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Ontario courts legalize same-sex marriage; other courts follow

June 10, 2003

Court of Appeal allows marriage ceremonies to take place immediately

With its decision in Halpern v. Ontario, the Ontario Court of Appeal 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.

Background

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, 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 immediately. The other two judges decided that their decision should be suspended for two years. That would allow the federal and provincial governments to take whatever actions were 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 of the judges decided to suspend the decision, same-sex couples were not yet permitted to marry.

Read the Divisional Court’s decision.

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

The Ontario Court of Appeal’s decision

The Ontario Court of Appeal dismissed the government’s appeal. It agreed with the Divisional Court that the common law definition of marriage offended the equality rights of gays and lesbians under s. 15 of the Charter. 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”.

However, unlike the Divisional Court, the Ontario Court of Appeal did not suspend its decision. Instead, it allowed its decision to come into effect immediately. It ordered the City of Toronto to issue marriage licenses to the same-sex couples who challenged the law. It also 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 that same day.

Read the Court of Appeal’s decision.

Impact on the B.C. proceedings

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 its decision. After the Ontario Court of Appeal’s decision, Egale brought a motion asking 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.

Other provinces follow

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.

The Same Sex Marriage Reference

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.

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

Lawyers

Vanessa Payne, Char Wiseman

Practice Areas

Appeals & Judicial Review, Constitutional Law