HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA
LEGAL ASPECTS: MARRIAGE LAWS, etc.
Section 91 of the
British North America Act -- Canada's founding document -- says that the definition of marriage and the privileges,
restrictions, and rights associated with marriage are a federal responsibility. Section 92 says that the "solemnization of marriage" is the responsibility of
the individual province.
Thus, the federal government defines who can get
married. The individual provinces and territories handle the paperwork. They issue marriage licenses, authorize individuals
to perform marriages, register marriages, etc.
Marriage procedures in Quebec is controlled by the Quebec Civil Code, which was historically
derived from French laws. The mechanics of marriage in the remaining provinces of Canada is
administered by the provinces in accordance with Provincial marriage acts, under a
Federal law which historically evolved from British law.
Texts of federal and provincial marriage acts:
|Federal: The "Federal Marriage Act" is often mentioned
in the media. However, there appears to be no legislation with that name.
Rather, federal regulation of marriage is scattered throughout a number of
|British North America Act, Sections 91 & 92|
|1867 Constitution. This incorporated a 1866 United Kingdom Court
Decision: Hyde vs Hyde.|
|Bill C-23, "Modernization of Benefits and Obligations Act"
was an omnibus bill to amend 58 federal laws that discriminated against
same-sex couples. It did not state that same-sex couples are legal
"spouses;" it merely made provision for homosexual partners to receive
the same benefits as homosexual couples. It was passed in 2000-JUN. Its
various clauses were phased in over time. The Progressive Conservative
and Alliance parties demanded that it include a definition of marriage
in its Section 1.1: "For greater certainty, the amendments made by
this Act do not affect the meaning of the word 'marriage', that is, the
lawful union of one man and one woman to the exclusion of all others."
|The Marriage (Prohibited Degrees) Act of 1991 describes "the
laws prohibiting marriage between related persons." See:
|Some provincial acts:
Conflicts concerning marriage prior to 2005:
The Canadian Charter of Rights and
Freedoms is Canada's constitution. It is often referred to
simply as the "Charter." There has existed an apparent conflict among federal
provincial marriage acts, and the Charter:
| Section 5 of the Ontario Marriage Act
prohibited same-sex couples from obtaining a marriage license. But it
allows any two persons to marry through the reading of the
banns. Exceptions are individuals who are too young, or who are
already married, or who are too closely related. The banns are a series of announcements made during
a religious service on
three successive weeks that the couple plans to marry. Members of the
congregation are asked whether there is any legal reason why they should
not be married. After the third reading of the banns, the
couple can get married in church and have their union registered with the
government. No marriage license is required. The marriage act defines this process as being available to
"any person who is of the age of majority." Two
male gays are certainly "persons." A high court in Britain ruled
many decades ago that women in Canada are also persons. Thus, almost all same-sex
couples who are 18 years of age or older would appear to qualify under Section 5.|
|The federal marriage legislation (see above) specifically restricted marriage to
one man and one woman. A lesbian who chose a man to marry would
qualify under this act. But if she chose someone whom she loved --
another woman -- she would not qualify. Thus, the marriage act
discriminates directly on the basis of the spouses' gender. It also
discriminates indirectly on the basis of the sexual orientation of the
|The Charter of Rights and Freedoms states that a person
cannot be discriminated against because of their gender. In addition,
the Supreme Court of Canada has repeatedly ruled that
individuals in Canada cannot be discriminated against on the basis of
their sexual orientation either.|
Polls indicated by 2005 that most Canadian adults favor allowing gays and lesbians to marry.
However, there are probably more committed, organized persons who wish to
prevent equal rights for gays and lesbians than there are homosexuals and
homosexual supporters in many provinces. Thus, there was strong reluctance
for the Federal and
governments to change their marriage acts and give same-sex couples the right to marry. To
allow SSM might
cause them to lose votes
at the next election.
The Charter takes precedence over the various marriage
acts. There were good legal grounds that the Canadian courts
would eventually declare the existing federal and provincial marriage
legislation to be unconstitutional. Three
lawsuits were initiated at a lower court level in three provinces -- the Divisional Court in
Ontario, and similar courts in Quebec and British Columbia). They were all
appealed to the highest courts in the provinces. It appeared obvious from
the importance of the cases that the loser at each step would appeal rulings all the way
to the Supreme Court. However, on 2003-JUN-17, the federal cabinet was
faced with three unanimous rulings in favor of same-sex marriage by the three
most senior courts in these three provinces. The cabinet gave up and decided not
appeal cases to the Supreme Court. They decided to
introduce legislation that would make same-sex marriage available across Canada.
Same-sex marriage status in Canada's provinces and territories:
In alphabetic order:
|Alberta: The government of Alberta is
considered one of the most socially conservative in Canada. However,
they have allowed gays and lesbians to adopt. On 2002-MAY-7, the
government introduced two bills:|
|Bill 29 gave same-sex couples the same rights as married
couples if one dies without having prepared a will. The courts ordered
the government to pass a bill with this content. |
|Bill 30 recognized same-sex couples who have lived together
for three years, or who have signed a relationship contract, or who
have a child. Partners would be required to pay spousal support
payments in the event that their relationship fails. Justice Minister
David Hancock said he believed most Albertans will support the change.
"We need to make Alberta's laws applicable to all Albertans and
available to all Albertans on a fair basis. That is a fundamental need
that has to be met....Marriage has meaning. The institution of
marriage as a social, religious and cultural institution must be
maintained," Hancock said. "But there is also the value of fairness
before the law." |
They resisted granting same-sex couples the right to marry. But with
the proclaiming of the federal bill C-38 in 2005-JUL, the provincial
government was forced to allow SSM.
|British Columbia, on the west coast of
Canada, also recognized gay and lesbian partnerships by initially setting up a
system for gays and lesbian that is parallel to heterosexual marriage.
Homosexuals there had most rights equivalent to married couples. They
were allowed to adopt. However they did not have the right to marry.
This changed on 2003-JUL-8, when the British Columbia Court of Appeal
ordered the provincial government to issue marriage licenses to same-sex
couples and to register their marriages. More details|
|Manitoba: This province is located to the west of
Ontario and to the north of the states of North Dakota and Minnesota. Same-sex
marriage was legalized in this province as a result of court action
since 2004-SEP-16. More details|
|New Brunswick: SSM was legalized on 2005-JUN-23 by court
|Newfoundland / Labrador: This is Canada's most
easterly province. On 2004-DEC-21, the Supreme
Court of Newfoundland ordered the province to issue licenses to
qualified same-sex couples. More details.
|Northwest Territories: A lawsuit was been filed to legalize
SSM. It became moot on 2005-JUL-20 when the federal law was proclaimed.|
|Nova Scotia: This province is
on the east coast of Canada. The legislature has created legislation recognizing same-sex
relationships. For $15 (CDN; about $10 in U.S. funds) a couple was
"register a domestic partnership" at the Office of
Vital Statistics. This gave them a number of rights under
about 20 matrimonial laws which cover everything from pensions and
wills to medical decisions, ownership of joint property, the right to
request alimony, and child support. It did not give them the right to
adopt children. However, that right was later added by a
provincial Supreme Court ruling. Also, the province will not recognize union ceremonies
performed in church. Couples will have to register with the government
directly. The arrangement was similar to that which is available in Vermont.
A lawsuit was initiated to legalize same-sex marriage in the
province. On 2004-SEP-24, Nova
Scotia Supreme Court Justice Heather Robertson ruled that SSM was
to be made available in the province.
|Nunavut: SSM was not permitted until C-38 was proclaimed. Same-sex marriages made
elsewhere were recognized.|
|Ontario: Some same-sex spousal rights have been granted in
this province. Gays and lesbians can adopt. In mid-1999,
the Supreme Court of Canada ruled in the "M v. H" case that the existing legislation concerning
couples who live together without being married is discriminatory. They required the
Government of Ontario to change their laws so that both
heterosexual and homosexual couples are treated equally. The government
reluctantly followed the instructions of the court. |
However, the Government of Ontario has
not granted permission for same-sex partners to marry. It was up to the
Superior Court to determine on 2002-JUL-12 that the current legal definition of
marriage in Ontario is discriminatory. The court ordered it changed to
include provision for same-sex marriages. The Ontario government
accepted this ruling, but the Federal government decided to appeal
More details. The Ontario Court of Appeal upheld the lower
court's ruling on 2003-JUN-10. Within the next month, about 250 marriage
licenses were issued to same-sex couples in the City of Toronto
|Prince Edward Island: As of the end of 2005-JUN, this is the
only province East of Alberta that still forbids SSM. C-38 made SSM
theoretically available in PEI. However, as of 2005-NOV, the province
still refuses to issue marriage licenses to same-sex couples.|
|Quebec: The ruling party, the Parti Québécois, has included gay rights and the extension of spousal rights
for gay and lesbian couples in their political platform. But they took many
years before implementing the promise. In 1999, two gay men initiated a
lawsuit in Quebec court to obtain the right to marry. In 2002-APR, the legislature
introduced a bill to create civil unions for gays and lesbians. Same-sex
marriage has been available in the province since 2004-MAR-20 as a
result of court action.
|Saskatchewan: This is a province between Manitoba and
Alberta. On 2004-NOV-05, the Family Law Division of the Court of Queen's
Bench ruled that existing provincial laws discriminated against
same-sex couples. SSM has been available ever since.
|Yukon: This is a small territory that is North of British
Columbia which has a population of the order of 30,000. Same-sex
marriage was legalized in this province as a result of a court action
since 2004-JUL-14. More details|
- M. Eichler, "Family Shifts -- Families, Policies,
and Gender Equality" Oxford University Press, (1997) at Page 3.
- B. Cossman & B. Ryder, "Gay, Lesbian and Unmarried
Heterosexual Couples and the Family Law Act: Accommodating a Diversity of
Family Forms," Ontario Law Reform Commission, Toronto, (1993) at
Pages 3 & 5.
- Siobhan Roberts, "Loophole may allow gay marriages,"
National Post, 2000-DEC-5, Pages A1 & A2
- "Equal Marriage for same-sex couples," at:
- John Cotter, "Alberta to Give Same-Sex Couples Similar Rights as
Married Couples," Canadian Press, 2002-MAY-7.
- Kerry Gillespie, sidebar to "City council supports same-sex marriage: Councillors
ask Ottawa to not fight court ruling," The Toronto Star, 2002-AUG-1
- "Equal Marriage for same-sex couples,"
"SSM" means "same-sex marriage"
Copyright © 1998 to 2005 by Ontario
Consultants on Religious Tolerance
Latest update: 2005-NOV-20
Author: B.A. Robinson