The Toronto Star - June 1, 2008
There was little Fouad Boutaya could do to console his broken heart when his wife eloped with his best friend – a man still legally married to another woman.
But he thought in Canada, where polygamy is illegal, he would be able to find support and solace in the legal system.
Instead, months after he complained to police, contacted local government officials, and found documents proving that an illegal marriage had taken place, he was told simply there was nothing any official could do since the marriage had never been legally registered.
The story of the polygamous marriage was told in the Star a week ago from the perspective of Safa Rigby, the mother of five still legally married to Hossny Ismail when he married Boutaya's wife. It was Boutaya who phoned Rigby in Egypt to break the news of what her husband had done.
"Polygamy is a crime here, non?" said Boutaya, 44, who switched from French to English throughout the conversation.
"They keep saying it's not a problem. But while they say that, there are more children in a broken family – without a father, without a mother," said Boutaya, who moved from Morocco to Hamilton with his wife, 36, and two children in 2003.
The laws that criminalize polygamy date back more than 100 years in Canada, but in modern times, no one has faced prosecution for the practice. According to the Criminal Code, those who enter into a polygamous marriage, polygamous conjugal union, or officiate at a polygamous union can be charged with a criminal offence and face up to five years in prison. Even if the marriage is not registered, it is still considered a crime according to the law.
"There is a legal loophole and we need to close it," said Andrea Horwath, New Democrat MPP for Hamilton East, who has been trying to get the government to address the polygamy issue for years. Although the law clearly stipulates that polygamy is illegal, without registered marriage licences and documents proving that a marriage took place, the government is unable to take any serious action against the officiant or the polygamist. Religious marriage documents – without the backing of an actual marriage certificate issued by the province – hold little weight in the eyes of the law. Government and Consumer Affairs Minister Ted McMeekin used the same argument last week at Queen's Park when urged by opposition MPPs to investigate religious clergy misusing their licence.
"Marriage is a contract. A contract requires a licence, and once a marriage occurs, it has to be registered. There are no multiple marriages being registered in the province of Ontario," he told the Legislature.
Turning a blind eye to polygamy is not new. For the past 60 years, fundamentalist Mormons in Bountiful in southeastern British Columbia have openly practised polygamy as an integral and necessary part of their faith, with little legal recourse.
When Boutaya read Rigby's story in the Star a week ago, he realized he was reading the story of his own life. Ismail hadn't sought a widow, a divorcee, or a woman in need of financial or emotional support when he married Boutaya's wife –conditions that would justify polygamous unions under Islam. Instead, he married a woman who wasn't even legally divorced yet. Just a month earlier, Boutaya and his wife had filed for separation in family court.
"This is not Islamic. Nothing about this marriage was Islamic," said Boutaya, who now has sole custody of his two children. "They used Islam to hide their affair."
While Islam sanctions polygamy, it imparts specific conditions and rules under which polygamy can and should be practised. The Qur'an itself states the difficulty of choosing such a lifestyle: "You have it not in your power to do justice between the wives, even though you may wish it."
Boutaya said he is shocked a religious man like Aly Hindy, the imam at Salahuddin Islamic Centre in Scarborough, would support such a marriage.
"What he has done has destroyed two families," said Boutaya. "Why does he still have the licence to marry people?"
Officials with the registrar general's office investigated Hindy last year, when Boutaya brought this case to their attention, but were unable to prove the allegations.
"The minister, once hearing this, did order a review of the situation," said Greg Dennis, a ministry spokesperson. "We looked at records, we talked to people involved and we made our conclusions from there. We found and heard nothing to indicate that there had been any polygamous marriages performed."
The religious document is not enough, Dennis said. "A religious ceremony is not law."
More than two years after his wife left him, Boutaya remembers every detail of the moment of revelation he has relived in his mind many times since. The former civil servant came home early from a job-hunting trip to Ottawa to surprise his wife and two children, picking up a cake on his way. When he arrived, he found Ismail sitting at the dinner table, eating comfortably, as if he was in his own home.
"I asked him, `What are you doing here, my friend? You should not be here alone with my wife when I am not here,'" said Boutaya.
"What's the problem?" Boutaya said Ismail replied. "She is my wife."
In shock, Boutaya stormed out with his two children – a daughter, 7, and son, 11 – and drove to the local police station in Hamilton.
"It was my first reaction. I just needed someone to listen to me and protect me," said Boutaya. Instead, he was told that he didn't have much of a case.
So Boutaya sought proof. He spent the next month talking to imams while taking care of his children and trying to adjust to life at the Good Shepherd Centre, a local shelter, where they lived for four months. His wife continued to live in their home.
"It's been so hard for my kids. They were in shock for weeks afterwards," said Boutaya, who now lives in subsidized housing.
For years, officials have said part of the difficulty in prosecuting polygamy has been that it is a victimless crime. But the story of Boutaya and Rigby, and the seven children caught in between, suggests there can be a great deal of emotional harm.
"For the women and men, it is devastating and life changing," said MPP Horwath, who says she has spoken to a number of women and men affected by polygamy. Horwath says she has been urging the government to liaise with the Muslim community, and to put legislation in place that protects the rights of all people.
Boutaya insists on speaking out publicly about what he says is the abuse of polygamy, even though he has had little support from within the Muslim community and his own situation is irretrievable. He's now in the middle of getting a divorce.
"If I can't save my family," he said. "Maybe I can save the situation of someone in the future."
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Here's what the Canadian Criminal Code says about polygamy:
This article was found at:
http://www.thestar.com/
News/article/434910
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