Same-sex marriage in Ontario

Same-sex marriage in Canada
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Legal
Reference Re Same-Sex Marriage Halpern v Canada (AG) Civil Marriage Act
Parliament
38th House · 38th Senate 39th House · 39th Senate
Same-sex marriage by province
Related
Civil unions in Quebec Adult interdependent relationship in Alberta Domestic partnership in Nova Scotia Common-law relationships in Manitoba
v t

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 ruled in Layland v. Ontario 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 of 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 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 Canadian Charter of Rights and Freedoms, 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 Court of Appeal struck down the stay of judgment given in the 2002 ruling, thereby causing the judgment to come into effect immediately.^[6] The court wrote in its ruling:

Marriage is ... one of the most significant forms of personal relationships. For centuries, marriage has been a basic element of social organization in societies around the world. Through the institution of marriage, individuals can publicly express their love and commitment to each other ... This public recognition and sanction of marital relationships reflect society's approbation of the personal hopes, desires and aspirations that underlie loving, committed conjugal relationships. This can only enhance an individual's sense of self-worth and dignity.

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 first 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]

The court also ruled that two couples, Kevin Bourassa and Joe Varnell, and Elaine Vautour and Anne Vautour, who had previously attempted to marry using an ancient common-law procedure called "reading the banns" would be considered legally married. Their marriages were performed in the Metropolitan Community Church of Toronto on January 14, 2001 by Rev. Brent Hawkes.

Provincial legislation[]

A same-sex couple kissing on their wedding day, 2020, Toronto

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 by Lieutenant Governor James Bartleman on March 9, 2005.^[11][12]

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 provides presumption to the spouse or conjugal partner of the birth parent; ensuring that couples who use a sperm or egg donor or a surrogate are automatically recognized as parents, and as such do not have to adopt their own children.^[13][14] It received royal assent by Lieutenant Governor Elizabeth Dowdeswell on December 5 and took effect on January 1, 2017.^[15]

The Marriage Act (French: Loi sur le mariage)^[a] 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 unconstitutional for excluding same-sex couples. It ordered same-sex marriages read into that act, permitting the plaintiffs, a lesbian couple, to divorce.^[16]

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 these couples were married.^[17]

Notes[]

See also[]

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

References[]

External links[]

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