Canada legalized same-sex marriage in 2004, when the Supreme Court of Canada ruled that legislation defining marriage as a union between a man and a woman was unconstitutional. In July 2005, this new law was codified with the enactment of the Civil Marriage Act. However, prior to this act, same-sex marriage was already legalized in a number of provinces, including Ontario. Under current law, same-sex couples in Canada are entitled to the same rights as any other couple, including the right to marry, the right to divorce, and the right to raise families.
In the province of Ontario , same-sex marriage was legalized in 2003, when the Ontario Court of Appeal held that defining marriage as a heterosexual relationship violated the Canadian Charter of Rights and Freedoms. Additionally, the court ruled that any same-sex couples who had previously attempted to marry under common law would be considered legally married.
Following this decision, Ontario Attorney General announced that the Ontario government would also recognize same-sex marriage, and the province’s municipalities began issuing marriage licenses to same-sex couples. Ontario was the first province/state in North America to legalize same-sex marriage. The requirements for a same-sex marriage in Canada are now the same as those for a heterosexual marriage.
After you have obtained a marriage license, you are permitted to have an official marriage ceremony to finalize the marriage. You have the option of either a religious ceremony or a civil ceremony. Religious ceremonies may be performed by any individual who is recognized by a religious body to perform marriage ceremonies and is registered under the Marriage Act. However, the Supreme Court of Canada held that religious groups have the right to refuse to marry same-sex couples if such a marriage is against that entity’s religious beliefs. Civil ceremonies may be conducted by a Judge or Justice of the Peace.
Under current law, same-sex couples are entitled to adopt children and raise a family, just as a heterosexual couple would. Additionally, using recent advances in technology, such as in vitro fertilization, many same-sex couples can use egg or sperm donors to have children that have the same genes of one of the spouses. In such situations, the children in the same-sex family, under Ontario law, are considered the natural children of both spouses, regardless of which spouse’s eggs or sperm were used.
In 2004, the Ontario Court of Appeal declared the Divorce Act unconstitutional for defining marriage as a relationship between a man and a woman. Accordingly, it ruled that the Divorce Act applied to both heterosexual and same-sex marriages. In February 2005, a bill was passed in Ontario that amended the wording of a number of Ontario laws to apply to same-sex couples, as well as heterosexual couples, giving such couples analogous rights to those enjoyed by heterosexual couples.
Spouses who were married, but wish to get a divorce, are now entitled to the same rights under both the provincial and federal laws, including the rights to spousal support, child support, and property division.
Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer