Historically, same-sex marriage was criminalized by the penal law in Ontario. When the Canadian Charter of Rights and Freedoms came into existence in 1982, it gave both grounds and momentum to challenge discrimination of same-sex couples. However, it was not until 1986 that same-sex marriage became decriminalized. In 1995, the seminal case of Egan v. Canada(1995), 2 S.C.R. 513, established that s. 15 of the Charter includes sexual orientation as an analogous ground for discrimination.

In 1999, the decision of M v. H (1999), 171 D.L.R. (4th) 577 (S.C.C.) was released. In this case, the court determined that same-sex couples have a right to apply for spousal support under Part III of the Family Law Act (FLA).

Another pivotal decision came out in Ontario in 2003, Halpern v. Toronto (City), 225 D.L.R. (4th) 529, where the court ordered a declaration of invalidity regarding the definition of “marriage”. The Court of Appeal held that same-sex couples’ constitutional rights were infringed and that the common law definition of marriage should be invalid in so far as it referred to “one man and one woman.” The court held that the new definition should state “the voluntary union for the life of two persons to the exclusion of all others,” thereby, encompassing same-sex couples.

The Court of Appeal’s decision in Halpern was not appealed and instead, parliament created draft legislation to allow same-sex couples the right to marry. The draft bill was referred to the Supreme Court of Canada who refused to answer same and sent it back to parliament for a vote.

The same-sex legislation, the Civil Marriages Act (2005), was passed by parliament and remains in force and effect today.

The current definition of the marriage in the FLA applies to both same-sex and heterosexual couples. The definition of the spouse is as follows: “spouse” means either of two persons who (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of the person relying on this clause to assert any right.

Similarly, under s.2 (1) of the Divorce Act the definition of spouse means “either of two persons who are married to each other.”

In January 2012, controversy arose once again when a lesbian couple who had married in Canada in 2005 attempted to get a divorce. The couple, who were living apart, one in Florida and the other in the United Kingdom, were informed that because neither of their respective governments recognizes same-sex marriage, they could not obtain a divorce in their current home countries.

When the lesbian couple turned to Canada to obtain a divorce, they were shocked to find that this also wasn’t possible. That is because, under Canadian law, non-resident couples who marry in Canada must be “ordinarily resident” in the province in which they were wed for one year in order to obtain a divorce. Clearly, same-sex couples who come to Canada for the express purpose of getting married, and then return to another jurisdiction, will not meet the one-year residency in Canada.

Further muddying the water, the federal government opposed the couple’s divorce application on the grounds that same-sex marriage involving non-residents are not legal unless their home country recognizes them as legitimate.

When asked about the status of same-sex marriage, Prime Minister Stephen Harper responded that “we have no intention of further re-opening or opening this issue.”

The following day, Justice Minister Rob Nicholson clarified the government’s position: namely, that same-sex marriages performed in Canada are legal and the law will be changed to ensure that divorce is readily available to non-residents who are married in Canada.

In his statement, Justice Minister Nicholson apologetically stated that “the confusion and pain resulting from this gap is completely unfair to those who are affected…I want to make it clear that, in my government’s view, those marriages should be valid.”

Feldstein Family Law Group provides divorce services both to residents of Ontario as well as to people who reside in other jurisdictions who were married in the province, including same-sex couples. Contact Feldstein Family Law Group today to book a free in-office consultation (some conditions apply).