Most people know that same-sex marriage became legal in Canada in 2005 with the enactment of the Civil Marriage Act. However, almost two years earlier, the Court of Appeal in Ontario issued a decision that legalized same-sex marriage, making it the first province where it was legal. Seven other provinces followed Ontario’s lead before the federal government introduced its legislation. This was a big moment in Canadian history, and said a lot about Canada on the global stage, as Canada was only the fourth country in the world to legally recognize same-sex marriage. So, what did legalizing same-sex marriage in Canada do? And why is the legalization still relevant to discuss more than 10 years after the fact?

History

In 2003, the federal government asked the Supreme Court of Canada (“SCC”) to answer three questions regarding the validity of the same-sex marriage legislation that was being proposed. This led to the Reference Re Same-Sex Marriage. Reference questions are submissions by the Federal or Provincial governments to the courts (including the SCC) requesting an advisory opinion on a major legal issue (for instance on same-sex marriage, or in the past, on issues such as the secession of Quebec).

In the Reference Re Same-Sex Marriage, the SCC:

  • affirmed that the Civil Marriage Act was within the authority of the federal government as the legislation flowed from the Canadian Charter of Rights and Freedoms;
  • found that the equality right of religious groups and opposite-sex couples was not undermined by the legislation; and
  • that section 2(1) of the Charter, which guarantees freedom of religion, protects religious officials who do not believe in same-sex marriage.

In the end, the federal Civil Marriage Act was passed in 2005, and same-sex marriage became legally recognized across the country, although, as noted above, most provinces had already been recognizing these relationships for some time.

Equal Rights

The effect of the legal recognition of same-sex marriage in Canada was this: same-sex marriages are equal to opposite-sex marriages under the law. This means that all the benefits and rights opposite-sex couples get, same-sex couples are also entitled to. They are no different, legally speaking. This sounds very repetitive, but it is important to understand that there is no difference between same-sex and opposite-sex couples in the eyes of the law. This also applies to common-law couples. Under the Family Law Act, “spouse” is defined by referring to two people; no sex is mentioned.

Below are some examples of what rights same-sex couples are entitled to:

  • Separation
  • Divorce
  • Adoption
  • CPP benefits
  • Employer benefits (medical insurance, dental insurance, life insurance)
  • Tax credits and benefits.

This list is obviously not exhaustive, but it is just meant to show how all couples are entitled to the same benefits. Same-sex couples can, and should, get domestic contracts such as separation agreements, cohabitation agreements, marriage contracts, paternity agreements, and pre- or post- nuptial agreements. Same-sex couples (who are married) also have rights over the matrimonial home in the event they get divorced. And same-sex couples are entitled to child support and spousal support. So, same-sex couples need legal advice just as much as opposite-sex couples.

Why is it important to talk about same-sex relationships?

Our country confirmed the legality of same-sex relationships over 12 years ago, so why is it still important to discuss the topic? Well, not everyone believes in same-sex relationships. Some people believe that relationships, and marriages, should be between a man and a woman. Others believe that while same-sex couples have a right to be together, they should not have the right to adopt and raise children. Even though same-sex couples legally have the same rights as opposite-sex couples, there are those who will try and stand in their way of exercising those rights. There are some that are so opposed to the recognition of same-sex marriage in Canada, that they try to reopen the discussion, although unsuccessfully.

In places like the United States, where same-sex marriage only became legal on the national level in 2015, this is still a hotly contested debate. Right now, the Supreme Court of the United States is deciding on whether or not a baker who refused to bake a cake for a same-sex couple is discriminating against them on the basis of their sexuality, or if his decision is protected by the First Amendment  (free exercise and free speech).

It is also important to keep the discussions going because there are many parts of the world where same-sex marriage is not accepted and people are being persecuted or prosecuted because of their sexuality. According to a study done by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) in 2016, same-sex sexual contact is a criminal offence in 74 countries. In 13 countries, being gay or bisexual is punishable by death.

In Canada, we do have some groups who do not agree with same-sex relationships. However, there are rarely conflicts that rise to the level of national news coverage. Whether religious or political groups, there are still those who oppose same-sex marriage. In 2016, the Anglican Church of Canada debated and voted on whether the Church should bless same-sex marriages. The resolution did not pass. Overall, Canadians are quite accepting of gay marriage. As of 2016, only 22% of Canadians opposed same-sex marriage, while 70% supported it.

Family Law and Same-Sex Couples

Just as with opposite-sex couples, same-sex couples should take steps to protect themselves and their assets when they enter into relationships or marriages, or when they are separating or getting divorced. At Borden Family Law, our knowledgeable and compassionate family and divorce lawyers provide same-sex clients with excellent guidance and advice and are here to help you plan for your future, or deal with family disputes. Please contact us at 905-597-6090, or contact us online. Ask about our flat fees and bundled services.