Canadians have been grappling with marriage for same-sex couples for some time now. The Stonewall Riot in New York City in 1969 has become the benchmark signifying the beginning of the struggle for recognition of same-sex relationships in Canada. It was also in 1969 that the Government of Canada amended the Criminal Code to decriminalize sex between individuals of the same sex. The statement by the government of the day was that the State has no place in the bedrooms of the nation.

Now it appears likely same-sex marriage will be a reality in Canada. Patriation of the Canadian Constitution in the Constitution Act 1982 and inclusion of the Canadian Charter of Rights and Freedoms have made all the difference in the Canadian experience. Section 15 of the Canadian Charter of Rights and Freedoms is the equality section. Its interpretation in the Courts has led to some breath-taking changes in Canadian law and the way in which Canadians understand domestic relationships.

On the other hand, debate continues in the Lesbian and Gay community regarding the desirability of same-sex marriage. Whether this difference of opinion is brought about by suspicion of state-imposed obligations or confusion over of the religious component of the marriage ceremony remains unclear. Perhaps it is simply the difficulty some individuals have in making a commitment. The situation is, however, throughout civilization people have found themselves in domestic relationships. The challenge of expressing the love that is your heart’s desire continues to be a struggle for most people of whatever orientation. This has led to some time-tested responses, particularly in the realm of family law. It might be useful to examine parts of the Canadian experience regarding domestic relationships, as understood in the Province of Ontario.

Legislative authority in Canada is derived from the Constitution of Canada. Section 91(26) of the Constitution Act, 1867, assigns to Parliament the legislative authority for matters of marriage and divorce. Section 92(12) assigns to the Provincial Legislatures authority for solemnization of marriage in the Province. Section 92(13) assigns to the Provincial Legislatures jurisdiction over property and civil rights in the Province.

Examination of the relevant legislation does not reveal any prohibition against same-sex marriage . However, up until now English and Canadian Courts have interpreted marriage between same-sex couples to be void. The classic statement of marriage in the Courts is: “Marriage ... may be defined as the voluntary union for life of one man and one woman to the exclusion of all others.”

Marriage, then, is understood to be the mechanism whereby two individuals obtain the legal ability to exclude all others from their relationship. Marriage requires the partners to treat each other with utmost good faith. This ability is especially important when the relationship ends or is in difficulty. At its best, it works to prevent marriage partners and others from taking unfair advantage of the situation.

In Ontario, the Marriage Act allows persons who have the ability to marry the ability to obtain a marriage license. Then solemnization of the marriage takes place before a person licensed by the Province of Ontario to solemnize the marriage. Solemnization of the marriage is entered in the marriage register of the person solemnizing the marriage. There must be two witnesses to the solemnization of the marriage, and a certificate of marriage is obtained. This can be accomplished in a civil marriage before a judge, a justice of the peace or any other person of a class designated by the Ontario regulations to solemnize marriages under the authority of a license, such as a clergy-person. If a civil marriage is desired, then no particular form of ceremony is required. In some part of the ceremony, in the presence of the person solemnizing the marriage and the witnesses to the marriage, each person being married must declare that he or she does not know of any lawful impediment to being joined with the other in matrimony and that each one takes the other as his or her spouse. The person solemnizing the marriage must then say that under the authority vested in him or her by the Marriage Act, he or she pronounces the parties to be married. The Province of Ontario then registers the Certificate of Marriage.

Currently the Metropolitan Community Church of Toronto is exploring the possibility of granting a marriage license to same-sex couples through the publication of banns. The rite of “Banns” arises from the tradition of having a religious leader announce the intention of a couple to marry in an audible voice in the Church the couple attends regularly. If there is no valid lawful objection raised during three announcements during consecutive Sunday services, then the couple can be married in a public ceremony in the Church. At this time, the Province of Ontario has refused to register this Certificate of Marriage. Accordingly, this challenge has been joined with the other challenges currently before the courts regarding same-sex marriage. The other challenges are based on a refusal to issue a Marriage License.
It is from the status of marriage that legal ability flows. At a minimum, people who have married each other are defined as spouses. Abilities flowing from this formality are formidable. Included are rights of: succession; separation and divorce; property rights during the marriage and on marriage breakdown; support obligations; rights concerning the care and custody of children; support obligations of parents to their children; the establishment of a parent-child relationship through adoption; income taxation and pension legislation; fatal accidents legislation; and social security schemes such as welfare, family benefits and unemployment insurance.

As a result of the unanimous Supreme Court of Canada ruling in M. v. H. there have been several omnibus bills, one in the Parliament of Canada and others in some of the Legislatures of Canada. Canada and Ontario have amended legislation in their respective jurisdictions to give equality to common-law couples of both the same or opposite sex.
However, the Family Law Act of Ontario still distinguishes between married and common-law couples. Both are permitted to claim financial support from a “spouse,” or “same-sex partner.” However, at this time there is no provision for sharing of net family property for common-law couples. Two regimes are provided by legislation and are used by the Courts to determine property rights in Ontario. Other Canadian Provinces have similar legislation. The first regime is that of separate property. The second regime is deferred sharing of communal property. Deferred sharing of communal property is based on the idea that while there may be separate ownership of property during the term of the marriage, there should be an equitable distribution between the spouses at the end of the relationship. The basic theme of deferred sharing of communal property is that all property acquired by the spouses during the term of the marriage is shared equally between the spouses. Both spouses are perceived to be entitled to an equal share in the economic gains of the marriage without regard to who paid cash for any particular asset. Each spouse’s contribution is deemed to be equal because it has proven impossible to measure in money the value of a particular spouse’s contribution to the relationship. Such deferred sharing of communal property systems have ramifications in other areas besides property rights. These areas include: insurance, pensions, distribution of estates upon intestacy, inter-spousal maintenance, maintenance of children, and conflicts of laws.

In Ontario, the Succession Law Reform Act provides that the spouse and children of an intestate person, that is someone who dies without having made a valid will, are entitled to the deceased person’s entire estate. The Family Law Act provides that if a married person dies, either with or without a valid will, his or her spouse is entitled to renounce any entitlement to property received either in the deceased spouse’s will or under the law of intestate succession and apply for an equalization of net family property. This section was added to the Family Law Act to protect a surviving spouse from having to accept a smaller settlement of the assets of the deceased spouse than he or she might have received if the relationship had ended and the property had been divided before one of them died. Common-law couples have no such protection.

Canadian courts have allowed the constructive trust remedy to enable a common law, non-titled, heterosexual spouse to share property acquired during the term of a relationship. This remedy has been extended to same-sex partners. The landmark case is Pettkus v. Becker, . In this case, the Supreme Court of Canada confirmed the principle of unjust enrichment as the basis of the constructive trust remedy. The three elements required to establish a right to share property under the constructive trust remedy are; an enrichment by one of the parties, a corresponding deprivation for the other party, and the absence of any juristic reason for the enrichment. It is also necessary to establish a connection between a claimant’s contribution and the property in question. The test is a question of whether the contribution was sufficiently substantial and direct as to entitle the claimant to an interest in the property proportional to the contribution. The Supreme Court of Canada ruled that the extent of the interest must be proportionate to the contribution, direct or indirect, of the claimant. Where the contributions are unequal, the shares will be unequal. Such claims require considerable time and expense to pursue in the court system. Collecting a judgment can be a long and difficult experience. In the end, Rosa Becker committed suicide because she was not able to collect the judgment she won from her former partner without yet another long and difficult legal struggle.
Both the Family Law Act and the Divorce Act exclude all common-law couples from property rights. Recently a common-law heterosexual couple has used Section 15 of the Canadian Charter of Rights and Freedoms to bring a challenge to the Supreme Court of Canada. The case is Walsh and Bona . Most legal opinion in Canada indicates that it is likely the Supreme Court of Canada will agree with this position and extend property rights to common-law couples.

Canada has concluded that there is no difference between heterosexual couples and homosexual couples. In the same vein, Canada is likely to conclude that anything less than marriage for same-sex couples is not adequate.
This then provides a brief look at the legal setting facing common-law couples in Canada. This environment seems to be changing rapidly. Because the areas of family law are so intertwined, it is impossible to consider one aspect of family law without involving the others. Marriage, even for same-sex couples, requires more than merely obtaining a marriage license and rushing off to Niagara Falls for the honeymoon.

The Canadian experience, after more than fifty years of intense litigation, Parliamentary debate, and the experience of daily living is to reach a point where Canadians are asked to consider agreeing that there is no difference between married and common-law couples. The result of these challenges may well be that all couples will be able to establish their relationships in law by either declaration of marriage or by simply living together as spouses for a prescribed period. In light of this my question is, does the collective experience of the Lesbian and Gay Community have to mirror the Canadian experience only to discover that in the end all domestic relationships face the same issues that are resolved by the same remedies? What is it that we need to change. Is it too simple just to accept that all families are equal and go on from there?