Celebrating Pride With A History Of Same-Sex Marriage In Canada

Melissa Nelson

Melissa Nelson

same-sex marriage

June is recognized around the world as Pride Month, to commemorate the Stonewall Riots that happened in New York City at the end of June in 1969. In recognition of Pride month, Evolve Law would like to provide a brief overview of the history of same-sex marriage in Canada and an overview of the rights of same-sex couples going through a family transition period. 

Simply put, today in Canada all couples regardless of sexual orientation receive the same legal rights. This includes the equal rights and obligations when it comes to being considered spouses, applying for spousal support, applying for child support, and determining property division in a divorce.

However, it hasn’t always been this way. Back in 1866 the House of Lords in England found that marriage was defined as the “voluntary union for life of one man and one woman, to the exclusion of all others” (Hyde v. Hyde and Woodmansee). Since Canada was a British colony up until 1982, Canada had to follow British court decisions. Throughout the 1990s Parliament, taking their lead from the Canadian Courts, decided that discriminating on the basis of sexual orientation went against the Charter of Rights and Freedoms. 

The Supreme Court of Canada recognized in 1997 that same-sex couples fit the legal definition of “conjugal” and that differential treatment was illegal. Then, in 2003, the Court reformulated the common law definition of marriages as “the voluntary union for life of two persons to the exclusion of all others.” 

The watershed moment for same-sex couples came with the Reference re Same-sex Marriage in 2004. Following various cases across the country where the Courts said that a “one man and one woman” definition of marriage violated the Charter, Parliament wanted to amend and legislate a new definition of marriage.

While the court emphasized that they were not trying to find the definition of marriage but were only looking if Parliament’s proposed meaning fit within the definition, they found that the meaning of marriage was not fixed to what it meant in 1867, but rather that it must evolve with Canadian society, which currently represents a plurality of groups. They also made sure to emphasize that the legislation was only concerning civil marriages as a legal institution and had no effect on religious marriages. The Court therefore found that two persons, regardless of gender, are legally capable of being marriage. 

Same-sex couples could get married in 2004, with the Civil Marriage Act coming into effect in July of 2005. 

A “spouse” is therefore now defined as two people that either live together continuously for a period of two years (common-law) or two people that participated in a marriage ceremony. You can also qualify as a spouse under the Family Maintenance Act if you are coparents of a child. If you participated in a marriage ceremony, you would look for various remedies under the Divorce Act. However, if you are common-law or you are coparents of a child you would look for remedies under the Family Maintenance Act. Finally, a spouse is defined under the Family Property Act, which governs property division.  

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