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 egimes 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 he 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 he 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
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 ives 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 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 nd 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 ill 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 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 artners(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 , 867 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. 2(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 ho 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. 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 ot 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.