Same-sex marriage in Canada

In 1999, the Supreme Court of Canada ruled in M. v. H. [1999] 2 S.C.R. 3 that same-sex couples in Canada were entitled to receive many of the financial and legal benefits commonly associated with marriage. However, this decision stopped short of giving them the right to full legal marriage. Most laws which affect couples are within provincial rather than federal jurisdiction. As a result, rights varied somewhat from province to province.

On January 14, 2001, Reverend Brent Hawkes forced the issue by performing two same-sex marriages, taking advantage of the fact that Ontario law authorizes him to perform marriages without a previous license, via the issuance of banns of marriage. The registrar refused to accept the records of marriage, and a lawsuit was commenced over whether the marriages were legally performed. In other provinces, lawsuits were launched seeking permission to marry.

In 2002 and 2003, decisions in the superior trial courts of Ontario and Quebec held that the restriction of marriage to opposite-sex couples was discriminatory and contrary to the equality clause of the Canadian Charter of Rights of Freedoms, while the Supreme Court of British Columbia ruled oppositely. On May 1, 2003, the British Columbia Court of Appeal reversed the superior court decision.

• in Ontario: Halpern v. Canada (Attorney General) 95 C.R.R. (2d) 1 (Ontario Superior Court, July 12, 2002)
• in Quebec: Hendricks v. Quebec [2002] R.J.Q. 2506 (Quebec Superior Court, September 6, 2002)
• in British Columbia: Barbeau v. British Columbia 2003 BCCA 251 (British Columbia Court of Appeal, May 1, 2003)

The courts in each case suspended the effect of the declarations of invalidity for two years, to allow the federal government to consider legislative responses to the rulings. However, on June 10, 2003, the Court of Appeal for Ontario ruled on an appeal in the Halpern case. The court agreed with the lower court that the traditional definition of marriage was discriminatory and that same-sex marriage was legally permitted. However, unlike the previous three court decisions, the Court of Appeal did not suspend its decision to allow Parliament to consider the issue. Instead, it ruled that the 2001 marriages were legal and same-sex marriage was available throughout Ontario immediately: Halpern v Canada (AG).[17]

The federal government had appealed the trial decisions to the provincial courts of appeal, but following the decision on the Ontario Court of Appeal, Prime Minister Jean Chrétien announced on June 17, 2003 that the federal government would not seek to appeal the decisions to the Supreme Court. Instead, it would propose a draft Civil Marriage Act and refer it to the Supreme Court for an advisory opinion.

2003 wedding of Mathieu Chantelois and Marcelo Gomez in Toronto

In 2003, the couples in Halpern v. Canada appealed the decision, requesting that the decision take effect immediately instead of after a delay. On June 10, 2003, the Court of Appeal for Ontario confirmed that current Canadian law on marriage violated the equality provisions in the Canadian Charter of Rights and Freedoms in being restricted to heterosexual couples. The court did not allow the province any grace time to bring its laws in line with the ruling, making Ontario the first jurisdiction in North America to recognize same-sex marriage.[17][18] The city of Toronto announced that the city clerk would begin issuing marriage licences to same-sex couples. The first same-sex couple to marry, just hours after the Court of Appeal decision, were Michael Leshner and Michael Stark, long-time advocates for marriage equality for same-sex couples who had been litigants and intervenors in various court cases addressing the issue, including the Court of Appeal decision.[19][20][21] The next day, the Ontario Attorney General announced that his government would comply with the ruling.[22]

The court also ruled that two couples who had previously had a wedding ceremony in the Metropolitan Community Church of Toronto using an ancient common-law procedure called the reading of the banns would be considered legally married.[17]

On September 13, 2004, the Ontario Court of Appeal declared the Divorce Act also unconstitutional for excluding same-sex marriages. It ordered same-sex marriages read into that act, permitting the plaintiffs, a lesbian couple, to divorce.[23][24]

A ruling, quite similar to the Ontario ruling, was issued by the B.C. Court of Appeal on July 8, 2003. Another decision in B.C. in May of that year had required the federal government to change the law to permit same-sex marriages (see above). The July ruling stated that "any further delay... will result in an unequal application of the law between Ontario and British Columbia".[25] A few hours after the announcement, Antony Porcino and Tom Graff became the first two men to be legally wed in British Columbia.[26][27]

Michael Hendricks and René Leboeuf, the first same-sex couple to legally marry in Quebec

On March 19, 2004, the Quebec Court of Appeals ruled similarly to the Ontario and B.C. courts, upholding Hendricks and Leboeuf v. Quebec and ordering that it take effect immediately.[28] The couple who brought the suit, Michael Hendricks and René Leboeuf, immediately sought a marriage licence; the usual 20-day waiting period was waived, and they were wed on April 1 at the Palais de justice de Montréal.[29][30]

Given the populations of Ontario, British Columbia and Quebec, more than two-thirds of Canada's population lived in provinces where same-sex marriage had been legalized after the Quebec decision.

On July 14, 2004, in Dunbar & Edge v. Yukon (Government of) & Canada (A.G.), 2004 YKSC 54, the Yukon Territorial Supreme Court issued another similar ruling with immediate effect.[31] Rather than reproducing the Charter equality arguments used by the other courts, the Court ruled that since the provincial courts of appeal had ruled that the heterosexual definition of marriage was unconstitutional, it was unconstitutional across Canada. The position was strengthened by the Attorney General's refusal to appeal those rulings. It further ruled that to continue to restrict marriages in Yukon to opposite-sex couples would result in an unacceptable state of a provision's being in force in one jurisdiction and not another.

On August 16, 2004, federal Justice Minister Irwin Cotler indicated that the federal government would no longer resist court cases to implement same-sex marriage in the provinces or territories.[32]

On September 16, 2004, Justice Douglas Yard of the Manitoba Court of Queen's Bench declared the then-current definition of marriage unconstitutional. The judge said that his decision had been influenced by the previous decisions in B.C., Ontario and Quebec.[33] This decision followed suits brought by three couples in Manitoba requesting that they be issued marriage licences. Both the provincial and federal governments had made it known that they would not oppose the court bid. One of the couples, Chris Vogel and Richard North, had legally sought the right to marry, in a high-profile case in 1974, but had been denied.[34]

In August 2004, three couples in Nova Scotia brought suit in Boutilier v. Canada (A.G) and Nova Scotia (A.G) against the provincial government requesting that it issue same-sex marriage licences. On September 24, 2004, Justice Heather Robertson of the Nova Scotia Supreme Court ruled the then-current law unconstitutional. Neither the federal nor the provincial governments opposed the ruling.[4]

Five couples brought suit in Saskatchewan for the recognition of their marriage in a case that was heard by the Saskatchewan Court of Queen's Bench in chambers on November 3, 2004.[35] On November 5, 2004, the judge ruled that excluding same-sex couples from marriage violated the Charter's right to equality and that the common-law definition was discriminatory, thereby bringing same-sex marriage to Saskatchewan.[35][36]

Two lesbian couples brought suit on November 4, 2004, to have Newfoundland and Labrador recognize same-sex marriage. As with the previous decisions, the provincial government did not oppose the suit; moreover, the federal government actually supported it. The case went to trial on December 20 and the next day, Mr. Justice Derek Green ordered the provincial government to begin issuing marriage licences to same-sex couples, an order with which the provincial government announced it would comply.[37][38][39]

Two same-sex couples brought suit in April 2005 to request an order requiring the Government of New Brunswick to issue same-sex marriage licences. This was granted in June 2005. The Progressive Conservative Premier of New Brunswick, Bernard Lord, who personally opposed same-sex marriage, pledged to follow a directive to provide for same-sex marriages from the courts or from Parliament.[40][41]

On May 20, 2005, a gay male couple with a daughter brought suit in the Northwest Territories for the right to marry. Territorial Justice Minister Charles Dent had previously said that the government would not contest such a lawsuit. The case was to be heard on May 27 but ended when the federal government legalized same-sex marriage.

The shift in Canadian attitudes towards acceptance of same-sex marriage and recent court rulings caused the Parliament of Canada to reverse its position on the issue.

On September 18, 1995, the House of Commons voted 124–52 to reject a motion introduced by openly gay Réal Ménard calling for the legal recognition of same-sex relationships.[42][43]

A 2006 study by Mark W. Lehman suggests that between 1997 and 2004, Canadian public opinion on legalizing same-sex marriage underwent a dramatic shift: moving from minority support to majority support and that this support was the result of a significant shift in positive feelings towards gays and lesbians.[44]

The first bill to legalize same-sex marriage was a private member's bill tabled in the House of Commons by New Democratic MP Svend Robinson on March 25, 1998. Like most private members' bills, it did not progress past first reading, and was reintroduced in several subsequent Parliaments.[45]

In 1999, the House of Commons overwhelmingly passed a resolution to re-affirm the definition of marriage as "the union of one man and one woman to the exclusion of all others".[46] The following year, this definition of marriage was included in the revised Bill C-23, the Modernization of Benefits and Obligations Act 2000 (French: Loi sur la modernisation de certains régimes d'avantages et d'obligations), which continued to bar same-sex couples from full marriage rights.[47]

In early 2003, the issue once again resurfaced, and the House of Commons Standing Committee on Justice and Human Rights proceeded to undertake a formal study of same-sex marriage, including a cross-country series of public hearings. Just after the Ontario court decision, it voted to recommend that the federal government not appeal the ruling. [*Proceedings of the Standing Committee on Justice and Human Rights during the same-sex unions hearings.][48]

Civil status is of provincial jurisdiction in Canada. However, the definition of marriage is a federal law. On June 17, 2003, then Prime Minister Chrétien announced that the government would not appeal the Ontario ruling, and that his government would introduce legislation to recognize same-sex marriage but protect the rights of churches to decide which marriages they would solemnize.

A draft of the bill was issued on July 17. It read:

1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.

The draft bill was subsequently referred to the Supreme Court; see below.

On September 16, 2003, a motion was brought to Parliament by the Canadian Alliance (now the Conservative Party) to once again reaffirm the heterosexual definition of marriage. The same language that had been passed in 1999 was brought to a free vote, with members asked to vote for or against the 1999 definition of marriage as "the union of one man and one woman to the exclusion of all others."[49] Motions are not legislatively binding in Canada, and are mostly done for symbolic purposes. The September vote was extremely divisive, however. Prime Minister Chrétien reversed his previous stance and voted against the motion, as did Paul Martin (who later became prime minister) and many other prominent Liberals. Several Liberals retained their original stance, however, and thus the vote was not defined purely along party lines. Controversially, over 30 members of the House did not attend the vote, the majority of whom were Liberals who had voted against legalizing same-sex marriage in 1999. In the end, the motion was narrowly rejected by a vote of 137–132.[50]

In 2003, the Liberal government referred a draft bill on same-sex marriage to the Supreme Court of Canada, essentially asking it to review the bill's constitutionality before it was introduced. The reference as originally posed by Prime Minister Chrétien asked three questions:

1. Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent?
2. If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent?
3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?

Prime Minister Paul Martin later added a fourth in January 2004:[51]

4. Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in s. 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

The addition of a fourth question considerably delayed the opening of the court reference until well after the June 2004 general election, raising accusations of stalling.[52] The consultative process was held in the autumn of 2004.

In its hearings that began in October 2004, the Supreme Court of Canada accused the government of using the court for other goals when it declined to appeal rulings that altered the definition of marriage in several provinces.

"Justice Ian Binnie said it 'may not fulfill any useful purpose' to examine traditional marriage all over again, 'given the policy decision of the government'".[53]

The Supreme Court of Canada ruled that the government has the authority to amend the definition of marriage, but did not rule on whether or not such a change is required by the equality provisions of the Canadian Charter of Rights and Freedoms. The court stated that such a ruling is not necessary because the federal government had accepted the rulings of provincial courts to the effect that the change was required. The court also ruled that given freedom of religion in the Charter of Rights, and wording of provincial human rights codes, it was highly unlikely that religious institutions could be compelled to perform same-sex marriages, though because solemnization of marriage is a matter for provincial governments, the proposed bill could not actually guarantee such protections.[54]

On December 9, 2004, Prime Minister Paul Martin indicated that the federal government would introduce legislation expanding marriage to same-sex couples. The government's decision was announced immediately following the court's answer in the Reference Re Same-Sex Marriage reference question.[55]

The parliamentary bill caused rifts in the House of Commons, especially among the governing Liberals. Many Liberal MPs indicated that they would oppose the government's position in favour of same-sex marriage at a free vote. The majority of each of the Liberal Party, the New Democratic Party and the Bloc Québécois voted in favour of the bill; the majority of the Conservative Party voted against the bill.[56][57]

In 2000, Alberta had amended its Marriage Act to define marriage as being between a man and a woman.[58] The law included a notwithstanding clause in an attempt to protect the amendment from being invalidated under the Charter. However, the amendment was invalid since, under the Canadian Constitution, the definition of marriage is a federal right. (See "Same-sex marriage in Alberta" for further discussion of the issue.)

Complicating matters, Conservative Party Leader Stephen Harper indicated that a Conservative government would work to restore the prohibition on same-sex marriage if Parliament voted to do so in a free vote.[59]

Following the court decision on December 9, Albertan Premier Klein suggested that a national referendum be held on same-sex marriage, a measure Prime Minister Martin rejected.[60]

Bill C-38, the Civil Marriage Act (French: Loi sur le mariage civil), was introduced to Parliament for its first reading in the House on February 1, 2005.[61][62][63] Prime Minister Martin launched the debate on February 16. The bill passed second reading on May 4 and third reading on June 28, with votes of 164-137 and 158–133, respectively.[64][65][66] It then moved to the Senate, and received its first reading on June 29. Debate was launched on July 4, and a Liberal closure motion limited debate on the bill to only four hours. Second reading and committing the bill occurred on July 6, with a vote of 43–12. The Senate passed Bill C-38 on third reading by a margin of 47 to 21 on July 19, 2005.[67][68][69] It received royal assent, at the hand of the Rt. Hon. Beverley McLachlin (in her capacity as the Deputy of the Governor General of Canada), on July 20, 2005.[70]

The Conservative Party, led by Stephen Harper, won a minority government in the federal election on January 23, 2006. Harper had campaigned on the promise of holding a free vote on a motion to re-open the debate on same-sex marriage.[59] The motion would re-open the same-sex marriage debate, but did not prescribe restoring the "traditional" definition of marriage.

A news report from CTV on May 31, 2006 showed that a growing number of Conservatives were wary about re-opening the debate on same-sex marriage. One cabinet minister stated he just wanted the issue "to go away", while others including Chuck Strahl and Bill Casey were undecided, instead of directly opposed.[71] Foreign Affairs Minister Peter MacKay noted that not a single constituent had approached him on the issue, and Conservative Cabinet Minister Loyola Hearn was against re-opening the debate.[71]

By November 2006, the debate had shifted and it was the supporters of same sex marriage that were arguing for a fall vote on the issue and the opponents who were lobbying for a delay.[72][73]

On December 6, 2006, the government brought in a motion asking if the issue of same-sex marriage debate should be re-opened. This motion was defeated the next day in a vote of 175 (nays) to 123 (yeas).[74][75][76] Prime Minister Stephen Harper afterwards told reporters "I don't see reopening this question in the future".[77][78][79]

In Hincks v. Gallardo, 2013 CanLII 129 (7 January 2013), the Ontario Superior Court of Justice decided that same-sex partners who entered into UK civil partnerships are to be treated as married for the purposes of Canadian law.[80]

From June 2003 (date of the first same-sex marriages in Ontario) to October 2006, 12,438 same-sex marriages were contracted in Canada.[81]

By 2011, 21,015 same-sex marriages had been celebrated in Canada.[82] Additionally, there were 43,560 same-sex cohabiting couples.

According to the 2016 Census, there were 72,880 same-sex couples residing in Canada that year, of which 24,370 (33.4%) were married.[83] In British Columbia, 38.5% of all same-sex couples were married, compared to 38.2% in Ontario and 22.5% in Quebec. 10,020 children were living in same-sex families.[84]

As mentioned above, Canadian cohabiting same-sex couples are entitled to many of the same legal and financial benefits as married opposite-sex couples. In 1999, after the court case M. v. H., the Supreme Court of Canada declared that same-sex partners must also be extended the rights and benefits of common-law relationships.

The province of Quebec also offers civil unions to same-sex couples. Nova Scotia's domestic partnerships offer similar benefits. Legislative changes in 2001–2004 extended the benefits of common-law relationships in Manitoba to same-sex couples as well as those of different sex.

In 2003, Alberta passed a law recognizing adult interdependent relationships. These relationships provide specific financial benefits to interdependent adults, including blood relations.[85]

The legal status of same-sex marriages in provinces and territories that did not perform them was uncertain prior to the passage of the Civil Marriage Act. One of the couples that brought suit in Nova Scotia acted so that their Ontario marriage would be recognized.

The Premier of Alberta, Ralph Klein, wanted to prevent same-sex marriages from being performed or recognized in Alberta, but eventually admitted that the province's chances of doing so were slim to none, and said Alberta would obey the legislation.[86] By contrast, the other remaining province without same-sex marriage, Prince Edward Island, announced that it would voluntarily bring its laws into compliance with the federal legislation.

In October 2003, Premier Paul Okalik announced that Nunavut would recognize same-sex marriages performed in other provinces and territories.

The Department of Citizenship and Immigration Canada (CIC) acknowledges same-sex marriages contracted in Canada between immigration applicants and Canadian citizens or permanent residents. Canadians may also sponsor their same-sex common-law or civil union partners for family-class immigration, provided they meet various requirements, including proof of legitimacy, and cohabitation for at least one year.

After the enactment of the Civil Marriage Act, CIC adopted an interim immigration policy which did not recognize same-sex marriages which took place outside Canada. For example, a Canadian citizen, legally married in the Netherlands to his or her same-sex Dutch partner, might not sponsor his or her Dutch partner for immigration as a spouse, despite the fact that both Dutch law and Canadian law made no distinction between opposite-sex and same-sex civil marriages, and despite the fact that CIC did recognize a Dutch opposite-sex marriage.

On December 12, 2006, New Democratic Party MP Bill Siksay introduced a motion in the House of Commons of Canada Standing Committee on Citizenship and Immigration calling on the CIC to immediately rescind the interim policy and "recognize legal marriages of gay and lesbian couples performed in jurisdictions outside Canada for purposes of immigration in exactly the same way as the legal marriages of heterosexual couples are recognized"; the committee voted to recommend that the government do this.[87] In late January 2007, Citizenship and Immigration Minister Diane Finley informed the committee that this would be done.[88] In February 2007, the CIC website was updated to reflect the fact that the policy had been updated.[89]

Since September 2003, military chaplains have been allowed to bless same-sex unions and to perform these ceremonies on a military base.[90]

On December 19, 2003, an Ontario court ruled that survivor benefits for Canadians whose same-sex partners died should be retroactive to April 1985, the date the Charter of Rights came into effect. The federal government appealed. On March 1, 2007, the Supreme Court of Canada ruled that the federal government must pay Canada Pension Plan benefits to surviving same-sex spouses.[91] Initial news reports indicated that the court limited retroactive benefits to only 12 months' worth, but in fact, some survivors may be entitled to benefits dating back to 2000.[92][93]