Partners Task Force - Canadian Suits for Legal Marriage

On July 8, 2003, the Canadian provinces of British Columbia and Ontario joined the Netherlands and Belgium as the only governments in the world to offer legal marriage for same-sex couples. [Note: See updated government list at end of article.] While many countries offer some kind of domestic partnership status — and many mistakenly refer to it as marriage — none have the full equality in legal, economic and social stature as is available in legal marriage.

Canada, like South Africa, has stronger constitutional protections than the United States, and has proved to be fertile ground for the lifting the ban against legal marriage for same-sex couples. Here are court rulings and legislative mandates that have impacted, in a positive way, the struggle for equal citizenship in Canada.

The Canadian Supreme Court altered the way “family” is defined when it ruled, on May 20, 1999 in M v. H & Ontario, that the term “spouse” includes same-sex partners. Striking down a key section of Ontario family law on the grounds that it is unconstitutional, the ruling has forced Ontario to rewrite hundreds of laws governing family relationships. Moreover, it has forced governments across Canada to rewrite laws that previously recognized only opposite-sex relationships.

The Canadian Senate gave its final approval to Bill C-23, on June 14, 2000, the Government’s omnibus bill to give same-sex couples the same legal standing as unmarried opposite-sex couples.

The bill, called “The Modernization of Benefits and Obligations Bill,” was introduced on June 13, 2000 by Senator Lucie Pepin (Liberal-Quebec), who said, “We must pass Bill C-23 for reasons of justice, equality among people, tolerance and openness to diversity, as well as respect for each other. This is what fairness is all about. … Bill C-23 must be passed in a society that values equality, a value inscribed in the heart of our Charter of Rights and Freedoms, an inescapable fact of Canada’s political culture.”

Bill C-23 amends 68 federal statutes. It also contains clause 1.1 or “the rule of interpretation,” which states “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.”

The bill uses the undefined phrase “relationships of a conjugal nature” to distinguish the relationships subject to the benefits and obligations of the bill. It does not employ any sort of registry.

On January 14, 2001, two same-sex couples legally married in a joint service before 1,000 people at Metropolitan Community Church (MCC) of Toronto. The ancient Christian tradition of the banns was used by Rev. Brent Hawkes to unite the couples.

Elaine Vautour, 43, married Anne Vautour, 38, who legally changed her last name to Elaine’s. And Kevin Bourassa, 42, married Joe Varnell, 31. The men had been partners for three years.

The publication of banns for two couples were posted on Sunday, December 10, 2000, International Human Rights Day. The form of banns was based on one used by the Anglican Church. The banns were published on the two following Sundays, with no legal objections.

Objections were stated on the two following Sundays, however, they were based on objections to the couple’s perceived sexual orientation. The underlying objection being that these were same-sex marriages. This was invalid under Ontario law because objections can only be raised if a couple was related by blood, under age, mentally unable to make such a decision, or had been married before.

Marriage banns are enacted by announcing at three consecutive church services, or in weekly bulletins, that a couple intends marriage, and asking “if any know any cause or just impediment why these two should not be joined in holy matrimony, you are to declare it.” This allows churches to issue a marriage license, according to centuries-old common law that is recognized in Ontario.

The Ontario government has refused to register the couple’s marriages. MCC’s lawyer, Douglas Elliott, said that doesn’t mean the couples weren’t legally married. Only the registering, or recording, of it will be held up by that action. On January 19, 2001, the province was sued by MCC for it’s refusal to register the marriages.

On July 12, 2002, a three-judge panel of the Ontario Superior Court decided that granting marriage licenses only to opposite-sex couples violates Canada’s Charter of Rights and Freedoms. Current federal law defines legal marriage as “a union between one man and one woman to the exclusion of all others.” The court also ordered the federal Parliament to officially redefine “marriage” within the next two years. If not, the courts would likely declare the marriages valid on July 12, 2004.

Statements from the Court Ruling

“There is thus a short answer to the question posed by the Applicants in these two proceedings. It is this: the constitutional and Charter-inspired values which underlie Canadian society today dictate that the status and incidents inherent in the foundational institution of marriage must be open to same-sex couples who live in long-term, committed, relationships — marriage-like in everything but name — just as it is to heterosexual couples. Each is entitled to full and equal recognition, and the law must therefore be adapted accordingly.” (p.20)

— Justice Blair

“The restriction against same-sex marriage is an offense to the dignity of lesbians and gays because it limits the range of relationship options available to them. The result is they are denied the autonomy to choose whether they wish to marry. This is turn conveys the ominous message that they are unworthy of marriage. For those same-sex couples who do wish to marry, impugned restriction represents a rejection of their personal aspirations and the denial of their dreams.” (p.118)

“Further, I find that there is no merit to the argument that the rights and interests of heterosexuals would be affected by granting same-sex couples the freedom to marry. … I cannot conclude that freedom of religion would be threatened or jeopardized by legally sanctioning same-sex marriage.” (p.118)

“[T]he denial of equal marriage can — and no doubt does — reflect and reinforce existing, inaccurate understandings of the merits, capabilities and worth of lesbian and gay relationships within Canadian society. … Excluding gays and lesbians from marriage disregards the needs, capacities, and circumstances of same-sex spouses and their children. It declares an entire class of persons unworthy of the recognition and support of state sanction for their marriages.” (p.204)

“I do not accept that the objective of procreation is a basis that can support the restriction against same-sex marriage. Rather, it could reasonably be argued … that it appears to be a mere pretext used to rationalize discrimination against lesbians and gays.” (p.114)

— Justice LaForme

Eves further called on the government to abandon any consideration of appealing the decision and enact legislation to make same-sex marriages legal. While marriage is registered by the provinces, marriage is federally regulated.

The Canadian federal government, however, did appealed this ruling, and, at the same time, released a policy discussion paper on same-sex marriages. This paper, “Marriage and the Legal Recognition of Same-sex Unions,” was referred to the Standing Committee on Justice for public consultation, which will later report back to the House of Commons with recommendations regarding the four options contained in the paper.

The four options are:
- Leave marriage the way it is
- Change the definition to include same-sex marriages
- Get out of the marriage business and leave it to the churches
- Establish civil registries that allow same-sex marriages to be recognized without a ceremony

Before the results of the report could be published, on June 10, 2003, Ontario’s court of appeals ruled that the Canadian government must allow same-sex couples the right to marry. The court upheld the lower court decision, and it removed the court’s deadline of July 2004, instructing the federal government to allow same-sex marriage immediately.

The federal government had 30 days to appeal the ruling to Canada’s supreme court. On June 17, 2003, Canadian Prime Minister Jean Chrétien said that instead of a court challenge, legislation will be introduced to recognize same-sex unions, while at the same time permitting churches and other religious groups to “sanctify marriage as they see it.”

It is likely that same-sex marriage will soon become legal in all nine provinces.

While the first country in the world to offer legal marriage was the Netherlands on April 1, 2001, Elaine Vautour and Anne Vautour, as well as Kevin Bourassa and Joe Varnell can now officially say that their marriages, on January 14, 2001, were the first same-sex legal marriage in the world.

Paula Barrero, 27, and Blanca Mejias, 32, were married, by banns on September 29, 2001 in Toronto. The officiant, Rev. Dr. Cheri DiNovo, sent the proper forms for processing to the government and a marriage license was issued. The form did not have a place for “female and male,” only asking for the name of the “bride and groom.”

On the following Valentine’s Day, the couple received a government-issued marriage certificate. As of March 2003, Paula and Blanca’s marriage remains legal. It may very well be the first registered same-sex marriage in Canada.

While the government of Ontario has threatened to revoke Rev. Dr. DiNovo’s license to officiate legal marriages, the Registrar General has allowed the license to stand. Even though the marriage is registered, the couple is unable to exercise their marital rights with the government and they do not have legal standing.

DiNovo is a minister at the Emmanuel-Howard Park United Church in Toronto, part of the United Church of Canada. She is encouraging other ministers to issue banns for same-sex couples. She may be reached at: cdinovo50@rogers.com

A male couple since 1973, Michael Hendricks, 57, and Rene Leboeuf, 43, filed a suit in Québec Superior Court for the right to marry on September 14, 1998. The suit hinged on the fact that the Québec Civil Code — which states that a marriage license is granted only to a man and a woman — violates the province’s Charter of Rights and Freedoms, which has forbidden discrimination against gay men and lesbians since 1967.

It also challenged Québec’s right to decide who can get married, which it claimed is a federal jurisdiction. Apparently, there are no federal laws prohibiting same-sex marriage.

Québec Superior Court judge Louise Lemelin declared, on September 6, 2002, that the definition of marriage for opposite-sex only was unconstitutional. The judge stated, “the definition of marriage imposes a discriminatory distinction in excluding couples of the same sex.”

This is the second high court, after Ontario’s July 12, 2002 judgement, to demand that the Canadian government start treating all citizens equally.