Background

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 particular 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 Court of Appeal later came to a similar conclusion as did the courts in the Yukon, Manitoba and Nova Scotia.
• These 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 these 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 five provinces and one territory, resulting in more than 2,000 same-sex marriages. 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?

• In response to court decisions, the Government of Canada drafted legislation providing equal access to civil marriage to same-sex couples, while also respecting freedom of religion. The Government felt strongly that this was too important a social policy question to leave to the courts alone to decide. It sought an approach that would fully respect both of the important Charter guarantees involved – equality and religious freedom.
• The opinion of the Supreme Court of Canada will assist both the Government and Parliament in addressing this issue in a way that is both consistent with our laws and values as a society, and reflects the fundamental rights guaranteed to all Canadians under the Charter.
• Once the Government has received the opinion of the Supreme Court of Canada, a bill will be introduced in the House of Commons, debated through the usual legislative process and put to a free vote, as announced by the Prime Minister. The bill would also contain relevant consequential amendments to other federal statutes, including the Divorce Act. As individual court decisions can only look at one piece of the whole, it is Parliament that can best look at the complete picture in designing a Canada-wide approach.
• The Government of Canada is confident that the draft bill fully respects the Charter guarantee of freedom of religion. Further, both the Ontario and the B.C. courts of appeal acknowledged in their rulings that their decisions did not in any way affect religious marriage, just the legal definition of marriage for civil purposes. Religious officials have always had the right to perform marriages according to the tenets of their religions, for example, such as refusing to marry divorced persons or to perform inter-faith marriages. That will not change under the proposed legislation.
• However, many Canadians remain concerned about the possible impact of the proposed legislation on religious officials and religious marriage. To address these concerns the Government of Canada is seeking confirmation of its approach by the Supreme Court of Canada to ensure that this protection is clearly understood by all.