Same-Sex Marriage in Canada

The Essential Facts

  1. Same-sex couples are eligible to be married in Canada. Once married, same-sex partners have the same rights and responsibilities as married opposite-sex partners.
  2. Common law same-sex partners have the same rights and responsibilities as common law opposite-sex partners.
  3. Religious institutions and clergy can refuse to perform a same-sex marriage ceremony against their beliefs. This exemption does not apply to civil officials.

How did we get here?

Common Law Rights

The case M v H, [1999] 2 SCR 3 [CanLII] was a dispute between a lesbian couple in Ontario. When they separated, one of the parties brought an application for relief under Ontario’s Family Law Act RSO 1990, c F3. At that time, the definition of common law spouses under section 29 the Family Law Act excluded same-sex couples. In the end, Supreme Court of Canada ruled that this definition violated equality rights under s 15 of the Canadian Charter of Rights and Freedoms (“the Charter“). The Court then stated that the Family Law Act had to be amended to comply with the ruling. In October 1999, the Ontario government approved Bill 5 to amend multiple laws that originally excluded same-sex partners. The other provinces across Canada were also required to amend their laws to comply with the decision.

This ruling provided same-sex couples nationwide with many of the financial and legal benefits previously denied to them. However, it did not reach far enough to provide them with the right to marriage.

Marriage Rights

In Ontario, nine same-sex couples got married by way of both civil and religious ceremonies. Seven couples married in the civil ceremonies applied for licences from the Clerk of the City of Toronto. The Clerk did not deny these licences, but indicated to the couples that she would apply to the court for directions.

Around the same time, two same-sex couples were also married via religious ceremonies. The pastor responsible for the ceremonies, Brent Hawkes of the Metropolitan Community Church of Toronto (MCCT), registered the marriages he performed in the church register and issued marriage certificates to the couples. The required documentation from these weddings was submitted to the Office of the Registrar General, but were refused. MCCT proceeded to launch an application to the Divisional Court to have these marriages recognized. Later, the two court applications were consolidated as they focused on the same question of law.

The case was eventually heard by the Ontario Court of Appeal in 2003 (Halpern v Canada (Attorney General), 65 OR (3d) 161 (ONCA) [CanLII]) . The court unanimously held that that excluding same-sex couples from the definition of marriage infringed their section 15 equality rights under the Charter. The court stated that the definition of marriage as “the voluntary union for life of one man and one woman to the exclusion of all others” would be immediately replaced with “the voluntary union for life of two persons to the exclusion of all others”. This decision made Ontario the third jurisdiction in the world to legally recognize same-sex marriage.

Following the Ontario decision, other provinces and territories began producing similar legal decisions requiring the recognition of same-sex marriage. Between 2003 and 2005, court decisions in British Columbia, Quebec, the Yukon, Manitoba, Nova Scotia, Saskatchewan, Newfoundland and New Brunswick all recognized same-sex marriage.

Parliament Steps In

In 2003, the federal government announced that it would present a bill that would allow same-sex couples to marry. Before introducing the bill to Parliament, the cabinet submitted a reference question to the Supreme Court of Canada, asking whether limiting marriage to opposite-sex couples was consistent with the Charter, and if civil same-sex unions were an acceptable alternative.

In 2004, the Supreme Court of Canada ruled that same-sex marriages were constitutional and that the government had the sole authority to amend the definition of marriage. However, it refused to comment on whether or not the government was actually required to amend the legislation under the Charter. The Court commonly does this when the government appears to be asking the court a question for an improper purpose, and in this case, the government appeared to be asking for the purpose for shutting down dissenters on their new legislation. The government had already proposed legalizing same-sex marriage, and they wanted the Court to say that this new legislation was required. Had the government instead appealed any of the provincial court decisions mentioned above, the Court would have been required to provide an answer to this question.

The Court did however, make a ruling under section 2(a) of the Charter, which guarantees freedom of religion. It stated that religious institutions and clergy could refuse to participate in same-sex marriages. This right extended to both performing the marriages and renting out religious spaces for the purpose of same-sex marriages. However, the court stated it was up to the provincial governments to legislate specific protection for religious groups.

On July 19, 2005, the Senate passed Bill C-38: The Civil Marriage Act. It received Royal Assent on July 20, 2005. This bill made Canada the fourth country in the world and the first non-European nation to recognize same-sex marriage.

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