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"It is absurd that same-sex partners who co-parent a child can each enjoy a legally recognized relationship with their child (i.e., parental status), yet they are denied a legally recognized relationship with each other (i.e., marital status)."
EGALE Factum, March 28, 2021

 

 

 

"...marriage and the family provide for the emotional, economic, and social well-being of its members. It may be the location of safety and comfort, and may be the place where its members have their most intimate human contact. Marriage and the family act as an emotional and economic support system as well as a forum for intimacy. In this regard, it serves vital personal interests, and may be linked to building a "comprehensive sense of personhood."
The Supreme Court of Canada, Moge v. Moge, [1992] 3 S.C.R. 813 at 848

 

 

Legal issues in Canada - British Columbia

British Columbia

May 18, 2004

NDP party defends gay marriage rights in BC

Last March, same-sex couples in B.C. almost lost the right to control the remains of a deceased partner. Thanks to the vigilance of the NDP opposition party, and Joy MacPhail, the slight-of-hand by the governing Liberal party was caught. The Liberals finally revised the definition of spouse, last week, in response to same-sex marriage. "It is just such a shame the Liberals chose to waffle for so long," MacPhail said.

Read "NDP party defends gay marriage rights in B.C."

March 27, 2004

Vigilance required, even in victory

British Columbia's Liberal government has shown that even as couples celebrate same-sex marriage, vigilance against discrimination remains important. This week, B.C. gay and lesbian couples lost the right to make decisions if their spouse died. The Liberal House leader promised the law would not be enacted, but how did it get so far?

Read "Vigilance required, even in victory"

January 21, 2004

BC marriage commissioners must perform

British Columbia's Vital Statistics Agency (part of the Ministry of Health Planning) issued a letter yesterday to all of its marriage commissioners, advising them of the agency's expectation that all commissioners will comply with the Canadian Charter and the new common law definition of marriage. The move further underscores the importance of the separation of faith-based beliefs from government policy and services.

Read "B.C. marriage commissioners must perform without prejudice"

July 8, 2003

Same-sex marriage arrives in B.C.!

Today, British Columbia became Canada's second province to allow same-sex marriage, in a victory for all Canadians who believe in equality and human rights. Attention now turns to Quebec, where a delayed court remedy is still in effect, and to the rest of Canada, where provinces have no excuse to maintain discrimination against gays and lesbians. Justice keeps on rolling across Canada: which province is next?

Read "Same-sex marriage arrives in British Columbia"

May 1, 2003

BC Court of Appeal Supports Equal Marriage
Time for Justice Minister to comply with Charter

Couples seeking their right to same-sex marriage in British Columbia won their second attempt for justice in the province's highest court. The B.C. Court of Appeal agreed that the couples' Charter rights have been violated, and said that the violation could not be justified. The court followed the lead of Ontario & Quebec, giving the government until July 12, 2021 to adhere to the Charter and deliver equal marriage!

Read details or the complete decision

Feb 10 - 12, 2003

B.C. Court Discrimination On Appeal

"If Robin and I had been able to get married, I believe that it would have been easier for our children because the relationship would have felt more official in their own minds, and they might have been more comfortable talking about it with friends. I also believe that we would have been more readily accepted by my family and by our community. Same-sex marriage is a first step in changing the climate of public opinion. This change is also fundamentally important for the children of new generations."
Affidavit of Diana Denny, A.R. I, at p.129

Appealing to family - The B.C. appeal

"The hearing made me reflect on family, in all its forms. Families that are birthed, co-partnered, befriended, formed on the spur of the moment, united by accident, by social need, by war or, in this case, by political cause. Families know, intuitively after their creation, how to draw on what they share, in order to support each other. I'd like to paint a little action video clip of our family, this one that's fighting this cause for equal rights, hoping some of the colours will splash out to you, our larger family."

Read Appealing to Family by Robin Roberts (PDF doc)

The EGALE Factum for the B.C. Court of Appeal

1. The chambers judge erred in concluding that marriage is limited by the common law to the union of a man and a woman, and in ruling that this opposite-sex limitation could not be removed by the Court. As the Supreme Court of Canada has recognized, Courts are the custodians of the common law. They possess not only the power but also the duty to ensure that the common law adapts and evolves to reflect the emerging social realities, needs, and values of our contemporary society. The common law is not static, but rather dynamic and flexible. Justice Pitfield demonstrated unacceptable religious and ethnic bias and intolerance, which must be disavowed.
   
   
2. The chambers judge also erred in concluding that any common law bar against same-sex marriage is not subject to Charter scrutiny. . Same-sex couples are challenging the constitutionality of a common law rule, not a statutory provision. Since the impugned bar against same-sex marriage is not statutory, there is no threshold issue of legislative competence to be addressed. We are seeking a declaration from the Court that the common law restriction against same-sex marriage is of no force or effect, pursuant to s.52 of the Constitution Act, 1982, because of its inconsistency with rights and freedoms guaranteed by the Charter.
   
   
3. Moreover, in his alternative reasoning, the chambers judge erred in concluding that:
   
   a) the common law bar against same-sex marriage does not infringe rights and freedoms guaranteed by ss. 2 (freedom of expression and association) and 7 (right to life, liberty and security of the person) of the Charter; The EGALE factum does not address this flawed notion - it is addressed in the BC Partner's factum which has yet to be released.
   
   b) the infringement of s.15 (freedom from discrimination based on sexual orientation) equality rights occasioned by the bar against same-sex marriage is justifiable under s.1 of the Charter.
   The chambers judge erred in accepting the Attorney General of Canada's assertion that the bar against same-sex marriage flows from the principal purpose of marriage itself, namely "to provide a societal structure for the procreation of children in order to perpetuate Canadian society." The historical record does not support the contention that fostering procreation is the purpose of marriage. It was only relatively recently, when same-sex couples began to advance claims for equal recognition of their conjugal relationships (including equal access to marriage), that some Courts began to identify procreation as the principal purpose of marriage (as a way of rationalizing the exclusion of same-sex partners). Earlier Courts, which developed the common law rules regarding the essential validity of marriage, did not regard procreation as the purpose of marriage. For example, there are numerous cases in which Courts held that a heterosexual marriage was valid and could not be annulled despite the fact that one spouse refused to have sexual intercourse, was infertile, or insisted on using contraceptives when having sexual intercourse. It can reasonably be inferred from this jurisprudence that British and Canadian Courts have not considered procreation to be the sole or primary purpose of the matrimonial contract. The same inference can be drawn from the annulment cases involving husbands who were unable to consummate their marriage due to impotence resulting from advanced age. Canadian courts have consistently ruled that such marriages are understood to be for the purpose of "companionship" and are therefore valid and not voidable, notwithstanding the spouses' inability to have sexual intercourse and, evidently, their inability to procreate.
   

Read the EGALE Factum

Read the EGALE Affidavits

Read the Christian Fellowship Factum (against equality)

October 2001

Court Decision

The Court issued its decision in October 2001 and ruled that the prohibition against same-sex marriage was discrimination against gays and lesbians as defined under the Canadidan Charter, but Justice Pitfield ruled that marriage discrimination was justified. View the decision:

Decision

EGALE Press Release / Communique de press

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Background

In 1999 one couple, and in 2000 another couple sought to obtain marriage licenses from the BC Director of Vital Statistics, but were rejected. The BC Government issued a written statement, however, expressing its support for same-sex marriage and calling upon the federal government to enact laws explicitly permitting same-sex couples to marry. Under the constitution, the federal government has jurisdiction over who can marry, while the provincial governments have responsibility for administering the law.

The BC Government issued legal proceedings against the federal government, seeking the right to marry same-sex couples, and claiming that the restriction of marriage to heterosexuals violates the right to equality enshrined in the Charter of Rights. Subsequently, two more petitions were initiated; one was brought by EGALE and five same-sex couples, (Melinda Roy & Tanya Chambers, Robin Roberts & Diana Denny, Tess Healy & Wendy Young, Shane McCloskey & David Shortt, and Bob Peacock & Lloyd Thornhill). The other petition was brought on by the BC Partners.

The three BC partners (Elizabeth & Dawn Barbeau, Murray Warren & Peter Cook, and Jane Hamilton & Joy Masuhara) have also issued a human rights complaint against the BC Government.

Read more about the Queer Marriage B.C. Couples

In November of 2000, the BC Supreme Court made an order that the proceedings be heard together, and that evidence in one hearing was to be considered evidence in the other. To avoid duplicating submissions, Egale focused on common law, s.15 (right to freedom from discrimination on the ground of sexual orientation),and s.1, while the focus of the BC Partners was on other Charter rights, such as s.2 (freedom of expression and association), s.7 (right to life,liberty and security of the person), s.8 (mobility rights) and s.28 (gender equality).

Liberal Government Favours Discrimination

When the new BC Liberal Government took power, it withdrew its legal action, purportedly on the basis that it didn't want to be in the position of sueing the federal Liberal government. However, because of the court's November order, all the evidence filed by the Attorney General was able to be used in the proceedings.

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