HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA
2003-November to 2004-September
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
||"I want to marry the person I love." A sign at a demonstration on
Parliament Hill on 2004-MAR.
||"...preserving the heterosexual understanding of
marriage is an important public policy decision that benefits all of
society..." Focus on the Family (Canada)
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.
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.
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
||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:|
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 unwavering....no 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:
|"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
||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.
||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."
||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.
||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.|
||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.|
||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.|
||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
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:|
||Stephen Harper has described sexual
orientation as a "behavior."
||Other Conservative Party candidates
have described homosexual orientation as "deviant," "unnatural,"
"repulsive" and encompassing pedophilia.
||Stockwell Day, who would probably become
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."
||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
||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.
||% of popular vote
|New Democratic Party (NDP)
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:
||% of popular vote
|Green party (Environmen/conservation)
|Christian Heritage Party (Conservative
|Marijuana Party (Legalization of Marijuana)
|Canadian Action (Oppose industrial globalism)
|Libertarian (Promote minimal government)
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.
||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.|
||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|
||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."
||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:
||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.
||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
||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
13 More details.|
||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|
||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.
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.
The probable future path forward to legalize same-sex marriage
is described in another essay
Chantal Hebert, "Neither side can force the issue," The Torronto Star, 2003-SEP-17, Pages A1 & A17.
"Same-sex debate urged: PM seeks study by Supreme Court," The Toronto Star, 2003-DEC-19, Page A6.
Valerie Lawton, "Ottawa accused of same-sex delay," The Toronto Star, 2004-JAN-29, Page A7.
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.
"Focus ad campaign draws praise, condemnation," Today's Family News, Focus on the Family Canada, 2004-MAY-13.
A copy of the ad can be seen at:
http://www.fotf.ca/ This is a "pdf" file for which you may need software to view. It can be obtained free from:
"Factum of the Intervener The Interfaith Coalition on Marriage and Family," Evangelical Fellowship of Canada,
http://www.evangelicalfellowship.ca This is a "pdf" file for which you may need software to view. It can be obtained free from:
- John Fisher, "TO Equality Gala!," Egale Canada, 2004-JUN-17 news
"38th General Election," Elections Canada, at:
"Nova Scotia gay couples ask court to redefine marriage," Today's
Family News, Focus on the Family (Canada), 2004-AUG-12.
Rosalie Abella, "Supreme Court nominees," CBC News, 2004-AUG-24,
"Supreme Court Justices to be chosen," Today's Family News,
"Canadian Justice Minister Refuses Even Barest Minimum Defence of
Marriage Laws," LifeSite.net, 2004-AUG-18, at:
"Manitoba Government Will Allow Court Action Against Marriage Law to
go Unchallenged. Says 'current federal law is not in accordance with the
Charter'," LifeSite.net, 2004-AUG-26, at:
"Pope Denounces Gay Marriage in Canada," Associated Press,
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:
"Judge grants Canada's first same-sex divorce," Today's Family
News, Focus on the Family Canada, 2004-SEP-16.
Tracey Tyler, "Spouse ruling allows first gay divorce. Court strikes
down definition. Women separated days after wedding," The Toronto Star,
"Ontario judge grants first same-sex divorce," CTV News, 2004-SEP-14,
Copyright © 2003 & 2004 by Ontario
Consultants on Religious Tolerance
Latest update: 2004-OCT-06
Author: B.A. Robinson