Marriage in Canada

The Parliament of Canada has exclusive legislative authority over marriage and divorce in Canada under section 91(26) of the Constitution Act, 1867. However section 92(12) of the Constitution Act, 1867 gives the provincial legislatures the power to pass laws regulating the solemnization of marriage.

In 2001 there were 146,618 marriages in Canada, down 6.8% from 157,395 in 2000.[1] Prince Edward Island had the highest crude marriage rate (6.5 per 1,000 people) and Quebec had the lowest (3.0).

Marriage ceremonies in Canada can be either civil or religious. Marriages may be performed by members of the clergy, marriage commissioners, judges, justices of the peace or clerks of the court, depending on the laws of each province and territory regulating marriage solemnization. In 2001, the majority of Canadian marriages (76.4%) were religious, with the remainder (23.6%) being performed by non-clergy.

Same-sex marriage has been legal in Canada nationally since 2005. Court decisions, starting in 2003, had already legalized same-sex marriage in eight out of ten provinces and one of three territories.

Marriage restrictions

Consanguinity

The federal Marriage (Prohibited Degrees) Act, Section 2[2] prevents the following persons from getting married:

  1. Subject to subsection (2), persons related by consanguinity, affinity or adoption are not prohibited from marrying each other by reason only of their relationship.
  2. No person shall marry another person if they are related lineally, or as brother or sister or half-brother or half-sister, including by adoption.

Both parties must freely consent. Forcing somebody to get married is a criminal offence under s. 293.1 of the Criminal Code.[3] In addition, s. 2.1 of the Civil Marriage Act stipulates, "Marriage requires the free and enlightened consent of two persons to be the spouse of each other."[4]

Age of the spouses

Since 2015, federal law has set the absolute minimum marriageable age at 16.[5] Provinces and territories may set a minimum age higher than that.[6] In Canada the age of majority is set by province/territory at 18 or 19, so minors under this age have additional restrictions (i.e. parental and court consent). Section 293.2 of the Criminal Code also addresses marriages of individuals under the age of 16, reading: Everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is under the age of 16 years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.[3] Section 2.2 of the Civil Marriage Act also states: No person who is under the age of 16 years may contract marriage.[4] These provisions were enacted in 2015.[7][8][9] Before 2015, it was possible for children less than 16 years old to get married in some jurisdictions of Canada, with parental consent or a court order.[6][10] (The legal marriage age with parental consent was possibly as low as 7 in some Canadian jurisdictions.[11][12])

Minimum age by province and territory
  • British Columbia: 19, or 16 with parental consent.[13][14]
  • Alberta: 18, or 16 with consent of all parents and legal guardians.[15]
  • Saskatchewan: 18, or 16 with a "Consent to Marriage of a Minor" form signed and completed by the parent(s) or guardian(s) in the presence of a Saskatchewan marriage licence issuer, clergy or any person authorized to take affidavits. "If the parent(s) or guardian(s) refuse to consent to the marriage, the minor can apply to a judge of either the provincial or Queen's Bench court for an order dispensing with their consent. The minor may obtain the judge's order by applying to a court house in Saskatchewan."[16]
  • Manitoba: 18.[17]
  • Ontario: 18, or 16 with written consent from both sets of parents.[18]
  • Quebec: 18, or 16 with authorization from the courts.[19]
  • New Brunswick: 18, or 16 with an affidavit of consent signed by parents or guardians.[20]
  • Nova Scotia: 19, or 17 with a signed consent form.[21]
  • Prince Edward Island: 18, or younger with a consent form signed by parent(s).[22]
  • Newfoundland and Labrador: 19, or younger wherein "special consents may be required."[23]
  • Yukon: 19, or younger with consent of parent(s) or legal guardian(s).[24]
  • Northwest Territories: 19, or younger with parental consent.[25]
  • Nunavut: 19, or 16 with parental consent.[26]

Divorce

Termination of marriage in Canada is covered by the federal Divorce Act.[27]

A divorce may be granted for one of the following reasons:

  • the marriage has irretrievably broken down, and the two parties have been living apart for a year (s.8(2)(a) of the Act)
  • one party has committed adultery (s.8(2)(b)(i) of the Act)
  • one party has treated the other party "with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses" (s.8(2)(b)(ii) of the Act)

Key headings of the Divorce Act:

  • Interpretation[28]
  • Jurisdiction[29]
  • Divorce[30]
  • Child support orders[31]
  • Spousal support orders[32]
  • Priority[33]
  • Custody orders[34]
  • Variation, rescission or suspension of orders[35]
  • Provisional orders[36]
  • Appeals[37]
  • General[38]

Rates by year
Divorce Rate (per 100,000 residents per year) in Canada, by year[39]
Year Rate
1950 39.3
1951 37.6
1952 39.1
1953 41.5
1954 38.7
1955 38.6
1956 37.3
1957 40.3
1958 36.8
1959 37.4
1960 39.1
1961 36.0
1962 36.4
1963 40.6
1964 44.7
1965 45.7
1966 51.2
1967 54.8
1968 54.8
1969 124.2
1970 139.8
1971 135.2
1972 145.8
1973 163.2
1974 197.4
1975 218.7
1976 231.2
1977 233.4
1978 238.5
1979 245.7
1980 253.0
1981 272.6
1982 280.4
1983 270.3
1984 254.5
1985 239.8
1986 300.0
1987 363.8
1988 311.7
1989 296.9
1990 283.4
1991 274.7
1992 278.6
1993 272.7
1994 272.0
1995 264.9
1996 241.6
1997 225.4
1998 229.1
1999 233.2
2000 231.8
2001 229.2
2002 223.8
2003 223.9
2004 218.0
2005 221.0
2006 229.3
2007 222.2
2008 210.8

Polygamy
Main article: Polygamy in North America

In Canada, polygamy is a criminal offence,[3] but prosecutions are rare. In March 2014, Winston Blackmore and James Oler were charged with polygamy;[40] their prosecutions were the first such cases in Canada in over sixty-five years.[41] In 2007, an independent prosecutor in British Columbia recommended that Canadian courts be asked to rule on the constitutionality of laws against polygamy.[42] The Supreme Court of British Columbia upheld Canada's polygamy laws in a 2011 reference case.[43][44]

On March 9, 2018, the Supreme Court of British Columbia upheld the constitutionality of Canada's anti-polygamy laws again,[45] upholding the July 2017 polygamy convictions of Winston Blackmore and James Oler.[46]

See also

References
  1. "Marriages". The Daily. Statistics Canada. November 20, 2003.
  2. Marriage (Prohibited Degrees) Act, SC 1990, c. 46.
  3. Criminal Code, RSC 1985, c. C-46.
  4. Civil Marriage Act, SC 2005, c. 33.
  5. Zero Tolerance for Barbaric Cultural Practices Act, SC 2015, c 29, http://canlii.ca/t/52m2q retrieved on 2018-06-24
  6. Julie Béchard; Sandra Elgersma; Julia Nicol (2015-01-26). "Legislative Summary of Bill S-7: An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other Acts". Library of Parliament. Retrieved 2018-06-24.
  7. "Zero Tolerance for Barbaric Cultural Practices Act receives Royal Assent" (Press release). Government of Canada. 2015-06-18. Archived from the original on 2015-06-23. Retrieved 2015-06-23.
  8. "Zero Tolerance for Barbaric Cultural Practices Act: Order Fixing the Day on which this Order is registered as the Day on which Part 3 of the Act Comes into Force". Canada Gazette Extra. Vol. 149 no. 3. 2015-07-17. Retrieved 2018-06-24.
  9. Laura Payton (2015-03-12). "'Barbaric cultural practices' bill debate limited by Conservatives". CBC.ca. Retrieved 2018-06-24. The legislation, bill S-7, originated in the Senate and would make it illegal for anyone under 16 to get married.
  10. Olga Khazan (2015-03-09). "A Strange Map of the World's Child-Marriage Laws". The Atlantic. Retrieved 2018-06-24.
  11. Stewart Bell (2014-11-05). "Conservatives propose increasing legal marriage age to 16, say it will keep 'barbaric cultural practices' out of Canada". National Post. Retrieved 2018-06-24.
  12. "Backgrounder: Comparative overview of proposed changes in the Zero Tolerance for Barbaric Cultural Practices Act" (Press release). Government of Canada. 2014-11-05. Archived from the original on 2014-11-06. Retrieved 2014-11-06. The minimum age of 16 for marriage, below which no marriage can be contracted, is currently contained in federal legislation that applies in the Province of Quebec only. For the other provinces and territories, the minimum age is not currently provided for in federal legislation and there is some debate about the minimum age in common law, with some establishing the age at 12 for girls and 14 for boys, and others at age seven for all.
  13. "Marriage Act". bclaws.ca. Retrieved 2020-05-20.
  14. "Formal Marriage Requirements". bclearningnetwork.com. Retrieved 2020-05-20.
  15. "Get a marriage licence". alberta.ca. Retrieved 2020-05-20.
  16. "Marriage Licences | Marriages". Government of Saskatchewan. Retrieved 2020-05-20.
  17. "Manitoba Vital Statistics Agency | Province of Manitoba". Province of Manitoba - Manitoba Vital Statistics Agency. Retrieved 2020-05-20.
  18. ontario.ca https://www.ontario.ca/page/getting-married. Retrieved 2020-05-20. Missing or empty |title= (help)
  19. "Legal age for marriage". Ministère de la justice. Retrieved 2020-05-20.
  20. Government of New Brunswick, Canada (2017-10-16). "Getting Married - Frequently Asked Questions". www2.snb.ca. Retrieved 2020-05-20.
  21. Scotia, Communications Nova (2018-05-01). "Apply for a Marriage Licence". novascotia.ca. Retrieved 2020-05-20.
  22. Toolkit, Web Experience (2016-12-20). "Getting a Marriage Licence in PEI". princeedwardisland.ca. Retrieved 2020-05-20.
  23. "Getting Married". Service NL. Retrieved 2020-05-20.
  24. "MARRIAGE ACT" (PDF). gov.yk.ca/. Retrieved 2020-05-20.
  25. "Marriage". justice.gov.nt.ca. Retrieved 2020-05-20.
  26. "Nunavut Marriage FAQs". canadianbirthcertificate.com. Retrieved 2020-05-20.
  27. "Divorce Act, RSC 1985, c. 3 (2nd Supp.)". Justice Laws Website. Department of Justice (Canada). 2007.
  28. Interpretation. Canadian Legal Information Institute.
  29. Jurisdiction. Canadian Legal Information Institute.
  30. Divorce. Canadian Legal Information Institute.
  31. Child support orders. Canadian Legal Information Institute.
  32. Spousal support orders. Canadian Legal Information Institute.
  33. Priority. Canadian Legal Information Institute.
  34. Custody orders. Canadian Legal Information Institute.
  35. Variation, rescission or suspension of orders. Canadian Legal Information Institute.
  36. Provisional orders. Canadian Legal Information Institute.
  37. Appeals. Canadian Legal Information Institute.
  38. General. Canadian Legal Information Institute.
  39. "Divorce and suicide rates, per 100,000, Canada, 1950 to 2008". Statistics Canada.
  40. "Bountiful sect members face polygamy, child-related charges". CBC News. 2014-08-13. Retrieved 2018-07-19.
  41. Lak, Daniel (January 21, 2009). "Canada's polygamy legislation". CBC News. Retrieved 2011-12-05.
  42. Dowd, Allan (August 1, 2007). "Canada urged to review legality of polygamy ban". Reuters. Retrieved 2011-12-05.
  43. "Canada's polygamy laws upheld by B.C. Supreme Court". CBC News. November 23, 2011. Retrieved 2011-12-05.
  44. "Reference re: Section 293 of the Criminal Code of Canada", 2011 BCSC 1588, Canadian Legal Information Institute
  45. "Judge tosses convicted B.C. polygamists' constitutional challenge". CBC News. 2018-03-09. Retrieved 2018-07-19. Winston Blackmore and James Oler were found guilty of having multiple wives in B.C. Supreme Court last July. They returned to court to argue their convictions were null because the law itself was unconstitutional under the Charter of Rights and Freedoms. On Friday, B.C. Supreme Court Justice Sheri Ann Donegan rejected the argument, stating that Blackmore and Oler considered their lifestyles above the law when they continued to marry women in Bountiful, B.C.
  46. "Winston Blackmore and James Oler found guilty of polygamy by B.C. judge". CBC News. 2017-07-24. Retrieved 2018-07-19. Two former religious leaders in B.C. have been found guilty of polygamy after marrying more than two dozen women over the course of 25 years.
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