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
|"I want to marry the person I love." A sign at a demonstration on
Parliament Hill on 2004-MAR.|
|"...preserving the heterosexual understanding of
marriage is an important public policy decision that benefits all of
society..." Focus on the Family (Canada)|
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.
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
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.
|2004-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:|
- It would define marriage as "the lawful union of one man and one
woman to the exclusion of all others."
- It would protect clergy from prosecution under anti-bigotry laws if
they declined to marry a couple for any reason.
|2004-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
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.
|2004-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."
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.
39% feel that SSM should be "fully
recognized and equal to conventional heterosexual marriage."
32% believe it should "be
allowed to exist in civil law but not have the same legal weight as a
27% believe that "it is wrong
and should never be lawful."
2% either don't have an opinion or
declined to say. 8
|2004-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
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
The federal government has not yet decided whether to appeal the decision to
the Supreme Court of Canada. 5
- "Same-sex issue back on agenda," The Toronto Star, 2004-NOV-16.
- "Marriage bill deemed non-votable" 2004-NOV-19, at:
- "Democracy Denied: Liberal, Bloc and NDP members combine to eliminate
Commons vote on definition of marriage bill," 2004-NOV-25, at:
- "Marriage bill again denied votable status," Today's Family News,
- Tracey Tyler, "Widowed gays win survivor pensions," The Toronto Star,
2004-NOV-27, Page A1 and A4.
- Tracy Tyler, "Judge redefined 'spouse.' Same-sex divorce was of 'two
persons'," The Toronto Star, 2005-FEB-02, Page A7.
- "Ontario judge grants first same-sex divorce," CTV News, 2004-SEP-14,
- "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:
Copyright © 2004 & 2005by Ontario
Consultants on Religious Tolerance
Latest update: 2005-FEB-02
Author: B.A. Robinson