Same-sex marriage in Ontario

Same-sex marriage in Ontario has been legal since June 10, 2003. The first legal same-sex marriages performed in Ontario were of Kevin Bourassa to Joe Varnell, and Elaine Vautour to Anne Vautour, by Rev. Brent Hawkes on January 14, 2001.[1] The legality of the marriages was questioned and they were not registered until after June 10, 2003,[2] when the Court of Appeal for Ontario in Halpern v Canada (AG) upheld a lower court ruling which declared that defining marriage in heterosexual-only terms violated the Canadian Charter of Rights and Freedoms.

Ontario became the third jurisdiction in the world (after the Netherlands and Belgium) as well as the first jurisdiction in the Americas to legalize same-sex marriage.[3] The first legal same-sex marriage registered in Ontario was that of Paula Barrero and Blanca Mejias, married by banns at the Emmanuel Howard Park United Church on September 29, 2001 and registered the same year. The officiant was Rev. Dr. Cheri DiNovo (who later served as MPP for Parkdale–High Park from 2006 to 2017). The Office of the Registrar General apparently did not recognize the names as both being women and issued a marriage certificate. The marriage licence form requested only the names of the bride and groom, not the sex of the applicants.[4][5]

All of these marriages were authorized by calling the banns in the spouses' churches. The first civil marriage license issued to a same-sex couple was to Michael Stark and Michael Leshner, who had the usual waiting period waived and completed the formalities of marriage just hours after the court ruling, on June 10, 2003.[6]

Background

In 1993, the Ontario Superior Court in Layland v. Ontario ruled that same-sex couples did not have the capacity to marry each other. However, that decision was non-binding as it was the same court taking up the issue in 2002. One of the judges in the most recent case wrote "with respect, the decisions to which I have referred assumed, without analysis, that the inability of persons of the same sex to marry was a question of capacity. The decisions are not binding on this court and, with respect, I do not find them persuasive."[7][8]

The Equality Rights Statute Amendment Act, which would have granted same-sex couples a status comparable to civil unions, was proposed by the Provincial Government, led by Premier Bob Rae, in 1994, but was defeated.

In October 1999, the Legislative Assembly of Ontario enacted a bill providing same-sex couples with the same statutory rights and responsibilities as applied to opposite-sex common-law spouses under 67 provincial laws as required by the Supreme Court of Canada's ruling in M v H. It introduced the term "same-sex partner", while preserving the opposite-sex definition of "spouse".[9] It also included the right for same-sex couples to adopt children jointly.[10]

Court of Appeal ruling

On July 12, 2002, in a 3–0 decision of the Ontario Superior Court, same-sex couples won the right to marry in the case of Halpern v Canada (AG). The court ruled that limiting marriage to opposite-sex couples violated the equality provisions of the Charter of Rights, giving the Government of Canada a two-year stay of judgment in which to pass legislation implementing same-sex marriage; otherwise, same-sex marriage would come into force automatically.

In 2003, the couples in Halpern 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 Section 15 of the Canadian Charter of Rights and Freedoms in being restricted to heterosexual couples. The Appeals Court struck down the stay of judgment given in the 2002 ruling, thereby causing the judgment to come into effect immediately.[6]

Although the definition of marriage is governed by federal law, the court only had jurisdiction to implement the ruling within Ontario. The province thus became the first jurisdiction in North America to recognize same-sex marriage, and the third in the world. Consequently, the city of Toronto announced that the city clerk would begin issuing marriage licences to same-sex couples. The next day, the Attorney General of Ontario, Norm Sterling, announced that the province would comply with the ruling.

The court also ruled that two couples who had previously attempted to marry using an ancient common-law procedure called "reading the banns" would be considered legally married.

Provincial legislation

The Human Rights Code includes sexual orientation, family status and marital status as protected characteristics against discrimination.[11] Sexual orientation was added to the Code in 1986, 10 years before its addition to the Canadian Human Rights Act.[lower-alpha 1]

On February 24, 2005, the Spousal Relationships Statute Law Amendment Act, 2005 was passed in the Legislative Assembly, which performed "housekeeping" on various Ontario laws, to bring their wording into line with the court ruling. As well, the bill ensures that no religious institution or clergy will be forced to perform a ceremony against their beliefs. There is no such provision for civil officials. It received royal assent on March 9, 2005.[13][14]

On November 29, 2016, the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 passed the Legislative Assembly by 79 votes to 0. The bill changed the terms "mother" and "father" on birth certificates and other legal documents to "parent". The bill also ensures that couples such as those who use a sperm or egg donor or a surrogate are legally recognized as parents, and as such do not have to adopt their own children.[15][16] It received royal assent on December 5 and took effect on January 1, 2017.[17]

The Marriage Act (French: Loi sur le mariage) states that each of the parties to a marriage shall declare to the other:

I call upon these persons here present to witness that I, AB, do take you, CD, to be my lawful wedded wife (or to be my lawful wedded husband or to be my lawful wedded partner or to be my lawful wedded spouse) [R.S.O. 1990, c. M.3, s. 24 (3)]

Divorce

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.[18]

Marriage statistics

The 2016 Canadian census showed that 26,585 same-sex couples were living in Ontario, mostly in Toronto and Ottawa–Gatineau. 38.2% of same-sex couples were married.[19]

Notes

1. French: Loi canadienne sur les droits de la personne; Ojibwe: Kaanada akiing Onaakonigewining gashki’ewiziwinan;[12] Swampy Cree: Kanataskihk Onasowewin Natamakewin Totamowin

See also

• Martha McCarthy
• Recognition of same-sex unions in the Americas
• Same-sex marriage in Canada

References

1. "Record of Marriage" (GIF). 2001-01-14. signed by Rev. Brent Hawkes
2. "The first legal gay marriage is now certified". Certificate of marriage, issued June 11, 2003.
3. Sylvain Larocque "Gay Marriage: The Story of a Canadian Social Revolution", published by James Lorimer & Company Ltd, 2006
4. Ian Mackenzie (2003-06-10). "Who's on first?". Xtra. Archived from the original on 2007-08-11.
5. Demian (December 2003). "Canadian Suits for Legal Marriage".
6. "Ontario men wed following court ruling". CBC News. 2003-06-13.
7. Text of the ruling
8. Summary of the decision from EGALE Canada Archived 2006-01-14 at the Wayback Machine
9. "Bill 5, Amendments Because of the Supreme Court of Canada Decision in M. v. H. Act, 1999". Legislative Assembly of Ontario. Retrieved February 12, 2016.
10. III. Adoption D. Legislative Approaches in Other Jurisdictions
11. "Ontario Human Rights Code". ohrc.on.ca.
12. "Your Guide to Understanding the Canadian Human Rights Act" (PDF). indigenouskidsrightspath.ca. 2010.
13. An Act to amend various statutes in respect of spousal relationships
14. 38:1 Bill 171, Spousal Relationships Statute Law Amendment Act, 2005
15. "19-Year-Old Lawmaker Is Only Opposition To Canadian Law Protecting LGBT Families". NewNowNext, November 30, 2016.
16. New Ontario law says same-sex parents don't have to adopt their own kids. CTV News, November 29, 2016.
17. Bill 28, All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016
18. Court approves first gay divorce. BBC News, September 15, 2004.
19. "Same-sex couples in Canada in 2016". Statistics Canada. August 2, 2017.

External links

• "Same-sex marriage in Ontario, Canada Part 1". Religious Tolerance.