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Same-sex marriage in Ontario

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Same-sex marriage in Canada
      
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Reference Re Same-Sex Marriage
Halpern v Canada (AG)
Civil Marriage Act
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Same-sex marriage by province
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Civil unions in Quebec
Adult interdependent relationship in Alberta
Domestic partnership in Nova Scotia
Common-law relationships in Manitoba
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Marriage

Recognized

Civil unions or registered partnerships but not marriage
Minimal recognition
See also
Notes
  1. ^ a b Performed in the Netherlands proper (including the Caribbean Netherlands), as well as in Aruba and Curaçao. May be registered in Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  2. ^ Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  3. ^ Neither performed nor recognized in six British Overseas Territories.
  4. ^ a b Neither performed nor recognized in some tribal nations. Recognized but not performed in several other tribal nations and American Samoa.
  5. ^ Registered foreign marriages confer all marriage rights. Domestic common-law marriages confer most rights of marriage. Domestic civil marriage recognized by some cities.
  6. ^ a b c d e The Coman v. Romania ruling of the European Court of Justice obliges the state to provide residency rights for the foreign spouses of EU citizens. Some member states, including Romania, do not follow the ruling.
  7. ^ A "declaration of family relationship" is available in several of Cambodia's communes which may be useful in matters such as housing, but is not legally binding.
  8. ^ Guardianship agreements, conferring some limited legal benefits, including decisions about medical and personal care.
  9. ^ Inheritance, guardianship rights, and residency rights for foreign spouses of legal residents.
  10. ^ Courts have recognised guru–shishya, nata pratha or maitri karar–type contractual relationships, but they are not legally binding.
  11. ^ Some cities and prefectures issue partnership certificates, but they are not legally binding.
  12. ^ Marriages conducted abroad between a Namibian national and a foreign spouse recognized for residency rights.
  13. ^ Hospital visitation rights through a "legal representative" status.
  1. ^ a b Not yet in effect.
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Same-sex marriage has been unambiguously legal in Ontario 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 Reverend 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 was 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 at the Emmanuel Howard Park United Church on September 29, 2001 by Reverend Cheri DiNovo. The Office of the Registrar General apparently did not recognize the names on the Record of Marriage form (which did not otherwise specify the parties' sexes) as both being women and issued a marriage certificate.[4][5]

All of these marriages were authorized by calling the banns of marriage in the spouses' churches, a procedure which does not require a government-issued licence. The first civil marriage licence issued to a same-sex couple was to Michael Leshner and Michael Stark, 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

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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 in 1994, but was defeated. Premier Bob Rae supported the bill.[9]

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 maintaining the opposite-sex definition of "spouse".[10] The law also included the right for same-sex couples to adopt children jointly.[11]

Court of Appeal ruling

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Main article: Halpern v Canada (AG)

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. Justice Harry LaForme wrote, "The restriction against same-sex marriage is an offence to the dignity of lesbians and gays because it limits the range of relationship options available to them. The result is they are denied the autonomy to choose whether they wish to marry. This in turn conveys the ominous message that they are unworthy of marriage....I find that there is no merit to the argument that the rights and interests of heterosexuals would be affected by granting same-sex couples the freedom to marry. I cannot conclude that freedom of religion would be threatened or jeopardized by legally sanctioning same-sex marriage." Premier Ernie Eves, a member of the Progressive Conservative Party of Ontario, said on 16 July 2002 that "Ontario won't stand in their way...If two people decide that they want to be in a union why would I interfere with that; that's my personal point of view." The Toronto City Council also passed a measure urging the government not to appeal the decision.[12]

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 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 became the first jurisdiction in North America to recognize same-sex marriage, and the third in the world after the Netherlands and Belgium. 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, "I'm charged to follow the laws and will follow the laws with regards to this matter." The first marriage licence issued to a same-sex couple was to Michael Leshner and Michael Stark, 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 Reverend Brent Hawkes. Justice Minister Martin Cauchon reacted to the ruling by stating, "Listen, the marriages that are taking place now are effectively legal marriages on the basis of the decision of the appeal court rendered [on 10 June]. I say for the time being because I can't presume the future. We want to make sure that we're going to have a national solution to that question. Having said that, I'm not in a position to today to give you the official government position." Paul Martin, then running for prime minister, expressed his support for the decision. Kyle Rae, a member of the Toronto City Council, said, "It's a momentous day. It is a great day for equality in Canada." A spokesperson for Focus on the Family said, "Today's court ruling on same-sex marriage ignores centuries of precedent, and renders ordinary Canadians' views irrelevant." An opinion poll published by The Globe and Mail a few days after the decision showed that a majority of Canadians supported same-sex marriage.[13]

Two conservative groups who had been granted intervenor status, the Interfaith Coalition on Marriage and Family, and the Association for Marriage and the Family, attempted to appeal the decision to the Supreme Court of Canada. The court heard the petition on 6 October 2003. A lawyer for the groups said, "The court is focused on hearing cases of public importance, and I don't think there has been one more important than this that has come up in the last few years. This is not the case of a stranger coming off the street. The nation is saying this [marriage] is our biggest institution. Parliament has not spoken. There is confusion. The court should speak on this issue." The federal government and the couples who initiated the lawsuit asked the court to reject the petition. The court took only three days to unanimously reject the request. A spokesman for Canadians for Equal Marriage said, "The practical effect of the Supreme Court's ruling ...is to say that same-sex marriage in Ontario and British Columbia are here to stay." Meanwhile, a spokesman for the Evangelical Fellowship of Canada said they were disappointed, "We have lost an important opportunity to express the concerns of millions of Canadians."[14]

Previously, a same-sex couple, Paula Barrero and Blanca Mejias, had been able to marry by banns at the Emmanuel Howard Park United Church in Toronto, a congregation of the United Church of Canada, on September 29, 2001. The officiant was Reverend Cheri DiNovo. The Office of the Registrar General mistook the name Paula to be that of a man and certified the marriage. The marriage caught media attention and a representative of the Office of the Registrar General sent a letter to the United Church requesting that DiNovo lose her licence. The church distanced itself from DiNovo but did not strip her of her licence.[15]

Provincial legislation

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

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.[16][17] The Assembly of Catholic Bishops of Ontario supported the legislation, releasing the following statement: "Priests will have some protection, they won't find themselves in court. The Bishops wanted to be sure that religious bodies could not be compelled to allow their properties to be used for purposes associated with same-sex unions if such are contrary to their teachings, as is true for the Catholic Church. The Bill clearly provides this protection and the Ontario Bishops accordingly support it."[18]

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.[19][20] It received royal assent by Lieutenant Governor Elizabeth Dowdeswell on December 5 and took effect on January 1, 2017.[21]

The Marriage Act (French: Loi sur le mariage; Cree: Wîkihtowin Wanasowewin; Ojibwe: Wiidigendiwin Onaakonigewin) 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

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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.[22]

Two-spirit marriages

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While there are no records of same-sex marriages as understood from a Western perspective being performed in First Nations cultures, there is evidence for identities and behaviours that may be placed on the LGBT spectrum. Many of these cultures recognized two-spirit individuals who were born male but wore women's clothing and performed everyday household work and artistic handiwork which were regarded as belonging to the feminine sphere. This two-spirit status allowed for marriages between two biological males or two biological females to be performed in some of these tribes.[23]

Two-spirit people are known in the Ojibwe language as niizh manidoowag (pronounced [niːʒ maˈnɪˌdoːˌwak]),[a] the origin of the umbrella term "two-spirit". Many niizh manidoowag were wives in polygynous households.[25] Among the Moose Cree, two-spirit individuals were regarded as "esteemed persons with special spiritual powers" and were "noted shamans".[23] They are known in their language as iskwehkâsow (ᐃᔅᑴᐦᑳᓱᐤ, pronounced [ɪsˈkweːhkaːˌsow]),[26] and it was likely that they were able to marry cisgender men.[23] The Seneca people refer to two-spirit individuals as hënöjaʼjáʼgöh, the Cayuga people as deyodǫhétra:ge:,[27] and the Tuscarora people as ruˀnhęhsú·kęˀ.[28] In these communities, elders say two-spirit people were embraced as "special and powerful", and honoured as medicine people or healers.[29] The Mohawk people call two-spirit individuals onón:wat (pronounced [oˈnũ̌ːwat]),[23] translating to "I have the pattern of two spirits inside my body."[30]

Marriage statistics

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The 2016 Canadian census showed that 26,585 same-sex couples were living in Ontario, mostly in Toronto and Ottawa. 38.2% of these couples were married.[31]

Religious performance

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Several dioceses of the Anglican Church of Canada allow their clergy to bless and perform same-sex marriages. In 2007, a priest in Stirling-Rawdon was disciplined for marrying a same-sex couple.[32] The Diocese of Ottawa has allowed solemnization of same-sex marriages since 2016. In July 2016, Bishop John Chapman issued a letter allowing local parishes to perform same-sex marriages.[33] The dioceses of Niagara since July 2016,[34] and Toronto since November 2016 have also authorized their clergy to perform same-sex marriages.[35] In July 2019, Bishop Linda Nicholls of the Diocese of Huron allowed her clergy to perform same-sex marriages.[36] In October 2019, the synod of the Diocese of Ontario voted to request the Bishop of Ontario to authorize the solemnization of same-sex marriages in the diocese;[37] Bishop Michael Oulton issued guidelines the following month for clergy willing to perform same-sex marriages.[38] Bishop Geoffrey Woodcroft of the Diocese of Rupert's Land, encompassing parts of northwestern Ontario, said in July 2019 that clergy in the diocese would be permitted to perform same-sex marriages from January 2020.[39] Similarly, Bishop Anne Germond of the Diocese of Algoma authorized her clergy to perform same-sex marriages in May 2020.[40] In these dioceses, clergy are not required to officiate at the marriages if this would violate their personal beliefs. On the other hand, same-sex marriages are not performed in the Diocese of Moosonee, which encompasses parts of northern Ontario. The marriage canon of the Anglican Church of Canada serves as the canon on marriage in the diocese.[41] Bishop Lydia Mamakwa of the Indigenous Spiritual Ministry of Mishamikoweesh, encompassing Cree and Ojibwe communities in northwestern Ontario, opposes same-sex marriage,[42] and the diocese does not perform same-sex marriages.

Some other religious organisations also perform same-sex marriages in their places of worship, including the United Church of Canada,[43] Quakers,[44] the Evangelical Lutheran Church in Canada,[45] and the Canadian Unitarian Council.[46] In February 2023, the Southridge Community Church and the FreeChurch Toronto, congregations of the Canadian Conference of Mennonite Brethren Churches located in St. Catharines and Toronto respectively, were expelled from the denomination over their decision to affirm same-sex marriages.[47]

See also

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Notes

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  1. ^ The cognate term in Delaware, spoken by the Lenape, who today live in communities in the Munsee-Delaware Nation, the Delaware Nation at Moraviantown, and the Six Nations of the Grand River, is nisha manëtuwàk (pronounced [ˈniʃa manəˈtuwʌk]).[24]

References

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  1. ^ "Record of Marriage" (GIF). 2001-01-14. signed by Rev. Brent Hawkes. Note that form does not describe the parties' sexes.
  2. ^ "The first legal gay marriage is now certified". Certificate of marriage, issued June 11, 2003.
  3. ^ Larocque, Sylvain (2006). Gay Marriage: The Story of a Canadian Social Revolution. James Lorimer & Co. Ltd. ISBN 1550289276.
  4. ^ Mackenzie, Ian (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. ^ a b c "Ontario men wed following court ruling". CBC News. 2003-06-13. Archived from the original on October 17, 2006.
  7. ^ Text of the ruling: Layland v. Ontario
  8. ^ Summary of the decision from EGALE Canada Archived 2006-01-14 at the Wayback Machine
  9. ^ Rayside, David (1998). On the Fringe: Gays & Lesbians in Politics. Cornell University Press. ISBN 0-8014-8374-3.
  10. ^ "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.
  11. ^ "III. Adoption D. Legislative Approaches in Other Jurisdictions". Archived from the original on 2017-02-13. Retrieved 2016-02-12.
  12. ^ "Homosexual (Same-Sex) Marriages in Canada, Ontario Court Case: Part 2". Religious Tolerance. Retrieved 5 November 2022.
  13. ^ "Homosexual (Same-Sex) Marriages in Canada, Ontario Court Case: Part 4". Religious Tolerance. Retrieved 5 November 2022.
  14. ^ "Homosexual (Same-Sex) Marriages in Canada, Ontario Court Case: Part 6". Religious Tolerance. Retrieved 5 November 2022.
  15. ^ DiNovo, Cheri (October 28, 2019). "Cheri DiNovo on being one of the few women in the early LGBTQ2 movement". Xtra.
  16. ^ An Act to amend various statutes in respect of spousal relationships
  17. ^ "38:1 Bill 171, Spousal Relationships Statute Law Amendment Act, 2005". Archived from the original on 2014-07-14. Retrieved 2014-07-08.
  18. ^ "Homosexual (Same-Sex) Marriages in Canada, Ontario Court Case: Part 7". Religious Tolerance. Retrieved 5 November 2022.
  19. ^ "19-Year-Old Lawmaker Is Only Opposition To Canadian Law Protecting LGBT Families". NewNowNext, November 30, 2016.
  20. ^ New Ontario law says same-sex parents don't have to adopt their own kids. CTV News, November 29, 2016.
  21. ^ Bill 28, All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016
  22. ^ Court approves first gay divorce. BBC News, September 15, 2004.
  23. ^ a b c d Sabine Lang (1998). Men as women, women as men: changing gender in Native American cultures. University of Texas Press. ISBN 0-292-74701-2.
  24. ^ "Lenape Talking Dictionary". talk-lenape.org. Archived from the original on 27 February 2021. Retrieved 15 April 2024.
  25. ^ O'Brien, Jodi (2009). Encyclopedia of Gender and Society. Vol. 1. SAGE. p. 64. ISBN 978-1412909167.
  26. ^ "Moose Cree Dictionary". mooseecree.ca. Archived from the original on 9 January 2024. Retrieved August 29, 2022.
  27. ^ Pruden, Harlan (26 March 2021). "Decolonization Research, Collecting Two-Spirit Data in Culturally Affirming Ways" (PDF). Health Research BC.
  28. ^ Rudes, Blair (1 January 1999). Tuscarora-English/English-Tuscarora Dictionary. University of Toronto Press. p. 580. ISBN 0802043364.
  29. ^ "Indigenous languages recognize gender states not even named in English". The Globe and Mail. March 10, 2016.
  30. ^ Sterritt, Angela (10 March 2016). "Indigenous languages recognize gender states not even named in English". The Globe and Mail.
  31. ^ "Same-sex couples in Canada in 2016". Statistics Canada. August 2, 2017.
  32. ^ "Ontario priest disciplined for marrying same-sex couple". Anglican Church. 30 October 2007.
  33. ^ "Bishop John's letter in response to General Synod's vote to amend Marriage Canon XXI". Retrieved 2016-07-12.
  34. ^ Werner, Kevin (July 12, 2016). "Anglican Diocese of Niagara to perform same-sex marriage despite Anglican Church vote". Hamilton News.
  35. ^ "Pastoral Guidelines for Same-Sex Marriages" (PDF). Anglican Diocese of Toronto. November 2016.
  36. ^ "Same-sex marriages permitted in Huron as of August 1, 2019". Diocese of Huron. 18 July 2019.
  37. ^ "Pastoral Guidelines for Same-Sex Marriage". Diocese of Ontario.
  38. ^ "Bishop Michael Oulton on Pastoral Guidelines for Same Sex Marriage". Diocese of Ontario. 11 November 2019.
  39. ^ "Rupert's Land will ignore Synod vote rejecting gay marriage". anglican.ink. 13 July 2019.
  40. ^ "A pastoral letter to the faithful in Algoma on the place of same sex marriage in our church" (PDF). Diocese of Algoma. 26 May 2020.
  41. ^ "Canons of the Diocese of Moosonee" (PDF). Anglican Diocese of Moosonee. May 13, 2021.
  42. ^ "At national gathering, Arctic Anglicans say no to same-sex marriage". Nunatsiaq News. 22 July 2019.
  43. ^ "Beliefs: Overview of Beliefs". The United Church of Canada. May 25, 2009. Archived from the original on January 30, 2016. Retrieved March 11, 2010.
  44. ^ "Submission to the Legislative Committee on Bill C-38 (CC38)" (PDF). Canadian Friends Service Committee (Quakers). April 10, 2005. Archived from the original (PDF) on September 22, 2007. Retrieved April 18, 2021.
  45. ^ "Evangelical Lutherans back same-sex marriage". www.winnipegfreepress.com. 23 July 2011. Archived from the original on 2016-04-28. Retrieved 2016-04-23.
  46. ^ "Welcoming Congregation Program" (PDF). Canadian Unitarian Council. Retrieved 5 October 2024.
  47. ^ Longhurst, John (23 March 2023). "3 Canadian MB churches expelled, another suspended for LGBTQ stance". Anabaptist World.
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