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2003-November to 2004-September

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Topics covered:

Federal government revisits civil unions instead of marriages
Federal government adds additional reference question
Same-sex marriages available in Quebec
Focus on the Family ads supporting "traditional marriage"
The first same-sex divorce -- it was inevitable

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Earlier developments are described in another essay

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bullet "I want to marry the person I love." A sign at a demonstration on Parliament Hill on 2004-MAR.
bullet "...preserving the heterosexual understanding of marriage is an important public policy decision that benefits all of society..." Focus on the Family (Canada)

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On 2003-JUN-10 the Ontario Court of Appeal determined that the federal marriage act was in violation of the Charter of Rights and Freedoms, Canada's constitution. They ordered the Government of Ontario to start issuing marriage licenses to same-sex couples immediately. This was the ruling that made marriage available to all adult couples, both opposite-sex and same-sex, but only within the province of Ontario. On 2003-JUN-17, the federal government decided to create legislation that would legalize same-sex marriage (SSM) across Canada. This decision stirred up a hornets' nest of controversy. Developments proceeded rapidly for the next three months.

But, by the end of 2003-SEP, same-sex marriage became routine in Canada. A few actions before the Supreme Court continued. But opposition to the topic seems to have largely evaporated, at least as measured by the number of negative letters to newspaper editors. Concern over health care and government financial scandals became the new "hot" topics.

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bullet 2003-DEC-18: Canada: New prime minister expands options: A new prime minister, Paul Martin, took office on DEC-12, replacing Jean Crétien as leader of the ruling Liberal party. Martin reaffirmed on DEC-18 that gays and lesbians anywhere in Canada who want to marry will not be discriminated against under proposed new federal legislation. But, before finalizing the draft legislation, his recently appointed justice minister, Irwin Cotler, will ask the Supreme Court of Canada to rule on whether a Vermont-style civil union -- legislation that would give separate but equal privileges to gays and lesbians -- would satisfy the equality rights in Canada's constitution. Martin said that Canadians need a full debate on the issue that involves the exploration of all constitutional options before a final revision to the marriage act is voted upon. He said in a CTV interview: "There must be a national debate in Parliament where all sides of the debate will be heard. Once that debate has taken place and all of the options have been looked at, we'll act."  He indicated that the members of parliament would be free to vote according to their consciences. In most votes in Parliament, members are expected to follow their party's position.

In a interview with CBC Radio, Martin said that he would use the Constitution's "not withstanding clause" in the unlikely event that the Supreme Court of Canada ruled that religious institutions must perform same-sex marriages. This clause allows the government to pass temporary legislation that violates constitution. The legislation expires automatically after three years and must be renewed. If implemented, this would be the first instance of the clause being used at the federal level. Martin said that there are very few situations in which he would use the notwithstanding clause. One would be if it were needed to preserve the right of religious groups to continue to discriminate against gays and lesbians.

There is no indication in the media of what action the government will take with regard to the thousands of gays and lesbians who have married in Ontario and British Columbia since provincial courts opened up marriage as an option in mid-2003. 1,2

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More events:

bullet 2004-JAN-28: Canada: Federal government sends new reference to the Supreme Court: The federal government added a fourth question to the reference that they had sent to the Supreme Court in 2003. It asks:
"Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in s.5 of the Federal Law - Civil Law Harmonization Act, No. 1 S.C. 2001 c.4, consistent with the Canadian charter for Rights and Freedoms? If not, in what particular or particulars and to what extent?"
The most senior courts in Ontario and British Columbia have ruled that the present federal law, which restricts marriage to opposite sex couples, is unconstitutional because it denies equal rights and freedoms to same-sex couples. But this reference question, the Supreme Court is asked to affirm or overrule those lower court decisions. Presumably, if the court finds that some other arrangement other than full marriage is constitutional, they will convey this to the government. It is certain that more members of parliament would favor a law granting same-sex couples access to some sort of civil union arrangement, rather than full marriage rights. The official word from the government is that this new references is motivated by an honest desire to offer comfort to Canadians who oppose SSM. Justice Minister Irwin Cotler stressed that the government continues to support same-sex marriage. He said: "We are reaffirming our position in support of same-sex marriage. It's retreat....There is a divided opinion and therefore we have to be respectful of the sensibilities in this country...We're [listening to] those who feel that by not putting that question, we have prejudiced the outcome of this court process.... We don't want it to linger so that people will always say, you know, if you had put that question maybe you would have had a different debate, and if you had a different debate, you may have had a different outcome....The [court's] answer is very interesting. It's very important for the debate in the House of Commons." The government also asked the Supreme Court to delay hearings on the proposed legislation and the references from the Spring to the Fall of 2004. Reactions to the reference were mostly negative:
bullet Svend Robinson, an openly gay member of parliament said: "It's quite clear that the last thing that Paul Martin wanted in the middle of an election campaign was a bitter debate about same-sex marriage. The decision is an attempt to delay, to postpone, to put off this debate on same-sex marriage." He called the new reference a "back-door appeal" of the Ontario and British Columbia court decisions.
bullet Chales McVety, of the Canada Family Action Coalition -- a religiously conservative group opposing SSM, allegedly said that the government is denying citizens the right to debate the issue during the federal election expected during 2004-Spring. He said: "It is not only hypocritical but cold and callous in its political intent."
bullet Pat O'Brien, a liberal member of parliament who opposes SSM said: "I'm hopeful that the top court in this country will uphold probably the most important institution in this country, and that's marriage as we know it." 3 More details.
bullet 2004-MAR: Québec: The Québec Court of Appeal legalizes same-sex marriages in the province. SSM is now available to 80% of Canada's population without the spouses having to leave their province of residency. 4More details.
bullet Week of 2004-MAY-2: Canada: Anti-SSM advertisements: A fundamentalist Christian group, Focus on the Family Canada placed a full-page advertisement in newspapers across Canada promoting marriage by opposite-sex couples. Focus received some positive comments. But there were many angry reactions from gay-positive groups who felt that these ads constitute hate literature. On MAY-12, radio ads began which support the same message. 5,6More details.
bullet Week of 2004-MAY-16: Canada: Anti-SSM brief submitted to Supreme Court: The Interfaith Coalition on Marriage and the Family is a joint effort by the Evangelical Fellowship of Canada, the Catholic Civil Rights League, and the Islamic Society of North America. Their main effort currently is to deny same-sex couples the right to marry. They made a written submission the Supreme Court of Canada concerning the federal government's reference. 7 More details.
bullet 2004-JUN: Canada: Probable Conservative party victory in June elections: Public opinion polls show that the newly formed, far-right group, the Conservative Party of Canada, is poised to defeat the Liberal Party of Canada and win the election which is to be held on JUN-28. There are indications that the Conservative party intends to use the Not Withstanding clause in Canada's constitution to overrule the unanimous decisions of three provincial courts and once again make marriage unavailable to same-sex couples. Existing same-sex married couples will probably have their marriages cancelled against their will through mandatory government divorce. There are other indications that the Conservative Party also intents to restore the death penalty, back out of the Koyoto Accord, introduced restrictions on abortion access, delete sexual orientation from the list of protected criteria in the hate propaganda and genocide law, and stack the Supreme Court with extreme conservative judges. Egale Canada, a gay-positive group, collected a number of statements by members of the Conservative Party on homosexuality:
bullet Stephen Harper has described sexual orientation as a "behavior."
bullet Other Conservative Party candidates have described homosexual orientation as "deviant," "unnatural," "repulsive" and encompassing pedophilia.
bullet Stockwell Day, who would probably become the Minister of Foreign Affairs, allegedly said: "God, as a God of love, warns us about things that can be detrimental to us. One of those things is sodomy."
bullet Myron Thompson, who would probably become the Minister of Justice, allegedly said: "I want the whole world to know that I do not condone homosexuals. ... I think it is unnatural and I think it is totally immoral." 8

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bullet 2004-JUN-28: Canada: Public over-rules pollsters: Liberals form minority government: The Liberal Party of Canada was able to receive sufficient votes to stay in power, as a minority government. A total of 155 votes would have been required for the Liberals to achieve a majority government.

Results were:

Party Members elected % of popular vote
Liberal 135 36.7
Conservative 99 29.6
Bloc Québécois 54 12.4
New Democratic Party (NDP) 19 15.7
Independent 1 0.1

None of the remaining parties elected a member to the House of Commons, although the Green Party would have elected 13 members if Canada had a system of proportional representation:

Party Votes % of popular vote
Green party (Environmen/conservation) 580,816 4.3%
Independent candidates 47,696 0.4
Christian Heritage Party (Conservative Christian) 40,283 0.3
Marijuana Party (Legalization of Marijuana) 33,590 0.3
Marxist-Leninist 0,065 0.1
PC Party 10,773 0.1
Canadian Action (Oppose industrial globalism) 8,930 0.1
Communist 4,568 0.03
Libertarian (Promote minimal government) 1.964 0.01

Of the 22,295,670 registered electors, only 13,489,559 (60.5%) voted.

It will be possible for the Conservatives to introduce legislation during the next parliament to kill same-sex marriage, limit abortion, modify the hate propaganda and genocide law, etc. But they will have to do it via a private members bill. Very few of them become law.

bullet 2004-JUL-13: Yukon: Court rules on same-sex marriage: Justice Peter McIntyre of the Yukon Supreme Court issued a ruling which changed the territory's common law definition of marriage from a union between one man and one woman to the voluntary union for life of two persons to the exclusion of all others. He said: "The [old] common law definition of marriage is unconstitutional." The plaintiffs were Stephen Dunbar and Rob Edge, a committed same-sex couple who sought to marry in the territory. Dunbar said: "Well, it means this afternoon we can go pick up our marriage license, just like any other couple that's getting ready to get married would do." Edge said: "We're very, very happy with the outcome." More details.
bullet 2004-AUG:-11 Nova Scotia: Three same-sex couplesa initiate lawsuit: Two same-sex couples have initiated a lawsuit to force the province to allow them to marry in the province. A third couple has joined the lawsuit seeking to force the province to recognize their existing marriage. They were married in Toronto, ON, in 2003. Currently, the province does register same-sex and opposite-sex common law couples in domestic partnerships. But they do not allow same-sex couples to marry, and thus obtain the full set of government benefits given to all married couples. Plaintiff Kim Vance said: "It's always in the back of your mind that there are always going to be areas where you're not covered or not included." No date has been set for the hearing. The government has indicated that it will marry same-sex couples if ordered to by the court. However, they will not do it of their own free will. 10
bullet 2004-AUG-18: Canada: Federal justice minister throws in the towel: Justice Minister Irwin Cotler has decided that the federal government will no longer ask the courts to defer decisions on SSM in provincial courts, as they did in the Yukon territory. They asked that the courts wait until after the Supreme Court of Canada issues a ruling in the federal government's reference. He told the Canadian Bar Association's annual meeting in Winnipeg, MB, that: "We will not be opposing any of these....We will allow these proceedings as they arise." Justice Department spokeswoman Renee Filiatrault told the Globe and Mail on AUG-19: "In cases that come up across the country, we won't ask for adjournments for the Supreme Court reference to be heard. Our position is the same as it has been in the past, and the subtle development at this point is that we won't be seeking adjournments as we have." 13
bullet 2004-AUG-24: Canada: Two new Justices to be appointed to the Supreme Court: The Supreme Court of Canada is currently two shy of having its full complement of nine Justices. Prime Minister Paul Martin has been under pressure to appoint replacements in time for the Fall session which begins in early October. Justice Minister Iwin Cotler has nominated two judges:
bullet Rosalie Abella was born in 1946 in a Displaced Persons Camp of Jewish parents who were Holocaust survivors. She was appointed to the Ontario Court of Appeal in 1992 where she made a landmark decision which gave spousal benefits to same sex partners under the Income Tax Act. She has 20 honorary degrees.
bullet Louise Charron was appointed to the Ontario Court of Appeal in 1995. One year later, she wrote the judgment which permitted same-sex couples to claim alimony. She wrote: "The evidence is overwhelming that cohabitation between partners who have intimate relationships, regardless of sexual orientation, creates emotional and financial inter-dependencies...The evidence also shows that the same needs for dispute resolution exist upon break-up of these types of intimate relationships, regardless of sexual orientation."  11

The nominations will be reviewed by a panel which includes two independent legal experts and selected members of Parliament. Canadian tradition requires a geographical balance on the Supreme Court; thus the two nominees are from Ontario. It is also traditional for nominees to be selected from the most senior court in the province; in this case, this is the Ontario Court of Appeal -- the body that unanimously ruled in mid-2003 that the province had to open marriage to same-sex couples. One of the items that the Supreme Court has on its fall docket will be the Federal Government's reference concerning same-sex marriage. 12

bullet 2004-AUG-26: Manitoba: Three same-sex couples initiate lawsuit: Three same-sex couples have challenged the Manitoba marriage law which prevents them from marrying in the province. Gord Mackintosh, the Manitoba Justice Minister said: "We will not oppose what they are seeking....We don't have an interest in opposing legally recognized rights of Canadians.....I think the weight of the decisions across the country have pointed to the conclusion that the current federal law is not in accordance with the Charter, so I am pleased that we're going to have some definitive ruling here in Manitoba." 13 More details.
bullet 2004-SEP-4: Vatican: Pope John Paul II criticizes Canada for gay marriages: The pope held an audience with Donald Smith, the new Canadian Ambassador to the Vatican. He criticized senior Canadian courts in three provinces and one territory for allowing same-sex couples to marry. He said that this creates a "false understanding" of marriage. Further, it degrades the true sense of marriage. The pope said: "The institution of marriage necessarily entails the complementarity of husbands and wives who participate in God's creative activity through the raising of children. Spouses thereby ensure the survival of society and culture, and rightly deserve specific and categorical legal recognition by the State. Any attempts to change the meaning of the word 'spouse' contradict right reason: legal guarantees, analogous to those granted to marriage, cannot be applied to unions between persons of the same sex without creating a false understanding of the nature of marriage." According to the media reports of his statement, the pope did not acknowledge the lesbian and gay couples who are raising children of their own or who are raising adopted children. He also apparently did not make allowance for those opposite-sex couples who are infertile, are beyond childbearing years, or who have decided to remain childless. 15
bullet 2004-NOV-19: Court redefines "spouse" in federal law: In 2004-SEP, Justice Ruth Mesbur of the Ontario Superior Court issued the first divorce to a married same-sex couple in Canada. "M.M" and "J.H" were a lesbian couple from Toronto, ON. Those are not the actual initials of the plaintiffs; they are their lawyer's initials. They married on 2003-JUN-18, shortly after SSM became legal in the province in 2003-JUN. However, the marriage was a kind of last-ditch effort to save a deteriorating relationship. They separated very shortly afterwards and applied for a divorce in 2004-JUN.

There was no provision in Canadian law for the divorce of a same-sex married couple. The Divorce Act states that only spouses can divorce and a spouse consists of one man and one woman married to each other. However, Justice Mesbur granted the couple a divorce, using the rationale that if SSM is legal, then same-sex divorce must be as well. Lawyer Martha McCarthy, who represented "M.M." said the ruling is historic: "We believe that this is not just the first gay or lesbian divorce in Canada, but actually the first gay or lesbian divorce in the world."

Justice Mesbur declared parts of the Divorce Act to be unconstitutional because it defined "spouse" as a "man" or a "woman." She reserved her decision on how to remedy the constitutional defect in the law that had prevented the couple from ending their marriage. It was handed down on 2004-NOV-19 with major implications to federal law and the institution of marriage in Canada. 18,19

There is one curious aspect to this divorce that does not seem to have been discussed in the media. Thousands of same-sex couples have married since mid-2003 when SSM became available in Ontario. Yet all of these marriages had produced only one divorce by 2004-SEP. If M.M. and J.H. are actually the first couple to seek a divorce, that this would indicate that SSMs are considerably more stable than opposite-sex marriages. An interesting thought, particularly in view of the relative lack of support from society that same-sex couples currently receive.

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Later developments are described in another essay

The probable future path forward to legalize same-sex marriage is described in another essay

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References used:

  1. Chantal Hebert, "Neither side can force the issue," The Torronto Star, 2003-SEP-17, Pages A1 & A17.
  2. "Same-sex debate urged: PM seeks study by Supreme Court," The Toronto Star, 2003-DEC-19, Page A6.
  3. Valerie Lawton, "Ottawa accused of same-sex delay," The Toronto Star, 2004-JAN-29, Page A7.
  4. Donald McKenzie, "Way set for gays to wed in Quebec. Appeals court rules same-sex union legal. Religious group may take case to top court," Canadian Press, Toronto Star, 2004-MAY-20, Page F8.
  5. "Focus ad campaign draws praise, condemnation," Today's Family News, Focus on the Family Canada, 2004-MAY-13.
  6. A copy of the ad can be seen at: This is a "pdf" file for which you may need software to view. It can be obtained free from:
  7. "Factum of the Intervener The Interfaith Coalition on Marriage and Family," Evangelical Fellowship of Canada, at: This is a "pdf" file for which you may need software to view. It can be obtained free from:
  8. John Fisher, "TO Equality Gala!," Egale Canada, 2004-JUN-17 news release.
  9. "38th General Election," Elections Canada, at:
  10. "Nova Scotia gay couples ask court to redefine marriage," Today's Family News, Focus on the Family (Canada), 2004-AUG-12.
  11. Rosalie Abella, "Supreme Court nominees," CBC News, 2004-AUG-24, at:
  12. "Supreme Court Justices to be chosen," Today's Family News,, 2004-AUG-24.
  13. "Canadian Justice Minister Refuses Even Barest Minimum Defence of Marriage Laws,", 2004-AUG-18, at:
  14. "Manitoba Government Will Allow Court Action Against Marriage Law to go Unchallenged. Says 'current federal law is not in accordance with the Charter',", 2004-AUG-26, at:
  15. "Pope Denounces Gay Marriage in Canada," Associated Press, 2004-SEP-04, at:
  16. Tracey Tyler, "Same-sex divorce rules still hazy. Does decision bind judges elsewhere? Couples outside Ontario face obstacles," The Toronto Star, 2004-SEP-15, Page A2. See:
  17. "Judge grants Canada's first same-sex divorce," Today's Family News, Focus on the Family Canada, 2004-SEP-16.
  18. Tracey Tyler, "Spouse ruling allows first gay divorce. Court strikes down definition. Women separated days after wedding," The Toronto Star, 2004-SEP-14, at:
  19. "Ontario judge grants first same-sex divorce," CTV News, 2004-SEP-14, at:

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Copyright © 2003 & 2004 by Ontario Consultants on Religious Tolerance
Latest update: 2004-OCT-06
Author: B.A. Robinson

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