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Marriage types: Polygamy

Part 2: Ruling by the Supreme Court of British
Columbia that describes polyamory & polyfidelity.
Information from a brief by a Wiccan priest.

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Polyamory (Cont'd):

[448]     Five polyamorous witnesses filed affidavit evidence regarding their personal relationships and philosophies.

  • [449]     John Bashinski is in what he describes as a conjugal relationship with two other adults, Ms. Joyce and Mr. Baird. Ms. Joyce and Mr. Baird had been in a conjugal relationship with each other for approximately 12 years before being joined by Mr. Bashinski in 2007. No rite or ceremony was conducted to celebrate or confirm the formation of the triad, nor do the members have a fixed plan to conduct such a rite or ceremony in the future.

[450]     The triad reside in the same house. They are raising a daughter, who is the legal and biological child of Ms. Joyce and Mr. Baird. Mr. Bashinski and Mr. Baird each have an ongoing sexual and romantic relationship with Ms. Joyce. There is no significant sexual relationship between the two men.

[451]     Mr. Bashinski discusses the self-image and commitment of the triad as follows (at paras. 43 - 44):

Each member of our triad sees each of the others as a lasting and committed conjugal partner. Among ourselves and with others, we refer to each other using the words “husband”, “wife” and “partner”.

Although we do not see any relationship as absolutely indissoluble, our understandings and agreements include

a.         an intent to stay together indefinitely;

b.         an accord to work through even major relationship problems rather than to dissolve the triad;

c.         an understanding that our relationship will persist regardless of circumstantial changes, such as changes of health, changes of financial circumstances, and changes of work;

d.         an obligation of affirmative concern, in all our actions, for the stability of the family and for the desires, concerns, feelings, and well-being of all family members; and

e.         an obligation of continuing financial support for an appropriate period of times should the triad be dissolved.

  • [452]     Karen Ann Detillieux is married to Mr. Detillieux. They are the biological parents of two children. Since 2007, Ms. Detillieux has been in a second conjugal relationship with Mr. Mahaffy. There is no sexual relationship between the two men. The three, together with the children, which include Mr. Mahaffy’s two children, live together and consider themselves a family unit.

[453]     With respect to ceremony, Ms. Detillieux deposes (at para. 38):

Mr. Detillieux and myself were legally married in a religious ceremony in 1995. There has been no rite or ceremony to mark the relationship between Mr. Mahaffy and myself, although we wear matching rings to reflect our commitment. We often speak of a ceremony and have the desire to act on this idea.

  • [454]     Zoe Duff has been in a common law relationship with Mr. Hawksworth since 2006. She is the biological and legal parent of six children between 15 - 26 years of age. Ms. Duff has had an intimate and conjugal relationship with Mr. Weeds since 2009. Ms. Duff, Mr. Hawksworth, and Mr. Weeds, together with Ms. Duff’s two youngest children, live together and consider themselves a family unit. Sexuality within the triad is heterosexual.

[455]     No rite or ceremony was held to celebrate or confirm the formation of the triad, and the members have no fixed plan to have one in the future. Ms. Duff adds (at para. 52):

We are unable to entertain any thoughts of ceremonially recognizing our relationship. I have been informed by my Wiccan priest who is able to perform legally binding weddings through a parent organization that he must decline performing non-legally binding polyamorous handfastings. The parent organization has recently advised that it could be charged and have all credentials revoked for performing a symbolic ceremony under this section of the criminal code.

[456]     Ms. Duff and Mr. Hawksworth regularly celebrate the anniversary of their common law relationship with friends and family with a party. They privately celebrated the first anniversary of their triad and plan to have a more public celebration next year.

  • [457]     Forrest Maridas has been in a committed relationship with Mr. Osborne since 2005. They are the biological and legal parents of two young children. Ms. Maridas has also been in an intimate and conjugal relationship with Mr. Thompson for two years. Mr. Thompson has another partner, Ms. Furness. The relationship between Mr. Osborne and Ms. Furness, between Ms. Maridas and Ms. Furness, and between Mr. Osborne and Mr. Thompson are as roommates and friends, not intimate conjugal partners. The four adults and the children live together and consider themselves a family unit.

[458]     Ms. Maridas deposes (at para. 15):

Our family believes a non-monogamous lifestyle choice facilitates us all to grow to more complete, supported and aware selves. We encourage one another to pursue additional safe and healthy relationships that may have a romantic or sexual aspect to them. We hope our non-monogamous choices lead to life improvement. Time cannot be expanded upon, but simultaneous activities increase nurturing of multiple goals at a time. Having more people in our family who care about our children, who support one another in multiple ways is influenced by multicultural family constructs; more communal and long practiced. I have heard a First Nation’s elder speak about family, with more broad definitions, like our own. My grandmother spoke about all the women in her neighbourhood helping to care for children (1950s) as they travelled between yards. I believe our present family has incorporated many of the benefits of widening the concept of nuclear family.

[459]     Ms. Maridas and Mr. Osborne had a one year anniversary party to which they invited his family and their shared friends to publicly declare their relationship and commitment. Ms. Maridas and Mr. Thompson have discussed symbols of commitment and relationship steps. They have verbally made commitment agreements to one another, and Ms. Maridas states that “[h]aving social support for this joy would be wonderful” (at para. 33).

  • [460]     Sarah White is engaged to Mr. Macintyre with a wedding planned for May 2011. She also has an intimate and conjugal relationship with Mr. Patterson. There is no plan for a second joining ceremony involving Mr. Patterson. As there is no intimate physical relationship between the two men, the three refer to themselves as a closed polyamorous “V”. They live together and consider themselves a family unit.
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Wicca:

[461]     The Amicus tendered the evidence of Samuel Wagar, a Pagan and a Wiccan Priest. Mr. Wagar is licensed by the Province as a religious representative authorized to perform marriages under the Marriage Act, R.S.B.C. 1996, c. 282. He has been licensed through the Congregationalist Wiccan Association of British Columbia.

[462]     Mr. Wagar explains that Wicca is a modern and feminist-influenced religion based on occultist ideas that was founded in the United Kingdom in the mid-1940s. Wicca comprises the largest fraction of the Pagan religious movement in the United States and Canada. According to Mr. Wagar, Paganism had 21,085 adherents in Canada in 2001.

[463]     Wicca is not centred on a charismatic leader but is focused on ritual and experiences derived from ritual. A Priestess, usually assisted by a Priest whom she chooses, leads the rituals.

[464]     As set out in its constitution, one of the founding statements of belief of the Association is, “All acts of love and pleasure are acts of praise of the Goddess. This specifically includes all non-coercive sexual orientations.” Mr. Wagar explains that in specific terms, this means all forms of sexuality between consenting adults, however expressed, are sacred.

[465]     Another founding statement and belief of the Association is, “An ye harm none, do what ye will.”

[466]     These principles taken together allow that all forms of consensual sexual and emotional ties into which adults freely enter are sacred or, at a minimum, potential routes to an encounter with the sacred. This includes relationships involving more than two adults. Mr. Wagar deposes that the Wiccan community, and the broader Pagan community of which it is a part, contain a higher proportion of persons with minority sexual tastes than the population at large.

[467]     Mr. Wagar deposes that since he is prohibited from performing a marriage ceremony that involves more than two adults, he is unable to act freely in accordance with his religious beliefs when approached by people involved in polygamous or polyamorous relationships.

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The [Canadian] Charter [of Rights and Freedoms]: b) Effect:

[1061]  The test for a prima facie infringement of s. 2(a) was set out in Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 (at paras. 56 and 59):

Thus, at the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that:

  1. he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual's spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and

  2. he or she is sincere in his or her belief. Only then will freedom of religion be triggered.

... It consequently suffices that a claimant show that the impugned contractual or legislative provision (or conduct) interferes with his or her ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial.

[1062]  Applying this test, the Amicus submits that s. 293 abridges religious liberty with respect to three different religious groups: fundamentalist Mormons, Muslims and Wiccans. The provision prohibits a practice that is, for some, tightly bound up in their religious beliefs and subjects them to penal sanction.

[1094]  Assuming that any particular polyamorous relationship is captured by s. 293 as I have interpreted it, I do not agree that the provision infringes their s. 2(a) rights. What evidence I have that suggests that polyamorists are a discrete group sharing truly common principles is scant. Polyamory is, I conclude, a largely secular phenomenon, as varied in practice as the imagination of its practitioners. While some polyamorists who gave evidence suggested that they may wish in the future to formalize their arrangement with a religious or secular ceremony, I do not accept that this reflects a practice or belief meeting the Amselem test.

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Additional information not found in the Supreme Court ruling:

Meetup.com is a web site that helps persons with a common interest arrange local meetings. They list four classes of groups that appear to be related to polyamory:

  • 90 groups worldwide who meet to discuss "open relationships."
  • 145 that discuss "polyamory"
  • 9 that discuss "ethical non-monogamy"
  • 14 that discuss "responsible non-monogamy."
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