BACKGROUNDER
PREPARED BY THE CATHOLIC ORGANIZATION FOR LIFE AND FAMILY (COLF)
The Law on
Marriage in Canada
Jurisdiction
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”.
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