What is family? Spouse and children. Parents and siblings. How about aunts and uncles, grandfathers and grandmothers, nephews and nieces, and cousins? One of my acquaintances lives with his spouse, two biological children and one adopted child, his wife’s sister, his late younger brother’s son, and his biological mother and her same-sex common law partner. Who is his family?

The most basic and traditional legal definition of the family is undoubtedly based on heterosexual marriage and biological children. The social norm towards “family”, on the other hand, has changed over time. Moreover, I think that the definition of “family” is different from culture to culture, from person to person, and from contract to contract.

When the Supreme Court of Canada defined “family” 17 years ago in Mossop v. Canada (Attorney General), [1993] 1 S.C.R. 554 (http://csc.lexum.umontreal.ca/en/1993/1993scr1-554/1993scr1-554.html), it excluded same-sex couples from the definition of “family”, interpreting Canadian Human Rights Act. Dissenting dicta of Justice L’Heureux-Dube’s has been widely applauded since as she proposes an idea of evolving model of the “family” based on the “living-tree” doctrine.

Mostly prompted by liberal social values, Canadian legislatures and courts have dramatically extended the definition of family over time (See Nicholas Bala and Rebecca Jaremko Bromwich (2002), “Context and Inclusivity in Canada’s Evolving Definition of the Family”, vol.16, pp.145-180, International Journal of Law, Policy and the Family). The concept of illegitimacy was first abolished. Non-marital conjugal relationship has been recognized. So has same-sex marriage.

Obviously, there is no “correct” or universally accepted legal definition of family. At the same time, as family status is a prohibited ground of discrimination of federal and provincial Human Rights Act, it is sometimes necessary for the courts to define the family by interpreting the statute provisions.

A very interesting “family” case will be starting in the British Columbia soon. The hearing of the constitutionality of prohibition of polygamy under the Criminal Code is slated to begin on November 22, 2010, as the BC government has decided to refer the question to the BC Supreme Court (http://www2.news.gov.bc.ca/news_releases_2009-2013/2009AG0012-000518.htm). It started when the leaders of the polygamous sect in Bountiful, near Creston, British Columbia, were charged under the section 239 of the Criminal Code, the case against whom was quashed later.

Polygamy is a controversial subject. As a result, it has created strange alliances. A variety of feminist groups, conservative Christians, anti-abortionists, Muslim women and child advocates who usually support opposing sides, join forces against the polygamy sect as interveners (http://www.vancouversun.com/life/Daphne+Bramham+oddball+alliances+polygamy+battle/2772233/story.html#ixzz151KC0TZ7).

The advocates of polygamy would be likely to raise religious freedom and possibly equality issues. It is ironic to me that the defence lawyers for the polygamist possibly try to use same-sex marriage as a justification for polygamy. Polygamist leaders in question are the bishops of the Fundamentalist Church of Latter Day Saints which has vehemently been opposed to same-sex marriage in Canada and the US. “If (homosexuals) can marry, what is the reason that public policy says one person can’t marry more than one person?” said Blair Suffredine, who advised the polygamy sect leaders, in an Associated Press report (http://www.lifesitenews.com/ldn/2009/jan/09012207.html).

As there is a strong tension between freedom of religion and social concern, I believe that this is far from a slam-dunk case for either party. We have to wait for the court’s decision to come expected next year.