Extending Spousal Status In Canada Essay Research

Extending Spousal Status In Canada Essay, Research Paper Charter litigation and the advocacy of gays and lesbians is forcing Canadian lawmakers to deal with issues related to the

Extending Spousal Status In Canada Essay, Research Paper

Charter litigation and the advocacy of gays and lesbians is forcing Canadian lawmakers to deal with issues related to the

regulation and support of domestic relationships, and in particular to consider how to extend legal recognition to same sex

relationships. A legislative response would be preferable in terms of consistency, fairness and expense. There is a substantial

financial and psychological burden placed on those who make individual Charter based claims, and, as recognized by the

Supreme Court of Canada in M v. H,(2) the courts are not well structured as institutions for developing coherent legal

regimes to deal with the myriad of issues that arise.

The regulation and support of same sex relationships, and other domestic relationships, requires some combination of

marriage, contract, and ascription. There may also be a role for the enactment of registered domestic partnership (RDP)

legislation. This paper identifies and comments on some issues that lawmakers will need to address as they consider

alternatives and respond to the challenge posed by M v H to extend the concept of “spouse.”

Until now, most legislators in Canada have displayed a marked reluctance to legally recognize same sex relationships, and

the responsibility for providing legal recognition to these relationships largely has fallen to the courts. Like others who have

written in this area, I hope for a legislative response, but fear that politicians may be reluctant to deal with potentially

contentious issues relating to the nature of the family. One may hope that if scholars, policy analysts, practitioners and

concerned citizens can help clarify and illuminate some of the issues that arise, and can explain the value of a legislative

response, politicians may be more likely to accept the challenge of providing for a fair and coherent legislative response for

the definition of “familial relationships.” Advocates for gays and lesbians have powerful equity and social policy based claims

to have laws that allow same sex partners to enter into a status with all the rights and obligations of other spouses. There

may also be utility in enacting legislation to allow a “near married” status that couples may chose to acquire, such as the

registered domestic partnership; however, due to the constitutional division of powers in Canada, there will be considerable

complexity in enacting a coherent “near married” RDP scheme in this country. There is also a role for domestic contracts

between same sex and other domestic partners, though there are real limitations on contracts as a “solution” for the issues

faced by those in domestic relationships. There is a range of situations in which the law should treat those in who have lived

in conjugal domestic relationships for a certain period as “spouses,” even though they have taken no steps to formalize their

relationship (by marriage, or registration if that is available.). This process of “deeming”individuals to be spouses is referred

to as “ascription.” There are important reasons for having ascription, even though it “imposes” spouse-like rights and

obligations upon those who have not chosen (or been permitted) to recognized acquire spousal status. However, if those

who live in conjugal relationships (including same sex partners) have the option of formalizing their relationships, there are

justification for having some distinctions between those who have chosen to formalized their relationships and those who live

together and acquire rights and obligations only by “ascription.”

Same Sex Marriage & Registered Partnerships: A Peculiarly Canadian Problem

There are strong equity and social policy based arguments in favour of giving same sex partners the same right as other

Canadians have to marry. Recent public opinion poles suggest that a majority of Canadians would support such action,(3)

though our politicians have been very reluctant to act. Shortly after the Supreme Court decision in M v H, the House of

Commons, by a vote of 216 to 55, supported a resolution affirming that “marriage is and should remain the union of one man

and one woman to the exclusion of all others, and that Parliament will take all necessary steps … to preserve this definition in

Canada.”(4) While some opponents of legal recognition of same sex relationships are homophobic, some of the opposition

has psychological, social, political and religious roots. And some in the gay and lesbian communities reject “marriage,” with

its heterosexual and gendered connotations, as a desired legal alternative.(5) In the near future, if same sex partners are to

gain the right to “marry” it seems most likely that they will have to look to the courts to secure this right, though there is

interest from some politicians in exploring various alternatives that do not totally equate same sex partnership with marriage.

It is noteworthy that in M v H and other Charter cases the successful discrimination argument was based on the unequal

treatment between same sex and heterosexual unmarried cohabitation, and the Supreme Court did not purport to legally

equate same sex unions to marriage.(6) While same sex partners have recently had very significant success in using the courts

to gain “spousal status” similar to unmarried heterosexual cohabitants, there has yet to be a successful claim in Canada (or

any other country) by same sex partners to the right to “marry.”(7)

The Supreme Court in M v. H. accepted that individuals in same-sex relationships are not “less worthy of recognition and

protection” than unmarried heterosexual cohabitants.(8) Accordingly the Charter requires governments to recognize same

sex partners in the same way that it recognizes opposite sex “common law” partners. However, this does not necessarily

mean the courts will rule that the Charter requires that the federal (or provincial) government enact legislation that gives

same sex partners the legal right to enter into the legal status of matrimony, with all the rights and obligations that might

arise.(9)

This country’s division of constitutional responsibility between the federal and provincial governments creates a peculiarly

Canadian set of legal problems with both registered domestic partnerships and “same sex marriage.” Both levels of

government have some responsibility within their respective areas of jurisdiction in responding to the claims posed by M v H.

for legal recognition of same sex relationships.

The federal government has responsibility for “marriage and divorce” under s.91(26) of the Constitution Act, 1867. This

gives the federal government the responsibility for enacting laws governing capacity to marry, while the provinces have

jurisdiction over “solemnization of marriage” under s. 92 (12) of the Constitution Act, and “property and civil rights” under

s. 92(13).

It is clear that in 1867 the definition of marriage was “the voluntary union of one man and one woman to the exclusion of all

others,”(10) and that the ability to consummate the marriage by having heterosexual intercourse was an essential element of

“marriage.”(11) While the federal government has modified some of the common law rules governing the capacity of a man

and a woman to marry, for example to allow an uncle to marry his neice,(12) it has not tried to change the basic common law

definition of marriage.(13) There is an argument that it would be ultra vires s. 91(26) for the federal government to enact

legislation that would fundamentally alter and expand the very nature of “marriage” by allowing same sex couples to “marry.”

An argument could be made that the federal government could not expand its jurisdiction by fundamentally altering the legal

concept of “marriage” from what it was in 1867. Ultimately I do not find this argument I persuasive, but it is an argument that

will need to be considered in any law reform undertaking.

I believe that under s. 91 (26) of the Constitution Act the federal government can change the legal rules about “capacity” to

marry and could enact legislation amending the common law and allowing same sex partners to “marry”, and that if it did so,

this change would be binding for all purposes of provincial (or territorial) law. (And as noted above, there is a strong

argument that under the Charter the federal government is obliged to do this, but this argument has yet to succeed in the

courts.)

While I think that the federal government could simply enact legislation that allows partners of the same sex to “marry,” if it

wished to do so it would also be constitutionally permissible for the federal government could use a different term for a

formalized same sex relationship. Clearly the parties to a “same sex marriage” would not be called “husband” and “wife,”

though these gendered terms are used at common law and in some provincial marriage statutes, and could still be used for

opposite sex spouses.(14) So I think that the federal power could extend to the recognition of the rights of same sex

partners(15) to enter a relationship that is called something other than marriage, such as a “domestic partnership,” as long

as the rights and obligations conferred by the status are fully equivalent to marriage for all purposes of Canadian

law.(16) The relationships would then be formalized in accordance with a process determined by provincial law, enacted

under the “solemnization of marriage” power. Such full legal recognition of same sex marriage in “all but name” would

address some of the political, religious and psychological concerns reflected in the recent House of Commons resolution.

Having a legally equivalent formally recognized same sex partnership with a distinct name may also help address some of the

legal concerns that will arise in the international context, since some jurisdictions will not recognize Canadian same sex

marriages.(17) I think that the federal government could validly legislate under s. 91(26) to give same sex partners the full

legal right to “marry,” but recognize this conjugal union with a distinctive name; as I noted, there are political and legal

arguments that might justify this distinctive treatment. However, I do not think that the federal government could invoke s.

91(26) to create a new “marriage-like” status (which I will refer to in this paper as the registered domestic partnership),

which would give the parties most but not all of the rights and obligations of a spouse, for example by excluding rights in

regard to children. Any federal RDP legislation that does not equate the essential rights and obligations of same sex and

opposite sex spouses would be creating a new type of “near-marital” status and would be limited by the Constitution Act ,

1867 to areas within exclusive federal jurisdiction, such as the Canada Pension Plan, immigration and federal income tax.

Such federal “near-marital” RDP legislation could not affect legal status for purposes of provincial areas of responsibility such

as property rights on termination of the relationship.

There is a significant area of provincial jurisdictional responsibility under the provincial power over “property and civil rights”

under s. 92(13) of the Constitution Act for creation of a set of “near-marital”(or “spouse-like”) rights and obligations for

those in a RDP. The provinces have the jurisdiction under s. 92(13) to grant limited “spousal status” for many important legal

purposes to same sex partners and other cohabitants, on such terms as the provinces may chose (subject to the Charter

provisions prohibiting discrimination).

Thus, there are this complex jurisdictional issues to address in establishing a near-marital RDP scheme. There would need to

be both federal and provincial RDP laws to have a comprehensive scheme. Hopefully any federal law would recognize

RDP’s made under any provincial laws as valid for federal purposes as well as allowing RDP’s for federal purposes for those

who reside in provinces that have failed to enact RDP legislation. Similarly, provincial laws should provide for recognition of

RDP’s made in other jurisdictions or under federal law.

The constitutional complexity of enacting RDP legislation may be an argument in favour of not pursing this alternative at all,

and simply expecting the federal government to allow same sex partners to marry.

Responding to M. v H.

The lobbying from some gay and lesbian advocates has prompted of some law reform commissions(18) and politicians to

begin to explore the near marriage Registered Domestic Partnership concept. The May 1999 Supreme Court decision in M

v. H may also increase pressure to act, though federal and provincial governments are responding more narrowly to the

immediate issue presented by that decision. Governments are responding by extending the statutory “ascription” definition to

place same sex partners in the same position as unmarried heterosexual partners.(19)

Governments, such as that in Ontario, are responding begrudgingly to the Supreme Court decision, emphasizing that they are

only acting because they have been forced to do so by the Court. Rather than changing the definition of “spouse,” Ontario

legislation adds the new concept of the “same sex partner,” with all the rights and obligations of the unmarried heterosexual

cohabitant, provided that there has been a period of shared residence, usually three years. There is a clear effort by

politicians to preserve the traditional definition of “spouse” for heterosexual “conjugal” relationships (married or unmarried).

Ontario Premier Harris disparagingly commented on same sex partners: “It is not my definition of the family.”(20)

Although the rights (and obligations) for same sex couples that are imposed by “ascription” as a result of M v. H. and other

court decisions are significant, there remain some very important differences between ascription and full legal recognition.

There is an obvious and profound psychological and social difference that results from gays and lesbians being treated

unequally and not having the option that allows them to have formal legal recognition for their relationship at any time they

wish. A major legal difference is that until the parties have cohabited for the prescribed period, they are not “spouses” and

not do not have the rights and obligations towards each other or other parties that spouses have. There may also be a lack

of clarity for the partners and others as exactly when the ascribed status is (or is not) attained. Further, there remain some

significant legislative differences between ascribed spouses and married spouses, such as in regard to marital property. While

differences in treatment may be justified if partners who cohabit have chosen not to formalize their relationship,

discriminatory treatment may not be justifiable if do not have this opportunity.

Near Marriage – The Registered Domestic Partnership:

For some politicians and advocates, the near- marital RDP has the advantage of being a compromise that may be

acceptable to many Canadians, at least as an interim measure on the road to eventual acceptance of the right of same sex

partners to marry. For provincial politicians, who lack jurisdiction over “marriage,” the enactment of RDP legislation may be

the best way to recognize the equality of same sex relationships.

For some intimate couples, both heterosexual and homosexual, entry into an institution other than “marriage” (with its

gendered and patriarchal connotations) may be preferable to marriage; the creation of a new near-marital institution may be

desirable. There may also be some non-conjugal partners who will want to enter into a RDP, depending on its social and

legal nature.

The nature of any RDP legislation that might be enacted in Canada will depend on what rights same sex partners have to

enter the status of marriage at the time of enactment. If same sex partners have the right to enter the status of marriage, and

the RDP is seen a true alternative for those who are choosing not to marry, there may be reasons for having significant

differences between the RDP and marriage. The RDP might, for example, be seen as an institution that only those without

children are eligible for, with automatic conversion to legal marriage if the registered parties should at some future time reside

with a child of whom either partner is a parent. The RDP partners might be offered a process (and educational materials) to

allow them to more easily shape some of the legal elements of their relationship, such as opting out of marital property laws

by marking a box on a registration form.(21) However, if RDP legislation is enacted instead of (or before) the full recognition

of same sex partners gaining the right to marry, there should be a presumption of equal treatment with marriage. Arguably

the Supreme Court decision in M v H places an onus on any government that would seek to deny rights to same sex

partners who enter an RDP to justify this form of inequality. Further, once rights are conferred, the state will understandably

be reluctant to confer rights without obligations of consequences, for example in regard to welfare (in)eligibility and tax

status.

A number of European jurisdictions with RDP’s limit rights and responsibilities in regard to children for partners in this type

of relationship, and there would no doubt be some political support in Canada for some restrictions, for example in regard to

adoption. However, there are strong arguments that differences in treatment of same sex couples in regard to children could

not be constitutionally justified. The weight of research clearly indicates that same sex partners and homosexuals are as good

parents as heterosexuals.(22)

In some jurisdictions, the RDP is limited to “conjugal” or “marriage-like” relationships, or even to same sex relationships.

Although there are some definitional issues about terms like “conjugal” (is it possible to maintain separate residences?), there

is a significant body of Canadian jurisprudence that adopts a multifactoral test to determine whether a relationship is

“conjugal.”(23) There must be a significant amount of shared living,(24) and a high level of social and emotional commitment; a

sexual relationship is very common aspect of a conjugal relationship. Some degree of shared living expenses and a degree of

economic interdependence is an aspect of a conjugal relationship, though the nature of this varies greatly.

To date, the primary motivation for considering the enactment of RDP legislation in Canada (and other countries) has been

providing recognition for same sex relationships, but there is some interest in defining the RDP to permit registration of

non-conjugal domestic relationships. At least some countries that have RDP’s, such as the Netherlands, do not restrict the

RDP to same sex “conjugal” partners. There are practical, privacy and equity arguments that favour not limiting the right to

enter an RDP to those in same sex or heterosexual “conjugal relationships.” Further, the concept of the RDP may be more

likely to gain legislative support if it is not limited to those in same sex conjugal relationships. Indeed it may be argued that the

only (and certainly the main) reason that politicians have for expanding the concept of the RDP to include non-conjugal

domestic partners is to allow recognition of same sex relationships without directly recognizing them.

If there is to be some societal and legal recognition to those who chose to enter a “domestic partnership” and undertake

mutual “spouse- like” obligations, why should individuals be denied this benefit because they do not have a particular kind of

emotional commitment or do not have a sexual relationship? If individuals are prepared to undertake the “spouse-like” legal

commitments of an RDP, they should be able to do so. As with other types of family obligations, there should assurances

that this is a bona fide domestic relationship,(25) entered into with the assumption of all rights and obligations of that status

(subject to contracts between the parties) and a genuine sharing of lives.

In practice the potential economic and legal obligations of the RDP, as well as the social and emotional implications of the

RDP, are likely to greatly restrict its use in non-conjugal relationships. However, there may be situations, especially involving

seeking access to employment-related benefits for a domestic partner, where those in non-conjugal relationships (such as an

adult child and a parent) will want to enter into this status. Canada has an increasingly broad, pluralistic and functional

approach to the definition of “the family,”(26) and if two adults wish to assume this legal status by entering an RDP, with its

rights and obligations, it seems difficult to justify denying them this opportunity.

While those in a non-conjugal RDP should not be precluded from having rights and responsibilities in regard to children,

such as adoption, the nature of the relationship is a legitimate “best interests” factor to take into account in deciding about

whether such a couple should be permitted have a relationship with that child.(27)

If RDP legislation is enacted, questions will arise about whether it should be possible to have more than one domestic

partner at a time, either as a result of a communal living arrangement, a polygamous relationship or some forms of serial

relationships. Indeed, at least implicitly these issues will have to be addressed when the courts or legislatures deal with

allowing same sex partners to marry. Why should the state privilege domestic relationships with only two adults?

At least in its initial legislative form, practical and social considerations suggest that a person should only be able to have one

“legal partner” or “spouse” at a time (i.e. in only one RDP or marriage at a time, with only one other person ). As at present,

the law will have to struggle with situations where there is a claim by a “formal spouse” and an “ascription spouse,” but these

situations should not be encouraged by allowing multiple “formal” spouses.

While there are already some claims for legal recognition of polygamy or “group marriage,” given that “spousal status”

imposes potential costs on third parties, especially employers, it seems fair (at least at this time) to limit each individual to one

“formal lawful partner” at a time. Further, there are concerns about the welfare of children and the position of women in

polygamous and group marriages, though there does not seem to have been much research into these relationships,

particularly in regard to their effects on children. If we move towards the new social and legal regime of the RDP, an initial

limitation to one partner at a time seems appropriate, though there might be some evolution in the future.

Contract:

While at one time contracts between same sex partners to regulate their relationship would have been regarded as contrary

to public policy,(28) there is no doubt that now these contracts are now as legally enforceable as contracts between

heterosexual partners. In the absence of an adequate statutory regime, in the last few years contracts have been especially

important for same sex partners.

For any domestic contract, it is at least desirable (and arguably necessary to ensure legal validity) for the partners to disclose

assets and liabilities, and to have independent legal advise to ensure that the parties each understand the agreement and to

prevent exploitation. There is typically less inequality between same sex partners than in heterosexual relationships and less

potential for exploitation.(29) The law should however, ensure that courts retain a jurisdiction to override an unconscionable

(or “unfair” to use the British Columbia term) domestic contract between same sex partners, especially one that might affect

the interests of children.

In Canada (especially the common law provinces) heterosexual partners rarely make domestic contracts like cohabitation

agreements or marriage contracts. For many couples this type of domestic contract seems unromantic and expensive. There

may also be an intuitive understanding that is difficult to make a contract at the beginning of a long and evolving relationship

that will deal fairly with the myriad life circumstances that may arise.

There has been less reluctance for same sex partners than for heterosexual partners to enter into domestic contracts. This

has, at least in part, reflected the absence of a statutory framework for same sex partners and the need for them to have

contracts to have clarity about their respective rights and obligations. But even now, it seems that only a minority of same sex

partners enter into domestic contracts to help legally structure their relationships. If the relatively inexpensive and simple

alternatives of marriage or some form of Registered Domestic Partnership were available to same sex partners, it seems

likely that use of agreements would decline among same sex partners, though contracts will always remain important for

some same sex and heterosexual couples, especially those who want to “opt out” of any statutory regime.

The fact that the main focus of such an agreement is the relationship between the parties also limits their utility. There are

many legal issues related to third parties and the state that cannot be affected by a domestic contract. While legislation to

regulate domestic contracts between same sex partners is desirable (and undoubtedly required by the Charter in those

jurisdictions that regulate such contracts between heterosexual partners(30)), regulation of contracts cannot provide a

complete statutory response to the challenges posed by M v. H.

Ascription: Courts and Legislatures Imposing Spousal Status

Canadian legislatures and courts have recognized that in certain circumstances there is a need for ascription to “spousal

status” for those who have not “formalized” their conjugal relationships. “Conjugal” relationships, for certain purposes, are

deemed to have the “spousal status,” even though the parties have not formalized the relationship by entering into marriage.

The first steps towards ascription for heterosexual partners in Canada were taken in the 1970’s, while for same sex partners

such recognition only began in the 1990’s.

If RDP legislation is enacted, ascription should apply for those who cohabit in a conjugal relationship but do not enter a

RDP. However, in my view, ascription should not fully equate formal and informal conjugal relationships, provided that

those in an informal relationship had the legal option of formalizing their relationship. Further, ascription should not be

extended to non-conjugal situations in which adults reside together, even if it is a relationship where there is significant

economic interdependence.

For those in non-registered heterosexual conjugal relationships, there are strong arguments for significant but not necessarily

complete ascription of spousal status after a significant period of cohabitation (say three years) or there is a child of the

relationship. For heterosexual conjugal couples, Canadian courts have rejected the argument that since there was a “choice”

not to marry (or contract), there should be no rights or obligations. There is too much potential for one party (usually the

wealthier or more powerful partner i.e. often the man) to want the benefits of the relationship, and then if it ends, to want to

deny any responsibility for dependencies that may have arisen. Accordingly the courts and legislatures have ascribed status,

for example for a range of purposes of spousal support(31) and dependent’s relief.

Ascription for informal conjugal relationships should be approached on an issue-by-issue basis, preferably by the legislature,

but if necessary by the courts using the Charter. Factors favouring ascription for specific issues include: protection of the

interests of children; protection of vulnerability or dependence; compensation for contribution; protection the public purse or

other public interests; and protection of third parties . Taylor v Rossu and M . v H. demonstrate that the courts will be

reluctant to allow individuals in same or opposite sex conjugal relationships to use a choice based argument to claim

exemption from individual obligations towards one another that may arise. Further, as demonstrated by the response to

heterosexual cohabitants, Canadian legislatures are also likely to be reluctant to allow couples to chose not to formalize their

relationships to avoid public obligations, such as in regard to welfare eligibility and income tax status.(32)

Prof. Holland argues in favour of total ascription to “spousal status” as a “default position” i.e subject to the right to contract

out for certain private purposes.(33) There is, however, a strong argument that for some issues there should be legal

significance attached to the fact that parties in a conjugal relationship have chosen not to formalize their relationship or enter

into a contract. To take an important example, at present in Canada heterosexual partners who chose not to marry do not

get a presumptive property share on separation, but must prove contribution to claim property rights or compensation. The

Supreme Court decision in M .v H. appears to accept that for the purposes of property rights, this may be a constitutionally

permissible distinction (or at least the decision does not require ascription for property purposes.)(34)

Especially in provinces like Ontario, where there is a complex property regime with relatively little

Bibliography

. 1Professor, Faculty of Law, Queen’s University. This is a revised version of a paper presented at the Domestic

Partnerships Conference, Queen’s University, October 22, 1999. The preparation of this paper was assisted with a grant

from the Social Sciences and Humanities Research Council of Canada.

2. 2[1999] S.C.J. 23

3. 3Anne McIlroy, “Most in poll want gay marriages legalized: 53% support idea despite MP’s vote to uphold status quo”

Toronto Globe & Mail, June 10, 1999, p. A1.

4. 4Canada, House of Commons, Hansard (Tuesday June 8, 1999) Number 240, at 1020-2255.

5. 5It is, however, clear that a significant number in the gay and lesbian communities want the “full equality” of marriage, with

all its social, psychological and legal implications. See e.g. Netherlands Ministry of Justice, Scientific research and

Documentation Centre, Registered Partnerships In the Netherlands: A Quick Scan (1999) (p.22) reporting that 62% of

same sex couples entering a RDP would like to convert to marriage if that becomes possible; RDP in the Netherlands does

not confer rights in regard to children.

6. 6[1999] S.C.J. 23, at para 134

7. 7Layland v. Ontario (1993), 14 O.R. (3d) 658 (Div. Ct.) is an example of an unsuccessful claim for the right to “marry.”

The arguments, of course, have to be revisited in light of the Supreme Court in M v H.

8. 8At para 73

9. 9See M. Buist, “Case Comment: M. v H.” (1999), 46 R.F.L. (4th) 331 by a prominent lesbian lawyer who argues that

this decision supports claims for all the “benefits” of marriage, but stops short of predicting or advocating that gays and

lesbians in the future will be able to “marry.’

10. 10Hyde v Hyde & Woodmansee (1866), L.R. 1 P & D. 130, per Lord Penzance. See also Black’s Law Dictionary

(4th)(1968):”the union of a man and woman for life for the discharge of those duties legally incumbent on those whose

association is founded on a distinction of sex”; and Barnet v Barnet, [1934] O.R. 347

11. 11 The courts recognized that with elderly couples, the inability (or unwillingness) to consummate the marriage did not

invalidate the marriage, if neither party had a desire for sexual relations: Norman v Norman(1979), 9 R.F.L. (2d) 345 (Ont.

U.F.C.). An inability to consummate the marriage rendered the marriage voidable, not void. Some cases have held that there

has to an ability to have “natural” heterosexual intercourse to have a valid marriage; Ashley v Ashley, [1970] 2 All E.R. 33

(P.D. & Admin. Div); B. v A. (1990), 29 R.F.L. (3d) 258 (Ont.), and accompanying critical commentary by D. Majury.

More recently at least some courts have accepted that a transsexual who had a male to female operation could legally

consummate the marriage and have a valid marriage. See e.g T (M.) v T.(J.), 355 A. 2d 204 (N.J.).

12. 12Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46.

13. 13Some definitions of “marriage” suggest that marriages were intended to be indissoluble, such as “the legal union of a

man and a woman for life.” Re Marriage Legislation in Canada (1912), 6 D.L.R. 588 at 739 (S.C.C.) per Idington J.

However, even in 1867 it was recognized that a marriage could be dissolved, as the federal government had jurisdiction

over “marriage and divorce.” It was the fact that the spouses were making a commitment for life that was significant.

14. 14This provincial legislation governs solemnization of marriage; see e.g Marriage Act, R.S.O. 1990, c M.3, s. 24.

15. 15Presumably any such reforms will continue to require that same sex partners are not within the prohibited degrees ( eg

not brothers), are of age and not in another valid marriage.

16. 16The provinces would continue to have responsibility for the form of registration and celebration. While the government

cannot discriminate against same sex couples, under the Charter of Rights guarantees of freedom of religion, neither level of

government could force any religious organization or official to celebrate a same sex marriage (or indeed any other marriage

that was contrary to the faith).

17. 17I argue that the federal Parliament should enact legislation to fully recognize same sex marriage (perhaps in all but

name), but this legislation would have limited effect outside Canada. No law that is enacted in Canada can assure that a

same sex the relationship will be legally recognized in other countries. There may, for example, be restrictions on the extent

to which same sex partners could jointly adopt children from certain foreign countries that require that children who are their

nationals only be adopted by (heterosexual) married couples. I do not think that Canadian marriage legislation needs to (or

should) mention these restrictions, though education around these issues will be important for same sex partners.

One area of constitutionally justifiable distinction that might also justify a distinctive name is in regard to residency

requirements for same sex partners. At present, there are no residency requirements for marriage in Canada, but there are

legitimate concerns about creating conflicts of laws and comity problems that might justify requiring at least one party to a

formal same sex partnership being resident in Canada. Residency requirements would seem to be a matter of provincial

jurisdiction as an aspect of “solemnization of marriage” as opposed to a federal issue of “capacity.”

18. 18See Ontario Law Reform Commission, Report on the Rights and Responsibilities of Cohabitants Under the

Family Law Act (1993) and British Columbia Law Institute, Report on the Recognition of Spousal and Family Status

(1998) (on line www.bcli.org). The Law Commission of Canada is studying this issue