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Old 11-27-2011, 07:57 AM
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ImaginaryIllusion ImaginaryIllusion is offline
Join Date: May 2009
Location: Canada
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Originally Posted by SourGirl View Post
The disturbing part to me, is that people can`t have a private ceremony. Not in any way. The law doesn`t have to recognize it, for it to be unlawful. While I understand protecting those who could be under the power of religious sectors that think they are above the law, it still makes me wonder about those who try and wear a wedding ring on a certain finger, or anything of a symbolic nature.
The judge went though a lot of motions to attribute the definitions of "marriage" and "conjugal union” in attempting to clarify why s.293 was intended to capture.
[1017] A “conjugal union” coming within the prohibition may not need be recognized as a “binding form of marriage”, but the whole thrust of the section is that it must be a purported form of marriage.
The overall explanations were that there had to be a sanctioning event which creates the marriage, as opposed to relationships which evolve or develop over time. Wearing a ring could just be jewelry...or as with engagement, still doesn't define a marriage. It would be a ceremony around the ring becoming a recognized symbol or marriage by the community that generates the offence.

As for the recognized by law part:
[1032] My response is two-fold. Quite arguably, the “whether or not” proviso is simply a way of underlining the intent that the fact of a non-binding second marriage is not a defence to the charge laid as a result of that event. But a more compelling point is this: that the possibility of a form of legally recognized polygamy was indeed in the minds of some Parliamentarians at the time of the initial legislation. As I noted above, when Bill F (the Senate’s predecessor legislation to the Commons’ Bill 65) went to Committee, one senator expressed concern that a provision in the proposed polygamy offence would have exempted from its ambit “any Indian belonging to a tribe or a band among whom polygamy is not contrary to law”.
It's to limit s.293 from a loophole marriage rites which may not be recognized by secular society or civil law. But the ceremony or event would still need to be recognized by the community to qualify.

Originally Posted by SourGirl View Post
What about guardianship of children and such ? Could co-parenting be viewed as 'marriage' ?
The big win in decriminalization is that it should significaltly reduce the utility of polyamory in custody cases. This of course is from a layman, so check with your local family lawyer before doing anything rash. The judgement after all isn't binding, but could have utility as part of case law.
As for co-parenting, it's unlikely. It again would not have the sanctioning event required in 1020-1022 above.

Originally Posted by Tonberry View Post
So as I understand it: the law stays, it does not mean polyamory in itself is outlawed, but it means if you have a party and look into each other's eyes and tell each other "I wanna spend the rest of my life with you" and you have done so with someone else, you can go to prison.
No...looking and saying such doesn't constitute a marriage in the monogamous context either...for all we know that could just be pillow talk.

Originally Posted by Tonberry View Post
Also, if you were a witness you can go to prison too.
Pretty much, as witnessing the event is part of lending the community support to the multiple marriage which is a behavior damaging to society which parliament was presumably trying to discourage by enacting s.293 in the first place, as we see when talking about the wives of polygamous marriages as victims:
[1197] I question whether the capable consenting spouse is a “victim”. To the contrary, she can be seen to be facilitating an arrangement which Parliament views as harmful to society generally.
The justice otherwise didn't touch it:
[1365] The parties did not in any substantial way deal with the offence created by s. 293(1)(b) of the Code and I have, accordingly, assumed that Question 2 is limited to the polygamy/conjugal union offence.
Which is unfortunate...since how proportional can it be to send someone to prison for attending a wedding?!

Originally Posted by Tonberry View Post
Also, it doesn't matter if you have more than one partner yourself, you could also be one partner of a poly person.
[1029] This formulation lacks some precision. It arguably would only capture a male in a polygynous relationship because he is the only one who has entered into multiple marriages. Each wife has only entered into one marriage with that male. Section 293 is intended to capture both parties. And by its terms, it refers to a polygamous relationship (and a conjugal union with more than one person) in the singular. This follows from the singular “union” and the singularity suggested by “whether or not it is by law recognized as a binding form of marriage”. It also follows from the fact that a polygamous relationship is evidenced by a marriage with multiple spouses.

[1030] Of course, one enters the prohibited relationship of “polygamy” or a “conjugal union with more than one person” by a marriage between, in the case of polygyny, the man and each subsequent wife. Each marriage brings the participants into what I will call the capital “M” Marriage. It is that “Marriage” which is the ultimate target of s. 293(1)(a) and all participants in it are captured by the offence.
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