Same Sex Marriage Practice Issues for Lawyers

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1 Same Sex Marriage Practice Issues for Lawyers by Pam MacEachern and Cherolyn Knapp 1 Nelligan O Brien Payne LLP Tenth East Region Solicitor s Conference 2004 Château Montebello 1 Pam MacEachern is a partner with Nelligan O Brien Payne LLP, practicing in the areas of Family Law, Estates Planning and Administration, and Civil Litigation. Cherolyn Knapp is a student-at-law with Nelligan O Brien Payne LLP.

2 Table of Contents I. Introduction... 1 II. Where does the definition of marriage come from?... 2 III. How did we get to where we are today?... 3 a) Basic arguments against same sex marriage... 4 b) British Columbia EGALE case... 6 c) Ontario Halpern case... 7 d) Québec Hendricks case... 9 IV. Where we are today: Proposed legislation and Supreme Court reference a) Proposed Federal Legislation b) The Reference Questions V. Where are we going? VI. Impact on Legal Practitioners a) Legal implications of marriage b) Commitment ceremonies, registered civil unions and long term relationships c) Cohabitation Agreements d) Wills e) Divorce f) Equalization of property after separation g) Spousal support h) Special Treatment for the Matrimonial Home i) Real estate transfer of matrimonial home j) Recognition in other jurisdictions k) Immigration to Canada l) Prior marriages m) Change of name n) Transgendered and transsexual people o) Refusal of religious official to solemnize marriage VII. Conclusion VIII. For more information and resources on same sex marriage... 27

3 1 I. Introduction The last decade has seen enormous legal changes for lesbian, gay, bisexual and transgendered people. The first step was affirmation of Charter protection of individuals from discrimination based on their sexual orientation in the Supreme Court of Canada decisions of Egan v Canada 2 and Vriend v Alberta. 3 These decisions set the stage for the subsequent affirmation of Charter protection of couples in same sex relationships. In M v H, 4 the Supreme Court ruled it was unconstitutional to differentiate between unmarried same sex and opposite sex couples. This resulted in sweeping changes to legislation across the country to bring rights and responsibilities of same sex couples in line with those of common law opposite sex couples. Despite these changes, members of the lesbian, gay, bisexual and transgendered communities still did not have the choice to marry nor access to the legal status, rights and responsibilities that accompany marriage. Charter challenges were commenced in three provinces, all of which progressed to the court of appeal level, seeking to declare the common law definition of marriage unconstitutional. The Canadian government has submitted a reference question to the Supreme Court of Canada seeking an opinion of the constitutionality of draft legislation which would entitle same sex couples to marry under the law. The reference hearing is scheduled for October Meanwhile, the law in Ontario, British Columbia and Québec currently permits same sex couples to marry. Lawyers may wonder whether and how the legalization of same sex marriage will affect their law practices. This paper will begin by explaining the background of how we arrived at where we are today, the current situation, and where we are headed in terms of marriage for same sex couples. This paper will then go on to outline potential impacts on legal practice and suggest potential areas of client concern to which lawyers should pay particular attention. 2 Egan v Canada, [1995] 2 SCR Vriend v Alberta, [1998] 1 SCR M v H, [1999] 2 SCR 3.

4 2 II. Where does the definition of marriage come from? Jurisdiction over the definition of marriage in Canada is federal. 5 Jurisdiction over the solemnization of marriage in Canada, however, is provincial. 6 To date, Parliament has never legislated a definition of marriage. Federal legislation in response to the Supreme Court s M v H decision allowing same sex couples to receive the same legal benefits as unmarried opposite sex common law couples does state, however, amendments made by this Act do not affect the meaning of the word marriage, that is, the lawful union of one man and one woman to the exclusion of all others. 7 This has been found by courts to be not a legislated definition but an affirmation of the existing common law. 8 Many people take for granted that there is or was a legal rule defining marriage as a union between a man and a woman without knowing its origins. The English case of Hyde v Hyde and Woodmansee 9 is often cited as authority for the common law definition of marriage. In Hyde, a marriage, entered into in a country where polygamy was lawful between a man and a woman who professed a faith that allowed polygamy, was held not to be a marriage recognized as valid under the laws of England. The court held, I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others. A more recent English decision is also often cited as authority for the opposite sex definition of marriage. In Corbett v Corbett (Ashley) (No. 2), 10 a marriage between a man and a person who had been registered as a male at birth but had undergone a sex change operation was held to be void. The court held, [a person s] sex is clearly an essential determinant of the relationship called marriage, because it is and always has been recognised as the union of man and woman. It is the institution on which the family is built, and in which the capacity for natural heterosexual intercourse is an essential element. It has, of courses many other characteristics, of which 5 Consititution Act, 1867, section 91(26) Marriage and Divorce. Confirmation of this is sought in the reference to the Supreme Court. 6 Consititution Act, 1867, section 92(12) Solemnization of Marriage in the Province. 7 Modernization of Benefits and Obligations Act, SC 2000, c. 12, section See Halpern v Canada (AG) (2003), 65 O.R. (3d) 161 at para. 28 (CA). 9 (1866), LR 1 P&D 130 (HL).

5 3 companionship and mutual support is an important one, but the characteristics which distinguish it from all other relationships can only be met by two persons of opposite sex. This common law definition of marriage has been accepted in Canadian courts, even in the post- Charter era. In 1993, Ontario s Divisional Court Layland v Ontario 11 decided the common law limitation of marriage to persons of opposite sex did not constitute discrimination contrary to section 15 of the Charter. Layland considered an application under Ontario s Marriage Act for judicial review of the refusal of the Ottawa City Clerk s Office to issue a marriage licence to the applicants on the ground that the marriage of persons of the same sex is illegal in Canada. The applicants were both male and had cohabited in a relationship for more than five months before submitting an application for a marriage licence. In Laylond, the Divisional Court determined that the law was not discriminatory because it did not prohibit homosexuals from marrying, provided the homosexual person married someone of the opposite sex. The majority wrote, the fact that many homosexuals do not choose to marry, because they do not want unions with persons of the opposite sex, is the result of their own preferences, not a requirement of the law. The majority of the court noted it did not think section 15 of the Charter had the effect of bringing about a change in the definition of marriage. It should be noted that the majority in the Layland decision followed the similarly situated approach to section 15 of the Charter that has since been rejected by the Supreme Court of Canada. 12 Layland was also decided before the Supreme Court of Canada confirmed in Egan that sexual orientation was an analogous ground in the Charter equality provision. III. How did we get to where we are today? After M v H was decided in 1999, activists in the lesbian, gay, bisexual and transgendered community began talking seriously about launching Charter challenges in three provinces to attempt to obtain judicial decisions on the unconstitutionality of the opposite sex only definition of marriage. The basic foundation for each case was essentially the same. Couples would attempt 10 [1970] 2 All ER 33 (PD & A Div). 11 Layland v Ontario (Minister of Consumer and Commercial Relations) (1993), 14 OR (3d) 658 (Ont Div Ct).

6 4 to obtain marriage licenses, 13 and would then apply for Charter review of the decision not to issue the marriage licenses or to register the marriages based on the equality protections in section 15. This strategy of using the courts was employed because of the perceived lack of political will to enact legislative reform. Test cases were launched in British Columbia, Ontario and Québec. Many parties intervened in each proceeding on both sides of the issue. a) Basic arguments against same sex marriage Before summarizing the outcome of those proceedings, it will be helpful to review the general arguments advanced by the government to oppose the registration or granting of licenses for same sex marriages. The first argument against same sex marriage is that the term marriage is used in the Constitution Act, 1867 and that, therefore, the definition of marriage was constitutionally entrenched to have the same meaning as it must have had at the time of Confederation. It was argued that since marriage at that time could only have meant marriage between a man and a woman, the definition was frozen in time and could only be changed by formal constitutional amendment. This argument was rejected by the courts on the basis that freezing the definition of marriage to its 1867 meaning is contrary to jurisprudence of progressive constitutional interpretation and the interpretation of the Constitution as a living tree. Other words are used in the Constitution, such as banking, criminal law, and telecommunications, and their meanings have evolved successfully over time. The second argument against same sex marriage is that that there is no violation of the Charter equality provisions by excluding same sex couples because marriage is a uniquely opposite sex institution which existed before the legal framework of marriage was created. It was argued that since marriage has always just been that way, there is no distinction drawn between same sex and opposite sex couples. 12 Andrews v Law Society of British Columbia, [1989] 1 SCR In Ontario case, some of the couples attempted to register marriages after ceremonies following the traditional Christian practice of publishing marriage banns.

7 5 This argument was also rejected by the courts. The courts found that there is distinction as required to find a violation of section 15 because opposite sex couples can marry and same sex couples cannot. The fact that the opposite sex feature of marriage was adopted by the common law, rather than invented by the common law is irrelevant. The Canadian government chose to give legal recognition to marriage. As a result this confers benefits under the law, and distinctions are made when same sex couples are excluded within the meaning of the first part of the section 15 test. 14 Furthermore, the argument that marriage just is heterosexual is circular and cannot be used as a basis to avoid section 15 scrutiny. The third part of the section 15 test concerns whether the differential treatment discriminates in a manner that engages substantive equality and human dignity. Arguments regarding contextual factors were raised. It was argued marriage related to the capacities of opposite sex couples to bear children. This argument was rejected because same sex couples are also capable of having and do have children and no one is suggesting the only purpose of marriage is procreation. The government also argued the nature of the interest affected is minor because same sex couples already get all the same benefits under other legislation. This argument was rejected because there are a number of differences between benefits accorded to same sex couples and those available to opposite sex couples. Since the benefits are tied to common law status, a same sex couple must cohabit for a period of time before being eligible, whereas the legal benefits that accompany marriage are obtained immediately. Further, not all benefits have been extended to common law couples. For example, in Ontario the equalization of net family property is available on marriage breakdown but not upon breakdown of a common law relationship. Finally, apart from the disparity of legal benefits, the fact of the exclusion itself from the fundamental social institution of marriage is significant and offends the dignity of same sex couples. Lastly, the government argued that if the exclusion of same sex couples from marriage was discriminatory under section 15 of the Charter, it was saved as a reasonable limit prescribed by law as demonstrably justified in a free and democratic society under section 1. The government 14 The section 15 test is enunciated by the Supreme Court of Canada in Law v Canada, [1999] 1 SCR 497.

8 6 argued the exclusion of same sex couples from marriage bore a pressing and substantial objective to unite the opposite sexes. This was rejected because a purpose that is discriminatory in and of itself cannot be pressing and substantial. The government argued another pressing and substantial objective was to encourage procreation. This was also rejected because the courts found that it was not necessary to exclude same sex couples in order to encourage procreation. Further, there was no evidence to support the proposition that same sex couples are not equally capable of child rearing. The government also argued a pressing and substantial objective of marriage was to encourage companionship. This was rejected because, while encouraging companionship is important, there is no need to exclude same sex couples in order to do accomplish this objective. Thus, the government's arguments failed to justify the discrimination because they failed to establish a pressing and substantial objective. In any event, the courts found no rational connection between the exclusion of same sex couples from marriage and the purported purposes of encourage procreation, child rearing and companionship. The courts noted that same sex couples are not seeking to abolish marriage, they are seeking access to it. The government did not demonstrate why marriage had to remain exclusively heterosexual to maintain benefits of marriage. Thus, the discrimination was not minimally impairing either. b) British Columbia EGALE case The first decision considering the constitutionality of marriage, post Laylond, was from Justice Pitfield of the British Columbia Superior Court in October of Justice Pitfield upheld the opposite sex requirement of marriage, but his decision was reversed in May of 2003 by the British Columbia Court of Appeal. In EGALE Canada Inc v Canada (AG), 15 Justice Pitfield held that under Canadian law marriage is a legal relationship between two persons of opposite sex, and the legal relationship does not extend to same-sex couples. He ruled that marriage was defined by common or judge-made law and judges should only change the common law in incremental steps. A change to define 15 Egale Canada Inc. v Canada (AG), [2001] 11 WWR 685 (BCSC); rev d [2003] 7 WWR 22 (CA).

9 7 marriage as the legal union of two individuals, regardless of sex, is not incremental and should not be done in the courts. Furthermore, Justice Pitfield ruled that a constitutional amendment would be required in order for Parliament to change the legal meaning of marriage because marriage, as a federal head of power with legal meaning at Confederation, is not amenable to Charter scrutiny. Justice Pitfield conceded that if the Charter did apply, the definition infringed the equality rights of the applicants (section 15), but held the infringement is demonstrably justified in a free and democratic society. By the time of its decision, the BC Court of Appeal had the benefit of the Ontario Divisional Court and the Québec Superior Court decisions. The BC Court of Appeal reversed Justice Pitfield in a decision issued in May The Court of Appeal declared the common law bar against same-sex marriage is of no force or effect because it violates equality rights under the Charter and does not constitute a reasonable and justifiable limit on those rights and freedoms under section 1 of the Charter. The Court also reformulated the common law definition of marriage to mean the lawful union of two persons to the exclusion of all others. The Court suspended the relief until July 2004, to give the federal and provincial governments time to review and revise legislation to bring it into accord with the decision. c) Ontario Halpern case After the lower court decision in BC, the next decision on same sex marriage was from the Ontario Divisional Court in July 2002 in Halpern v Canada (AG). 16 This was an amalgamation of two applications for judicial review that were combined and heard before a panel of three judges of the Divisional Court, each of whom wrote separate lengthy decisions. They agreed on the unconstitutionality of the common law definition of marriage but disagreed on the appropriate remedy. The court confirmed the federal government has the constitutional authority to define marriage and the provinces have jurisdiction to solemnize marriage subject to the federal definition. The 16 Halpern v Canada (AG) (2002), 60 OR (3d) 321 (Div Ct); var d (2003) 65 OR (3d) 161 (CA).

10 8 court agreed there is no statute preventing the issuing of marriage licences to same-sex couples or the registration of their church marriages following the publication of banns. The common law rule did, however, impede same-sex marriages. The court found the common law rule infringed equality rights under the Charter. The court was not definitive on whether a section 1 analysis was required when a common law rule is challenged, but agreed that the denial of the right to marry for same-sex couples could not be justified under section 1. The court specifically rejected the argument that any changes in the word marriage as found in the division of powers in the Constitution would require a constitutional amendment. The common law definition of marriage was declared constitutionally invalid and inoperative. The operation of the declaration was suspended, however, for two years to enable Parliament to create its own remedial provisions consistent with the Charter. In June 2003, the Ontario Court of Appeal upheld the Divisional Court but went further and reformulated the common law definition of marriage as the voluntary union for life of two persons to the exclusion of all others without suspending the declaration of invalidity or the reformulated common law definition of marriage. The Ontario Court of Appeal had the advantage of the decisions of the Québec Superior Court in the Hendricks case and the BC Court of Appeal in the EGALE case, and agreed with a great deal of their reasoning and conclusions in the equality issue. The Court rejected the argument that there was no common law bar to same sex marriage. It also rejected the contrary argument that the word marriage is a constitutionally entrenched term that refers to the legal definition of marriage as it existed at Confederation, and can only be amended by a formal Constitutional amendment. The court declined to suspend the declaration of invalidity or the reformulated common law of marriage, finding no evidence that a declaration of invalidity without a period of suspension would pose any harm to the public, threaten the rule of law, or deny anyone the benefit of legal recognition of their marriage. There was also no evidence that the reformulated definition of marriage would require the volume of legislative reform that followed the release of the Supreme

11 9 Court of Canada s decision in M v H. The Court also made orders requiring the City to issue marriage licenses to the couples and requiring the Registrar General of Ontario to accept for registration the marriage certificates of the couples that had married under the banns process. d) Québec Hendricks case Shortly after the Divisional Court in Ontario handed down its decision, the Québec Superior Court followed suit in September In Hendricks c. Québec 17 the court concluded that the definition of marriage in the Québec Civil Code and the Federal Law - Civil Law Harmonization Act, No. 1 imposed a discriminatory distinction in excluding same sex couples. Considering the contextual factors, this distinction put in doubt the human dignity and violated the equality rights of the applicants under section 15 of the Charter. With regard to section 1 of the Charter, the court was not convinced that the exclusion of same sex couples from marriage was due to a pressing and substantial objective. The Attorney General of Canada did not prove that marriage of same sex couples would affect the rights of heterosexual couples or devalue the civil institution of marriage. Furthermore, excluding same sex couples would not pass the proportionality test. Although the creation of a civil union in Québec accorded certain recognition, the court found it is not the same as the institution of marriage. The court also found that the Québec legislature was not competent to require a condition related to sex of spouses different from one established by Parliament. The court found the federal and provincial definitions of marriage were unconstitutional but concluded it was up to the legislators to choose measures appropriate to correct the discriminatory nature of the law. The court suspended the declaration of invalidity for a period of 24 months. The Attorney General for Québec did not appeal the decision, and the Attorney General for Canada abandoned its appeal two days before submitting its reference question to the Supreme Court of Canada. The Plaintiffs brought a request to dismiss the appeal of the only remaining intervener, the Catholic Civil Rights League. In March 2004 the Court of Appeal of Québec 17 Hendricks c. Québec (Procureur general), [2002] RJQ 2506 (CS); var d [2004] JQ no 2593 (CA)

12 10 dismissed the appeal because it was not appropriate for it to hear the appeal given that the matter had been referred to the Supreme Court of Canada. The Court of Appeal found that the subsequent renunciation by the Attorney General of the suspension of the declaration of inoperability in the trial judgment meant that there was no longer any obstacle to the celebration of marriage between the applicant couple. IV. Where we are today: Proposed legislation and Supreme Court reference Having abandoned any further appeals from the decisions in the three provinces, Parliament drafted legislation that would redefine marriage to include same sex couples. Parliament referred the draft legislation to the Supreme Court of Canada in July 2003 for a determination of its constitutionality. The hearing of the reference has been scheduled for October 6, 7, 8, After the Supreme Court releases its decision on the reference, there is to be a free vote on the legislation in Parliament. The proposed legislation and reference questions are set out below, followed by a list of interveners in the Supreme Court reference proceedings. The arguments submitted by the Attorney General for Canada regarding the reference questions are also outlined. a) Proposed Federal Legislation Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians; WHEREAS, in order to reflect values of tolerance, respect and equality consistent with the Canadian Charter of Rights and Freedoms, access to marriage for civil purposes should be extended to couples of the same sex;

13 11 AND WHEREAS everyone has the freedom of conscience and religion under the Canadian Charter of Rights and Freedoms and officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. 2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs. Consequential amendments will be added in the bill that is introduced in Parliament.* * Consequential amendments are changes to other federal statutes that will have to be made as a result of new legislation. b) The Reference Questions Originally, the Government of Canada referred the following three questions about the draft bill to the Court. 1. Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent? 2. If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent? 3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs? In the Fall of 2003, the Government added a fourth question to the reference:

14 12 4. Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Québec in s. 5 of the Federal Law - Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent? The parties to the reference are the Attorney General for Canada and several provincial Attorneys General. The Attorneys General for Québec, British Columbia and Alberta have intervened and the deadline has passed for additional provincial attorneys general to give notice of an intention to intervene. The deadline for interveners has also passed. The following interveners have been granted leave to intervene by the Supreme Court of Canada. 1) Attorney General of Québec Active 2) Attorney General of British Columbia Active 3) Attorney General of Alberta Active 4) The Honourable Anne Cools, Member of the Senate and Roger Gallaway, Member of the House of Commons Active 5) Focus on the Family (Canada) Association and Real Women of Canada, collectively as The Association for Marriage and the Family in Ontario Active 6) Egale Canada Inc. and Melinda Roy, Tanya Chambers, David Shortt, Shane McCloskey, Lloyd Thornhill, Robert Peacock, Robin Roberts, Diana Denny, Active Wendy Young and Mary Teresa Healy (the Egale Couples ) 7) Canadian Conference of Catholic Bishops Active 8) Canadian Coalition of Liberal Rabbis for same-sex marriage and Rabbi Debra Active Landsberg, as its nominee 9) Canadian Human Rights Commission Active 10) Canadian Bar Association Active 11) Dawn Barbeau, Elizabeth Barbeau, Peter Cook, Murray Warren, Jane Eaton Hamilton and Joy Masuhara (B.C. Couples) Active 12) Metropolitan Community Church of Toronto Active 13) Foundation for Equal Families Active

15 13 14) Hedy Halpern, Colleen Rogers, Michael Leshner, Michael Stark, Michelle Bradshaw, Rebekah Rooney, Aloysius Pittman, Thomas Allworth, Dawn Onishenko, Julie Erbland, Carolyn Rowe, Caroline Moffat, Barbara Active McDowell, Gail Donnelly, Alison Kemper, 15) Joyce Barnet ( Ontario Couples and Michael Hendricks, Rene LeBoeuf ( Québec Couples ) Active 16) Islamic Society of North America, the Catholic Civil Rights League and the Evangelical Fellowship of Canada, collectively as the Interfaith Coalition on Active Marriage and Family ( Interfaith Coalition ) 17) The Church of Jesus Christ of Latter Day Saints Active 18) Ontario Conference of Catholic Bishops Active 19) British Columbia Civil Liberties Association (BCCLA) Active 20) Mouvement laïque québécois Active 21) Ontario Human Rights Commission Active 22) Manitoba Human Rights Commission Active 23) Canadian Civil Liberties Association Pending 24) Coalition pour le mariage civil des couples de même sexe Pending 25) Working Group on Civil Unions Pending 26) Seventh-Day Adventist Church in Canada Pending 27) Canadian Unitarian Council Pending 28) Martin Dion Pending 29) United Church of Canada Pending The Attorney General of Canada submitted its first factum for the reference in October This time, instead of arguing against same sex marriage as it did in British Columbia, Ontario and Québec, its arguments are in favour of creating a statutory definition of marriage as a lawful union of two persons to the exclusion of all others.

16 14 Counsel for the Attorney General argue first that the proposed legislation is within the exclusive legislative authority of Parliament. They state Parliament has jurisdiction under section 91(26) over the capacity to marry, pointing out Parliament has historically legislated with respect to certain aspects of capacity to marry such as minimum age of consent and prohibition against marriage between two people who are lineally related by consanguinity or adoption. Further, Parliament's jurisdiction over marriage should be given a purposive and progressive interpretation that takes into account the changes in social attitudes towards relationships pursuant to the living tree principle. Finally, it is argued the proposed legislation is limited to marriage for civil purposes which makes it clear the proposed legislation imposes no new obligations on religious officials to perform marriages that are not in accordance with their religious beliefs. Second, counsel for the Attorney General argue the proposed legislation is consistent with the Charter because it does not impair freedom of religion or discriminate on the ground of religion. The Attorney General emphasizes that what is in issue is not the validity or invalidity of various forms of religious marriage, but the state s decision to extend legal recognition for civil purposes to same-sex unions. Religious officials who do not believe that marriage should include samesex unions are not compelled to solemnize them. Religious marriage remains a matter for the conscience of religious officials and not a matter of law. Third, counsel for the Attorney General argue section 2(a) of the Charter protects religious officials from being compelled to perform a marriage between two persons of the same sex. The core of the interest protected by section 2(a) is the freedom from being compelled to act contrary to one s beliefs or conscience. The Attorney General has filed a supplementary factum on the fourth reference question of whether the opposite sex requirement for marriage is consistent with the Charter. In that factum counsel for the Attorney General argue the opposite sex requirement for marriage does infringe section 15 of the Charter and is not justifiable under section 1. Due to extensive social changes the failure to include the union of same sex couples within the definition of civil marriage is now more difficult to justify. Further, the opposite sex requirement for marriage draws a formal distinction between opposite sex and same sex couples because it denies to same sex couples the

17 15 right to make the very fundamental and personal choice to marry and only that choice provides entry to the full range of marriage benefits and obligations. Counsel for the Attorney General goes on to argue the opposite sex requirement for marriage discriminates in a substantive sense, addressing contextual factors. They argue the failure to accord same sex unions legal recognition as marriages denies same sex couples a fundamental choice about whether to enter into one of society s foundational institutions. This reinforces inaccurate understandings of lesbian and gay relationships. Further, gay and lesbian families and their children are as deserving of access to foundational societal institutions, legal protection and support as married families. Their exclusion from the institution of marriage does not correspond to their actual needs, capacities and circumstances. Finally, the restriction of marriage to opposite sex couples compels denies gay and lesbian individuals and their families a basic aspect of full membership in Canadian society, which affects their interests profoundly. Counsel for the Attorney General conclude their submissions on the fourth reference question by arguing the infringement of section 15 cannot be justified under section 1 because there is no evidence to support any pressing and substantial objective of the exclusion of same sex couples from marriage. V. Where are we going? Given the Attorney General s arguments in the Supreme Court reference echo those made by the same sex couples who brought the Charter challenges in the first place, it is difficult to imagine that the Supreme Court would find the proposed legislation is unconstitutional. The reference exercise appears to be an assignment of the exploration of the policy issues to the Supreme Court. Presumably there are other bodies more ably equipped to engage in consultations with groups of Canadians such as those found on the lengthy list of interveners. After the Supreme Court gives the legislation the stamp of constitutional approval, the legislation remains to be

18 16 passed in Parliament by a free vote of members. One survey of Members of Parliament estimates opponents of the proposed legislation outnumber its supporters in the House of Commons. 18 It remains, however, that courts of appeal in three provinces have struck the common law definition of marriage and reformulated it, permitting same sex couples to marry. If the government is unable to pass the proposed legislation redefining marriage, it would still be open to individuals in the remaining provinces to have the common law definition of marriage declared unconstitutional in the courts. If Parliament wanted to go so far as to exclude same sex couples from marriage, it would have to pass legislation to that effect while invoking the notwithstanding clause. If the reference and subsequent vote in Parliament are successful, marriage will be defined statutorily as the union of two people to the exclusion of all others. Other legislation will need to be amended, but not to the same extent as resulted from the Supreme Court s M v H decision. At the same time, any provinces who have not amended legislation to comply with M v H will be under more pressure to do so. Any legislation that defines married spouses will need to be amended simply to remove criteria of opposite sex if this is part of the definition of spouse. Most legislative amendments will be consequential rather than substantive. Wording will need to be changed, including changing the wording of the numerous legal forms that exist that do not provide appropriate wording for same sex married couples. For example, the Divorce Act will need to be amended to permit married same sex couples to divorce. Another question is whether provinces, such as Alberta, could use the notwithstanding clause to avoid the federal statutory definition of marriage. This will not be possible if the Supreme Court answers the first reference question, that the capacity to marry is within federal jurisdiction, in the affirmative. Provinces can only use the notwithstanding clause with regard to matters within heads of power of provincial jurisdiction. 18

19 17 If the outcome of the reference is not favourable to same sex marriage, the final result will depend on the Supreme Court s answers to each of the reference questions. Regardless of the Supreme Court s decision, Parliament may still pass the legislation. Same sex couples who are already legally married would likely remain so unless Parliament passes legislation to void the marriages. VI. Impact on Legal Practitioners Although permitting same sex marriage represents an enormous social shift, the actual impact for lawyers in terms of legal changes should be minimal. The law of marriage remains the same - the change is with regard to the sex or gender of the spouses. Nonetheless, this significant social change may require legal practitioners to adjust their thinking and learn more about same sex relationships in order to be sensitive to their clients needs and provide competent legal services. It may be helpful for practitioners to be reminded that some lesbian, gay, bisexual and transgendered clients cope with feelings of being different or have unsupportive family members. It is also very common for these clients to not disclose, to their lawyer, employer, friends, or family, information that may relate to their sexual orientation or same sex relationship. Some clients may have become experts in closing off a part of their lives from view of others and may do it as a habit. Many lesbian, gay, bisexual and transgendered people wait for cues from the person with whom they are speaking to determine whether it is safe to be open with them. For example, if a lawyer asks a woman client are you married and follows up with what is your husband s name the lawyer may have unwittingly sent a message to the client that the lawyer is not open to talking about the same sex aspect of the client s life. In response, the client may tell the lawyer incomplete or inaccurate information, or may simply seek out another lawyer or go without legal advice altogether. Another issue for lawyers to be sensitive to in the context of the topic of marriage is that not all lesbian, gay, bisexual or transgendered people would wish to be married. In fact, some are politically opposed to the idea. Lawyers should not assume all same sex couples actually wish to be married. For many, however, the key is that individuals should have the right to choose

20 18 whether or not to marry, and should not be precluded from making that choice simply because they do not have a life partner of the opposite sex. The most important point for lawyers is to remember that clients in same sex relationships may now be married or may marry in the future, so all of the legal considerations for married couples will apply and legal practitioners must interview them and advise them accordingly. Unfortunately, few people actually visit a lawyer before they get married, but the lawyer is called upon to assist them to sort out problems that develop after the deed is done. Understanding some of the issues faced by lesbian, gay, bisexual and transgendered individuals in their relationships will assist lawyers to provide better legal services. Following is an exploration of some of the issues that may arise in the course of advising clients with regard to the legal implications of same sex relationships and marriages. a) Legal implications of marriage Just like opposite sex couples, same sex couples may have little understanding of the legal implications of marriage. They may think common law couples have the same rights as married couples, or they may be aware that there are differences without knowing in detail what the differences are. In particular, they are overwhelmingly not aware of the property sharing regimes and the matrimonial home provisions under the Family Law Act. 19 Nor are they aware of the provisions under the Succession Law Reform Act 20 that affect wills upon marriage, and the effect of marriage on an intestacy. Lawyers may need to educate clients on the legal difference between cohabitation and marriage. Legislation that deals with rights and obligations within marriage, such as the Divorce Act and the Ontario Family Law Act, have not been revised to specifically apply to same sex marriages. For example, the provisions of the FLA that govern property rights of married spouses relies on a definition of spouse that is limited to a man and a woman who are married to each other. Assuming that same sex marriage is here to stay, these provisions will need to be amended to include same sex marriage. To the extent that they are not amended, they would likely by 19 R.S.O. 1990, c. F.3 20 R.S.O. 1990, c. S.26

21 19 unconstitutional and therefore, if a same sex married client needs to resort to these provisions (for example, needs to get a divorce) a lawyer must be prepared to apply to have the law declared unconstitutional and an appropriate remedy granted. b) Commitment ceremonies, registered civil unions and long term relationships Many same sex couples have had commitment ceremonies or had their unions blessed in supportive churches. Furthermore, some jurisdictions now provide for registration of civil unions, domestic partnerships, or adult interdependent relationships. Some people in these relationships may erroneously think that the change in the law means their prior unions are now legally recognized as a marriage but these will not be recognized as such. Lawyers need to be careful to ensure that their clients know the difference between a legal marriage and a commitment ceremony and what is meant when the client says he or she is married. Some clients may also believe that they are married simply by virtue of a long cohabitation. Again, lawyers need to be careful to ensure that their clients know the difference between cohabitation and marriage what is meant when the client says he or she is married. Practitioners should be specific when asking if clients are legally married, meaning, whether they obtained a marriage license and/or their marriage was registered with the provincial registrar. c) Cohabitation Agreements The FLA permits cohabitation agreements between two unmarried people of the same sex but currently reserves marriage contracts for a man and a woman who are married to each other. This wording will have to be amended or challenged in order for same sex couples to have enforceable marriage contracts. Generally, cohabitation agreements continue as a marriage contract unless they specifically say that they become void on marriage. Another difficulty for same sex couples is that a lot of cohabitation agreements between same sex partners were drafted without any contemplation that the parties may marry in the future and for this reason the wording may not specifically govern what will happen to the parties in the event of a breakdown of a relationship after marriage. Same sex couples that have old cohabitation agreements should have these reviewed before they get married. To cover any eventuality, these contracts should also provide for what would

22 20 happen if the marriage is declared a nullity or voidable under future legislation or if they moved to a jurisdiction that does not recognize their marriage. d) Wills Clients in same sex relationships may not be aware that a will that predates a marriage of the testator is revoked unless it is contains a declaration that it is made in contemplation of marriage or the spouse elects in writing within a year of the death to take under the will. Practitioners must avoid making assumptions about whether a client who is having a will prepared is the type of person who could get married in the future and advise clients accordingly. Practitioners need to tell their clients who are thinking of marriage or have married, to redo their wills. They may wish to add in wording that the will is effective in case the political tide shifts and the marriage becomes a nullity under to future legislation or if the couple moves to a jurisdiction that does not recognize their marriage. e) Divorce Like their opposite sex counterparts, same sex marriages do sometimes break down. Clients in a same sex marriage may need advice on obtaining a divorce. The Divorce Act 21 defines spouse as either of a man or woman who are married to each other. This is one of the consequential amendments that will have to be made after the proposed legislation is passed. In the meantime, same sex couples who have married and experience break down of the marriage will have to challenge the constitutionality of the Divorce Act in court in order to successfully obtain a divorce. In most cases, the person seeking a divorce will have to be separated from his or her spouse for a period of one year before being able to obtain a divorce. Given that the statute is unlikely to be rectified before the fall of 2004, some clients will have to wait longer than the one year period for a divorce or bring a court challenge. f) Equalization of property after separation Married same sex couples will have the same rights and responsibilities to equalize family property upon marriage breakdown as opposite sex married spouses. This happens automatically 21 R.S., 1985, c. 3 (2nd Supp.)

23 21 upon marriage, unless the parties enter into a marriage contract that provides otherwise. This is a dramatically different legal situation than that which applies to common law same sex or opposite sex partners. Common law partners do not have any rights to equalize family property after separation and must resort to claims based on unjust enrichment and constructive trust. In the event of a separation, married same sex partners may initially have difficulties applying for an equalization of property under the Family Law Act. The FLA was amended after the M v H decision so that the provisions applying to common law couples, such as support obligations, applied equally to opposite sex and same sex couples. The FLA provisions related to married spouses, such as matrimonial home and family property provisions, however, are still grounded in the opposite sex definition of marriage. These rights and obligations apply to spouses, which is defined in the FLA to mean either a man or a woman who is married to the other. The FLA will need to be amended to provide for rights and obligations in the event of breakdown of same sex marriages, but until that is achieved, a challenge to the constitutionality of the definition of spouse in the FLA may be necessary. g) Spousal support Upon marriage, same sex couples will automatically have a spousal support obligation to each other. This happens automatically upon marriage, unless the parties enter into a marriage contract that provides otherwise. This is also different than the legal situation that applies to unmarried same sex couples. A spousal support obligation only arises for unmarried same sex couples after they have cohabitated continuously for not less than three years or if they are in a relationship of some permanence and are the natural or adoptive parents of a child. h) Special Treatment for the Matrimonial Home The property sharing provisions of the FLA that apply to married spouses contain special provisions for the matrimonial home. When equalizing family property between married spouses, the special treatment of the matrimonial home can often create unexpected and unfair results. Again, this happens automatically upon marriage, unless the parties enter into a marriage contract that provides otherwise. i) Real estate transfer of matrimonial home

24 22 A same sex married spouse will have to consent to the transfer of the matrimonial home. Real estate lawyers can no longer assume that two people of the same sex living in the house are not legally married. People in same sex marriages will likely not be aware of this requirement. j) Recognition in other jurisdictions If married same sex partners move to a province or a state that does not recognize same sex marriages, they will not be legally married in that jurisdiction. Furthermore, people in same sex marriages may encounter difficulties traveling as spouses to other countries, including the United States. Another difficulty arises for married same sex couples whose relationships breaks down after they have moved to a jurisdiction that does not recognize their marriage. They would require a divorce in order to marry another person in that jurisdiction, or be exposed to charges of bigamy. But they will have difficulty obtaining a divorce in their new jurisdiction that does not recognize their marriage. This problem is compounded because they also cannot apply for a divorce in Canada unless, prior to the application, one of the parties has been resident in the province in which the divorce is sought for at least one year. 22 They may be left needing to apply for a divorce in the place of their current residence, but seek to have the court apply Canadian divorce law. k) Immigration to Canada The Immigration and Refugee Protection Act 23 was recently changed to permit a person to sponsor his or her same sex common law or conjugal partner to immigrate to Canada. Formerly, same sex partners were not sponsored under the family class, but applications were considered on humanitarian and compassionate grounds. Lawyers may be asked if getting married will help a sponsored immigration application by a same sex spouse. Spousal, common law, and conjugal partner applications are actually treated the same and are processed in the same manner. According to the Lesbian and Gay Immigration Taskforce (LEGIT), 24 although spousal applications are now an option for legally married same-sex couples, in practice immigration 22 Divorce Act RS 1985, c. 3 (2nd Supp.), s R.S. 2001, c

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