This paper was prepared for the Law Commission of Canada under the title "Division of Powers and Jurisdictional Issues Relating to Marriage". The views expressed are those of the authors and do not necessarily reflect the views of the Commission. The accuracy of the information contained in the paper is the sole responsibility of the authors.

Ce document est également disponible en français sous le titre « Le partage des pouvoirs et l'analyse des compétences en matière de mariage ».

SUMMARY

The purpose of this paper is to examine the constitutional division of powers and jurisdictional issues relating to marriage, with a particular focus on which aspects of marriage may be addressed by each level of government. Governments and Courts alike have affirmed society's developing understanding of the diversity of family relationships, and laws are increasingly being fashioned to modernize the basis on which social benefits and obligations are allocated.

The paper begins by setting out the various constitutional principles relevant to a division of powers analysis. It then examines judicial decisions which have assessed the scope of the federal power over "marriage and divorce" pursuant to s. 91(26) of the Constitution Act, 1867, as well as the provincial power over the "solemnization of marriage", pursuant to s. 92(12) of the Constitution Act. Although the federal government has exclusive jurisdiction over capacity to marry, courts have on occasion upheld the constitutional validity of provincial enactments dealing with issues such as age and consanguinity, which appear to relate more to capacity than to solemnization. Those cases that appear to recognize provincial competence on matters relevant to capacity are all careful, however, to justify the exercise of provincial power as primarily procedural. Where inconsistency with federal restrictions on a capacity issue arises, the provincial enactment has been held invalid.

The application of these principles to marriage for same-sex couples is then considered. There are few federal statutes dealing with capacity. Parliament has legislated the prohibited degrees of consanguinity and criminalized polygamy, but has only expressed its view in non-binding resolutions or interpretative clauses that marriage is restricted to opposite-sex couples only.

In the absence of express federal legislation, additional requirements may be derived from federal common law, which has been held by Canadian Courts to be the source of the prohibition on marriage for same-sex couples. Common law is subject to further development by the Courts, however, and the paper emphasizes the changing nature of marriage, as well as decisions which underline the importance of interpreting and applying the common law in conformity with the Charter of Rights.

The paper then considers the constitutional validity under a division of powers analysis of provincial laws which purport to restrict marriage to opposite-sex couples only. In addition to the explicit restrictions found in Quebec and Alberta, the marriage legislation of some jurisdictions uses "gendered" language implicitly suggesting a restriction on marriage to opposite-sex couples only, while other more "permissive" provinces use gender-neutral language, so that there would be no provincial barrier to the solemnization of a marriage if federal common law is interpreted to permit same-sex couples to marry.

The report concludes with a consideration of recent legislative changes and further options for law reform. Although many of the rights and responsibilities of marriage are being extended to same-sex couples, equality of status has not yet been recognized. Under a division of powers analysis, governments are able to amend specific laws within their fields of legislative competence to treat same-sex couples equally. More comprehensive alternative schemes may, however, be subject to constitutional challenge. Similarly, attempts by some provinces to prohibit same-sex couples from marrying will inevitably be considered unconstitutional as an attempt to usurp federal jurisdiction over capacity to marry.

Court cases by same-sex couples seeking to obtain a marriage licence are moving forward in Ontario, Quebec and British Columbia, and the government of British Columbia has recently expressed its support for equal marriage rights for same-sex couples. The enactment of federal legislation to explicitly permit same-sex couples to marry remains the most straightforward means of providing equality.

BIOGRAPHY

EGALE was founded in 1986 to advance equality for Canadian lesbians, gays and bisexuals at the federal level. EGALE's work is comprised of three equal components: political action, legal interventions and public education. With members in every province and territory, EGALE is Canada's only national lesbian, gay and bisexual equality rights organization.

EGALE has appeared before numerous Parliamentary and Senate Committees to address issues such as new reproductive technologies, hate crimes, social security reform, protection from discrimination, same-sex relationship recognition, income tax review, custody rights, immigration and many other current social issues of relevance to lesbians, gays and bisexuals.

EGALE has also been granted intervenor status in the leading equality cases of Mossop v. Canada, Egan and Nesbit v. Canada, Vriend v. Alberta, M. v. H. and Ontario, Rosenberg & CUPE v. Canada, Little Sisters v. Canada Customs, and Chamberlain et al v. Board of Trustees of School District #36 (Surrey).

EGALE has prepared a number of Court Challenges Program Case Development Reports, has written a legal analysis of the impact of the decision of the Supreme Court in Egan v. Canada, has been commissioned to write a similar analysis of the impact of the decision of the Supreme Court in Vriend v. Alberta, develops Fact Sheets on current issues affecting the lesbian, gay and bisexual communities, maintains a Website (www.egale.ca) and two e-mail discussion groups to help keep our communities informed across the country, has participated in seminars on lesbian and gay equality issues, has participated in a numerous public education programs, and has undertaken many individual human rights projects.

EGALE has represented Canadian gays and lesbians at international conferences, including the United Nations World Conference on Human Rights in Vienna, the International Year of the Family Conference in Montreal, the World Conference on Women in Beijing, and the Beijing +5 Conference in New York.

EGALE has a number of active Committees, including a Research Committee, consisting of members of the Board of Directors with significant research and academic qualifications. Members of EGALE's Executive have testified as witnesses before the Canadian Human Rights Tribunal, and EGALE's Executive Director John Fisher also teaches courses at the Universities of Ottawa and Carleton on Lesbian and Gay Legal Issues. Professor Lahey teaches at Queen's University, and has recently published a major interdisciplinary study on law and sexuality, entitled "Are we "Persons" Yet? Law and Sexuality in Canada".

ACKNOWLEDGEMENTS

The research contributions of the following are gratefully acknowledged: