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Lawsuit to legalize SSM in New Brunswick

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The Province of New Brunswick is located on the East coast of Canada. It is north-east of the state of Maine. Its area is slightly smaller than Maine's by about 8%. New Brunswick has common borders with Maine and the provinces of Quebec and Nova Scotia. It is connected to Prince Edward Island (PEI) by the Confederation Bridge. PEI is a unique province -- the only one in Canada where a woman cannot obtain an abortion. 1

By the end of 2005-APR, same-sex couples were free to marry in seven of ten provinces of Canada -- British Columbia, Ontario, Manitoba, Newfoundland/Labrador, Nova Scotia, Quebec, and Saskatchewan. Same-sex marriage was not permitted in two territories (Northwest Territory and Nunavut) Territory, and in three provinces (Alberta, New Brunswick, and Prince Edward Island). Same-sex couples there are in a legal limbo. The courts have decided that the couples can marry, but the province appear to be refusing them marriage licenses until ordered by a court.

On Thursday, 2005-JUN-23, Court of Queen's Bench Justice Judy Clendenning determined that the civil definition of marriage in the province should be broadened to include same-sex couples. She gave the province ten days in which to make the necessary administrative adjustments

Statistics Canada estimates that the mid-2004 population of New Brunswick is 751,400 persons. This represents about 2.3% of Canada's total population. 1

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Events related to same-sex marriage in New Brunswick:

bullet 2003-??-??: Activist charged: Art Vautour-Toole had married his same-sex partner in Ottawa, ON, but was unable to have his marriage recognized in New Brunswick. Annoyed at the system, he chained himself to a chair at Service New Brunswick office in Moncton. He was arrested and charged with public mischief. The judge found him guilty but gave him an absolute discharge, saying that he could understand Vautour-Toole's frustration with the system. 2
bullet 2004-SEP-26: Justice Minister refused to have marriage licenses issued: Justice Minister Brad Green announced that New Brunswick would not follow the lead of Nova Scotia who started issuing marriage licenses to same-sex couples on SEP-24. He said that it is federal legislation which defines who can marry. Until the marriage act is changed to enable same-sex marriage, his province will not issue licenses to same-sex couples.
bullet 2004-DEC-09: Supreme Court delivers ruling on federal "references;" premier discusses SSM: Premier Bernard Lord (Conservative) commented on the Supreme Court of Canada ruling on the federal "reference" questions. He has no intention of authorizing same-sex marriages unless ordered to by a court or unless the federal government passes a new marriage act. If the latter happens, the province will modify its legislation accordingly. The Canadian Broadcasting Corporation reported that: "Moncton gay rights activist Art Vautour has been waiting years to hear those words. He and his husband Wayne Toole have been fighting to have their Ontario marriage legally recognized in New Brunswick. The couple stayed glued to the news channel on their television set most of the day, watching the coverage unfold. 'I was elated,' says Toole. 'It's definitely a step in the right direction. The war is not over by a long shot but it's one more battle won. We're on our way, we're getting there'."

The premier is also promising an additional provincial law to protect churches from being sued if they refuse to marry a same-sex couple. He said: "Those who want to get married will be able to get married, based on the new definition. But they will not be able to force someone to marry them if that is against their belief."

New Democratic Party Leader Elizabeth Weir is pleased by the Court's decision. She said that it is: "Long overdue. We've had second-class citizens in this province, but now as a result of that unanimous decision, we're finally going to join the rest of Canada."

Jay Guptill, Pastor of Family Care at the Moncton Wesleyan Church and the Director of Leadership Development for the Atlantic Division of the Wesleyan Church said that SSM violates his religious beliefs. He's unhappy with the Supreme Court ruling. He said: "The religious freedom is broad enough to protect religious officials from being compelled to perform any marriages contrary to their individual beliefs." 3

bullet 2004-APR-22: Catherine Sidney and Bridget McGale, of Saint John, NB, applied for a marriage license but were turned down. They have been together for 24 years and wanted to marry on JUN-15, which is McGale's 41st birthday. Sidney said: "We felt the federal government was going to do this for us. Now we are not sure what is going to happen, so we felt we did not have any other choice" than go to court. 6
bullet 2004-APR-26: Lawsuit filed:  Four same-sex couples who lived in New Brunswick sued the province for the right to marry or to have their existing marriages recognized. They are:
bullet Art Vautour-Toole and Wayne Toole, who were married in Ottawa, ON and have unsuccessfully attempted several times to have their marriage recognized by the province;
bullet Wayne Harrison and Ross Leavitt, who were also married in Ontario and were unable to have their marriage recognized;
bullet Catherine Sidney and Bridget McGale, an engaged lesbian couple; and
bullet Jim Crooks and Carl Trickey, a second engaged gay couple.

Their lawyer, Allison Menard, filed the suit at Moncton's Court of Queen's Bench. She is handling the cases free of charge. It names both the provincial and federal attorneys general as defendants. No hearing date has been set. Ms. Menard said that "They're frustrated with the current system." She told the Globe and Mail: "Because Parliament is not doing its job, these couples are being forced to make their challenge in court." One difficulty faced by two of the  couples is that they are considered married in seven out of ten provinces, but are only considered friends or roommates by the province of New Brunswick. This causes confusions when they attempt to obtain passports or other identification, because their documents don't match.

Menard said: "It places a greater burden on them."  She hopes that the conflict can be settled out of court. She said: "We'll see if there's a way for us to negotiate a resolution, or if we're going to have to go through a hearing." The chances of settling without a lawsuit proceeding seems remote as Premier Bernard Lord has said in the past that his government has no plans at the moment to allow same-sex marriage. He has said: "When the federal government decides to change the legislation on the definition of marriage, the government of New Brunswick will act accordingly and respect the new definition of marriage as decided by the Parliament of Canada."

Alex Munter, national spokesperson for Canadians for Equal Marriage -- a group which supports SSM -- said: "It is clear that this court action is a last resort taken by gay and lesbian couples in New Brunswick who want to join the other nearly 90 percent of Canadians who live in jurisdictions where same-sex couples have the right to marry, They donít have that right in New Brunswick, even though they are Canadian citizens, taxpayers and contributing members of their community." Referring to the current paralyzed state of the Canadian Parliament, Munter said: "The courts are being asked to uphold the Constitution because Stephen Harper, despite saying he wants Parliament to decide this issue, is not giving our Parliamentarians the chance to do so. This action is being taken more in sorrow than in anger. Sorrow because the clear will of the majority of Members of Parliament is being thwarted. The political process has been hijacked by those who put Parliamentary games ahead of human rights."  4

The Telegraph-Journal reports that: "For his part, Mr. Vautour-Toole has been a regular visitor to the Moncton Service New Brunswick outlet where he's attempted to have his name legally changed since he and his partner married in Ontario in 2003. 'We basically used all the avenues we could without doing this,' Mr. Vautour-Toole said, referring to Monday's court filing. 'We were hoping we wouldn't have to use this. It's been very frustrating'." 5

bullet 2005-JUN-23: Court of Queen's Bench Justice Judy Clendenning ruled that the the civil definition of marriage in New Brunswick now includes same-sex couples. The province was given ten days in which to make the necessary administrative adjustments to make same-sex marriage forms available to the general public. Allison Manard, the lawyer representing the four couples, said: "What this means is that anybody that meets the definition of capacity to marry is able to go and get a marriage license." 7

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The effect of SSM in New Brunswick on same-sex marriage in Canada:

If one assumes that same-sex couples are evenly distributed across Canada, 87.0% of them were able to marry without having to leave their province or territory of residence, as of 2005-APR. When New Brunswick was ordered to allow SSM, this rose to 89.3%. At that time, SSM was only be prohibited in four jurisdictions -- the provinces of Alberta and Prince-Edward Island, Northwest Territories and Nunavut Territory, which total about 10.7% of Canada's population. (Although Nuavut does not allow SSM, it does recognized same-sex marriages performed elsewhere).

In fact, many gays and lesbians gravitate towards the larger cities like Halifax, Montreal, Toronto, Winnipeg and Vancouver where same-sex marriage is already allowed. So the actual percentage of gays, lesbians, and bisexuals in committed same-sex relationships who were be able to marry in their own province or territory at the time that New Brunswick has authorized SSM would probably be somewhat higher -- probably about 92%. 1

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Population, by year, by provinces and territories," Statistics Canada, 2004 estimates. See:
  2. "Gay couples fight for N.B. rights," Canadian Broadcasting Corporation, 2005-APR-25, at:
  3. "Lord Tories will accept same-sex marriages," Canadian Broadcasting Corporation, 2004-DEC-09, at:
  4. "Equal marriage group supports NB court challenge -- 'in sorrow'," Canadians for Equal Marriage, 2005-APR-25, at:
  5. Andrew Philips, "Same-sex couples take case to court. Four couples are trying to force province to recognize gay marriages," New Brunswick Telegraph-Journal, 2005-APR-26, Page A1 & A5.
  6. Derwin Parsons, "8th Canadian Province Hears Gay Marriage Challenge,", 2005-APR-25, at:
  7. Sean Gordon, "Same-sex marriage ruled legal in N.B.," Toronto Star, 2005-JUN-24, Page A6.

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Copyright © 2005 by Ontario Consultants on Religious Tolerance
Originally written: 2005-APR-29
Latest update: 2005-NOV-20
Author: B.A. Robinson

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