Same-sex marriage in Ontario

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Legal status of same-sex unions
Marriage
Performed
Recognized
  1. Peformed in the Netherlands proper and not Aruba, Curaçao and Sint Maarten
  2. Recognized in New Zealand proper and not Niue, Tokelau, or Cook Islands
  3. Not recognized in Northern Ireland, Jersey, Sark, and seven of the fourteen overseas territories
  4. Not recognized in American Samoa and some tribal jurisdictions
  5. For some purposes, from all jurisdictions where same-sex marriage is legal
  6. When performed in Mexican states that have legalized same-sex marriage
  7. When performed in the Netherlands proper
  8. Registration schemes opened in all jurisdictions except Hualien County, Penghu County, Taitung County, and Yunlin County

* Not yet in effect

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Same-sex marriage is legal in Ontario. 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 (Attorney General) 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 (now MPP for Parkdale–High Park). 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[edit]

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 Government of Bob Rae in 1994, but was defeated.

In October 1999, the Legislative Assembly of Ontario approved 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. 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[edit]

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 et al. v. Canada. The Court ruled that limiting marriage to opposite-sex couples violated the equality provisions of the Charter of Rights, giving the Federal Government 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 Fifteen 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 marriage is a 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 Government of Toronto announced that the city clerk would begin issuing marriage licences to same-sex couples. The next day, the Attorney General of Ontario announced that his Government 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[edit]

On February 24, 2005, the Spousal Relationships Statute Law Amendment Act was passed in the Legislature, 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.[11][12]

On November 29, 2016, the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 unanimously (79-0) passed the Legislative Assembly. 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.[13][14] It received royal assent on December 5 and took effect on January 1, 2017.[15]

Divorce[edit]

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.[16]

See also[edit]

References[edit]

External links[edit]