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:
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 government chose the language to preserve traditional notions of "spouse" and "marriage" as relating to unions between heterosexuals, said Dave Hancock, the Justice Minister.
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.
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.
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
won access to marriage on September 16,
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.
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:
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.
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.
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.
December 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.
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.
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.
In 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."
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.
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.
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 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!
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
Same-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.