.
Civil Marriage Act
.
Introduction
The Government of Canada has tabled the Civil Marriage Act to extend legal capacity to marry for civil purposes to same-sex couples while respecting religious freedom.
The bill is based on the proposed legislation referred to the Supreme Court of Canada in the marriage Reference and includes related consequential amendments to eight other federal statutes to provide equal treatment for same-sex couples to marry civilly and to divorce in Canada.
Principles
The Canadian Charter of Rights and Freedoms guarantees that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination. The Parliament of Canada is committed to upholding the Charter and the Constitution.
The Government believes that same-sex couples should have equal access to marriage - anything short of that is less than equal and discriminatory. The Government cannot, and should not, pick and choose whose rights they will defend and whose rights they will ignore. If the fundamental rights of one minority can be denied, so potentially can those of others. This bill will respect and defend the Charter rights of all Canadians.
Courts in eight jurisdictions have recognized that the right to equality without discrimination requires that couples of the same sex have equal access to civil marriage. And thousands of same-sex couples are already legally married.
The Canadian Charter of Rights and Freedoms also guarantees freedom of conscience and religion. Nothing in this Bill affects that guarantee and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs. It is for this reason that the Act speaks only of civil marriage. Religions will continue to make their own decisions about this question.
Many Canadians support legal recognition for same-sex unions, but want to call them something other than marriage, such as civil union. Civil union is a separate institution from civil marriage, does not respect the right of same-sex couples to equality without discrimination and is in breach of the Canadian Charter of Rights and Freedoms.
The Supreme Court of Canada has determined that Parliament has legislative jurisdiction over marriage but does not have the jurisdiction to establish an institution other than marriage for couples of the same sex.
The Government’s commitment to uphold the right to equality without discrimination precludes the use of the notwithstanding clause to deny the right of couples of the same sex to equal access to civil marriage.
Marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians.
The Bill
The bill will give same-sex partners who decide to marry, the same civil legal recognition of their commitment as other married couples while respecting religious freedom. The preamble to the bill sets out the reasons the Government of Canada is moving forward with this bill.
The Supreme Court of Canada has said – and the Government agrees – that it is preferable that Parliament create uniformity of law across the country. Federal legislation is the best way to provide a clear, Canada-wide approach.
The bill also recognizes that freedom of religion is already fully protected by the Charter of Rights and Freedoms, as confirmed by the Supreme Court of Canada in its recent decision. That is why its title speaks of civil marriage. Religions will continue to make their own decisions about this question.
The bill also includes consequential amendments to eight statutes. Provisions of the Divorce Act, the Federal Law and Civil Law of the Province of Quebec Act, the Marriage (Prohibited Degrees) Act and the Modernization of Benefits and Obligations Act, are being amended to be consistent with the change to legal capacity in section 2 of the bill. The consequential amendments to the other statutes (the Canada Business Corporations Act, the Canada Cooperatives Act, the Civilian War-related Benefits Act and the Income Tax Act) relate to equal treatment of married couples and their dependants for purposes of those statutes.
Background
On June 17, 2003, the Government of Canada announced that it would not appeal the decisions of the courts of appeal in British Columbia and Ontario on the definition of marriage, but would instead draft a bill extending access to civil marriage to same-sex couples while also affirming the freedom of religious belief, and refer that bill to the Supreme Court of Canada to ensure its constitutionality. On July 17, 2003, the Government referred the draft bill to the Supreme Court of Canada.
The Reference asked three questions concerning the draft bill:
1) Is the draft bill within the exclusive legislative authority of the Parliament of Canada?
2) Does the draft bill conform to the Canadian Charter of Rights and Freedoms?
3) Does the Charter protect religious officials from performing marriages between two persons of the same sex if it is contrary to their religious beliefs?
On January 28, 2004, the Minister of Justice announced that the Government had filed a new question with the Supreme Court of Canada, asking whether the opposite-sex requirement for marriage was constitutional. The fourth question was added in order to ensure that Parliament had full information on the legal framework before they were asked to debate this important issue.
On October 6 and 7, 2004, the Supreme Court heard arguments from the Government of Canada and 28 interveners.
On December 9, 2004, the Supreme Court of Canada released its decision on the marriage Reference. The Court agreed with the position of the Attorney General of Canada on the constitutionality of the draft bill, holding that the draft bill was not only consistent with the Charter but flowed from its protections. The Court declined to answer the fourth question on the constitutionality of the opposite-sex requirement for marriage, with the result that the lower court decisions in eight provinces and territories holding that the opposite-sex requirement is unconstitutional stand. The Court gave as its reason for not answering the fourth question that many Canadians had already acted in reliance on the lower court decisions and married. The Court also indicated that other approaches, such as giving same-sex unions legal recognition by another name, such as civil union, were less than equal and so would not be consistent with the Charter, requiring the use of the notwithstanding clause. The Court found that the Charter already fully protects religious officials from being forced to perform marriages that would be against their religious beliefs, although they also found that the one clause in the bill on religious freedom was not entirely within federal jurisdiction, and that any additional protections that might be desired would have to be made within provincial and territorial laws.
Content of the bill
Section 1 sets out the short title of the Act.
Section 2 legislates the legal capacity for two persons of the same sex to marry civilly.
Section 3 recognizes that religious officials are already protected by the Canadian Charter of Rights and Freedoms from being compelled to perform marriages that would be contrary to their religious beliefs, as confirmed by the Supreme Court of Canada in its opinion on the marriage Reference.
Section 4 clarifies that civil marriages between same-sex couples cannot be ruled by the courts to be void or voidable only because the couple are of the same sex, overruling existing common law.
Consequential Amendments
Sections 5 to 15 of the bill set out the consequential amendments to eight federal Statutes:
Capacity to Marry (consequential amendments directly relating to s. 2):
Federal Law and Civil Law of the Province of Quebec Act
This amendment re-enacts section 5 of the Act which was earlier struck down by the Quebec courts and remedies its unconstitutionality. The provision sets out the consent requirement for marriage in Quebec as the free and enlightened consent of two persons to be the spouse of the other.
Marriage (Prohibited Degrees) Act
This amendment extends the existing prohibitions on marriages between opposite-sex closely related persons in subsection 2(2) of the Act to same-sex closely related persons.
Modernization of Benefits and Obligations Act
This amendment repeals s ection 1.1 of the Act, an interpretation provision that restated the opposite-sex requirement for marriage in the common law.
Equal Recognition of Married Couples
Canada Business Corporations Act
The amendment to section 237.5 of the Act is to clarify that the group of individuals considered to be related to each other for purposes of family-held investments equally includes both opposite-sex and same-sex married couples, their children and related persons. The drafting of this amendment also required a clarification of the existing application of the provision to common-law relationships.
Canada Cooperatives Act
The amendment to section 337.5 of the Act is being made for the same reason as for the Canada Business Corporations Act.
Civilian War-related Benefits Act
This amendment repeals section 36 of the Act. As this provision no longer has effect on new claimants, there was no need to change references to “husband” and “wife” to equally include marriages between same-sex partners.
Income Tax Act
The amendments to sections 56.1 and 60.1 of the Act replace the existing term “natural parent” with the term “legal parent” to ensure that support amounts paid under a court order or written agreement involving both opposite-sex and same-sex couples and their children will be recognized equally in federal law.
There are amendments to three parts of section 252 of the Act. Paragraph 252(1)(a) is being amended to delete the reference to “natural parent” and replace it with “legal parent”, consistent with the amendments to sections 56.1 and 60.1, and to remove the last remaining reference in federal law to illegitimacy. Paragraph 252(1)(d) is being repealed as a separate reference to adopted children is no longer necessary in light of the use of the term “legal parent”. Subsection 252(3) is being amended to remove the opposite-sex limitation for married couples.
Equal Access to Divorce
Divorce Act
The amendment to section 2 of the Act extends the existing definition of “spouse” and “enfant à charge” to ensure that the protections of the Act apply equally to both opposite-sex and same-sex married couples and their children.
Department of Justice (February 2005)
Introduction
The Government of Canada has tabled the Civil Marriage Act to extend legal capacity to marry for civil purposes to same-sex couples while respecting religious freedom.
The bill is based on the proposed legislation referred to the Supreme Court of Canada in the marriage Reference and includes related consequential amendments to eight other federal statutes to provide equal treatment for same-sex couples to marry civilly and to divorce in Canada.
Principles
The Canadian Charter of Rights and Freedoms guarantees that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination. The Parliament of Canada is committed to upholding the Charter and the Constitution.
The Government believes that same-sex couples should have equal access to marriage - anything short of that is less than equal and discriminatory. The Government cannot, and should not, pick and choose whose rights they will defend and whose rights they will ignore. If the fundamental rights of one minority can be denied, so potentially can those of others. This bill will respect and defend the Charter rights of all Canadians.
Courts in eight jurisdictions have recognized that the right to equality without discrimination requires that couples of the same sex have equal access to civil marriage. And thousands of same-sex couples are already legally married.
The Canadian Charter of Rights and Freedoms also guarantees freedom of conscience and religion. Nothing in this Bill affects that guarantee and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs. It is for this reason that the Act speaks only of civil marriage. Religions will continue to make their own decisions about this question.
Many Canadians support legal recognition for same-sex unions, but want to call them something other than marriage, such as civil union. Civil union is a separate institution from civil marriage, does not respect the right of same-sex couples to equality without discrimination and is in breach of the Canadian Charter of Rights and Freedoms.
The Supreme Court of Canada has determined that Parliament has legislative jurisdiction over marriage but does not have the jurisdiction to establish an institution other than marriage for couples of the same sex.
The Government’s commitment to uphold the right to equality without discrimination precludes the use of the notwithstanding clause to deny the right of couples of the same sex to equal access to civil marriage.
Marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians.
The Bill
The bill will give same-sex partners who decide to marry, the same civil legal recognition of their commitment as other married couples while respecting religious freedom. The preamble to the bill sets out the reasons the Government of Canada is moving forward with this bill.
The Supreme Court of Canada has said – and the Government agrees – that it is preferable that Parliament create uniformity of law across the country. Federal legislation is the best way to provide a clear, Canada-wide approach.
The bill also recognizes that freedom of religion is already fully protected by the Charter of Rights and Freedoms, as confirmed by the Supreme Court of Canada in its recent decision. That is why its title speaks of civil marriage. Religions will continue to make their own decisions about this question.
The bill also includes consequential amendments to eight statutes. Provisions of the Divorce Act, the Federal Law and Civil Law of the Province of Quebec Act, the Marriage (Prohibited Degrees) Act and the Modernization of Benefits and Obligations Act, are being amended to be consistent with the change to legal capacity in section 2 of the bill. The consequential amendments to the other statutes (the Canada Business Corporations Act, the Canada Cooperatives Act, the Civilian War-related Benefits Act and the Income Tax Act) relate to equal treatment of married couples and their dependants for purposes of those statutes.
Background
On June 17, 2003, the Government of Canada announced that it would not appeal the decisions of the courts of appeal in British Columbia and Ontario on the definition of marriage, but would instead draft a bill extending access to civil marriage to same-sex couples while also affirming the freedom of religious belief, and refer that bill to the Supreme Court of Canada to ensure its constitutionality. On July 17, 2003, the Government referred the draft bill to the Supreme Court of Canada.
The Reference asked three questions concerning the draft bill:
1) Is the draft bill within the exclusive legislative authority of the Parliament of Canada?
2) Does the draft bill conform to the Canadian Charter of Rights and Freedoms?
3) Does the Charter protect religious officials from performing marriages between two persons of the same sex if it is contrary to their religious beliefs?
On January 28, 2004, the Minister of Justice announced that the Government had filed a new question with the Supreme Court of Canada, asking whether the opposite-sex requirement for marriage was constitutional. The fourth question was added in order to ensure that Parliament had full information on the legal framework before they were asked to debate this important issue.
On October 6 and 7, 2004, the Supreme Court heard arguments from the Government of Canada and 28 interveners.
On December 9, 2004, the Supreme Court of Canada released its decision on the marriage Reference. The Court agreed with the position of the Attorney General of Canada on the constitutionality of the draft bill, holding that the draft bill was not only consistent with the Charter but flowed from its protections. The Court declined to answer the fourth question on the constitutionality of the opposite-sex requirement for marriage, with the result that the lower court decisions in eight provinces and territories holding that the opposite-sex requirement is unconstitutional stand. The Court gave as its reason for not answering the fourth question that many Canadians had already acted in reliance on the lower court decisions and married. The Court also indicated that other approaches, such as giving same-sex unions legal recognition by another name, such as civil union, were less than equal and so would not be consistent with the Charter, requiring the use of the notwithstanding clause. The Court found that the Charter already fully protects religious officials from being forced to perform marriages that would be against their religious beliefs, although they also found that the one clause in the bill on religious freedom was not entirely within federal jurisdiction, and that any additional protections that might be desired would have to be made within provincial and territorial laws.
Content of the bill
Section 1 sets out the short title of the Act.
Section 2 legislates the legal capacity for two persons of the same sex to marry civilly.
Section 3 recognizes that religious officials are already protected by the Canadian Charter of Rights and Freedoms from being compelled to perform marriages that would be contrary to their religious beliefs, as confirmed by the Supreme Court of Canada in its opinion on the marriage Reference.
Section 4 clarifies that civil marriages between same-sex couples cannot be ruled by the courts to be void or voidable only because the couple are of the same sex, overruling existing common law.
Consequential Amendments
Sections 5 to 15 of the bill set out the consequential amendments to eight federal Statutes:
Capacity to Marry (consequential amendments directly relating to s. 2):
Federal Law and Civil Law of the Province of Quebec Act
This amendment re-enacts section 5 of the Act which was earlier struck down by the Quebec courts and remedies its unconstitutionality. The provision sets out the consent requirement for marriage in Quebec as the free and enlightened consent of two persons to be the spouse of the other.
Marriage (Prohibited Degrees) Act
This amendment extends the existing prohibitions on marriages between opposite-sex closely related persons in subsection 2(2) of the Act to same-sex closely related persons.
Modernization of Benefits and Obligations Act
This amendment repeals s ection 1.1 of the Act, an interpretation provision that restated the opposite-sex requirement for marriage in the common law.
Equal Recognition of Married Couples
Canada Business Corporations Act
The amendment to section 237.5 of the Act is to clarify that the group of individuals considered to be related to each other for purposes of family-held investments equally includes both opposite-sex and same-sex married couples, their children and related persons. The drafting of this amendment also required a clarification of the existing application of the provision to common-law relationships.
Canada Cooperatives Act
The amendment to section 337.5 of the Act is being made for the same reason as for the Canada Business Corporations Act.
Civilian War-related Benefits Act
This amendment repeals section 36 of the Act. As this provision no longer has effect on new claimants, there was no need to change references to “husband” and “wife” to equally include marriages between same-sex partners.
Income Tax Act
The amendments to sections 56.1 and 60.1 of the Act replace the existing term “natural parent” with the term “legal parent” to ensure that support amounts paid under a court order or written agreement involving both opposite-sex and same-sex couples and their children will be recognized equally in federal law.
There are amendments to three parts of section 252 of the Act. Paragraph 252(1)(a) is being amended to delete the reference to “natural parent” and replace it with “legal parent”, consistent with the amendments to sections 56.1 and 60.1, and to remove the last remaining reference in federal law to illegitimacy. Paragraph 252(1)(d) is being repealed as a separate reference to adopted children is no longer necessary in light of the use of the term “legal parent”. Subsection 252(3) is being amended to remove the opposite-sex limitation for married couples.
Equal Access to Divorce
Divorce Act
The amendment to section 2 of the Act extends the existing definition of “spouse” and “enfant à charge” to ensure that the protections of the Act apply equally to both opposite-sex and same-sex married couples and their children.
Department of Justice (February 2005)
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