Civil Law Considerations

In civil law, there are legal rules about who can get married, who can perform marriages, and the consequences of marriage.

Historically, at common law, the courts defined “marriage” as being between one man and one woman.[1] Canada received this common law from England. The common law can be amended by legislation.

The Constitution Act, 1867 provides for the division of legislative powers between the federal Parliament and the provincial Legislatures.

* Section 91(26) grants legislative power to the federal Parliament with respect to “Marriage and Divorce”–who is permitted to marry or divorce and in what circumstances.[2]

* Section 91(12) grants legislative power to the provincial Legislatures with respect to the “Solemnization of Marriage in the Province”–the administrative steps required for a marriage to take place in the province (marriage commissioners, registration, etc.).[3] Most provinces recognize ordained clergy as marriage commissioners for the purpose of performing marriages and registering them with the civil authorities. In the absence of such a system, there would need to be a separate “civil marriage” in front of a civil marriage commissioner, because the church ceremony would not have any civil effect.

The Canadian Charter of Rights and Freedoms was enacted as a constitutional amendment in 1982. Section 15 guarantees equality rights:

15(1) Every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The courts have not restricted section 15 just to the “enumerated grounds”, but have applied it to “analogous grounds”. The following cases hold that sexual orientation is an analogous ground that comes under the umbrella of protection in s. 15(1) of the Charter.[4]

* Section 15 of the Charter is the legal basis for the court decisions in Quebec, B.C.,and Ontario holding that the federal Marriage Act cannot discriminate by preventing people in same sex relationships from being married.[5]

Section 33 of the Charter–the “notwithstanding clause”–permits Parliament or a provincial Legislature to expressly declare that an Act will operate notwithstanding the fact that it breaches section 15. Such a declaration has to be renewed every 5 years. The notwithstanding clause has been used very infrequently. A particular level of government can only use the notwithstanding clause with respect to something which is within its legislative competence–it cannot use it to affect the application of legislation from the other level of government.

The federal Government has made the decision not to appeal the decision of the Ontario Court of Appeal to the Supreme Court of Canada, and not to use the notwithstanding clause to maintain the current law. Instead, it has asked the Supreme Court of Canada for advice about the constitutionality of amendments which the federal Government proposes to make to permit same sex marriages.

The proposed federal legislation specifically provides that no church would be required to perform a such a marriage. Section 2(a) of the Canadian Charter of Rights and Freedoms protects “freedom of conscience and religion”.[6]

Other resources:

Marriage and Legal Recognition of Same-sex Unions: Discussion paper by the federal Department of Justice.

Are We Persons Yet?: Law and Sexuality in Canada. Lahey, Kathleen Ann. Toronto: University of Toronto Press, 1999.

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[1]. Hyde v. Hyde and Woodmansee (1866) L.R. 1 P. & D. 130 (H.L) at p.133 per Lord Penzance which dealt with polygamy: "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."

See also Corbett v. Corbett [1970] 2 All E.R. 33 (Probate, Divorce and Admiralty Div.), where the court nullified a marriage involving a "transgendered" individual.

[2]. See the following federal legislation:

(a) Marriage (Prohibited Degrees) Act, S.C. 1990, c 46.

(b) Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, s. 1.1, which amended 68 federal statutes in order to give the same economic benefits to same sex couples yet retained the traditional definition of marriage (one man and one woman to the exclusion of all others).

(c) Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 2(1) which defines "spouse" as "either of a man or a woman who are married to each other".

[3]. See the following Alberta legislation:

(a) Marriage Act, R.S.A. 2000, c. -5. Section 1(c) appears to make it apply only to marriages between a man and a woman; and section 2 states that the provincial Act operates notwithstanding section 15 of the Canadian Charter of Rights and Freedoms (see below).

(b) Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, ss. 1 and 4.

[4]. Egan v. Canada [1995] 2 S.C.R. 513 at para. 175; M. v. H. [1999] 2 S.C.R. 3 at p. 52-53; Vriend v. Alberta [1998] 1 S.C.R. 493.

[5]. Hendricks v. Quebec (Attorney Generall) [2002] J.Q. No. 3816 (Que. Superior Ct); EGALE Canada Inc. v. Canada (Attorney General) 2003 BCCA 251 (BCCA); Halpern v. Canada (Attorney General) [2003] O.J. No. 2268 (Ont. CA).

[6]. Note that the guarantees in section 2 are subject to the notwithstanding clause in section 33.