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Tenth Anniversary of the Right to Same-Sex Marriage in Ontario

Tenth Anniversary of the Right to Same-Sex Marriage in Ontario

On July 24th, the state of New York implemented a new law allowing for same-sex marriages. It is the largest U.S. state in which gay marriage has been legalized, and naturally represents an important development in the recognition and acceptance of such unions in that country.

In Canada, the timing of this American initiative coincidentally harkens back to a milestone in Canadian legal history as well: Ten years ago, on July 12, 2002, the Ontario Superior Court of Justice released the first of several landmark rulings in Halpern v. Canada, which established the right in Ontario for same-sex couples to marry. That decision was affirmed a year later by the Ontario Court of Appeal, which concluded that the common law definition of “marriage”, with its stipulation of a partnership between one man and one woman, was contrary to the Canadian Charter of Rights and Freedoms, and was not a reasonable infringement under s. 1. Instead, the definition of marriage was to be re-framed to encompass “the voluntary union for life of two persons to the exclusion of others”. In doing so, Ontario became the second Canadian province in which an appeal court determined that same-sex couples had the legal right to marry.

The Halpern decision legalized same-sex marriage in Ontario, and other courts across the country quickly rendered decisions that did the same. Eventually, in 2005 federal legislation called the Civil Marriage Act was passed that served to legalize same-sex marriage across Canada.

Given that Canadian same-sex marriages have been legal for about a decade, it begs the question how they differ from more “traditional” Canadian marriages, in terms of the rights and obligations that arise from them.

The answer is: They don’t.

Provided they have gone through a form of marriage (whether by way of civil ceremony or else pursuant to a religious ceremony) spouses in a same-sex marriage have all same the rights and obligations under both provincial and federal laws that heterosexual couples would have in a “regular” marriage. They can adopt children and raise a family, just as opposite-sex couples do. And, if there is a breakdown of the relationship, each member of the same-sex couple would have the right to a court-ordered fair division of matrimonial property (including the matrimonial home), as well as spousal and child support if appropriate. Courts use the same legal tests for these types of marriages, as would be used for the more traditional union involving one man and one woman.

This is distinct from common law relationships, meaning those that do not involve a traditional, formal legal form of marriage, whether in the civil realm or through a religious ceremony. Under the Family Law Act of Ontario, partners in a common-law relationship (whether heterosexual or same-sex) do not have legislated rights in connection with any matrimonial home that is shared by them. They also do not have any right to equalization in connection with shared property. However – whether the partners are heterosexual or not – common law spouses do have rights in connection with support obligations towards each other, just like spouses in a traditional marriage. Note that for these purposes, a common law relationship is statutorily defined as meaning either a relationship lasting at least three years, or else a “relationship of some permanence” where there is also a natural or adoptive child.

Whether for same-sex or opposite-sex couples, the lawyers at Russell Alexander, Family Lawyers can provide advice on all of the incidents of marriage, and all of the rights that accrue upon separation and divorce. For more information, visit us at www.RussellAlexander.com

For the full text of the decisions, see:

Halpern v. Canada (Attorney General), [2003] O.J. No. 2268 (C.A.); application for leave to appeal quashed (S.C.C., October 9, 2003)  http://tinyurl.com/e0cp

Halpern v. Canada (Attorney General), (2002), 60 O.R. (3d) 321 (Div. Ct.) http://tinyurl.com/42ejct5