Marriage and Legal Recognition of Same-sex Unions

A Discussion Paper

November 2002

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Possible approaches

What should marriage look like in Canadian law? The spectrum of possible approaches, outlined below, would have an array of different consequences.

Marriage could remain an opposite-sex institution, either by:

• legislating the opposite-sex requirement for marriage; or by
• restating the opposite-sex meaning of marriage in the preamble of a new piece of legislation that would create an equivalent to marriage for federal purposes (either civil union or domestic partnership) for other conjugal relationships; or

Marriage could be changed to also include same-sex couples by:

• legislating to give same-sex couples the legal capacity to marry; or

With the cooperation of the provinces and territories, Parliament could leave marriage to the religions by:

• removing all federal references to marriage, and replacing them by a neutral registration system for all conjugal relationships, leaving marriage exclusively to individuals and their religious institutions.

Each approach would have to be undertaken in a way that complied with the constitutional division of powers and the Charter. Each approach is examined in greater detail below.

Marriage could remain an opposite-sex institution

What would this look like?

If Parliament chooses to keep marriage as it is, that is the «union of one man and one woman,» this opposite-sex meaning could be set out explicitly in a new federal law. In that case, this could be a clear expression of what Parliament believes marriage is, but would not address the equality concerns of same-sex couples.

If Parliament wished to also address some of the equality concerns, it could enact a new federal statute creating a new registry that would be deemed equivalent to marriage for the purposes of federal laws and programs. This new civil union or domestic partner registry could either be open only to same-sex couples (in the way that marriage would be open only to opposite-sex couples), or it could be open both to same-sex couples and to opposite-sex couples who choose not to marry. The federal statute creating this new registry could include a provision stating that marriage is an opposite-sex institution.

What would this do?

• Keeping the opposite-sex meaning of marriage would be consistent with what has been done by the majority of countries that have addressed this question. It would satisfy those who do not believe that the meaning of marriage can or should be changed to address equality concerns.
• It would not be viewed by all as fully addressing equality concerns under s. 15 of the Charter, and so it would likely be challenged under the Charter as discriminatory. Although this question has not been decided by the courts, both the Québec and Ontario decisions suggest that a civil registry may not be enough to meet equality concerns. If the new registry is open to both same-sex and opposite-sex couples, then opposite-sex couples would still have an additional choice that is not open to same-sex couples (i.e., the choice to marry). If the new registry is open to same-sex couples only, then some may see the creation of the new registry as having a discriminatory purpose of keeping same-sex couples out of the institution of marriage by creating a parallel institution.
• If the opposite-sex meaning of marriage ultimately withstands the current constitutional challenges, this legislation would too.
• If the courts ultimately rule that preserving marriage as an opposite-sex institution is a violation of the Charter, but Parliament wished to maintain the opposite-sex requirement for marriage, legislation to do so would require Parliament to use section 33 of the Canadian Charter of Rights and Freedoms, the «notwithstanding» clause. This clause has never been used by Parliament. The Charter provides that when Parliament uses the notwithstanding clause to enact a piece of legislation, the legislation must be reviewed by Parliament every five years. Invoking the «notwithstanding» clause in legislation reaffirming the opposite-sex meaning of marriage would guarantee that the issue would be debated again in five years' time.
• Or Parliament could choose to combine the statement of the opposite-sex meaning of marriage with the creation of a new registry that is equivalent to marriage. However, the federal Parliament acting alone does not have the authority to make the registry apply for all purposes.[8] All of the provinces and territories would have to agree to pass complementary legislation for the new civil union or domestic partnership to apply evenly throughout Canada. Otherwise, the registration would be limited to federal statutes and programs. The fact that the registry would not apply evenly across Canada may result in claims of discrimination as gay and lesbian couples would not be treated in law as equivalent to married in all jurisdictions.[9]
• If the relationship between partners to a civil union or registered domestic partnership breaks down, federal legislation could only set out how a couple could «de-register» for federal purposes.[10] If there were no complementary legislation by the provinces and territories, matters of support, division of property and parental responsibility could be resolved only if the couple qualified as common-law partners under provincial or territorial law.

Marriage could be changed to also include same-sex couples

What would this look like?

Parliament could choose to legislate to change marriage to give same-sex couples the legal capacity to marry. Current federal, provincial and territorial laws, regulations and programs that refer to married couples would not need to be amended but would simply apply to marriages between two persons of the same sex. However, the new legislation would also have to indicate how some of the other common law rules of legal capacity to marry that are currently set out in opposite-sex terms would apply.[11] Also, some statutes, such as the Divorce Act, that use language based on the opposite-sex meaning of marriage, would need adjustment.

What would this do?

• This would fully address equality concerns.[12]
• These marriages would likely be valid only within Canada, as there is currently no legal mechanism for recognition of same-sex marriages outside our borders.
• There might be concern by some that religious officials might be forced to perform same-sex marriages. Both the Ontario and Quebec decisions suggest that the Charter would not require religious officials to conduct marriage ceremonies that were contrary to their religious beliefs. However, the federal, provincial and territorial governments could agree to look at whether some additional changes to the law are necessary (likely primarily to provincial and territorial laws[13]).
• Another way of ensuring that religious officials are not required to marry couples against their beliefs would be to remove all legal effect from religious marriage. This would mean couples would have to have a civil marriage, even where they also had a religious marriage, before it would be recognized in law. If Parliament chose this approach, the equality concerns could be fully addressed in civil marriage, without parallel changes to religious marriage. However, the only way to remove all legal effect from religious marriage would be for the provinces and territories to make changes in their solemnization laws.[14]
• Completing the separation of religious and secular marriage may be objectionable to many religions, which may want legal recognition for the marriages they perform, and whose members may feel marginalized by no longer receiving legal recognition for their religious marriages.

With the cooperation of the provinces and territories, Parliament could leave marriage to the religions

Parliament could choose to underscore the division of church and state in Canada by making a clearer distinction between the role of Parliament and that of the religions in the area of marriage. To accomplish this goal, all legal effect could be removed from marriage, leaving marriage exclusively to the religions. This would require the full cooperation of all provinces and territories.

What would this look like?

Parliament could repeal all federal law on marriage and all references in federal law and programs to marriage. These would be replaced with a new registry for opposite-sex and same-sex couples using neutral language, for example, registered partner. Existing marriages could be deemed to be included, but all new relationships would be required to be registered under the new system in order to be recognized in law. Federal divorce laws would apply only to existing marriages, and the breakdown of registered relationships would be governed by provincial and territorial law. A couple could choose to be married by a religious official, but that marriage would have no effect in law unless the couple also registered in the new system. Each religion would decide whether to perform marriage only for opposite-sex couples or also for same-sex couples.

What would this do?

• This approach would work only with the full cooperation of all provinces and territories as the new registry would replace provincial and territorial marriage registries and civil union and domestic partner registries.
• If provinces and territories decided instead to continue to exercise their constitutional jurisdiction to solemnize marriages, this approach would not work for two reasons. First, there would be no federal law setting out who can get married, meaning that either the Charter equality concerns would continue regarding the opposite-sex meaning of marriage (since the federal common law on this legal issue would still exist and so be open to challenge), or court decisions on the equality issue would have to fill the gap created in the federal law. Second, if provinces and territories continued to elect to solemnize marriages, there would no longer be any law on divorce that applied to these new marriages. Parliament could be criticized for not exercising its authority over divorce to protect vulnerable partners and children.
• If there were full cooperation by all provinces and territories, a uniform registry system could allow for legal recognition of committed conjugal relationships (either opposite sex or same sex) and full and equal treatment. There would no longer be any references to marriage in any federal law, but existing marriages and new registrations would be eligible for the full range of benefits and obligations under law.
• As marriage would no longer exist in law, laws regarding the legal consequences of the breakdown of marriages on divorce would apply only to existing marriages. Provincial and territorial law would apply to the breakdown of any relationships in the new registry, including those where a religious marriage had taken place.
• This new registry would be difficult to challenge before the courts, because all couples would be treated the same way. However, it would likely concern those who believe that marriage should be legally recognized and may make them feel that their beliefs have been marginalized. It could also create difficulties if a couple moved to another country. First, the other country would have to determine if the marriage was legally valid there, and second, a couple moving to Canada who had been married elsewhere might have difficulties getting a divorce.

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