Debate in the lesbian and gay community continues regarding the desirability of same-sex marriage. There are currently several challenges to the laws regarding marriage. It appears to be just a matter of time until same-sex marriage is a reality.

Legislative authority for marriage 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 the solemnization of marriage in the Province.

An examination of the legislation does not reveal any prohibition against same-sex marriage. However, in the past courts have interpreted marriage between same-sex couples to be void. Accordingly, common law currently recognizes only marriages between persons of opposite sex. The classic legal statement of marriage from the case of Hyde v. Hyde & Woodmansee (1866), LR 1 P&D, 130 at 133, is: “Marriage ... may be defined as the voluntary union for life of one man and one woman to the exclusion of all others.”

This, then is the basis of the legal definition of marriage. Marriage is the legal mechanism whereby two individuals obtain the legal ability to exclude all others from their relationship. It is this legal ability to exclude all others from the relationship that makes all of the difference. This ability is especially important when the relationship ends or is in difficulty. It works to prevent others from taking unfair advantage of the situation and place one or both of the parties at a legal disadvantage.

In Ontario the Marriage Act, provides persons with the ability to marry by the obtaining of a marriage licence. Then the 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 by 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 licence. 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 they do 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 wife or husband. 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.

Currently the Metropolitan Community Church of Toronto is exploring the possibility of obtaining a marriage licence through the publication of banns. The Province of Ontario will not register this marriage and so this challenge has been joined with the other challenges currently before the courts regarding same-sex marriage.

It is from this legal exercise of marriage that legal abilities flow. At a minimum, people who have married each other are spouses. The legal abilities flowing from this formality are formidable and include rights of: succession; separation and divorce; property rights during the marriage and on marriage breakdown; support obligations; 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.

Although the Family Law Act of Ontario distinguishes between married and common law couples to permit both to claim financial support from a “spouse,” or “same-sex partner” there is no provision for sharing of net family property for common law couples. There are two regimes provided by legislation and used by the Courts to determine property rights in Canada. The first regime is that of separate property and the second regime is a deferred sharing of communal property plan for married persons. Deferred sharing of communal property is based on the idea that there should be separate ownership of property during the term of the marriage, and an equal distribution at the end of the relationship. The basic theme of deferred sharing of communal property is that all property acquired by either spouse during the term of the marriage is shared equally when the marriage partnership is dissolved. 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 between spouses. 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. “Spouse” is defined in section 1 of the Succession Law Reform Act to mean: “either of a man and woman who, (a) are married to each other, or (b) have entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act.” Where a person dies intestate and is survived by a spouse, but no children, the spouse is entitled to the entire estate. Where there are children and a spouse surviving the spouse receives a “preferential share” that has recently been increased to $200,000.00. Then the spouse is entitled to either one-half or one-third of the residue of the estate, depending on the number of surviving children and the size of the estate. The balance remaining is divided equally among the children of the deceased. Where no spouse or children exist, the estate is distributed to parents, siblings or other next of kin related through the nearest common ancestor by specified degrees of consanguinity or relationship. In addition to these provisions, 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. None of these provisions apply to common law couples except for the sections of the Succession Law Reform Act that apply to the support of dependants. Since there are no provisions for the sharing of net family property by common law couples in the regime of separate property, ownership is the relevant factor.

The 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. The courts have since extended this remedy to same-sex partners. The landmark case defining the constructive trust remedy is Pettkus v. Becker, 19 R.F.L. (2d) 165, [1980] 2 S.C.R. 834, 8 E.T.R. 143, 117 D.L.R. (3d) 257, 34 N.R. 384, (S.C.C.). 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. Also, the Supreme Court of Canada ruled that the extent of the interest must be proportionate to the contribution, direct or indirect, of the claimant and so where the contributions are unequal, the shares will be unequal. Claims using this remedy, however, can be a difficult to establish and usually require considerable time and expense to pursue in the court system. Collecting a judgment can also 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.

Are same-sex relationships worthy of participating fully in our society or not? Even the minimum of securing a Will and Powers of Attorney documentation requires some formalization. It is usually not at the beginning of a relationship that these legal provisions are most important. At the beginning of a relationship the parties are usually in a state of bliss, are healthy, and can carry out their wishes and are ready to agree with each other. It is later on, when the relationship ends or when differences of opinion arise, or illness interferes with thought processes, that the value of these legal provisions becomes apparent. Wills and Powers of Attorney are of vital importance to everyone but, to married couples the context in which these documents are understood makes a significant difference. Will ignorance, homophobia, hatred or envy prevail to deny same-sex couples their rightful place in society or can we tell those among us who have a committed same-sex relationship that they are also worthy?