1.877.602.9900Our Vancouver BC same sex marriage, divorce and same sex partnersips and relationships department handles all aspects of married or unmarried same sex relationships including child and spousal support, property division, child custody and parenting responsibilities issues and prenuptial, cohabitation and separation agreements throughout BC. Matt Ostrow and Johanna Stein are focused on this aspect of family law and would be delighted to meet with you.
Civil Marriage Act Now Law in Canada
On 19 July 2005, Bill C-38, the federal government bill allowing same sex partners to marry, passed third reading in the Senate by a vote of 47 to 21. Immediately thereafter the bill received Royal Assent and the Civil Marriage Act is now law, and is binding throughout all of Canada’s provinces and territories.
The previous common law definition of marriage from “the union of a man and a woman” to “the union of two persons,” allowing same sex partners to marry. The act also amended the Divorce Act (Canada) to allow married same sex partners to obtain a divorce. See the Federal Government’s website (link below) for answers to your questions about the new legislation.
Civil Marriage Act – Frequently Asked Questions
Historical Background
On July 8, 2003, The British Columbia Court of Appeal gave immediate effect to its May 30, 2003 decision that the traditional judge-made definition of marriage as the “voluntary union for life of one man and one woman, to the exclusion of all others,” be reformulated to be the lawful union of two persons to the exclusion of all others. This decision, Barbeau v. British Columbia (Attorney General), 2003 BCCA 251, which was originally to have its effects delayed until June of 2004 so that the federal government would have a chance to enact appropriate legislation, makes it possible for same-sex couples to obtain a marriage license and legally marry in this province.
The change in our Court of Appeal’s position was precipitated by the unexpected move of the Ontario Court of Appeal on June 10, 2003 in the decision of Halpern v. Canada (A.G.), [2003] O.J. No. 2268, where the Court decided to reformulate the traditional definition of marriage without giving the Legislature an opportunity to act. As a result, Ontario became the first province to legalize same sex marriages in Canada.
From June 10 to July 8th, it was only possible for same sex marriages in Canada to be held in the province of Ontario. However, when it was clear that the federal government had decided not to appeal the decisions of the three appellate courts, our Court of Appeal agreed to give its decision immediate effect in order to bring it in line with the Ontario ruling.
For a history of legislative and court action relating to same-sex marriages in Canada click here.
Substance of the Barbeau Decision
In the Barbeau decision handed down May 30, 2003, the Court of Appeal concluded that the common law (or judge-made law) barred same sex marriages in Canada, that it contravened the equality provisions of the Charter of Rights and Freedoms and that it could not be justified under s.1 of the Charter, which is the section that permits an infringement of a Charter right if it is “justifiable in a free and democratic society.”
In reaching its decision, the Court recognized that there are advantages to and reasons for marriage in modern society that go beyond the traditional goal of facilitating procreation and that homosexuals are entitled to share in these advantages.
The Court of Appeal rejected the trial judge’s conclusion that the constitutional division of powers between the federal and provincial governments, in which the federal government was given exclusive jurisdiction over “Marriage and Divorce,” had the effect of freezing the definition of marriage as it was in 1867 when the power was first bestowed. It concluded that a change in the definition of marriage to include same-sex couples does not have the effect of illegally amending the Constitution. Instead, the Court of Appeal held that the word “marriage” as used in the Constitution Act 1967, does not contain a definition and must be given a large and liberal interpretation.
The Court of Appeal found that the bar to same sex marriages in Canada was a violation of the section 15 equality rights of homosexual persons because it tended to indicate that their relationships are less worthy of respect.
This does not end the analysis, however. A Charter violation may be justified if the impugned law furthers a pressing and substantial objective (of the government or, in this case, society) in a rational manner, with minimal impairment of the Charter right and with negative effects proportional to its positive effects as well as to the importance of its objective.
Opponents to same sex marriages in Canada argued before the Court that the essential objective of marriage is to facilitate procreation and that that objective is sufficient to justify the Charter infringement under s.1. The Court of Appeal disagreed. As Madame Justice Prowse stated:
“…I find that procreation (including the rearing of children) resulting from sexual intercourse between a husband and a wife, can no longer be regard as a sufficiently pressing and substantial objective that it satisfies the first stage of the s.1 analysis… (put another way) “I am not satisfied that denying same-sex couples the right to marry because of their inability to procreate ‘as between themselves’ is a sufficiently pressing and substantial objective to satisfy the first stage of the s.1 analysis”
Madame Justice Prowse went on to find that even if procreation were a sufficiently pressing and substantial objective of marriage to pass the first stage of the analysis, it does not pass the remaining tests. There is no rational connection between the propensity of heterosexuals to procreate inside marriage and a restriction on same sex marriages in Canada. Furthermore, a bar on same-sex marriage does not minimally impair the equality rights of same-sex couples and the negative effects of such a bar are not proportional to the importance of the objective.
By way of remedy the Court made a declaration that the judge-made or common law bar against same-sex marriage is of no force or effect and reformulated the common-law definition of marriage as “the lawful union of two persons to the exclusion of all others”.
The Court noted that this decision pertains only to civil marriage, and religious groups cannot be compelled to solemnize same-sex marriages.
The British Columbia decision is similar to the decision of the Ontario Court of Appeal in Ontario Halpern v. Canada (Attorney General) as well as the earlier Quebec decision of Hendricks v Quebec (Attorney General) in which the Court found that, in barring same sex marriages, the Civil Code of Quebec violates s.15 of the Charter, and cannot be saved under s.1.
Response of the Federal Government
The federal government has decided that it will not appeal the three appellate court decisions and has instead drafted new legislation entitled An Act Respecting Certain Aspects of Legal Capacity for Marriage. That Bill, which is at the first reading stage, defines marriage for civil purposes as the lawful union of two persons to the exclusion of all others.
The federal government took the unusual move of referring the Bill to the Supreme Court of Canada for a legal opinion and asked them to pass judgment on the following questions:
- Is the draft bill within the exclusive legislative authority of the Parliament of Canada?
- Is the section of the draft bill that extends the capacity to marry to persons of the same sex consistent with the Canadian Charter of Rights and Freedoms?
- Does the freedom of religion guaranteed by the Charter protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?
On December 9, 2004, the Supreme Court of Canada released its decision on the marriage Reference. The Court agreed with the position of the Attorney General of Canada on the constitutionality of the draft bill, holding that the draft bill was not only consistent with the Charter but flowed from its protections. The Court declined to answer the fourth question on the constitutionality of the opposite-sex requirement for marriage, with the result that the lower court decisions in eight provinces and territories holding that the opposite-sex requirement is unconstitutional stand. The Court gave as its reason for not answering the fourth question that many Canadians had already acted in reliance on the lower court decisions and married. The Court also indicated that other approaches, such as giving same-sex unions legal recognition by another name, such as civil union, were less than equal and so would not be consistent with the Charter, requiring the use of the notwithstanding clause. The Court found that the Charter already fully protects religious officials from being forced to perform marriages that would be against their religious beliefs, although they also found that the one clause in the bill on religious freedom was not entirely within federal jurisdiction, and that any additional protections that might be desired would have to be made within provincial and territorial laws.
