Cet article est disponible uniquement en anglais.
My partner Carolyn Moffat and I (Carolyn Rowe) decided to participate in the Ontario test-case on marriage for same-sex spouses. This past spring, we drove down to Toronto’s City Hall where we applied for a marriage license. We were not granted or denied our marriage license, but were asked to wait for further clarification. The Clerk at the Marriage Registry Office is now seeking direction from the Superior Court of Justice by way of an application.
To date, my partner and I are one of eight couples seeking the right to marry in Ontario. The Clerk’s application has been stayed and our application for judicial review to the Superior Court of Justice (Divisional Court) is proceeding. We anticipate a long road ahead that will hopefully culminate with Canada recognizing that same-sex couples have the same rights as opposite sex couples and allowing us the choice to legally marry. Challenges like this one have surfaced across Canada in British Columbia, Ontario and Quebec.
There is currently no statute in Ontario that denies same-sex couples the right to marry. There are a few cases (none at the Supreme Court of Canada level) that hold that marriage between two persons of the same sex is void. Provinces have relied on these decisions to deny marriage licenses to same-sex couples.
The federal government’s Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, is the first federal act to affirm the common-law prohibition. The interpretation section of the Act states:
s. 1.1 [f]or greater certainty, the amendments made by this Act do not affect the meaningof the word “marriage”, that is, the lawful union of one man and one woman to the exclusion of all others.
This interpretation is not consistent with Charter values. Furthermore, the federal government’s restriction of marriage to opposite-sex couples and the provinces’ refusal to register same-sex marriages constitutes state (in)action and therefore attracts Charterscrutiny. In light of recent case law addressing discrimination against lesbians, gays, and bisexuals, it is likely that the failure to allow same-sex couples to marry will be found to violate section 15 of the Charter and not justifiable under section 1.
In addition to conferring a variety of benefits, the institution of marriage confers social acceptance. Depriving same-sex couples of the right to marry deprives gays, lesbians, and bisexuals access to one of the most valued institutions in Canadian society. As Greer J. stated in her dissenting reasons in Layland v. Ontario (1993), 104 D.L.R. (4th) 214(Ont. Ct. (Gen. Div.)) at 231:
In my view, the impact of the denial of the granting of a marriage certificate to the Applicants, is discriminatory. It is burdensome on the Applicants and others who wish to marry persons of the same sex. The message they receive must surely give them the perception that they are inferior persons in our society.
Recently, in Baker v. State of Vermont,  VT-QL 77, the Vermont Supreme Court held that the state’s failure to exclude same-sex couples from the benefits and protections provided to married couples was discriminatory and ordered Vermont to extend all the benefits of marriage to same-sex couples. The Court stated that this could be done by extending marriage to same-sex couples or through registered domestic partnerships (RDPs). The Court did not consider whether same-sex couples should be able to obtain marriage licenses per se because the plaintiffs focused their arguments on the benefits attached to marriage rather than the validation conferred by the right to actually marry.
In Canada (Attorney General) v. Moore (T.D.),  4 F.C. 585(T.D.), Canada’s Federal Court ruled that an employer attempting to resolve the discriminatory practice of withholding benefits to same sex couples continues to discriminate by providing a separate benefits scheme for “same sex partners.” Rather, the definition of “spouse” and “common law spouse” had to be understood to include spouses of the same sex. Although decided pursuant to human rights legislation and not section 15 of the Charter, if the reasoning in this case is followed, it is unlikely that providing same-sex couples in Canada with RDPs and continuing to prevent us from marrying will satisfy equality requirements.
Furthermore, the reasoning of the Supreme Court of Canada in M. v. H.,  2 S.C.R. 3,provides a strong basis for arguing for same-sex marriage. The majority of the Court held at paragraph 124 of the decision that the exclusion of same-sex couples from the definition of “spouse” in Ontario’s Family Law Act violated section 15 of the Charter and was not saved by section 1. The majority of the Court recognized that exclusion from the statutory regime has moral societal implications in addition to economic ones, stating at paragraph 73:
The societal significance of the benefit conferred by the statute cannot be overemphasized. The exclusion of same-sex partners from the benefits of s. 29 of the FLA [Family Law Act] promotes the view that M., and individuals in same-sex relationships generally, are less worthy of recognition and protection. It implies that they are judged to be incapable of forming intimate relationships of economic interdependence as compared to opposite-sex couples, without regard to their actual circumstances. As the intervener EGALE submitted, such exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence.
Martha McCarthy and Joanna Radbord who were counsel for “M”, write in “Reflections on the Impact of M. v. H.” (1999) 14:7 Money & Family Law 49 at 51, that: “[i]t will be impossible, on a substantive equality rights analysis, to distinguish the S.C.C.’s reasoning in M. v. H. when same-sex marriage steps up to the bar”.
While the history of discrimination against same-sex couples may explain the current exclusionary interpretation of the freedom to marry, it does not justify the continuation of discrimination.
NAWL’s Lesbian Rights Caucus is involved in a lively discussion on the issue of same-sex marriage. The controversial issue that has emerged is whether we should support the inclusion of same-sex couples into the legal construct of marriage or whether we should have a more in-depth discussion on family and the privilege associated with marriage. This debate is ongoing and will prove to be a challenging and exciting endeavor.
CJ Rowe and her partner Carolyn Moffatt have applied for a marriage license in the City of Toronto. Rowe is also a Master’s of Arts student in Legal Studies at Carleton University and is a member of the Lesbian Rights Caucus.
Ros Salvador is a third year law student at the University of Victoria. She has a B.A. in Women’s Studies from the University of Ottawa and is a member of NAWL’s Steering Committee and Lesbian Rights Committee.