Marriage and Legal Recognition of Same-sex Unions

A Discussion Paper

November 2002

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Seeking people's views

Under Canadian law, the legal concept of marriage as the "union of one man and one woman to the exclusion of all others" has existed since before Confederation. This was thought to be so clear that the opposite-sex requirement for marriage was not specifically included in a federal law, with the exception of recent legislation regarding Quebec. Rather, judges included this requirement as part of the common law that has been consistently applied by the courts in Canada (except in Quebec). In Quebec, the same concept of marriage existed in the pre-Confederation Civil Code, and was recently confirmed in federal law (section 5 of the Federal Law-Civil Law Harmonization Act, No. 1).[1]

Marriage has many aspects — social, religious, emotional and financial, among others. It also has legal consequences, including a range of benefits and obligations under federal law and under provincial and territorial law. Governments legislate legal consequences for marriage to protect a vulnerable partner and any children — mostly to ensure that they are adequately cared for on the death of one partner or if the relationship breaks down.

Many of the legal consequences of marriage, including this range of benefits and obligations under federal, provincial and territorial law, may also be applicable to other committed partners, such as common-law couples. At the federal level, Parliament began extending some of these legal consequences to common-law couples in the 1960s, about 20 years before the Charter came into force. One example is the survivor benefit in the Canada Pension Plan, which is available to the survivor in a common-law relationship of at least one year. Since the Charter came into force, a series of court decisions has held that most benefits and obligations available to married couples should be extended equally to other couples in a conjugal or marriage-like relationship, including same-sex couples.

In 2000, Parliament enacted the Modernization of Benefits and Obligations Act, extending benefits and obligations under 68 federal statutes to common-law opposite-sex and same-sex couples. As a result, the majority of the legal consequences of marriage in federal law now also apply to all couples in committed common-law relationships. Many of the benefits and obligations granted to married couples under provincial and territorial laws and programs are granted equally to common-law couples of the same sex and the opposite sex in the majority of provinces and territories.

There is some debate about whether it is appropriate to grant the same benefits and impose the same obligations on common-law partners as on married couples. Some ask whether common-law partners should be included only in what is called public laws, (or the laws that apply between governments and individuals, such as the Canada Pension Plan), and not in private laws, (or laws governing the obligations between two people, such as family law). If two individuals have chosen not to marry, some think that choice should be respected and they should not be required by law to have the same obligations between each other, including on the breakdown of the relationship.

The provinces and territories take different approaches to this issue, which reflect the diversity of views. The law seeks a balance between individual autonomy and the protection of vulnerable partners and children. In the federal law, common-law relationships are included in all benefits and obligations after one year of cohabitation (known as an «ascription model»), in order to evenly protect vulnerable partners. There are two reasons for this. First, if married couples or common-law partners must go to a lawyer to legally opt out of certain benefits or obligations, then laws can more readily ensure that the choice is based on legal advice about the implications, and is made evenly by both partners. Second, if couples were asked instead to choose whether to opt in, they might choose based on their current circumstances, for example, that they will not need a survivor benefit because they both have their own pension entitlement, but they would then be left unprotected if there was an unforeseen change in their circumstances.[2]

If there is equal treatment in terms of benefits and obligations, some wonder why gay and lesbian couples still want to marry. The applicants in the current court challenges cite three reasons. First, some gay and lesbian couples consider that there is a qualitative difference between common-law relationships and marriage. Marriage is a ceremony where the couple formally announces to their families, friends and the state their commitment to one another and their intention to make the relationship last. A legally sanctioned equivalent to marriage, even one that is closely akin to marriage, is not acceptable to gay and lesbian couples because they believe that it does not give full and equal recognition to their relationship. Second, the current federal law requires gay and lesbian couples to wait the one-year qualifying period that is required for all common-law couplesbefore becoming eligible for benefits and subject to obligations under federal law, while married couples are recognized immediately after the registration of their marriage. Under some provincial and territorial laws, the waiting period is longer, for example three or five years. Some gay and lesbian couples say that they should not have to wait when they are no less committed to one another than are the partners in amarriage. Finally, some gay and lesbian couples feel strongly that access to marriage is necessary to give the full protection of the law to their families and children, as they are concerned that their children may be stigmatized by the lack of legal recognition for their relationships.

The information that follows is meant to inform the House of Commons Standing Committee on Justice and Human Rights, which will table its recommendations after holding hearings later this year.

A spectrum of viewpoints

A survey of media coverage and public debate over the last decade reveals that people in Canada hold many different views on marriage. The findings of public opinion polls, which have routinely included questions on marriage, gay and lesbian couples and discrimination for at least the last decade, reflect the ongoing debate and public interest relating to these topics.

In a poll summarized in the Angus Reid Report (May/June 1998), 75 percent of respondents agreed that human rights legislation in Canada should protect gay and lesbian individuals from discrimination based on their sexual orientation. In a November 1999 Angus Reid poll commissioned by Justice Canada, close to two-thirds of respondents (63 percent) said that partners of gay or lesbian employees should be entitled to the same spousal benefits as the opposite-sex partners of employees.

Public opinion research suggests that public support for recognition of marriage between two persons of the same sex is rising. Thirty-seven percent of respondents in 1993 were in favour of same-sex couples being able to marry, and this figure rose to 49 percent in 1996. More recent research conducted in February 2002 by Environics for the Centre for Research and Information on Canada found that 53 percent of respondents were in favour of gay and lesbian couples marrying; 40 percent were opposed.

People in Canada may not agree on how to address this issue — there are many strongly held views. Many people in Canada believe that marriage is fundamental to our society, and that its primary function is to create a stable and supportive foundation for procreation and raising children. They believe that the opposite-sex requirement of marriage is not only essential, but that it is recognized precisely because of its link to procreation. To them, marriage is a sociological and religious institution built on the biological fact that children are born to couples of the opposite sex and that the couples who produce most of these children also raise and nurture them, even though they may do so in blended families. Although marriage is not only about procreation, the potential for having and raising children is central to the institution, as illustrated by the fact that the common law provided that a marriage could be invalidated because of impotence.[3] Given that the majority of Canadian children are both born to, and raised by, married couples, some people believe that the state logically has a role in promoting marriage and reserving it exclusively for partners of the opposite sex, to help ensure stability and support for children. This view of marriage is reflected in religious teachings in most major world religions.

Other people in Canada see this issue as a fundamental question of equality and the right to fully participate in our society. They believe the choice to marry should be open to same-sex couples as it is to opposite-sex couples. These people point to the fundamental importance in Canadian law of equality guarantees that protect individuals and groups of individuals from discrimination. Some same-sex partners seek access to marriage because it is a public recognition of, and expression of support for, their commitment, as well as a confirmation that their relationship has as much value to society as that of married couples. There are also some practical benefits to marriage; for example, it may create a clearer relationship without the requirement for adoption between a parent's partner and the children they may be raising together.

Some people in Canada think that the purpose of marriage has evolved. They point to growing numbers of divorces and common-law relationships as proof that marriage no longer promotes social stability, although it still has a role in enabling couples to publicly express their commitment to one another. People who see marriage as an expression of commitment rather than an instrument of social stability argue that people in committed same-sex relationships should be just as entitled to formally register their unions as those who marry. Others point out that the sociological and historical origins of marriage were not religious, but rather proprietary. Specifically, the institution of marriage was created to govern the transfer of ownership of property, including women and children, between wealthy families. Only later did this contract become sanctified by religion. Thus, some people consider that the very origin of the institution of marriage should divest it of any continuing validity, and some even believe that marriage can never be a truly equal partnership precisely because of these origins. They share the view that the state should cease to play a role in regulating marriage, and that marriage should be left to individuals and their beliefs.

Finally, some people have suggested that marriage, and the stability it provides to families and communities, is currently being weakened by the growing number of informal or common-law relationships. According to this view, marriage can be strengthened only if it is socially encouraged over less formal relationships, even if this means encouraging both committed opposite-sex couples and committed same-sex couples to marry. They argue that if governments recognize parallel forms of relationships outside of marriage, thus offering couples more choices, there is a risk that an important social institution will be further eroded, resulting in less stability for society.

This overview of the range of perspectives on same-sex marriage is by no means exhaustive, and the Committee hearings will provide an opportunity to hear an even broader spectrum of views.

The Law Commission of Canada also briefly discussed the issue of marriage in its report Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, tabled in Parliament in February 2002.[4] The Law Commission made several suggestions about how marriage and same-sex relationships could be addressed, and these are included in the section called«What choices are open to Parliament?»later in this paper.

The current legal framework

Canada is a constitutional democracy. Our Constitution contains all of the powers of the state now and for the future. It both divides the power to make laws between the federal Parliament and the provincial and territorial legislatures, and sets out the basic rights and freedoms of each individual in the Canadian Charter of Rights and Freedoms. The Charter places limits on government action affecting individuals to ensure that governments act in a way that respects individual rights and freedoms. The Constitution grants a right to individuals to challenge a law they believe is inconsistent with the Charter. This involves asking the courts to rule on the validity of an existing law.

In dividing the power to make laws, the Constitution divides the power over marriage between the federal Parliament and the provincial and territorial legislatures. The federal Parliament has authority over the legal capacity to marry (i.e., who can marry whom).[5] The provincial and territorial legislatures have the authority over solemnization, which includes requirements for such things as licences, determining who can conduct the ceremony and how, and registration.

When marriages break down, the Constitution gives authority to the federal Parliament to regulate the legal consequences through divorce. The Divorce Act sets out a legal framework applied across Canada, which includes grounds for divorce and allows for spousal support, child support, and custody and access orders.

With regard to relationships between unmarried couples, such as common-law partners and registrations (for example, civil unions or domestic partners), legal authority is also divided. Because of our constitutional division of powers, neither the federal Parliament nor a provincial or territorial legislature acting alone has the jurisdiction to create a new form of legal relationship beyond marriage (such as a civil union or a domestic partnership) that will have predictable legal consequences under both federal law and provincial or territorial law, although each has the authority to legislate concerning relationships beyond marriage for the purposes of their own laws and programs. The provincial and territorial legislatures have authority to regulate unmarried relationships for provincial and territorial laws and programs, including how they are defined, and what the legal consequences will be, for example in the law of wills and estates. The federal Parliament also has the power to define and regulate the legal consequences of these relationships for its own laws and programs, such as the Canada Pension Plan.

The legal consequences in the event of the breakdown of relationships between unmarried couples (for example, common-law partners, civil unions or domestic partners), as well as the division of marital property when a marriage breaks down, are ordinarily regulated by the provincial and territorial legislatures under their authority over property and civil rights. However, there are a few federal laws that set out legal consequences for the breakdown of relationships, whether between married or unmarried couples, for the purposes of a specific federal law or program, such as the Canada Pension Plan.

Religious and civil marriage

The Constitution includes a guarantee of freedom of religion, which is entrenched in theCharter. And while there are some legitimate limits on freedom of religion, as, for example, where some other Charter right or freedom is involved, governments must be careful to allow as much as possible for the diversity of religious beliefs.

Some people have expressed concern that, if the concept of marriage is changed, religious officials could be forced to marry gay and lesbian couples even when it is against their beliefs. None of the recent court decisions directly addressed this issue, but both the Ontario decision and the Quebec decision noted that such a result was very unlikely. This issue is addressed further in the section called Possible approaches.

In Canada, the legal requirements for a valid marriage are not always the same as the religious requirements. Most religions have their own requirements for entering into a valid marriage. The Roman Catholic Church, for example, will not marry first cousins or divorced persons who have not received an annulment. Some branches of Judaism will not marry a previously married woman unless she has undergone a religious divorce by receiving a «get.» Some religious officials will not marry two individuals unless at least one is a member of their congregation.

When individuals marry in a religious ceremony, the legal and religious requirements operate together. Religions may impose additional requirements on the prospective marriage partners, but they may not perform a marriage that is legally valid unless the two people seeking to be married meet all the basic requirements set out in federal law and provincial or territorial law. For example, people who do not meet the minimum age requirement set out in the law cannot validly be married through a religious ceremony.

Concern over the possible impact of differences in religious requirements for marriage was debated at the time of Confederation, and led to the federal government being given the power over the legal capacity to marry, to ensure consistency across the country. These differences in requirements for religious marriages have also over time led most countries, including Canada, to create a legal mechanism for civil or «city hall» marriages. In this way, a couple may legally marry in a civil ceremony as an alternative to a religious ceremony.

The distinction between a religious and a civil marriage may be nearly invisible to many couples getting married in Canada. In some provinces and territories, if a couple is married religiously, they may not need to get a marriage licence, provided they meet the legal requirements.[6] Ordinarily, it is the religious official conducting the wedding ceremony who will take care of the registration, which then gives the marriage legal recognition. In all cases in Canada, the religion has the right to perform whatever rites of marriage it chooses, but the ceremony by itself has no legal consequences unless the marriage also meets the requirements of federal law and provincial or territorial law. That is why religious officials must be authorized under provincial or territorial law to perform ceremonies that are recognized in law.

In other countries, such as France, the distinction between religious and civil marriage is more readily apparent. There, a couple must go through a civil ceremony, whether or not there will also be a religious one, if they want their marriage to be legally recognized.

Recent court decisions

There are now conflicting court decisions in British Columbia, Ontario and Quebec on the opposite-sex requirement of marriage. Last fall, the British Columbia Supreme Court upheld the opposite-sex requirement of marriage. The court held that although the opposite-sex requirement of marriage violated the equality guarantees of gay and lesbian individuals under the Charter, it was justified in a free and democratic society. In the court's view, the concept of marriage results in inequality for gay and lesbian couples, even though the concept did not arise because of a «discriminatory belief that same-sex couples are not worthy of being married.» However, the inequality was justified as the Charter does not require marriage to be made «something it was not» in order to embrace other relationships. The Court also found that the federal Parliament did not have the constitutional authority to alter the opposite-sex meaning of marriage, although the Quebec and Ontario courts disagree on this point. The British Columbia Supreme Court decision is under appeal, and expected to be heard by the British Columbia Court of Appeal in February 2003.

In Ontario, a decision of the Ontario Divisional Court in 1993 also upheld the opposite-sex requirement of marriage. The Court held that unions of persons of the same sex are not marriages because of the definition of marriage, and that the Charter does not have the effect of bringing about a change in the definition of marriage.

In July 2002, however, a different panel of the Ontario Divisional Court found that the opposite-sex requirement of marriage was a breach of the constitutional equality guarantees for gay and lesbian Canadians and gave Parliament two years to address this issue. If Parliament fails to do so, the court said, the common law in Ontario will automatically be changed to allow unions of «two persons.» In the view of the Ontario Divisional Court, the purposes of marriage in our modern society can be equally valid for same-sex as for opposite-sex couples — commitment, companionship, mutual care and support, shared workload, shared shelter, emotional and financial interdependence, and child-rearing. The only remaining distinction in the court's view was that same-sex couples could not procreate, at least not without the intervention of a third party. But as not all married couples have children, and many children are born outside of marriage, the three judges held that having the potential to procreate was insufficient to be the sole legal basis for continuing the opposite-sex requirement of marriage.

In September, the Quebec Superior Court made a similar finding to that of the Ontario Divisional Court. The opposite-sex requirement of marriage was found to be a breach of the constitutional equality guarantees, and the court ruled that such a breach was not justified in a free and democratic society. It also gave Parliament two years to address the issue. The Court also declared specific sections of three laws that had set out the opposite-sex meaning of marriage[7] unconstitutional and inoperative.

If the law changes in Ontario and Quebec only, this would mean that the law of marriage would apply across Canada in different ways. This outcome is exactly what the drafters of the original Constitution hoped to avoid — having some provinces and territories recognize a marriage that others do not.

The role of Parliament and the courts

In the last few years, Parliament has discussed the meaning of marriage on three occasions, as well as during debate on a series of bills introduced in Parliament by individual Members of Parliament or Senators:

• in 1999, Parliament passed by a wide margin an Opposition motion stating that Parliament will take all reasonable steps to maintain the opposite-sex meaning of marriage in Canada;
• in 2000, section 1.1 was added to the Modernization of Benefits and Obligations Act as an interpretive clause, stating that nothing in the Act altered the existing meaning of marriage as the "lawful union of one man and one woman to the exclusion of all others"; and
• in 2001, section 5 of the Federal Law-Civil Law Harmonization Act, No. 1 confirmed the opposite-sex meaning of marriage in Quebec.

The recent decisions of the Ontario Divisional Court and the Quebec Superior Court are inconsistent with these earlier statements of Parliament. Indeed, the Quebec Superior Court decision declared the last two unconstitutional. This has caused concern among some people in Canada that the courts may be "over-stepping" their constitutional role by overruling the expressed will of Parliament. However, under the Constitution, Parliament and the courts have complementary roles. In reviewing the law on marriage, two courts have set out new interpretations on the scope of the Charter equality guarantees. It is now up to Parliament to review its approach to marriage in light of these new decisions.

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