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HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

2004-OCT 8 to NOV-26:

Private member bill defeated
"Spouse" redefined as "two persons"
Survivor pension benefits granted

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Sponsored link.

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Earlier developments are described in another essay

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Quotations:

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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Background:

In 1999, Parliament debated a motion that defined marriage as "a union of one man and one woman, to the exclusion of all others." It passed 216 to 55.

In 2003, an identically worded bill was defeated 137 to 132.

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. They sent the proposed legislation and some questions in the form of a reference to the Supreme Court of Canada for a non-binding ruling.

By the middle of 2004-NOV, the territory of Yukon, and six provinces (British Columbia, Manitoba, Nova Scotia, Ontario, Quebec, and Saskatchewan) had all legalized SSM within their jurisdictions. None of the jurisdictions did this willingly. All were forced to take this action by court order. About 85% of same-sex couples in the country were able to marry without leaving their province or territory of residence.

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Events:

bullet2004-NOV-16: Ottawa: Renewal of debate on SSM in Parliament: In Canada, members of parliament are not generally allowed to originate bills. That is the prerogative of the ruling party. However, a lottery is periodically conducted to select "private members" bills written by a very few lucky members of Parliament for consideration by Parliament. This time, there were 240 entries and the fourth bill to be drawn was from a novice member from Fundy, New Brunswick: Rob Moore. He is a member of the Conservative party, which in Canada is at the far right. His bill, C-268, is titled: "An Act to Confirm the Definition of Marriage and to Preserve Ceremonial Rights." It is in two parts:
  1. It would define marriage as "the lawful union of one man and one woman to the exclusion of all others."
  2. It would protect clergy from prosecution under anti-bigotry laws if they declined to marry a couple for any reason. 1
bullet2004-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.

She decided to rewrite the federal law by declaring that "spouse" is to be replaced by the phrase "two persons" married to each other. The federal government urged her to not take this route, but to leave the task to Parliament when SSM was eventually introduced. Tracey Tyler of the Toronto Star newspaper wrote: "Unlike previous decisions from provincial and territorial appeal courts reformulating the common-law definition of same-sex marriage, Mesbur's ruling applies to a federal statute, passed by Parliament." It therefore applies across Canada.

Her ruling was handed down on 2004-NOV-19. On that date, "spouse" became "two persons" married to each other in federal law. 6,7

bullet2004-NOV-19: Marriage bill deemed non-votable: The bill was decided to be non-votable by the Subcommittee on Private Members Business. However, Moore appealed the matter to the committee who will discuss the bill further on NOV-25. He said: "I hope the committee will give the decision a full review and overturn it. The Conservative party has consistently argued that this issue should be decided by Members of Parliament and not the courts. I remain optimistic this will take place." 2

If, as expected, the Supreme Court of Canada rules that denying marriage to same-sex couples is unconstitutional, then this bill will be meaningless. The only way for Parliament to ban same-sex marriage would then be to pass a law containing a "not-withstanding" clause; that would acknowledge that the law violates the Constitution, but is being passed anyway. No federal government has ever passed a "not withstanding" law.

This is an awkward development for the ruling Liberal party. They have only a tenuous hold on power and can do without the re-emergence of such a divisive issue at this time. It is also difficult for the Conservative party. They are attempting to project a more centrist image.

National affairs columnist James Travers commented in the Toronto Star newspaper: "In attempting to deny marriage rights to same-sex couples, a right now endorsed by a rapidly expanding vanguard of provinces and territories, traditionalists are essentially admitting homespun moralizing and ecclesiastical persuasion aren't changing behavior and must now be replaced by laws that impose beliefs....To reverse defining the course set by a Liberal government 22 years ago, [Stephen] Harper [the leader of the Conservative Party] and Moore will have to find a more compelling reason than their traditional beliefs, no matter how strongly held. They will have to prove that there is some overriding reason, some evidence of harm to the greater good, that justifies treating a minority as inferior, second rate. Then they will have to explain how a country like Canada is better served by enforcing beliefs rather than upholding rights." 1

bullet

2004-DEC-?: Public opinion in anticipation of the Supreme Court ruling: An Ipsos-Reid poll showed that a sizeable majority of Canadian adults -- 71% -- support same-sex marriage in principle. However, they differ in how SSM should be recognized.
bullet

39% feel that SSM should be "fully recognized and equal to conventional heterosexual marriage."

bullet

32% believe it should "be allowed to exist in civil law but not have the same legal weight as a conventional marriage."

bullet

27% believe that "it is wrong and should never be lawful."

bullet

2% either don't have an opinion or declined to say. 8

bullet2004-NOV-25: Commons Committee rejects private members bill: MP Rob Moore appealed the decision of Subcommittee on Private Members Business to reject his bill. It was intended to deprive same-sex couples of the right to marry in Canada, and to protect clergy from legal action if they discriminate against couples wishing to marry. Moore spent almost two hours answering questions posed by committee members.  The committee rejected Moore's appeal by a vote of 7 to 4. Apparently, the main reason was that many provincial court rulings have clearly ruled that marriage is a guaranteed right for all couples, both same-sex and opposite-sex. Since the federal government did not appeal these rulings to the Supreme Court of Canada, they are binding. Thus, the proposed bill is unconstitutional.

As expected, the four Conservative Party members voted as a block in favor of the bill; the remaining MPs from the Liberal, Bloc Quebecois, and New Democratic Parties voted as a block against. Moore said: "This bill clearly met the requirements set out for private members’ business, and MPs should allow the democratic process to work and have this issue debated and voted on the floor of the House of Commons. By shutting down debate, a majority of the members of the committee have denied millions of Canadians a voice on this important issue.....This committee has pre-judged the ruling of the highest court in the land. We have MPs on this committee who believe they have the powers of Supreme Court justices....The Liberals have at every turn, by whatever device necessary, tried to prevent this matter from coming to a democratic vote. Now the Bloc and NDP have become willing accomplices. The definition of marriage is an issue the Liberals are divided on....they feel it is necessary to attack democracy in order to protect their narrow party interests, without any consideration of the public interest. I am committed to ensuring that millions of Canadians will have the opportunity to have their say in Parliament." 3,4

Moore has seven days to appeal the committee's decision to the entire House of Commons.

Claire Hoy, columnist for the Sudbury Star wrote that the decision by the committee was "hypocrisy" on the part of those claiming to be "champions of tolerance....It's not that [they] simply voted against this bill. It's that they voted against giving the Commons as a whole a chance to even express their views on it. Some tolerance....It is bad enough that a group of unelected and unaccountable judges have cavalierly hidden behind their long, black robes to impose their views on society, despite the fact that on the question of same-sex marriage, parliament has voted several times to maintain the traditional definition and almost every provincial legislature has done the same thing." 6
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2004-NOV-26: Canada Pension Plan (CPP) survivor benefits for gays and lesbians: Most Canadian spouses and partners involved in committed relationships have been able to benefit from Canada Pension Plan (CPP) survivor pensions. The CPP is similar to the Social Security system in the U.S. The sole exception were gays and lesbians. After an 18 year legal battle, this inequity  was reversed by a ruling of the Ontario Court of Appeal. They decided that denying the benefit was an  unjustifiable infringement of homosexuals' equality rights under the Charter of Rights and Freedoms. Justices Louise Charron, Kathryn Feldman and Susan Lang wrote that preventing access to such a "fundamental pillar" of Canada's retirement income system amounted to "a complete non-recognition for those same-sex survivors as full members of Canadian Society." Plaintiff George Hislop, 77, whose partner of 27 years, Ron Shearer, died in 1986 said: "I always knew Canadians are interested in fair play and the courts have borne this out....Our argument has basically been that the Charter says we're all equal and you can't be a little bit equal. You've got to be there all the way."

In the year 2000, the federal government extended CPP survivor benefits to gay and lesbian couples. But it did not make the law fully retroactive. Only those gays and lesbians whose partners died after 1998-JAN-01 would receive pensions. Payments were only to begin in 2000. With the decision of the court, benefits are now to be applied to cases where one partner died  after 1985-APR-17. This was the date when the Charter's equality provisions took effect.

The federal government has not yet decided whether to appeal the decision to the Supreme Court of Canada. 5

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Later developments

Possible paths forward to legalize same-sex marriage

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References used:

  1. "Same-sex issue back on agenda," The Toronto Star, 2004-NOV-16.
  2. "Marriage bill deemed non-votable" 2004-NOV-19, at: http://www.robmooremp.com/
  3. "Democracy Denied: Liberal, Bloc and NDP members combine to eliminate Commons vote on definition of marriage bill," 2004-NOV-25, at: http://www.robmooremp.com/
  4. "Marriage bill again denied votable status," Today's Family News, 2004-NOV-26.
  5. Tracey Tyler, "Widowed gays win survivor pensions," The Toronto Star, 2004-NOV-27, Page A1 and A4.
  6. Tracy Tyler, "Judge redefined 'spouse.' Same-sex divorce was of 'two persons'," The Toronto Star, 2005-FEB-02, Page A7.
  7. "Ontario judge grants first same-sex divorce," CTV News, 2004-SEP-14, at: http://www.ctv.ca/
  8. "Canadians And Same Sex Marriage As The Supreme Court Of Canada Makes Its Ruling: 71% Support Concept, 27% Don’t," Ipsos-Reid, 2004-DEC-09, at: http://www.ipsos-na.com/

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Site navigation:

 Home page > Homosexuality > Same-sex marriage > Canada > here

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Copyright © 2004 & 2005by Ontario Consultants on Religious Tolerance
Latest update: 2005-FEB-02
Author: B.A. Robinson

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