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Halpern v. Canada (Attorney General)

June 10, 2003

The Ontario Court of Appeal has become the second provincial appellate court in Canada to uphold a right to same-sex marriage, and the first to allow marriage ceremonies to take place.

Two Ontario cases raising the question of same-sex marriage were heard by the Ontario Superior Court of Justice (Divisional Court) in November 2001. In the first case, eight same-sex couples sought the right to marry. In the second case, the Metropolitan Community Church of Toronto sought to have the marriages it had performed for two same sex couples recognized by the state. Egale Canada intervened in both cases to support the couples and MCCT.

In July 2002, in a decision in which each of the three judges wrote separate reasons, the Divisional Court concluded that the common law bar to same-sex marriage breached the equality rights of gays and lesbians under s. 15 of the Canadian Charter of Rights and Freedoms. The Court further held that the government had not justified the discrimination under s. 1 of the Charter.

However, the judges of the lower court disagreed on the question of remedy. One judge declared that same-sex couples should be entitled to marry effective immediately. The other two judges decided that the effect of their decision should be suspended for two years to allow the federal and provincial governments to take whatever action was necessary to comply with the decision. However, they made it clear that any legislation would have to comply with the Charter and, in particular, would have to give same-sex couples the same recognition as opposite-sex couples. Because two judges had determined that the effect of the decision should be suspended, same sex couples were not yet permitted to marry.

The federal government appealed the Divisional Court’s decision to the Ontario Court of Appeal.

The Ontario Court of Appeal dismissed the appeal, holding that the common law definition of marriage offended the equality rights of gays and lesbians under s. 15 of the Charter in a manner that could not be justified in a free and democratic society. The Court declared the exclusionary definition of marriage to be invalid and reformulated the definition of marriage to be “the voluntary union for life of two persons to the exclusion of all others”.

Unlike the Divisional Court, the Ontario Court of Appeal did not suspend the effect of its decision. Instead, its declaration of invalidity and the reformulated definition of marriage had immediate effect. It ordered the City of Toronto to issue the marriage licenses to the same-sex couples who challenged the law and ordered the Province of Ontario to register the marriages of two couples who were married by MCCT in January 2001. Same sex couples began marrying in Ontario on the same day.

The British Columbia Court of Appeal had already ruled that excluding same-sex couples from marriage violated their equality rights. However, like the Ontario Divisional Court, it had suspended the effect of its decision. After same-sex marriage became effective in Ontario, Egale brought a motion before the British Columbia Court of Appeal to lift the suspension so that couples in B.C. could marry. That motion was granted on July 8, 2003.

Over the next year and a half, courts all over Canada followed suit. By the fall of 2004, same-sex marriage was legal in Quebec, Manitoba, Saskatchewan, Nova Scotia, Newfoundland, New Brunswick and the Yukon Territories. Only Alberta, Prince Edward Island, the Northwest Territories and Nunavut did not have same-sex marriage when, in October 2004, the federal government asked the Supreme Court of Canada for an advisory opinion on same-sex marriage.

In the Same Sex Marriage Reference, the Supreme Court addressed several questions the government asked regarding draft legislation to change the common law definition of marriage. Federal legislation was subsequently passed in 2005, making same-sex marriage legal across the country.

Click here to read the Court of Appeal’s decision.

Click here to read the Divisional Court’s decision.

Cynthia Petersen, Vanessa Payne and Charlene Wiseman represented Egale Canada Inc., which intervened in the proceedings before both the Divisional Court and the Ontario Court of Appeal.

Click below to read some of the affidavit evidence in the Ontario and B.C. marriage cases. Note: This is not all of the evidence in the cases; the applicants in both Ontario and British Columbia filed many other affidavits as well. These particular affidavits generally address: (1) whether marriage has been an exclusively heterosexual institution over time and across cultures; (2) the evolving nature of marriage in Canada; (3) whether the meaning of the word “marriage” is capable of including same-sex couples; and (4) the results of research regarding lesbian and gay parenting.

  • Affidavit of William Eskridge Jr., [documenting how same-sex relationships have been recognized as unions or marriages throughout history and across cultures]
  • Affidavit of Barry Adam  [on the cross-cultural evidence of same-sex partnerships and marriage and the evolution of cultural conceptions of homosexuality]
  • Affidavit of Bettina Bradbury [on the history and evolution of the institution of marriage in Canada]
  • Reply Affidavit of Bettina Bradbury [responding to a government affidavit, sworn by Edward Shorter, which suggested that the recognition of same-sex marriage would threaten the continued existence of heterosexual marriage]
  • Affidavit of Margrit Eichler [on the evolution of the family in Canada]
  • Affidavit of Katherine Arnup [on the history and evolution of the family in Canada, and how previous changes, now considered innocuous or progressive, were also thought to be a threat to the continued existence of marriage, the family and civilization]
  • Affidavit of Andrew Koppleman [demonstrating the relevance and applicability of the miscegenation analogy to denying gays and lesbians the right to marry and refuting the claim that a registered domestic partnership regime would be an adequate alternative to marriage]
  • Affidavit of Susan Ehrlich [on the social construction of meaning and whether the term “marriage” could include same-sex couples]
  • Affidavit of Adele Mercier [responding to a government affidavit, sworn by Robert Stainton, that claimed the term “marriage” could only ever refer to heterosexual unions]
  • Affidavit of Jerry Bigner [reviewing the social science evidence relating to lesbian and gay parenting, showing that lesbians and gays have equal parenting skills to their heterosexual counterparts and that children raised by lesbians and gays are just as healthy and well-adjusted as children with heterosexual parents]
  • Affidavit of Judith Stacey and Timothy Biblarz [responding to a government affidavit, sworn by Steven Nock, which claimed that all the social science evidence on lesbian and gay parenting is worthless, and to an affidavit filed by an intervener coalition of right wing groups, sworn by Craig Hart, which claimed that social science research shows that “natural” – i.e. heterosexual – family structures provide greater security and stability for raising children]


Vanessa Payne, Charlene Wiseman

Practice Areas

Appeals & Judicial Review, Constitutional Law