Marriage Equality in Canada

 

 



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Marriage Equality - Canada

Marriage Equality In Canada

In Canada, the opposite sex definition of marriage was found in common law( also sometimes referred to as judge made law). This definition, had only had a marginal expression in the statutes of Bill C-23 and statute 365 of the Quebec Civil Code.

The Canadian common law definition of marriage was changed to include same-sex couples on July 10, 2003 (retroactive to January 14, 2001). Canada's Parliament passed the law on June 28, 2005, followed by the Senate on July 19. Equal marriage recieved royal assent on July 20, 2005.

What follows is a cataloguing of the steps taken by some provinces, prior to the arrival of same-sex marriage.

Scroll down to view provincial summaries or click on:

Nunavut



Alberta

Will you be my pension partner?  Alberta's Justice Minster struggling to maintain marriage discrimination..  SELECT to visit Alberta Solicitor General site)May 12, 2003 - Alberta's Adult Interdependent Relationships Act becomes law on June 1, 2003. The act amends 68 Alberta laws related to financial and property benefits and responsibilities for people in unmarried relationships, but the act defines "spouse" as a married partner: a husband or wife. Gay and lesbian couples who are still not allowed to be married are labeled "adult interdependent partners".

The Alberta government amended its laws on May 29, 2002 to give gay and lesbian public-sector workers the same pension rights as heterosexuals. The change, which will extend pension benefits to same-sex partners of deceased workers, was made two weeks after the Alberta Union of Provincial Employees served notice it planned to take the government to court over the issue. While a good (but reluctant) step forward, it is not enough.

"... the act does not even go so far as making it separate but equal to heterosexual marriage," said Cherie Klassen, Executive Director, Alberta Council for Global Cooperation (Standing Committee on Justice and Human Rights, Apr. 2, 2003). "Rather, it stipulates various conditions, such as continuous cohabitation for a minimum of three years or the formal entrance into an adult interdependent partnership agreement. My grandmother and my heterosexual sister could file to enter into this relationship as easily as my partner and I could. In addition, this act mentions relevant factors that are taken into consideration when determining whether two people function as enough of a domestic and economic unit to declare themselves adult interdependent partners. These factors include the presence of a conjugal relationship, the degree of exclusivity of the relationship, and the extent to which the two contribute towards each other's well-being. As far as I know, none of these factors are examined by the legal system when heterosexuals apply for a marriage licence. "

"The Supreme Court of Canada has done the country a favour by raising the same-sex question to one of fairness and equality. It has approached a very delicate topic on the basis of law and principle. It has reminded us of the need for tolerance and respect for the differences that exist in society. The Court has shown us that the world is changing and that the law must react to those changes in a responsible manner."

Honourable A.C. Hamilton Q.C., LL.D.
Retired Associate Chief Justice, Manitoba Court of Queen's Bench
.

The government chose the language to preserve traditional notions of "spouse" and "marriage" as relating to unions between heterosexuals, said Dave Hancock, the Justice Minister.

In April 2002, Hancock excused his provinces poor record in complying with our country's equality laws. "Family law review is a fairly major project," he said in the Edmonton Sun. "It requires a lot of rewrites to the law."

Bill 30 Adult Interdependent Relationships Act - FAQ

Plans to overhaul Alberta's laws last spring didn't make deadline. Only portions demanded by the courts, which found provincial law lacking in the area of gay rights in wills and estates, were be tabled. No surprise for a province that has threatened to invoke the notwithstanding clause of the Canadian charter, and risk harming our confederation, rather than allow same-sex marriage. It is the heartland of the homophobic Alliance party. Some have described Alberta as the most American-like province.

In 2001, the Alberta Court of Queen's Bench ordered the province to rewrite its laws to allow people in same-sex relationships to inherit property when a partner dies.


British Columbia
On July 23, 2001 the Supreme Court of British Columbia heard a challenge to Canada's marriage laws, brought by 3 same-sex couples (the "BC Partners Group") and 5 further couples together with EGALE, the national lesbian, gay, bisexual and transgendered equality rights organization.

The Court issued its decision in October 2001 and ruled that the refusing gays and lesbians the right to marriage was discrimination, but the Supreme Court of British Columbia ruled that the discrimination justified (for the good of the country, due to the pressing need to encourage heterosexual procreation. Further, the court made a bizarre ruling that a constitutional ammendment would be required to change the definition of marriage. Justice Pitfield thought that Canada's constitution was frozen in time at Confederation (1867). No constitutional experts, nor the government, agreed with this interpretation of our country's constitution.

The decision was being appealed in February 2003 and on May 1, 2003 the B.C. Court of Appeal overturned the lower court's ruling and aligned itself with prio judgements from Ontario and Quebec, giving the federal government until July 12, 2004 to change the definition of marriage to include same-sex couples. Following Ontario's lead (June 10, 2003) when same-sex marriage was enacted immediately, the B.C. Court of Appeal removed the delay period and began allowing same-sex couples to marry on July 8, 2003

Link to coverage of the legal challenge in British Columbia


Manitoba

Manitoba couples won access to marriage on September 16, 2004.

A prior history of relationship recognition in the province:

August 12, 2001 - Bill 53, which extends marital property rights and intestacy laws to common law couples (same and opposite sex), passed third reading last Friday [Aug. 9]. Couples who have been in a "conjugal" relationship for 3 years will be covered by these laws when the relationships ends (either through break-up or death) unless they have contracted out of them or written a will. Manitoba has also adopted a hybrid registered domestic partnership regime. If common law couples register their relationship, they immediately take on all the benefits and burdens of laws without having to wait the statutory time periods for eligibility (which can vary from one to three years). In particular, registration entitles couples to public benefits (like the right to survivorship benefits under provincially regulated pension plans) and therefore is unlike some registration regimes which only place private obligations (like spousal support) on the registrants. The amendments made by Bill 53 will only come into force on proclamation which might not be for 6-12 months.

Bill 53 is the third bill passed by the Manitoba government in the last 13 months concerning laws on common law relationships. Manitoba has now made comprehensive changes which ensure that common law partners are treated (as far as possible within the confines of provincial laws) the same as married partners. These changes include laws on adoption and birth registration, end of life and medical decision-making powers, declarations of conflicts of interest, and public and private economic benefits and burdens (e.g., survivorship rights (pensions, workers comp. etc), dependants relief, welfare, spousal and child support, harmonization with federal tax laws) as well as changes to property laws. The anti-discrimination provisions in some statutes which had been overlooked when the Manitoba Human Rights Code was amended to include sex orientation in 1987 were also updated.

GOSSIP

"The lesbian and gay community needs to make it clear that we do not support RDPs."
GOSSIP (Group Organizing for Same-Sex Issues and Principles), Winnipeg, April 29, 2002

Read GOSSIP's analysis of the Hamilton-Cooper Report

Read Notes from May 24, 2002 Public Meeting

Read GOSSIP's comments about Bill 34

Cheers,

Karen Busby

Karen Busby, of the Winnipeg-based GOSSIP (Group Organizing for Same-Sex Issues and Principles) was involved in informing the public about the Manitoba's Hamilton-Cooper report, a precursor to the Manitoba government's legislation introduced in June 2002 - Bill 34.

Background on relationships in Manitoba:

The Hamilton-Cooper report contains recommendations dealing with adoption, conflicts of interest, division of property and common-law relationships. The province had already announced its plan to change its laws to permit gay and lesbian couples to adopt, although exactly how remains uncertain.

While a gay or lesbian individual in Manitoba may adopt, there is no way under law for a same-sex couple to have joint rights in the same way as a heterosexual couple. The report concluded that the Adoption Act would not withstand a constitutional challenge so the province introduced Bill 34.

On issues concerning the division of property upon separation or death, the report suggests waiting until the Supreme Court releases a decision later this year on a case in Nova Scotia. The plaintiffs in the case allege Nova Scotia's Matrimonial Property Act violates the Charter of Rights and Freedoms because it applies only t0 legally married couples.

Related Links:
Manitoba Government Press Release - March 21, 2002
Registration of Common-law Relationships - December 21, 2001



New Brunswick

New Brunswick couples won the right, in court, to equal marriage on June 24, 2005, 4 days before Parliament finally voted in favour of adopting the new definition of marriage.

Same-sex parents win adoption case in N.B.  Is gay marriage far behind?July 28, 2004 - A New Brunswick lesbian couple won the right to be the legal co-parents of a child born into their family with reproductive assistance. The N. B. Labour and Employment Board released the decision yesterday, awarding damages to the couple for the government's discrimination. N.B. has 30 days to appeal the case. The province has previously refused to recognize gay marriages legally performed elsewhere.

Read "Same-sex parents win adoption case in N.B."



Newfoundland and Labrador

The new normal in NewfoundlandDecember 21, 2004 - Newfoundland became Canada's eighth region to end discrimination against gays and lesbians today when a court confirmed that the common law definition of marriage has changed to two persons

April 11, 2002 - The province announced that it is replacing a 50-year old statute to enable the adoption of children by same-sex couples.

"We need a great variety of potential families and I think taking applications from anyone who is interested is the best way to find those families," said Judith Grove, executive director of the Adoption Council of Canada.

But why does the government only allow children with opposite-sex parents to be in a family bonded by marriage?


Nova Scotia

Gay marriage arrives in the Maritimes.  And Nova Scotia makes six!In June, 2001, the Nova Scotia government began recognizing same-sex unions under new registered domestic partnership legislation (Bill 75). This was a great step forward, but still not enough to achieve equality. Following the breakthrough victory in Ontario and 4 subsequent regions, couples sucessfully appealed to the Nova Scotia Supreme Court to end marriage discrimination in that province on September 24, 2004.


Nunavut

Nunavut will recognize same-sex marriagesNunavut, an area of almost two million square kilometers in Canada's eastern Arctic, became the first territory or province in Canada to recognize same-sex marriages solemnized outside of its borders, while still refraining from enacting equal marriage for its own citizens at home. Premier Paul Okalik announced the policy as the legislature debated the inclusion of sexual orientation in human rights law.


Ontario

Link to Love Wins O ver Hate - The July 12, 2002 Ontario Court Decision In Favour of Same-sex marriageIn October 1999, the Government of Ontario introduced legislation that ammended 67 Ontario laws to include 'same sex partners'. Same sex couples were afforded the same protections under the law that common-law opposite-sex couple were, but the statute made it clear that: 'The rights and obligations that are unique to married couples are not being extended to same sex partners."

The Ontario government felt compelled in the legislation to preserve the "traditional definition of spouse" and made it clear that the only reason for introducing the ammendments was that the Supreme Court ruling forced them to do so. This same (Conservative) government pointed to those ammended statutes as signs of their progressive thinking and their concerns for equality while refusing to register our January 14, 2001 marriage.

"By excluding us from marriage, the government is sending a message that same-sex couples are second-class citizens..."
Affidavit of Kevin Bourassa and Joe Varnell

And so we went to court where we found justice on July 12, 2002 in a ruling in favour of same-sex marriage.

The Court of Appeal went further, on June 10, 2003, by enacting same-sex marriage imeediately. B.C. followed on July 8. The rest of Canada is expected to follow shortly.


Summaries from the Court of Appeal for Ontario:
 
Summaries from Ontario divisional court:



Prince Edward Island

Dec 10, 2002 - Provincial lawyers are reviewing 42 pieces of legislation which contain the word spouse. It's an initiative undertaken because of the historic Ontario court decision that struck down the common-law definition of marriage.

"Our original direction had been not to examine the Marriage Act," Cindy Wedge (office of the attorney general) told the Guardian newspaper in Charlottetown. "However, since that direction has been given, the Ontario decision came out that said that not allowing same-sex couples to marry was discrimination based on sexual status."

The judgement led PEI politicians to believe that the province's Family Law Act was contrary to the Human Rights Act and would fail a legal challenge. A subsequent Quebec court decision (Sept. 6, 2002) rendered another demand for equality.

PEI was the last province in Canada to grant equal rights based on sexual orientation. It struggles to live up to that promise. "What they have done so far has been absolutely minimal," Nola Etkin (Abegweit Rainbow Collective) told the Guardian on Sept. 8, 2002.

Attorney General Jeff Lantz introduced amendments to the Family Law Act in the legislature on Dec. 10, 2002 that expand the rights of common law partners in such areas as child custody, property division and spousal support.

The definition of a common law relationship has been changed from a "man and a woman co-habitating outside of marriage" to "two persons co-habitating outside of marriage." The JournalPioneer reported Lantz said the law essentially gives common law partners the same rights as married couples in the event of a break-up.

This is the first piece of legislation in the province that recognizes gay relationships. However, about 40 laws have to be changed before the process is completed. Work will continue during the 2003 spring sitting of the house.


Québec

In May 1999, Quebec introduced "omnibus" legislation that eliminated discrimination on the basis of sexual orientation from provincial statutes, with the exceptions being adoption and marriage. The government took this decision in the wake of the ruling on M. v. H that excluding same-sex relationships from the instruments of family law was unconstitutional. The decision to afford same sex couples the same rights and obligations as opposite sex common law couples impacted 28 provincial laws and 11 regulations.

On Friday, November 9, 2001, even as the government of Quebec was being taken to court over its prohibition on same-sex marriage, legislation to establish Registered Domestic Partnerships was introduced in Quebec. This attempt to appease some people in the gay community while still relegating gays and lesbians to second-class status is completely unacceptable and the challenge for full, legal marriage continues. "... denial of access for us would mean that marriage will become more marginalised, more stigmatised as discriminatory. It will mean that marriage itself will be seen as a primitive rite, a diminished and dated institution."
-Michael Hendricks,
Quebec Applicant

Link to coverage about the Quebec marriage challenge

On June 7, 2002, the Quebec government unanimously passed Bill 84, the long awaited civil union legislation that gives same-sex families the same rights and obligations as opposite sex families. On September 6, 2002, the Quebec court ruled that the denial of marriage rights to gays and lesbians was unjustified discrimination, and like Ontario court, the government was given until July 12, 2004 to end marriage discrimination. After the highest courts in Ontario, and then British Columbia opened marriage to same-sex couples, the Canadian and Quebec government decided not to appeal the Sept. 6, 2002 victory. Religious bigots attempted to carry the appeal forward, but on March 19, 2004 Quebec's highest court refused to hear the appeal and it too opened marriage to same-sex couples!


Saskatchewan

Saskatchewan legalizes gay marriage.Nov. 5, 2004 - Today, the province of Saskatchewan legalized gay marriage after couples won another court victory. The province is the 7th Canadian region to end marriage discrimination.

Prior to marriage equality, omnibus legislation extending marital rights and responsibilities to same-sex couples received Royal Assent( July 6, 2001). The Miscellaneous Statutes (Domestic Relations) Amendment Acts amended the definition of "spouse" in some 24 provincial statutes to treat same-sex couples equally with opposite-sex married couples, in areas including adoption, spousal support, inheritance rights, pensions, survivor benefits, and matrimonial property.


Yukon

Yukon Gold: same-sex marriage arrives in Canada's northSame-sex marriage became legal in the Yukon on July 14, 2004 when the territory's prohibition against gay marriage was declared unconstitutional by Justice Peter McIntyre. The judge reinforced earlier decisions from Ontario, B.C., and Quebec in an oral judgment that came from a case involving a gay couple who had been denied a marriage licence.


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