Civil Marriage Act

Civil Marriage Act
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Name	Civil Marriage Act
Enacted	2005
Jurisdiction	Parliament of Canada
Citation	Bill C-38
Status	Enacted

Civil Marriage Act

The Civil Marriage Act is a federal statute enacted by the Parliament of Canada in 2005 that redefined the legal definition of marriage within the Canadian Charter of Rights and Freedoms framework. The statute followed a series of judicial rulings in provincial superior courts and the Supreme Court of Canada's advisory processes, reflecting tensions between rights claims advanced by organizations such as the Canadian Civil Liberties Association, religious institutions including the United Church of Canada and the Roman Catholic Church in Canada, and activist groups like Egale Canada and the Canadian Lesbian and Gay Archives. The Act has been central to constitutional litigation, policy debates in the House of Commons of Canada and the Senate of Canada, and comparative analyses involving the United Kingdom Parliament, United States Congress, and legislatures in Netherlands, Spain, and South Africa.

Background and Legislative History

A cascade of rulings from provincial courts, including decisions in Ontario Court of Justice, British Columbia Supreme Court, Alberta Court of Queen's Bench, and the Quebec Court of Appeal created divergent legal landscapes culminating in federal action. Landmark cases such as rulings involving plaintiffs represented by lawyers from firms like Torys LLP and advocacy by groups like Canadian Bar Association prompted interventions by the Attorney General of Canada and questions referred under section 53 to the Supreme Court Act and the Supreme Court of Canada. The Prime Minister of Canada and cabinet ministers debated whether to introduce a motion or a bill; ultimately Bill C-38 was introduced in the House of Commons of Canada by a Minister from the Liberal Party of Canada and shepherded through committee review by the Standing Committee on Justice and Human Rights. The bill’s passage involved consultations with provincial premiers including leaders from Ontario, Quebec, British Columbia, and with religious leaders such as the Anglican Church of Canada and the Mennonite Central Committee.

Key Provisions

The Act’s operative section amended the Marriage (Definition) Act language to recognize marriage as the lawful union of two persons, thereby aligning federal statutory language with decisions from courts including the Court of Appeal for Ontario and the British Columbia Court of Appeal. Provisions addressed the interaction with existing statutes such as the Income Tax Act, the Canada Pension Plan, the Immigration and Refugee Protection Act, and the Criminal Code (Canada), specifying that spousal benefits, succession under provincial laws like the Ontario Succession Law Reform Act, and administrative registers maintained by Service Canada would apply to marriages recognized under the Act. The Act included clauses concerning solemnization and roles of registrars in jurisdictions like Nova Scotia and Manitoba, while carving out conscience-based protections for officials affiliated with institutions such as the Royal Canadian Mounted Police in particular administrative capacities.

Parliamentary Debate and Voting

Debate unfolded across the House of Commons of Canada and the Senate of Canada with speakers from parties including the Conservative Party of Canada, the New Democratic Party, the Bloc Québécois, and the Liberal Party of Canada. Committees heard testimony from representatives of Egale Canada, the Canadian Jewish Congress, the Canadian Conference of Catholic Bishops, legal scholars from University of Toronto Faculty of Law, McGill University Faculty of Law, and constitutional experts associated with the Institute of Intergovernmental Relations. Recorded divisions in the House and Senate showed cross-party votes and free votes invoked by party leaders such as the Prime Minister of Canada and the Leader of the Opposition (Canada), concluding with Royal Assent granted by the Governor General of Canada.

Legal and Constitutional Challenges

Following enactment, litigants brought constitutional challenges invoking sections of the Canadian Charter of Rights and Freedoms, particularly section 15 on equality and section 2 on freedom of religion, in courts across jurisdictions including filings at the Federal Court of Canada and appeals reaching the Supreme Court of Canada for related issues. Interventions were filed by organizations such as the Canadian Civil Liberties Association, the Christian Legal Fellowship, and unions such as the Canadian Union of Public Employees concerning administrative accommodation. Comparative jurisprudence cited decisions from the European Court of Human Rights, the United States Supreme Court, and the Constitutional Court of South Africa in constitutional arguments about dignity, marital status, and anti-discrimination.

Implementation and Impact

Implementation required coordination between federal departments like Department of Justice (Canada), Employment and Social Development Canada, and provincial registries including BC Vital Statistics Agency and Québec's Directeur de l'état civil. Immediate impacts included entitlement adjustments under programs administered by Canada Revenue Agency and benefit recalculations within the Old Age Security framework. The Act influenced subsequent litigation on adoption law in provinces such as Saskatchewan and regulatory changes in professional bodies like the Law Society of Upper Canada and the College of Physicians and Surgeons of Ontario regarding recognition of spousal status.

Public Reaction and Advocacy

Public reaction encompassed mass mobilizations, letter-writing campaigns organized by groups like Focus on the Family Canada and rallies coordinated by PFLAG Canada, with opinion polling conducted by firms such as Ipsos-Reid and Angus Reid Institute showing shifting public attitudes. Major civil society actors including Rainbow Railroad, Out On Bay Street, and faith-based coalitions engaged in advocacy, while high-profile cultural responses came from artists associated with institutions like the National Arts Centre and filmmakers showcased at the Toronto International Film Festival.

Comparative and International Context

The Act entered comparative discussions alongside statutes and rulings from the Civil Partnership Act 2004 (United Kingdom), the United States Defense of Marriage Act (1996), the Netherlands Civil Marriage Act, and constitutional amendments in countries such as Ireland and Australia. International human rights bodies including the United Nations Human Rights Committee and regional institutions like the Organization of American States considered the Canadian trajectory in reports addressing equality and family law reforms. The statute has been cited in academic analyses from scholars at Harvard Law School, Oxford University Faculty of Law, and Université de Montréal Faculty of Law.

Category:Canadian federal legislation