Same-Sex Marriages in Canada

Judgment

In 1999, a decision by the Supreme Court of Canada led gay couples to be equal to actual marriages . Then, judicial decisions in July from three provinces forced the federal government to grant same-sex couples the right to marry after two years, after which the same-sex marriage would automatically take effect:

• in Ontario : Halpern et. al. v. Canada (Ontario High Court, July 12, 2002 ( 2002-07-12 ) )
  • Decision Text
• in Quebec : Hendricks and Leboeuf v. Quebec (High Court of Quebec, September 6, 2002 ( 2002-09-06 ) , contested by appeal rejected on March 19, 2004 ( 2004-03-19 ) )
  • Text of decision 2002
• in British Columbia : Barbeau v. British Columbia 2003 BCCA 251 (B.K. Court of Appeal, May 1, 2003 )
  • Decision Text

The federal government tried to appeal these decisions to the Supreme Court of Canada , but rejected this process in June 2003 after a parliamentary committee report.

Ontario

In 2003, Halpern's plaintiffs appealed to the Supreme Court, demanding that the decisions take effect immediately, and not after two years, which were originally envisaged by the federal government.

The Ontario Court of Appeal ruled on June 10, 2003 , that the marriage law violates the guarantees of equality of the Canadian Charter of Rights and Freedoms by being limited to heterosexual couples. The court canceled the initial deferral, ordering the provinces to immediately provide marriage certificates to same-sex couples. Thus, Ontario became the first territory in North America to legalize same-sex marriage.

The city of Toronto immediately began issuing certificates to same-sex couples. The next day, the Ontario Attorney General announced that the provincial government would comply with this decision.

The court also ruled that two couples who had married earlier using the old common law procedure, with a marriage announcement in the church, legally entered into a retroactive marriage.

• Halpern v. Canada (AG) - Ontario Court of Appeal, 2003/06/10

On December 19, 2003, a provincial court ruled that Canadians whose same-sex spouses died after 1985 are entitled to a lump-sum benefit for the death of a breadwinner based on the Canada Pension Scheme .

On September 13, 2004 , the Ontario Court of Appeals specified that the Divorce Act is also unconstitutional, as it does not apply to same-sex couples. The law made mention of same-sex couples to allow the lesbian couple who filed the appeal to divorce.

British Columbia

The British Columbia Court of Appeals issued a ruling similar to Ontario on July 8, 2003 . The decision stated that "any delay [...] will result in unequal application of the law in Ontario and British Columbia." Subsequently, the first two men legally married in British Columbia were Anthony Porchino and Tom Graff.

• Barbeau v. British Columbia (AG) 2003 BCCA 406 (Court of Appeal Br. C. 2003/07/08)

Quebec

On March 19, 2004 , the Quebec Court of Appeals heard an appeal from the Catholic League for Human Rights against the conviction of Hendricks and Leboeuf v . Quebec . The court not only rejected the appeal, but also ordered that the decision take effect immediately. The couple who won the first case, Michael Hendricks and Rene Leboeuf, married on April 1 at the Montreal Palace of Justice.

• Ligue catholique pour les droits de l'homme c. Hendricks (Quebec Court of Appeals, 2004/03/19)

The province of Quebec provides the opportunity to enter into a civil marriage for both same-sex and heterosexual couples.

Yukon

July 14, 2004 in Dunbar & Edge v. Yukon & Canada 2004 YKSC 54 The Supreme Court of the Yukon Territory issued a decision of the same nature, which immediately entered into force. Before considering the arguments based on the right to equality described in the Charter, the Court chose innovative logic: since the provincial courts of appeal ruled that the law in force was contrary to the constitution and the Attorney General of Canada did not appeal the decisions, this law was indeed unconstitutional across Canada, whether it is recognized or not. Thus, further restriction of marriage to heterosexual couples in the Yukon would lead to unacceptable legal differences in different provinces and territories.

On July 17, a couple of plaintiffs - Rob Edge and Stephen Dunbar - got married.

• Dunbar & Edge v. Yukon & Canada 2004 YKSC 54 (canlii.ca)

Manitoba ^[1]

On September 16, 2004, Judge Douglas Yard of the Manitoba Royal Bench Court ruled that the current law on determination was contrary to the constitution. The judge admitted that previous decisions in Br. Colombia, Ontario and Quebec influenced his decision.

The trial was launched by three couples demanding that the Manitoba government issue marriage certificates. Like the federal, provincial government said it would not dispute this case. One of the couples - Chris Vogel and Richard North - tried to legally marry in 1974, but then lost the case.

Nova Scotia

In August 2004, three couples in Nova Scotia began a lawsuit against the provincial government, demanding marriage certificates for same-sex couples. Neither the provincial nor federal governments challenged this case. On September 24, 2004, Judge Heather Robertson of the Supreme Court of Nova Scotia ruled that the law in force was contrary to the constitution.

Saskatchewan

In October 2004, two couples began a lawsuit against the governments of Saskatchewan and Canada, demanding recognition of their marriage. Following the example of previous cases, neither the federal nor provincial governments opposed the process. On November 5, 2004, Judge Donna Wilson agreed with the plaintiffs and sentenced in favor of the right to same-sex marriage in Saskatchewan. ^[2]

Newfoundland and Labrador

On November 4, 2004, two lesbian couples began litigation for the Newfoundland-Labrador government to recognize marriage between spouses of the same sex. The court ruled in their favor on December 21, 2004, and the province announced immediate readiness to comply with this decision.

New Brunswick

In April 2005, four same-sex couples began a lawsuit for the New Brunswick government to recognize marriage between spouses of the same sex. The court decided the case in their favor on June 23, 2005 and gave the government 10 days to implement this decision.

Political Decision

The change in Canadians' attitude towards marriage of same-sex spouses , as well as to judicial decisions of the early 2000s, caused significant changes in the position of the federal parliament of this country from 1999 to 2005 .

On June 8, 1999, a proposal was made to the House of Commons of Canada to approve the definition of marriage as "an eternal union of a man and a woman, with the exception of any other form of union." The decision was made by the overwhelming majority and was supported by both Prime Minister Jean Chretien and his Liberal Party of Canada , and the official opposition of the Canadian Union . The following year, this definition was included in bill C-23 of the Law on Modernization of the Procedure for Accrual of Benefits and Obligations ; same-sex couples were left without all the advantages of marriage.

The question was raised again in 2003 , and the Standing Committee of Justice and Human Rights of the House of Commons began a formal study of marriage between spouses of the same sex through open meetings throughout the country.

Following a decision by the Ontario Court of Appeal allowing same-sex marriage, the committee decided to recommend that the government not appeal this decision.

• Protocols and testimonies of the Standing Committee of Justice and Human Rights when discussing marriage of same-sex couples

The civil status in Canada is provincial, and the definition of marriage is in federal jurisdiction. On June 17, 2003, Prime Minister Chretien announced that the federal government would not appeal the Ontario decision. His government was ready to pass a bill recognizing same-sex marriages, but leaving the churches with the right to decide which marriages to celebrate solemnly — they already had that right on the basis of the Canadian Charter of Rights and Freedoms.

The preliminary bill introduced on July 17 said:

1. Civilly, marriage is a legal union of two people, excluding any other person.
2. This law does not extend to the freedom of religious bodies to refuse to marry that do not correspond to their religious beliefs.

On September 16, 2003, the Canadian Union asked Parliament to freely approve a heterosexual definition of marriage, using the same wording as the 1999 proposal. Prime Minister Chretien went against his previous position, opposing this proposal, like future Prime Minister Paul Martin and many from the liberal faction. As a result, the proposal was supported only by a number of liberals, 30 deputies were not present at the meeting. The proposal was rejected by 137 votes to 132.

Subsequently, the liberal government appealed to the Supreme Court of Canada with a request to express an opinion on the constitutional validity of the bill before it is introduced. In January 2004, the government added to the request a question submitted by a number of observers as an attempt to postpone the process until the June 2004 elections.

The questions asked by the Supreme Court were as follows:

1. Does the proposal of the law relating to certain conditions relating to the substance of civil marriage fall within the exclusive competence of the Parliament of Canada? If not, from what point of view and to what extent?
2. If the answer to question 1 is affirmative, does article 1 of the proposal, which gives people of the same sex the legal capacity to marry, comply with the Canadian Charter of Rights and Freedoms? If not, from what point of view and to what extent?
3. Does the freedom of religious worship, guaranteed by paragraph 2a) of the Canadian Charter of Rights and Freedoms, members of religious organizations, protect against coercion to marry two people of the same sex, contrary to their religious beliefs?

After receiving a response from the Court that the federal government was capable of enacting this law, the government introduced Bill C-38 to change the legal definition of marriage as “union of a man and a woman” to “union of two people.”

This bill split the House of Commons, especially the liberals. Some liberals said they would oppose the bill in the event of a free vote. The Conservative Party of Canada (the joint successor of the Canadian Union and the Progressive Conservative Party) was almost unanimously against the bill; and the New Democratic Party and the Quebec Bloc - almost unanimously for it.

On June 28, 2005, the House of Commons of Canada passed Bill C-38, redefining marriage to extend it to same-sex spouses, with 158 votes to 133. ^[3]

Late in the evening of July 19, 2005, the Senate passed Bill C-38 with 47 votes to 21, granting same-sex spouses the right to marry throughout Canada. ^[4] On July 20, 2005 , Senate vote was followed by royal sanction and a new law was passed, making Canada officially the fourth country to recognize marriages between people of the same gender. ^[five]

From June 2003 (the dates of the first legal same-sex marriage in Ontario ) to October 2006, 12,438 same-sex marriages were made in Canada.

In 2011, there were 64,575 same-sex couples in the country (0.8% of all couples). 21,015 same-sex couples were married. Of all same-sex couples, male couples made up about 54.5%, and female couples - about 45.5% ^[6] .

In 2016, the number of same-sex couples increased to 72,880 (0.9% of all couples). The ratio of pairs: 51.9% male and 48.1% female. About one in eight same-sex couples had children living with her. 24,370 couples were married (33.4% of all same-sex couples). ^[7]

According to a report (July 2010) from the Angus Reid Center for Sociological Research, 61% of Canadians support the legal status of same-sex marriage, a figure higher than in the US and the UK (36% and 41%, respectively). In addition, the level of support is more than double that of the generation born after 1980 (81%) compared with Canadians born between 1965 and 1979 (35%). ^{[8] [9]} According to a survey conducted by the marketing firm Forum Research in 2015, Canadians' same-sex marriage support reached 70% ^[10] .

Usually, any marriage made in Canada is directly recognized in the United States . But since there is a legally unstable position in this country in relation to marriage of same-sex couples in its territory, a certain number of American same-sex couples after the adoption of the relevant law came to Canada to get married there.

• Canadian Charter of Rights and Freedoms

• Law Approval Article