British Columbia Supreme Court Rules Against Polygamy

November 23, 2011 by · Leave a Comment 

By Adil James, TMO

In a 270 page decision that seems to provide a detailed look into polygamy from the perspectives of law, sociology, and the personal experiences of witnesses, Justice Bauman of the British Columbia Supreme Court ruled that there is a conflict between Canada’s law against polygamy and the Canadian Charter of Rights and Freedoms, but that the conflict is legally justified by the harms that the law is meant to avoid.  Secondly, the Justice ruled that the application of Section 293 can be applied to adult polygamous marriages.

Therefore the Justice ruled against polygamy in Canada.

On deeper inspection, Bauman’s opinion appears to be a carefully crafted argument in support of Western law curtailing polygamy, which fails to consider important facts which militate against such laws.

The decision is noteworthy because it is a detailed exploration of the field of polygamy.  It touches on Islam, respectfully, and explores the involvement of Muslims today in polygamy.  The opinion shows the solicited opinions of people providing social services to Muslim families on polygamy. The opinion even refers to Prophet Muhammad (s), and respectfully.

For months Supreme Court Justice Robert Bauman has been considering and preparing this judgment in a case to decide whether Canada’s law regarding polygamy is limited by its law regarding freedom of religious practice.

Although today’s ruling is not the final ruling on the matter (the result certainly may be appealed to Canada’s Supreme Court from the provincial Supreme Court), today’s ruling will necessarily be a a reference point for future discussion of polygamy in Canada and the US, despite its bias and failure to consider facts inconsistent with its conclusion, because it touches on many tangent issues, especially a deep exploration of Canadian historical law and the Canadian constitutional machinery in relation to polygamy and Section 293. 

The case at hand revolved around members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), which continues to espouse polygamy despite the mainstream Mormon church’s having turned away from the practice. Throughout a corridor of Western states and up into Canada (especially Bountiful, BC), many Mormons continue the practice despite the certain illegality in the US and the illegality until now of the practice in Canada.

The judgment is a measured look at many issues surrounding polygamy, but it does show some bias against polygamy from the beginning, by exploring the harms of polygamy over many pages—likely half the pages in the judgment either mention harms from polygamy or are in support of sections that explore the harm from polygamy.  The opinion does not explore an issue directly impacted by the law which is not enforced, namely sexual relations outside of marriage.  Bauman does not discuss whether it is fair to enforce s. 293 against polygamists but then fail to enforce the law against adulterers, or whether it is fair to enforce a law against adulterers while failing to consider the polyamorous activities of people who never marry.  He does not consider the evolving notions of what constitutes acceptable sexual behavior, for instance in the past in Western societies it was unacceptable for men and women to cohabit without marriage, and yet now many do so, and bear children without the benefit of legitimacy.  He failed to consider polygamy in relation to non-traditional marriages that are now legal in Western countries, such as same sex marriages.  While polygamy may be connected to harms in the specific fact pattern Bauman analyzed, it is very unclear that restrictions on polygamy can be enforced without hypocrisy by men, judges and politicians, who engage in affairs outside their marriages, or who otherwise engage in behavior that their ancestors would have had them imprisoned for.

Bauman looks at length at the harms he traces to the FLDS practice of polygamy, but does not consider alternative modes of polygamy, fact patterns that are different.  He argues that the majority of nations do not allow polygamy, but he does not delve very deeply into the figures concerning this—other writers have argued that the majority of the world’s people live in societies where polygamy is allowed.  Important nations allow polygamy, such as Malaysia, India, Egypt, and others.  Bauman does not contrast the harms of polygamy as FLDS practices it with the benefits of it in other contexts. 

Bauman in his opinion also explores Western historical bases for monogamous marriage.  He discusses the harmful effects on children groomed for and coaxed unwillingly into marriages with men many years their senior, who marry multiple women and girls without limits.  The judgment explored the fact that some men become an underclass of unattached bachelors for whom no wives are available.

He makes it clear that s. 293 is meant to apply without exception, not allowing any polygamy at all, and he discusses at great length the harms that he connects to polygamy.

Justice Bauman relates these harms as the basis for Section 293; he does conclude that there is a conflict between Section 293 and the Charter, (page 211 of the opinion), “I will hereby express my conclusion:  I accept the Amicus’ submissions that s. 293 violates the religious liberty of those persons I have described in a manner that is non-trivial and not insubstantial,” however in Canadian law as in US law there is a balance that must be performed between the “violation of religious liberty” and the harm such violation is meant to address. Since the facts before Bauman involved abuse and exploitation of minors on a large scale, and since his opinion focused on those harms, it is natural that his resulting opinion found that the Canadian criminal against polygamy justifiably violated those religious liberties.

The judge ruled that Section 293 of the Criminal Code of Canada (which outlaws polygamy) and the Canadian Charter of Rights and Freedoms, the conflict is “a law that is substantially constitutional and peripherally problematic,” the peripheral problem involving the application of Section 293 against people between 12 and 18 who are involved in polygamous marriages, until they turn 18 (a peripheral issue).

The implications of this court case to date are (1) that Canada will not be the sole Western state to endorse polygamy legally, (2) that Muslims are also constrained by Section 293—the application of 293 is not limited to the current facts of FLDS’s wholesale exploitation of minors, (3) the case will likely be appealed and will likely be affirmed, (4) the In the Matter of:  Constitutional Question Act, RSBC 1986, Docket S097767, is likely required reading for anyone interested in the Western legality of polygamy, and will likely be required reading for some time.

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A Doctors Guide to Protecting Their Assets

April 28, 2011 by · Leave a Comment 

By Adil Daudi, Esq.

EDIT_MoneyDoctorA very common joke used by most doctors who have had a bad experience with a lawyer is that “there are more lawyers than doctors in a hospital.” Although the joke itself is not completely true, it’s also not far from the truth.  More and more doctors are having to worry about being sued for some form of malpractice. Whether that makes doctors more alert when conducting a procedure, or more nervous, has yet to be proven. But what is quite apparent is that lawyers are quick to pull the trigger on a lawsuit whenever a doctor is on the receiving end of the complaint.

So what happens when a doctor is in the middle of a lawsuit where the potential judgment of the liability exceeds the doctor’s malpractice limits? Without a properly structured plan in this common scenario, the doctor becomes susceptible to having his or her personal assets exposed and seized; this can include bank accounts, investments, a primary residence, and rental property, among other assets.

However, with a few simple steps and with even the most simplistic plan in place, a doctor can potentially save and protect millions of dollars from creditors and bad lawyers.

The following are three strategies a doctor can, and should, implement into their day-to-day lives; which will, at the very least, help discourage potential lawsuits from arising:

i. Create a Professional Limited Liability Company (PLLC): As recent as December 2010, former Governor of Michigan, Jennifer Granholm, made Michigan one of the top States in the country to start a PLLC. The bill provides a distinct advantage for owners of a PLLC, as the exclusive remedy for any creditor against debtors is through a charging order.

A charging order is best exemplified when a creditor intends to obtain the proceeds that a debtor distributes to themselves through their PLLC. However, if the debtor decides to not make any distributions, which is often the case, then the creditor is left with no alternative remedy.

Moreover, a well structured medical practice with multiple PLLCs can deter potential lawsuits. Please consult with a professional attorney to learn more about creating and administering a PLLC.

ii. Create an Irrevocable Trust: Once created, an irrevocable trust is a trust that cannot be changed, altered or amended. Although this trust is extremely effective in protecting your assets, the downside is that it takes away ownership and possibly control from the creator of the trust (i.e. you). Your ownership loss prevents creditors from being able to reach these assets. Remember, a creditor can only attack the assets that you own; therefore, if it’s not in your name, creditors will not have access to it.

Prior to getting yourself into an irrevocable trust, be sure to speak to an attorney who practices in Asset Protection. More and more attorneys who are not familiar with this topic tend to advise clients that a Revocable Living Trust (RLT) can serve the same purpose. This is not true since an RLT does not take ownership or control away from your assets because the assets remain in your individual name.

iii. Create a Retirement Savings: There is a reason why OJ Simpson is continuing to live a normal life despite having a judgment against him for over $20 million. He took complete advantage of a protective tool that the government made available to the public. The federal government protects  all contributions made to a qualified retirement account from creditors. Therefore, all qualified retirement accounts, such as contributions to 401(k) plans, 403(b) plans and profit-sharing plans are protected from creditors, until you start making withdrawals.

In addition to qualified accounts, Michigan has also allowed contributions to Individual Retirement Accounts (IRA) to be protected from creditors. Therefore, if you have not already done so, it will be worthwhile for you to start maximizing your contributions.

Despite the fact that malpractice lawsuits have been on the rise for the past decade, doctors continue to take the reactive approach to planning and tend to take the necessary steps of protecting their assets only after the filing of a lawsuit. By doing so, the doctor is   exposed to possible criminal charges, as any transfers of funds or assets made after the filing of a lawsuit is considered a fraudulent conveyance. In other words, it is now too late.  You must plan before the lawsuit. 

Although the foregoing is not a comprehensive list of asset protection strategies, it is however a good starting point. For the number of years invested in your profession, it only makes sense that you consult with a professional attorney who can assist you in preserving your hard-earned wealth before it is all taken away.

Adil Daudi is an Attorney at Joseph, Kroll & Yagalla, P.C., focusing primarily on Estate Planning, Shariah Estate Planning, Asset Protection, Business Litigation, Corporate Formations, Physician Contracts, and Family Law. To contact him for any questions related to this article or other areas of law, he can be reached at adil@josephlaw.net or (517) 381-2663.

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