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Same-sex marriages (SSM) in Canada

Legal aspects, marriage laws, etc.

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Overview:

Section 91 of the British North America Act -- Canada's founding document -- says that the definition of marriage and the privileges, restrictions, and rights associated with marriage are a federal responsibility. Section 92 says that the actual "solemnization of marriage" is the responsibility of the individual province.

Thus, the federal government defines who can get married. The individual provinces and territories handle the paperwork. The latter issue marriage licenses, authorize individuals to perform marriages, register marriages, etc.

Marriage procedures in Quebec is controlled by the Quebec Civil Code, which was historically derived from French laws. The mechanics of marriage in the remaining provinces and territories of Canada is administered by the provinces and territories in accordance with Provincial marriage acts, under a Federal law which historically evolved from British law. 

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Texts of federal and provincial marriage acts:

bullet Federal: The "Federal Marriage Act" is often mentioned in the media. However, there appears to be no legislation with that name. Rather, federal regulation of marriage is scattered throughout a number of documents:

bullet British North America Act, Sections 91 & 92.

bullet 1867 Constitution. This incorporated a 1866 United Kingdom Court Decision: Hyde vs Hyde.

bullet Bill C-23, "Modernization of Benefits and Obligations Act" was an omnibus bill to amend 58 federal laws that discriminated against same-sex couples. It did not state that same-sex couples are legal "spouses;" it merely made provision for homosexual partners to receive the same benefits as homosexual couples. It was passed in 2000-JUN. Its various clauses were phased in over time. The Progressive Conservative and Alliance parties demanded that it include a definition of marriage in its Section 1.1: "For greater certainty, the amendments made by this Act do not affect the meaning of the word 'marriage', that is, the lawful union of one man and one woman to the exclusion of all others." See: http://www.parl.gc.ca/36/2/parlbus/chambus/

bullet The Marriage (Prohibited Degrees) Act of 1991 describes "the laws prohibiting marriage between related persons." See: http://laws.justice.gc.ca/


bullet Some provincial acts:

bullet British Columbia: "Marriage Act," RSBC 1996 Chapter 282 is at: http://www.qp.gov.bc.ca/

bullet Ontario: "Marriage Act," at: http://192.75.156.68/DBLaws/

bullet Saskatchewan: "The Marriage Act, 1995" is at: http://www.saskjustice.gov.sk.ca/

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Conflicts concerning marriage prior to 2005:

The Canadian Charter of Rights and Freedoms is Canada's constitution. It is often referred to simply as the "Charter." There has existed an apparent conflict among federal legislation, all provincial marriage acts, and the Charter:

bullet Section 5 of the Ontario Marriage Act prohibited same-sex couples from obtaining a marriage license. But it allows any two persons to marry through the reading of the banns. Exceptions are individuals who are too young, or who are already married, or who are too closely related. The banns are a series of announcements made during a religious service on three successive weeks that the couple plans to marry. Members of the congregation are asked whether there is any legal reason why they should not be married. After the third reading of the banns, the couple can get married in church and have their union registered with the government. No marriage license is required. The marriage act defines this process as being available to "any person who is of the age  of majority." Two male gays are certainly "persons." A high court in Britain ruled many decades ago that women in Canada are also persons. Thus, almost all same-sex couples who are 18 years of age or older would appear to qualify under Section 5.

bullet The federal marriage legislation (see above) specifically restricted marriage to one man and one woman. A lesbian who chose a man to marry would qualify under this act. But if she chose someone to whom she was physically attracted and loved -- i.e. another woman -- she would not qualify. Thus, the marriage act discriminates directly on the basis of the spouses' gender. It also discriminates indirectly on the basis of the sexual orientation of the applicants.

bullet The Charter of Rights and Freedoms states that a person cannot be discriminated against because of their gender. In addition, the Supreme Court of Canada has repeatedly ruled that individuals in Canada cannot be discriminated against on the basis of their sexual orientation either.

Polls indicated by 2005 that most Canadian adults favored allowing gays and lesbians to marry. However, there are probably more committed, organized persons who wish to prevent equal rights for gays and lesbians than there are homosexuals and homosexual supporters in many provinces. Thus, there was strong reluctance for the Federal and the Provincial/Territorial governments to change their marriage acts and give same-sex couples the right to marry. To allow SSM  might cause them to lose votes at the next election. 

The Charter takes precedence over the various marriage acts. There were strong legal grounds that the Canadian courts would eventually declare the existing federal and provincial marriage legislation to be unconstitutional. Three lawsuits were initiated at a lower court level in three provinces -- the Divisional Court in Ontario, and similar courts in Quebec and British Columbia). They were all appealed to the highest courts in the provinces. It appeared obvious from the importance of the cases that the loser at each step would appeal rulings all the way to the Supreme Court. However, on 2003-JUN-17, the federal cabinet was faced with three unanimous rulings in favor of same-sex marriage by the three most senior courts in these three provinces. The cabinet gave up and decided not appeal cases to the Supreme Court. They decided to introduce legislation that would make same-sex marriage available across Canada.

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Same-sex marriage status in Canada's provinces and territories:

In alphabetic order:

bullet Alberta: The government of Alberta is considered one of the most socially conservative in Canada. However, they have allowed gays and lesbians to adopt. On 2002-MAY-7, the government introduced two bills:

bullet Bill 29 gave same-sex couples the same rights as married couples if one dies without having prepared a will. The courts ordered the government to pass a bill with this content.

bullet

Bill 30 recognized same-sex couples who have lived together for three years, or who have signed a relationship contract, or who have a child. Partners would be required to pay spousal support payments in the event that their relationship fails. Justice Minister David Hancock said he believed most Albertans will support the change. He said:

"We need to make Alberta's laws applicable to all Albertans and available to all Albertans on a fair basis. That is a fundamental need that has to be met....Marriage has meaning. The institution of marriage as a social, religious and cultural institution must be maintainedBut there is also the value of fairness before the law."

They resisted granting same-sex couples the right to marry. But with the proclaiming of the federal bill C-38 in 2005-JUL, the provincial government was forced to allow SSM.

bullet British Columbia, on the west coast of Canada, also recognized gay and lesbian partnerships by initially setting up a system for gays and lesbian that is parallel to heterosexual marriage. Homosexuals there had most rights equivalent to married couples. They were allowed to adopt. However they did not have the right to marry. This changed on 2003-JUL-8, when the British Columbia Court of Appeal ordered the provincial government to issue marriage licenses to same-sex couples and to register their marriages. More details

bullet Manitoba: This province is located to the west of Ontario and to the north of the states of North Dakota and Minnesota.  Same-sex marriage was legalized in this province as a result of court action on 2004-SEP-16. More details

bullet New Brunswick: SSM was legalized on 2005-JUN-23 by court action.

bullet Newfoundland / Labrador: This is Canada's most easterly province. On 2004-DEC-21, the Supreme Court of Newfoundland ordered the province to issue licenses to qualified same-sex couples. More details.

bullet Northwest Territories: A lawsuit was filed to legalize SSM. It became moot on 2005-JUL-20 when the federal law was proclaimed.

bullet

Nova Scotia: This province is on the east coast of Canada. The legislature has created legislation recognizing same-sex relationships. For $15 (CDN; about $10 in U.S. funds) a couple was able to "register a domestic partnership" at the Office of Vital Statistics. This gave them a number of rights under about 20 matrimonial laws which cover everything from pensions and wills to medical decisions, ownership of joint property, the right to request alimony, and child support. It did not give them the right to adopt children. However, that right was later added by a provincial Supreme Court ruling. Also, the province will not recognize union ceremonies performed in church. Couples will have to register with the government directly. The arrangement was similar to that which was available in Vermont at the time.

A lawsuit was initiated to legalize same-sex marriage in the province. On 2004-SEP-24, Nova Scotia Supreme Court Justice Heather Robertson ruled that SSM was to be made available in the province.

bullet Nunavut: SSM was not permitted until C-38 was proclaimed. Same-sex marriages made elsewhere were recognized.

bullet Ontario: Some same-sex spousal rights were granted in this province.  Gays and lesbians can adopt. In mid-1999, the Supreme Court of Canada ruled in the "M v. H" case that the existing legislation concerning couples who live together without being married is discriminatory. They required the Government of Ontario to change their laws so that both heterosexual and homosexual couples are treated equally. The government reluctantly followed the instructions of the court.

However, the Government of Ontario had not granted permission for same-sex partners to marry. It was up to the Ontario Superior Court to determine on 2002-JUL-12 that the current legal definition of marriage in Ontario was discriminatory. The court ordered it changed to include provision for same-sex marriages. The Ontario government accepted this ruling, but the Federal government decided to appeal it.  More details. The Ontario Court of Appeal upheld the lower court's ruling on 2003-JUN-10. Within the next month, about 250 marriage licenses were issued to same-sex couples in the City of Toronto alone.  More details.

bullet Prince Edward Island: As of the end of 2005-JUN, this is the only province East of Alberta that still forbids SSM. C-38 made SSM theoretically available in PEI. However, as of 2005-NOV, the province still refused to issue marriage licenses to same-sex couples. This was overcome when a lesbian couple threatened to sue the province, and PEI realized that they had no chance to win in the courts.

bullet Quebec: The ruling party, the Parti Québécois, has included gay rights and the extension of spousal rights for gay and lesbian couples in their political platform. But they took many years before implementing the promise. In 1999, two gay men initiated a lawsuit in Quebec court to obtain the right to marry. In 2002-APR, the legislature introduced a bill to create civil unions for gays and lesbians. Same-sex marriage has been available in the province since 2004-MAR-20 as a result of court action. More details

bullet Saskatchewan: This is a province between Manitoba and Alberta. On 2004-NOV-05, the Family Law Division of the Court of Queen's Bench ruled that existing provincial laws discriminated against same-sex couples. SSM has been available ever since. More details.

bullet Yukon: This is a small territory that is North of British Columbia which has a population of the order of 30,000. Same-sex marriage was legalized in this province as a result of a court action on 2004-JUL-14. More details

With the passage of federal bill C-38 by Canada's parliament and the capitulation of Prince Edward Island in mid-2005, SSM has been available across the entire country.

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References:

  1. M. Eichler, "Family Shifts -- Families, Policies, and Gender Equality" Oxford University Press, (1997) at Page 3.
  2. B. Cossman & B. Ryder, "Gay, Lesbian and Unmarried Heterosexual Couples and the Family Law Act: Accommodating a Diversity of Family Forms,"  Ontario Law Reform Commission, Toronto, (1993) at Pages 3 & 5.
  3. Siobhan Roberts, "Loophole may allow gay marriages," National Post, 2000-DEC-5, Pages A1 & A2
  4. "Equal Marriage for same-sex couples," at: http://www.samesexmarriage.ca/
  5. John Cotter, "Alberta to Give Same-Sex Couples Similar Rights as Married Couples," Canadian Press, 2002-MAY-7.
  6. Kerry Gillespie, sidebar to "City council supports same-sex marriage: Councillors ask Ottawa to not fight court ruling," The Toronto Star, 2002-AUG-1
  7. "Equal Marriage for same-sex couples," http://www.samesexmarriage.ca/

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"SSM" means "same-sex marriage"

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Copyright © 1998 to 2013 by Ontario Consultants on Religious Tolerance
Latest update: 2013-JUN-22
Author: B.A. Robinson

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