yet here is documented case law where married persons with justice officials may have allegedly conspired to force unmarried persons to become plural spouses of married persons.

    Reply

    • Posted by st0pp0lygamy on January 11, 2011 at 4:35 am

      Vicki,

      My head is absolutely spinning after reading your lengthy, mostly hypothetical response to the Saskatchewan “relationship overlap” problem. I hope someone is the vast reading audience of this blog will call this to the attention of the Federal Attorney General’s office.

      I find your second to last paragraph most poignant.

      For years members of the Stop Polygamy in Canada campaign decried the dereliction of duty of various AG offices of BC, Education authorities, and Federal Immigration authorities for the crimes against women, girls and boys that were happening (and are still happening) in Bountiful, B.C. While we slog through the constitutional validity process of s. 293, another generation of children are being born into polygamy that is practiced with impunity.

      It takes years, Vicki, to get government to move. Those who have been harmed must coordinate their efforts. They are the “witnesses” in this sordid mess. They are the ones who can speak with the most conviction. Just as the ex-polygamy victims are doing in their video testimonies for the Reference Case, they must act.

      There must be attorneys in Saskatchewan who would be willing to hear these victims and move their cases into the courts. And, the children. What about the children who are born into these “relationship overlap” mixes. Where are our values?

      Nancy Mereska, President
      Stop Polygamy in Canada

      Reply

  2. Posted by Concerned on January 12, 2011 at 2:18 am

    “The separated spouses may enter into new common law spousal relationships prior to the finalization of the divorce of the previous marriage.”

    Why does Mr. Morgan call it a “previous marriage” when the spouses are not divorced? It seems a simple enough distinction? I note his recent attempt at legislation was refused by the highest court in Saskatchewan because it has been ruled a violation of the constitutional rights of Canadian citizens. (Re: “marriage rights”)

    Reply

  3. Posted by Supportive on February 19, 2011 at 3:56 pm

    A marriage occurs on the first day of a married relationship, the marriage continues to have legal effect until the time the two who married (previously) divorce and it has become final. They are under a marriage contract throughout that time, but their marriage occurred previously, only the marriage contract continues indefinitely, not the marrying or the marriage that the two completed to begin their officially recognized legally married life together – in this use of the word marriage – it being a verbal noun – granted it is semantics, but objecting to it is thus also merely semantics. If and when they separate, they are by most bible based religions – unable to legally engage in a cohabitating conjugal relationship (God’s law not law of community authority). But by community authority via the Saskatchewan government, they can begin a new union since the other is no longer – as seperated.
    This is not right in my eyes, as I consider God’s law better, but I can see a practical application of it and its wording as logical.

    Shouldn’t the new girlfriend of a seperated man be entitled to kindness that includes financial support – or should she suffer for her sins more than her adulterous partner?

    I think its a good law in the instance of protecting the woman in such cases despite their disgraceful choice to engage a separated man. This is a mistake no doubt, but I think that mercy is needed.

    That is how I want to be treated, and not have it dependent on the graciousness or lack thereof of an adulterous person.

    Sincerely,

    Supportive

    Reply

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