Marriage and Legal Recognition of Same-sex Unions

A Discussion Paper

November 2002

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Endnotes

• [1] Section 5 reads «Marriage requires the free and enlightened consent of a man and a woman to be the spouse of the other.» This section was recently declared unconstitutional by the Quebec Superior Court.
  
  
• [2] Other arguments have also been put forward. Some have suggested that if one partner does not want to marry in order to avoid the legal consequences, then they are unlikely to agree to opt in as common-law partners. Some have also suggested that laws should not recognize the «free choice» of couples with children who do not marry, as where the relationship breaks down, this may affect the lives of the children who did not choose. Finally, some argue it is inappropriate to allow couples to choose to take on obligations, as where private law obligations do not apply on the breakdown of a relationship, public programs must usually fill the gap, such as the Guaranteed Income Supplement under the Old Age Security Act.
  
  
• [3] This is not the case in the Civil Law (see Gibeault c. Campeau, (1977) C.S. 717, page 718; P.G. Québec c. K., (1947) B.R. 566, page 571; Burnett c. Worthington, (1951) C.S. 50; Beaulne c. Thessereault, (1947) C.S. 24; C. c. J., (1947) C.S. 298, page 299).
  
  
• [4] The Law Commission's report focused mostly on people in non-conjugal relationships, such as an adult child living with an elderly parent, two elderly siblings, or an individual with disabilities and his or her caregiver. The Commission suggested that these couples should also be eligible for the benefits and obligations of spouses and common-law partners under federal law. Federal law currently includes family and other adult non-conjugal relationships only in some circumstances. But further study would be needed before Parliament can decide whether it is appropriate to treat non-conjugal relationships in the same way as spouses or common-law partners in all federal laws, and so these suggestions are beyond the scope of this paper.
  
  
• [5] Legal capacity has several branches, including the opposite-sex requirement (identity of gender), prohibitions on marriages between individuals who are too closely related (prohibited degrees of consanguinity), prohibitions on marriages where one or both are already married to someone else (bigamy and polygamy), and other requirements for minimum age, voluntary consent and impotence.
  
  
• [6] Some provinces allow religions, where it is part of their tradition, to publicly read «the banns» instead of a marriage licence. In this instance, the religious official would publicly announce during the service on three occasions that the wedding was going to happen, and that any member of the congregation who knew of an impediment should let the official know. In other instances, the religious official may make the arrangements to obtain the marriage licence, so that the couple may be unaware of this part of the process. After the wedding ceremony is conducted, the couple will sign the register, with their witnesses, and in the case of many religious ceremonies, the official conducting the ceremony will mail the register to the provincial authority, who will send out the marriage certificate. Again, the couple may often not be aware of the registration requirement.
  
  
• [7] Section 5 of the Federal Law — Civil Law Harmonization Act, No. 1; section 1.1 of the Modernization of Benefits and Obligations Act; and that portion of article 365 of the Quebec Civil Code that had referred to the opposite-sex meaning of marriage.
  
  
• [8] The federal legislation could provide that where a couple has registered their civil union (or domestic partnership) with the province in which they live, that registration would also apply for federal statutes and programs. Only Nova Scotia, Quebec and Manitoba now allow for such registrations, and so the legislation would also have to create a federal registry for couples who live in provinces without such registries, for federal purposes only.
  
  
• [9] Without complementary provincial legislation, if a couple lived in a province that did not register civil unions or domestic partners, they would only be recognized for provincial purposes if they qualified as a common-law couple. This might also cause some difficulties for the couple if they move to a different province.
  
  
• [10] The federal Parliament has the constitutional authority over divorce, but as this is not a divorce, the authority would be under «property and civil rights», which is within the mandate of the provincial and territorial legislatures.
  
  
• [11] For example, some of the other rules on legal capacity for marriage set out their requirements in opposite-sex terms, such as laws which prohibit marriages where two individuals are too closely related (prohibited degrees of consanguinity) and would have to be adjusted.
  
  
• [12] In provinces and territories that legislate against the solemnization of same-sex marriage, such as Alberta, there would likely be further Charter challenges.
  
  
• [13] Some provinces and territories already have provisions in their human rights codes that allow exceptions for religious organizations for some purposes, or state in solemnization rules that religious organizations can refuse to marry a couple. Federal, provincial and territorial human rights laws may need to be reviewed.
  
  
• [14] Again, federal, provincial and territorial human rights laws may need to be reviewed to allow full assurance to the religions that they could continue to set additional requirements for religious marriage that are consistent with their beliefs.
  
  

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