Marriage Canon Taskforce Report to General SynodBACKGROUND
In 1998 the General Synod requested that a task force be created to review the Marriage Canon with particular reference to:
The Council of the General Synod established the task force in March 1999 with the following terms of reference:
The Task Force met at St. Michael's House in Oakville on May 27 and 28, 1999 and November 2-3, 2000. Between meetings, the Taskforce members corresponded by letter and e-mail.
In January 2000 the task force sent a memorandum/questionnaire to all diocesan bishops, chancellors and matrimonial commissions inviting discussion of specific questions and other issues related to the Canon and requesting responses and comments. (A copy of the memorandum is annexed to this report).
The questionnaire was not intended to be a scientific opinion survey but rather a means of obtaining input from dioceses and gaining some sense of current opinion about some of the issues.
Copies of the memorandum were sent to the editors of all diocesan newspapers four and perhaps more of whom ran stories about it which generated responses to the General Secretary and letters to the editor.
The number of responses was disappointing. No responses were received from 14 dioceses. Seven of those dioceses had, however, responded during the previous triennium (1995-1998) to requests for comments about matrimonial commissions and as to whether marriages should take place outside church buildings.
Responses to the latest questionnaire were received from
Many respondents answered only one question. Some answered two or more, but not all. Others addressed all issues. The nature of the responses covered a spectrum from simple Yes or No or one-line answers to thorough discussion of the issues and what underlies them.
Among responses that did not directly answer questions were one from a priest who, without reasons, would not make any change in the Canon, a few who advocate a liturgy to recognize the end of a marriage, an anonymous respondent who would forbid divorce let alone remarriage, and several who expressed views, both pro and con, about same-sex relationships. The task force did not consider that same-sex relationships fell within its terms of reference.
CIVIL MARRIAGE, RELIGIOUS MARRIAGE AND COMMON-LAW RELATIONSHIPS
It will be helpful to set out our understanding of the terms "civil marriage", "religious marriage" and "common law relationships". What is the difference between a civil marriage and a religious marriage?
The concepts of civil marriages and religious marriages vary depending on local, i.e. national, law. A nation's marriage customs and practices are the result of the nation's history and culture. Where Christianity has been the prevalent religion, Christian tradition will have strongly influenced that history and culture.
Marriage is a human institution. It is not specifically Christian. Christian churches have developed theologies of marriage. The form of service used by a minister of religion should manifest the theology of that minister's church.
Most jurisdictions in modern Europe and North America now provide for ceremonies conducted by civil officials for those who do not wish to marry by a religious rite. In some countries such as France civil marriage is universal. That is, only a civil marriage creates a marriage relationship in law. The civil ceremony may be followed by a religious ceremony. For Roman Catholics that is obligatory.
Where a civil ceremony is not mandatory either a civil ceremony or a religious ceremony has the same legal effect. Either satisfies the requirements of the law and is registered in such manner as the law prescribes.
Some historical background is required to put the present situation in Canada in context.
Except for Québec and aboriginal communities, Canada largely inherited its early marriage customs and practices from England.
In Europe in the early middle ages marriage was regarded as a personal and secular matter, almost entirely outside the law. The initial commitment or betrothal was normally accompanied by some measure of family agreement, marriage contract and dowry. Betrothal could not be lightly set aside, and led to the marriage proper which was almost always effected by the physical move of the new bride into the husband's home. The move was an occasion for procession and feasting. Religious ceremonial, including prayers of blessing on the new couple, were often included, but the rough and ready rule was that voluntary cohabitation, publicly entered into, created the marriage bond. The birth of children to a cohabiting couple, free to marry, was usually taken as prima facie evidence that they were in fact married, and could create parental obligations on the part of both partners. Capacity to marry was important. Both partners had to be capable of free consent. Consanguinity was avoided and rules limiting choice in class, race and citizenship were strictly applied, as was consent by the bride's father.3
The history of the legal regulation of marriage and its consequences is one of competition between the Church, the State and the ordinary people. In early English law both ecclesiastical and civil courts were concerned with questions about the validity of marriages. Rights to inherit property turned on such questions. Church courts dealt with the succession of personal property. The common law courts dealt with real property, i.e. land, including a widow's right to dower and matters of primogeniture - the right of the eldest legitimate son to succeed to his father's freehold land.
"In Western Europe prior to the Council of Trent in 1563 no religious ceremony was necessary; the only requisites were declaration by the parties that they took each other as husband and wife, per verba de praesenti in which case the marriage was binding immediately, per verba de futuro, in which case it became binding as soon as consummated."2
In 1563 the Council of Trent decreed that the celebration of marriage before the parish priest or the local ordinary or a priest appointed by one of them in the presence of at least two witnesses was essential to the validity of a marriage. As England had broken from the Church of Rome the decree did not apply there. Informal or, as they came to be called, common law marriages were legally recognized in England and Wales until they were outlawed in 1753.
In that year Parliament passed what is commonly referred to as Lord Hardwicke's Act. Its formal title was An Act for the better preventing of clandestine marriages. After 1753, until 1836, the only legally recognized marriages in England and Wales, except for Jews and Quakers, were those entered into by the marriage ceremonies of the Church of England. Marriages in any place other than a church or public chapel, and without either banns or licence, were null and void.
While one might think the Act was designed to strengthen the "establishment " of the Church of England, it had other motivations. The primary motive was probably the protection of affluent families. Stephen Parker in Informal Marriage, Cohabitation and the Law, 1750-19893, at page 35 says:
That was the sort of clandestine marriage that the 1753 law sought to prevent. The requirement of banns served the purposes of the upper classes. Banns ensured notice of one's intention to marry outside his or her class. Pressures could then be brought to bear if one was over 21; objection could be made if one was under age. Parker says, at page 47:
The provisions of the 1753 Act remained relatively intact in England until 1836 when a new Marriage Act allowed for a superintendent registrar of marriages to issue a certificate entitling the persons named in it to marry each other and allowing them to contract a marriage in a building registered for religious worship 'according to such form and ceremony as they wish to adopt' or to contract their marriage in a register office in the presence of a superintendent registrar with no religious ceremony at all.
When English colonies were established in what is now Canada there were often no clergy or insufficient clergy to make religious marriages readily accessible. The first colonial legislatures enacted laws in an attempt to provide some regulation of marriage. For instance, the Nova Scotia House of Assembly, at its first session in 1758, passed an Act making either public notice or a licence a prerequisite to marriage. In 1793 the House passed an Act that declared that "all prior marriages solemnized by Magistrates and other lay persons, if the parties had cohabited, are made valid and the issue of such marriages are made legitimate." The preamble recited that "in some parts of the Province, owing to the remote situation of the inhabitants from any Clergyman, in the early settlement of the same, divers marriages have been heretofore irregularly solemnized before magistrates and other Lay Persons, otherwise than as by law required." In 1795 another Act was passed in Nova Scotia authorizing the Governor to "appoint fit and proper persons within any townships or districts where no regular or licensed clergyman does reside, to solemnize marriages between parties who have resided there for at least one month." A 1793 statute in Upper Canada authorized justices of the peace to solemnize a marriage when there was no parson or minister of the Church of England living within 18 miles of either party. The justices were directed to solemnize marriages "according to the form prescribed by the church of England."
At later times, in many Canadian jurisdictions, only ministers of religion were licensed by governments to solemnize marriages. Now, however, civil marriages performed by judges, court clerks, marriage commissioners, etc. are authorized.
In the territories and in the common law provinces the legislation respecting civil ceremonies requires that the parties declare that they know of no impediment to their marriage. Each party is required to call on all present to witness that he/she takes the other to be his/her lawful wedded wife/husband. The officiant declares them to be husband and wife.
The early law of marriage in Québec derived from the pre-French Revolution ancien droit français. It also was dominated by interests centring around landed property and the protection of the legitimate family, i.e. the extended family represented by the bloodline. The moral conceptions of the Roman Catholic church prevailed. The legitimate family was dominated by the husband/father who exercised substantial power over the person and property of the wife and children.
In 1866 the Parliament of the United Provinces adopted the Civil Code of Lower Canada. It presumed a religious affiliation for all Quebeckers and was interpreted to allow the civil nullity of a marriage that was not performed according to the rules of the church to which the couple belonged. Marriage by secular officers of the state has been available in Québec since 1969. 4
The relevant current law of Québec is found in The Civil Code of Québec5 which came into force in 1996. A marriage must be contracted openly, in the presence of two witnesses. As a general rule, notice of the intended marriage must be posted for 20 days at the place where the marriage is to be solemnized. The marriage may be solemnized by a clerk or deputy clerk of the Superior Court or by a minister of religion. The officiant is required to read the following articles of the Civil Code to the intended spouses in the presence of the witnesses:
The officiant requests and receives, from each of the intended spouses, a declaration of their wish to take each other as husband and wife. The officiant then declares them united in marriage.
There does not seem to be any extensive literature dealing with marriage customs and traditions in aboriginal communities in what is now Canada. Such customs and traditions did exist and the law generally has recognized marriages by aboriginal custom. The Cree tradition apparently included several elements. The man had to obtain the consent of his intended wife's parents and offered them valuable presents such as game, horses, canoes, furs, etc. He was required to promise the future produce of his hunt to his wife's parents until he had proved himself capable of supporting his family and the first child was born. The bride's consent was a prerequisite to marriage. A day-long ceremony began with the elders preparing the man who was ritually cleansed with the smoke of burning sweet grass. He then offered a special marriage pipe to one of his new relatives or to an elder and all present smoked the pipe to purify their minds and bodies. The chief draped a marriage blanket around the shoulders of the couple who then ate from a single plate to signify their willingness to share everything in the future. A wedding feast and a ceremonial circle dance followed. If the man was a white fur trader the couple were then escorted to the traders' fort where the bride exchanged her native garments for western dress. The man then escorted his bride to his quarters.6
Canadian courts usually, but not always, recognized as valid marriages entered into in accordance with aboriginal custom so long as they had the characteristics of voluntariness, permanence and exclusivity.7
In a recent case in Alberta the court declined to recognize an alleged marriage by custom because it lacked many of the features of a marriage in the tradition of the Blood Band. The court noted the testimony of an elder that traditional marriage by custom had not been practised in recent years but had given way to either church marriages or common law relationships. The court attributed the change to the influence of non-native society where common law relationships are very common, rather than to a modernized exercise of the aboriginal right of marriage by custom. In summary, the expression "civil marriage" has two meanings - (1) it is a marriage solemnized by a functionary of the state and (2) it is a marriage recognized as legal whether solemnized by a state functionary or by a minister of religion. A religious marriage, on the other hand, is one solemnized by a minister of religion and entered into by the parties in accordance with the theology or doctrine of the church or religion in which it is solemnized.8
The expressions "common law marriage" and "de facto marriage" are applied today to any unmarried heterosexual couple who are cohabiting. While such relationships do not attract all of the legal consequences of legal marriages they are recognized in many social policy statutes if the cohabitation has endured for a prescribed minimum period of time or if there are children of whom the couple are the parents. For some couples cohabitation is a preliminary to marriage; for others it is a permanent alternative.
RESPONSES TO THE QUESTIONNAIRE AND THE TASK FORCE'S CONCLUSIONS AND RECOMMENDATIONS
Although our conclusions and recommendations should not be considered as having been dictated by the results of the questionnaire, we find that, in most cases, we are in substantial agreement with the opinions of the majority of the respondents.
The growing popularity of civil marriages, i.e. marriages solemnized by government appointed functionaries, and the high incidence of common law relationships in today's society led us to pose these questions:
SHOULD THE CHURCH ABANDON THE MARRIAGE "BUSINESS" IN FAVOUR OF UNIVERSAL CIVIL MARRIAGE?
Respondents say No by a 2 to 1 margin (29-13). The majority see sacramental and pastoral reasons for continuing to offer marriage liturgies. A parish group sees no need for a civil ceremony for those who seek the blessing of God and the church. A bishop and his senior clergy make the point that many find their way into the faith community when they come to the church to be married. Some of those who favour a change take a benign position - they do not advocate the change but would not oppose it if legislatures moved in the direction of universal marriage. For example, the Algoma Doctrine, Worship and Ministry committee says:
Under the Canadian Constitution the law respecting the solemnization of marriage is the responsibility of the provincial legislatures. It is unlikely that the legislatures of all provinces and territories will, in the foreseeable future, enact laws requiring that marriages be solemnized by government appointed functionaries.
We see no reason for the church to advocate that legislatures take such action. Nor do we see any reason for the church to oppose such action if a legislature moves in that direction. We therefore do not recommend that the General Synod take any action on this issue.
SHOULD THE CHURCH OFFER LITURGIES FOR THE BLESSING OF CIVIL MARRIAGES?
This question was answered unanimously in the affirmative. The responses demonstrate a lack of awareness, even by some clergy, that The Anglican Church of Canada provides liturgies for the blessing of civil marriages. There are forms for such services in The Canadian Book of Occasional Offices (1964) and in the later loose-leaf publication, Occasional Celebrations of The Anglican Church of Canada. Because such services are not found in either the Book of Common Prayer or in the Book of Alternative Services, their availability is not generally known among the laity. We note that the 1979 ECUSA Book of Common Prayer includes such a form of service (page 433).
Some respondents expressed concern that a divorced person can be remarried in a civil ceremony and then seek blessing, thereby evading the Commission. Some bishops require couples in that situation to go through the Commission process before a blessing is given.
SHOULD THE CHURCH OFFER LITURGIES FOR THE BLESSING OF COMMON LAW RELATIONSHIPS?
A majority of respondents say No. Several say that when such a couple asks for a blessing they should be encouraged to marry. A few of those would require that the couple first seek forgiveness and then separate or at least abstain from sexual activity until married.
Among the minority who would offer blessing to such couples some would do so only if the relationship has endured or flourished for a significant period of time. Some would offer the church's blessing to all relationships.
We turn now to the issue of Ecclesiastical Matrimonial Commissions. In our questionnaire we posed the question:
HAVE MATRIMONIAL COMMISSIONS OUTLIVED THEIR USEFULNESS?
Close to two-thirds of those who answered this question say Yes. Those who favour continuing the Commissions see them as useful in a pastoral way.
Those who have gone through the process see it as bureaucratic and judgmental. Some object to delays in the processing of applications. Some clergy are seen as using the Commissions to make decisions they want to avoid making on their own. There is a recognition that, with or without Commissions, there is a responsibility to discuss past relationships, and obligations arising from them, with all couples approaching marriage.
One respondent cited the case of two Anglican priests, both divorced, who were married by a United Church minister rather than apply to the Commission.
The process is seen as selective or discriminatory, e.g. it does not deal with a divorced person whose former spouse is deceased but who has obligations to children of the previous marriage. An extreme situation cited was that of a couple, each of whom had a previous common law relationship that resulted in children, living in a current relationship that also produced offspring. They were not required to go through the process that a divorced couple faced.
A widower who married a woman who had been divorced for 25 years says that if he had it to do over again he would choose a civil marriage and his relationship with the church would be simpler and less stressed.
One feature that appeared in a number of responses was the feeling that decisions about couples are made by nameless, faceless Commission members. Contrast the practice in the Diocese of British Columbia where the Commission offers to meet with applicant couples.
Again it is helpful to quote from some of the responses:
In summary, some of the salient arguments advanced in favour of retaining commissions are:
On the other hand, those who advocate abolishing the commissions make valid arguments
On balance, it is the view of the task force that the church's pastoral role toward couples approaching marriage should be predominant and that the role is best performed by the clergy who are in personal contact with the couples. While ministry to all those intending marriage is important and essential, a past divorce presents a dynamic requiring special and thoughtful treatment during the marriage preparation process.
Matrimonial commissions are also charged under Part III of the Canon with responsibility for determining marital status, i.e. whether a purported marriage constitutes a marriage within the meaning of the Canon. Such applications are rare.
Draft amendments to the Canon are appended to this report.
FORMS OF APPLICATION
It is our opinion that the form of application for permission to remarry that was authorized several years ago and that is sold by the Anglican Book Centre is too legalistic and that it hinders, rather than helps, both clergy and applicants as they attempt to deal with issues of a pastoral nature. Although Part VII of the Canon says forms of application may be authorized by the Council of the General Synod, we do not consider that Commissions are restricted to using forms so authorized. Several Commissions have developed and used their own forms without seeking authorization from the Council.
THE TABLE OF KINDRED AND AFFINITY AND THE MARRIAGE (PROHIBITED DEGREES) ACT
The Table of Kindred and Affinity was first promulgated by Archbishop Parker in 1563. It originally contained many more prohibitions than are now found in the Table. When the Marriage Canon was revised in 1946 the General Synod removed prohibitions in respect of sisters-in-law, brothers-in-law, aunts and uncles by marriage, and nieces and nephews by marriage. That brought the church's rules in line with changes in the secular law that had been enacted by the Canadian Parliament in 1882, 1890, 1923 and 1932. The Table as so amended is found in the 1959 Book of Common Prayer at page 562 and in section 3 of Canon XXI.
From 1946 to 1991 the secular law and the Table paralleled each other.
Among marriages that continued to be forbidden were those between persons related as uncle and niece or as aunt and nephew. Between 1975 and 1984 nine couples so related successfully petitioned Parliament for the enactment of Private Acts exempting them from the prohibition and authorizing them to marry. Two other Private Acts in the same time period authorized the marriage of a divorced person with the niece or nephew of that person's former spouse. In most of those cases the parties were close in age; some had been living together and some had had children together.
Parliament did not want to be faced with an endless queue of couples whose relationships fell within the prohibited degrees.9 Parliamentary committees studied the matter between 1984 and 1990.
A Senate committee sought the views of all major religious denominations in Canada. The responses covered a spectrum ranging from approval by the Jehovah's Witnesses who found a proposed bill to be in harmony with their practice, to strong objections from the Greek Orthodox Church which retained many prohibitions including one against marriage of a godparent with either a godchild or the parent of a godchild (spiritual affinity). In 1984 the then Primate, Archbishop Scott, wrote to the Senate Committee as follows:
In 1985 the church's Sub-Committee on Marriage and Related Matters informed the Senate Committee that it was their opinion that marriage between step-parents and step-children should continue to be prohibited and that the prohibition should be extended to marriage between adoptive parents and adopted children and between brothers and sisters by adoption.
The Senate Committee sought the advice of Dr. Abby Lippman, an eminent geneticist and an associate professor at McGill University, about genetic and eugenic concerns. She said the risk for recessive disease in children born to first cousins (who were not prohibited from marrying) is less than one per cent and that the best guess for recessive diseases in uncle-niece or aunt-nephew matings is slightly higher - perhaps one to two per cent. She saw no need to prohibit such marriages.
Several Bills for reform of the prohibitions were introduced in the Senate in the 1980s but for various reasons died on the parliamentary order paper. In 1990 the Marriage (Prohibited Degrees) Act was passed and it came into force in December 1991. That Act says:
The Act and the Table may be compared as follows:
The question we posed in our questionnaire was:
WHAT JUSTIFIES RETENTION OF PROHIBITIONS AGAINST A PERSON MARRYING A STEP-PARENT OR STEP-CHILD, A PARENT-IN-LAW OR A CHILD-IN-LAW, AN AUNT OR UNCLE, A NIECE OR NEPHEW?
Of those who gave a clear answer to this question a majority favour bringing the Canon in line with the secular law. Those who seek to justify the prohibitions cite, without any supporting arguments, "moral considerations", "God's Word", "genetic and psychological concerns", "psychological and spiritual damage to children", "psychological incest" (?) and "a long-held belief that marriages between blood relatives can produce children with physical or mental disabilities."
Many respondents recognize the danger in step-relationships of duress or coercion, vulnerability, issues of authority or power, dependence and abuse.
A member of the Commission in Nova Scotia and Prince Edward Island said:
None of the respondents advocated any doctrinal or theological justification for retention of the questioned prohibitions. We share the concern about issues of duress or vulnerability where one party has in the past been a child, e.g. step-child, who has lived in the same household as the other party and been treated by that person as a child. Because such marriages will rarely occur it is our view that they should not be prohibited but that proper inquiries made by an incumbent will reveal any impediment related to the absence of free and independent consent.
Draft amendments are appended.
PLACE OF MARRIAGE CEREMONIES
With respect to the provision in the Canon and in the rubrics requiring that marriages be solemnized in the "body of the church", except for sufficient cause, we asked:
WHY DON'T WE SOLEMNIZE MARRIAGES IN PLACES OTHER THAN THE "BODY OF THE CHURCH"?
This was the most popular question with 59 clear responses. Forty, or two-thirds, favour weddings outside the church building so long as the setting is "appropriate", "respectful", "respectable", "reasonable", "tasteful", "acceptable", or "makes the sacramentality of the occasion visible and is accessible to the Christian community." Nine would allow such settings only if the church is too small, for reasons of distance, or in exceptional circumstances. Several caution against extreme or sensational locations, the end of bungee-cords being most commonly cited as objectionable!
One woman quoted lines she attributes to a plaque in a garden at St. James Cathedral in Toronto:
Others point out that God cannot be housed or contained.
Ten respondents oppose relaxing the present rule. A priest who has officiated at 800 weddings says no couple active in the church ever asked him for a wedding other than in the church although children of active members had done so.
Those who would retain the rule say the church building is a place of prominent Christian significance, that solemn sacraments should be celebrated in locations of suitable dignity, that couples who come into the church to marry demonstrate their humility before God, that sacred space emphasizes the spiritual blessing of the marriage, that other locations distract from the solemnity of the occasion, that the church is a public place where anyone may attend and, in theory, voice just cause against the marriage, and that insistence on ceremonies in sacred space is one of the church's last influences on powerful anti-Christian cultural trends. While ordinations and Eucharists sometimes take place outside church buildings, the church controls such services. In the case of marriages the wishes of the couple and their families may place inordinate pressure on the clergy.
Those who would relax the rule emphasize that God is not confined to consecrated buildings, that churches in some communities are too small, that there is a desire among some indigenous people for marriages outside the church building, that a non-Anglican bride or groom may get the impression we are inflexible, that the solemnity of the occasion can be preserved in other locations, that no setting makes the vows more important or permanent, and that couples who are refused a ceremony outside the church are alienated from the church.
A draft amendment is appended.
Some jurisdictions still do not require couples to obtain a marriage licence when banns are published. We therefore do not recommend any changes in the Canon in that regard.
MIXED AND INTER-FAITH MARRIAGES
We note that in 1995 the National Executive Council approved for inclusion in Occasional Celebrations guidelines and a liturgical text for Marriage between a Christian and a person of Another Faith Tradition.
We recommend that the Guidelines and the form of service be posted on The Anglican Church of Canada website.
We note the existence of Pastoral Guidelines for Interchurch Marriages Between Anglicans and Roman Catholics in Canada, authorized by the Canadian Conference of Catholic Bishops and the House of Bishops of the Anglican Church of Canada and commend its continued use when one party to an intended marriage is a Roman Catholic.
Section 1 of the Canon says it is the duty of those intending to marry to give notice to the minister at least 60 days before the day proposed for the wedding. The rubric in the Book of Alternative Services (page 526) calls for 30 days notice.In the interest of consistency, we recommend that section 1 be amended to require 30 days notice
A draft amendment is appended.
ADMISSION TO HOLY COMMUNIONPart V of the Canon (Section 26) says:
We understand that this provision has not been adhered to for several years. We therefore recommend that Part V of the Canon be repealed.
In the interest of making the Marriage Canon, and indeed all of the Canons of the General Synod, accessible to more members of the Church we recommend that the contents of the General Synod Handbook be posted on The Anglican Church of Canada website.
Revised November 27, 2000
DRAFT AMENDMENT 1
Canon XXI is amended
THE REMARRIAGE OF A DIVORCED PERSON WHOSE FORMER PARTNER IS STILL LIVING
In this Part "incumbent" includes an Anglican chaplain responsible for the pastoral care of persons enrolled in the Canadian Forces.
27. Application for Permission to Remarry
28. Permission to Remarry
The incumbent may grant permission to remarry if the incumbent is satisfied that:
29. Special Cases
31. Forms for use in the administration of this Canon may be authorized by the Council of the General Synod, by the diocesan bishop or by the Bishop Ordinary to the Canadian Forces.
DRAFT AMENDMENT 2
Draft amendment to Canon XXI re Impediments of Relationship
Canon XXI is amended
DRAFT AMENDMENT 3
DRAFT AMENDMENT TO CANON XXI RE PLACE OF MARRIAGE
Section 12 in Part II of Canon XXI is repealed and the following substituted therefor:
12. Place of Marriage
DRAFT AMENDMENT 4
Draft amendment re notice of intended marriage
Canon XXI is amended by striking out the number "60" in Part I, Section 1, and substituting therefor the number "30".
DRAFT AMENDMENT 5
Draft amendment re admission to Holy Communion
Canon XXI is amended by deleting therefrom the whole of Part V - Admission to Holy Communion in Special Cases.
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