Marriage in Canada
The Parliament of Canada has exclusive legislative authority over marriage and divorce in Canada under section 91(26) of the Constitution Act, 1867. However section 92(12) of the Constitution Act, 1867 gives the provincial legislatures the power to pass laws regulating the solemnization of marriage.
Marriage ceremonies in Canada can be either civil or religious. Marriages may be performed by members of the clergy, marriage commissioners, judges, justices of the peace or clerks of the court, depending on the laws of each province and territory regulating marriage solemnization. In 2001, the majority of Canadian marriages (76.4%) were religious, with the remainder (23.6%) being performed by non-clergy.
Same-sex marriage has been legal in Canada nationally since 2005. Court decisions, starting in 2003, had already legalized same-sex marriage in eight out of ten provinces and one of three territories.
The federal Marriage (Prohibited Degrees) Act, Section 2 prevents the following persons from getting married:
- Subject to subsection (2), persons related by consanguinity, affinity or adoption are not prohibited from marrying each other by reason only of their relationship.
- No person shall marry another person if they are related lineally, or as brother or sister or half-brother or half-sister, including by adoption.
Consent of the spouses
Both parties must freely consent. Forcing somebody to get married is a criminal offence under s. 293.1 of the Criminal Code. In addition, s. 2.1 of the Civil Marriage Act stipulates, "Marriage requires the free and enlightened consent of two persons to be the spouse of each other."
Age of the spouses
Since 2015, federal law has set the absolute minimum marriageable age at 16. Provinces and territories may set a minimum age higher than that. In Canada the age of majority is set by province/territory at 18 or 19, so minors under this age have additional restrictions (i.e. parental and court consent). Section 293.2 of the Criminal Code also addresses marriages of individuals under the age of 16, reading: Everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is under the age of 16 years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. Section 2.2 of the Civil Marriage Act also states: No person who is under the age of 16 years may contract marriage. These provisions were enacted in 2015. Before 2015, it was possible for children less than 16 years old to get married in some jurisdictions of Canada, with parental consent or a court order. (The legal marriage age with parental consent was possibly as low as 7 in some Canadian jurisdictions.)
Minimum age by province and territory
- British Columbia: 19, or 16 with parental consent.
- Alberta: 18, or 16 with consent of all parents and legal guardians.
- Saskatchewan: 18, or 16 with a "Consent to Marriage of a Minor" form signed and completed by the parent(s) or guardian(s) in the presence of a Saskatchewan marriage licence issuer, clergy or any person authorized to take affidavits. "If the parent(s) or guardian(s) refuse to consent to the marriage, the minor can apply to a judge of either the provincial or Queen's Bench court for an order dispensing with their consent. The minor may obtain the judge's order by applying to a court house in Saskatchewan."
- Manitoba: 18.
- Ontario: 18, or 16 with written consent from both sets of parents.
- Quebec: 18, or 16 with authorization from the courts.
- New Brunswick: 18, or 16 with an affidavit of consent signed by parents or guardians.
- Nova Scotia: 19, or 17 with a signed consent form.
- Prince Edward Island: 18, or younger with a consent form signed by parent(s).
- Newfoundland and Labrador: 19, or younger wherein "special consents may be required."
- Yukon: 19, or younger with consent of parent(s) or legal guardian(s).
- Northwest Territories: 19, or younger with parental consent.
- Nunavut: 19, or 16 with parental consent.
A divorce may be granted for one of the following reasons:
- the marriage has irretrievably broken down, and the two parties have been living apart for a year (s.8(2)(a) of the Act)
- one party has committed adultery (s.8(2)(b)(i) of the Act)
- one party has treated the other party "with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses" (s.8(2)(b)(ii) of the Act)
Key headings of the Divorce Act:
- Child support orders
- Spousal support orders
- Custody orders
- Variation, rescission or suspension of orders
- Provisional orders
Rates by year
|Divorce Rate (per 100,000 residents per year) in Canada, by year|
In Canada, polygamy is a criminal offence, but prosecutions are rare. In March 2014, Winston Blackmore and James Oler were charged with polygamy; their prosecutions were the first such cases in Canada in over sixty-five years. In 2007, an independent prosecutor in British Columbia recommended that Canadian courts be asked to rule on the constitutionality of laws against polygamy. The Supreme Court of British Columbia upheld Canada's polygamy laws in a 2011 reference case.
On March 9, 2018, the Supreme Court of British Columbia upheld the constitutionality of Canada's anti-polygamy laws again, upholding the July 2017 polygamy convictions of Winston Blackmore and James Oler.
- "Marriages". The Daily. Statistics Canada. November 20, 2003.
- Marriage (Prohibited Degrees) Act, SC 1990, c. 46.
- Criminal Code, RSC 1985, c. C-46.
- Civil Marriage Act, SC 2005, c. 33.
- Zero Tolerance for Barbaric Cultural Practices Act, SC 2015, c 29, http://canlii.ca/t/52m2q retrieved on 2018-06-24
- Julie Béchard; Sandra Elgersma; Julia Nicol (2015-01-26). "Legislative Summary of Bill S-7: An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other Acts". Library of Parliament. Retrieved 2018-06-24.
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- Laura Payton (2015-03-12). "'Barbaric cultural practices' bill debate limited by Conservatives". CBC.ca. Retrieved 2018-06-24.
The legislation, bill S-7, originated in the Senate and would make it illegal for anyone under 16 to get married.
- Olga Khazan (2015-03-09). "A Strange Map of the World's Child-Marriage Laws". The Atlantic. Retrieved 2018-06-24.
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The minimum age of 16 for marriage, below which no marriage can be contracted, is currently contained in federal legislation that applies in the Province of Quebec only. For the other provinces and territories, the minimum age is not currently provided for in federal legislation and there is some debate about the minimum age in common law, with some establishing the age at 12 for girls and 14 for boys, and others at age seven for all.
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- Jurisdiction. Canadian Legal Information Institute.
- Divorce. Canadian Legal Information Institute.
- Child support orders. Canadian Legal Information Institute.
- Spousal support orders. Canadian Legal Information Institute.
- Priority. Canadian Legal Information Institute.
- Custody orders. Canadian Legal Information Institute.
- Variation, rescission or suspension of orders. Canadian Legal Information Institute.
- Provisional orders. Canadian Legal Information Institute.
- Appeals. Canadian Legal Information Institute.
- General. Canadian Legal Information Institute.
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- "Judge tosses convicted B.C. polygamists' constitutional challenge". CBC News. 2018-03-09. Retrieved 2018-07-19.
Winston Blackmore and James Oler were found guilty of having multiple wives in B.C. Supreme Court last July. They returned to court to argue their convictions were null because the law itself was unconstitutional under the Charter of Rights and Freedoms. On Friday, B.C. Supreme Court Justice Sheri Ann Donegan rejected the argument, stating that Blackmore and Oler considered their lifestyles above the law when they continued to marry women in Bountiful, B.C.
- "Winston Blackmore and James Oler found guilty of polygamy by B.C. judge". CBC News. 2017-07-24. Retrieved 2018-07-19.
Two former religious leaders in B.C. have been found guilty of polygamy after marrying more than two dozen women over the course of 25 years.