The Law on Marriage in Canada




In Canada the legal definition of marriage comes under federal jurisdiction, with the provinces having jurisdiction over the solemnization of marriage. The definition of marriage is not found in federal legislation but in the common, or judge-made law.


Legal recognition of a pre-existing institution


The earliest case relied on is the 1866 decision of the English House of Lords (Hyde v Hyde) which recognized marriage as a pre-existing institution which defined itself as the “voluntary union for life of one man and one woman, to the exclusion of all others.”


Mr. Justice Gonthier said in the December 19, 2002, Supreme Court of Canada decision of Nova Scotia (Attorney General) v Walsh:


“Marriage and family life are not inventions of the legislature; but rather, the legislature is merely recognizing their social importance.”


House of Commons Motion supports definition of marriage


The common law definition of marriage was overwhelmingly supported in the House of Commons on June 8, 1999, when members passed the following motion by a vote of 216-55:


“That, in the opinion of this House, it is necessary, in light of public debate around recent court decisions, to state that marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament will take all necessary steps within the jurisdiction of the Parliament of Canada to preserve this definition of marriage in Canada.”


Definition of Marriage reaffirmed in recent federal legislation


In February 2000 the Federal Minister of Justice introduced Bill C-23, The Modernization of Benefits and Obligations Act. The objective of the Bill was to amend 68 separate pieces of federal legislation to extend benefits and obligations to same-sex partners on the same basis as opposite-sex common-law couples. In response to concerns from the public, including the Canadian Conference of Catholic Bishops, the Bill was amended in March to include in the preamble this clause: “For greater certainty, the amendments made by this Act do not affect the meaning of the word ‘marriage’, that is, the lawful union of one man and one woman to the exclusion of all others”.


Recent Court Cases


There are now conflicting court decisions in British Columbia, Ontario and Quebec on the opposite-sex requirement of marriage. In October 2001, the British Columbia Supreme Court upheld the opposite-sex definition of marriage. In July 2002 and October 2002 the Ontario Divisional Court and the Quebec Superior Court found that the opposite-sex requirement was a breach of the constitutional equality provisions for same-sex partners. All of these decisions are under appeal.


 March 25, 2003