BACKGROUND
Civil Marriage and the Legal Recognition of Same-sex Unions

How is marriage governed in Canada?

• The Constitution creates divided jurisdiction over marriage.
• To ensure consistency across Canada, the founders of Confederation gave Parliament responsibility for the definition of marriage and for laws governing divorce. The federal government has traditionally relied on the common-law definition of marriage which, until recently, applied exclusively to opposite-sex couples.
• The provinces are responsible for the solemnization of marriage (i.e. the licensing and registration).

What conjugal relationships do we recognize in Canadian law?

• Marriage - Governments are concerned only with civil marriage. Religious marriages, by themselves, have no legal effect. As a practical matter, the difference between religious and civil marriage is often invisible in Canada. In most provinces, civil authorities licence religious officials to simultaneously conduct the religious and civil marriage.
• Civil union - is different from civil marriage. It is a registration system that recognizes the desire of two individuals to register their relationship in order to trigger legal consequences. There is currently no such system at the federal level in Canada, although four provinces have passed a form of civil union or domestic partnership legislation for provincial laws.
• Common-law relationships - are de facto relationships which are legally recognized as a fact, based on evidence, such as that a couple has lived together in a conjugal relationship for a certain amount of time. In order to be recognized, common-law couples must meet the definition in each statute.

What have the courts told us?

• The Ontario and B.C. Courts of Appeal found that the opposite-sex requirement for marriage violates the equality provisions of the Charter, and that the current common law must be changed to allow equal access to civil marriage for same-sex couples. The Quebec Superior Court came to a similar conclusion and an appeal will be heard by the Quebec Court of Appeal in the coming months.
• The rulings suggest that extending civil marriage to include same-sex unions would be the only effective way to achieve full equality and that there is no valid reason for excluding same-sex couples from marriage.

What are the consequences of these court decisions?

• As a result of court decisions, the common law definition of marriage is currently inconsistent across the country. This situation has created some legal confusion.
• Same-sex marriages are recognized in Ontario and BC, resulting in some 2,000 same-sex marriages in these provinces. Many of these couples have come from provinces and countries that do not allow same-sex couples to marry civilly.

What is the Government doing to address this situation?

• Many Canadians are struggling with this issue. Concern has also been expressed that by referring questions to the Supreme Court the Government may have prejudged the outcome of the Court's advice by asking questions only about the draft bill and not about the central underlying question.
• This Government has now reviewed the situation and has decided that, although we agree that the draft bill represents the best way to fully respect both fundamental Charter rights here - equality and freedom of religion - there is a need to be responsive to those concerns, and to ensure that Parliament has full information, when it is called upon to debate the draft bill.
• As a result, the Government will add to the questions before the Supreme Court the central underlying question - is the opposite-sex requirement for marriage constitutional? Although the Government continues to believe that the courts of appeal were correct in their legal conclusions, this will allow individuals and groups who disagree with the Government's approach to put their case before the Supreme Court.