Same-sex marriage in Ontario

The first legal same-sex marriages performed in Ontario were of Kevin Bourassa to Joe Varnell, and Elaine Vautour to Anne Vautour, by Rev. Brent Hawkes on January 14, 2001. The legality of the marriages was questioned and they were not registered until after June 10, 2003, when the Ontario Court of Appeal in Halpern v. Canada (Attorney General) upheld a lower court ruling which declared that defining marriage in heterosexual-only terms violated the Canadian Charter of Rights and Freedoms.

The first legal same-sex marriage registered in Ontario was that of Paula Barrero and Blanca Mejias, married September 29, 2001 and registered the same year. The Office of the Registrar General apparently did not recognize the names as both being women and issued a marriage certificate.

All of these marriages were authorized by calling the banns in the spouses' churches. The first civil marriage license issued to a same-sex couple was to Michael Stark and Michael Leshner, who had the usual waiting period waived and completed the formalities of marriage just hours after the court ruling, on June 10, 2003.

Background: Superior Court ruling
On July 12, 2002, in a 3-0 decision of the Ontario Superior Court, same-sex couples won the right to marry in the case of Halpern et al. v. Canada. The Court ruled that limiting marriage to opposite-sex couples violated the equality provisions of the Charter of Rights, giving the federal government a two-year stay of judgment in which to pass legislation implementing same-sex marriage; otherwise, same-sex marriage would come into force automatically.

There was a decision in 1993 by the same divisional Court in Layland v. Ontario, which ruled that same-sex couples did not have the capacity to marry each other. However, that decision was non-binding as it was the same Court taking up the issue in 2002. One of the judges in the most recent case wrote "with respect, the decisions to which I have referred assumed, without analysis, that the inability of persons of the same sex to marry was a question of capacity. The decisions are not binding on this court and, with respect, I do not find them persuasive."


 * Text of the ruling
 * Summary of the decision from EGALE Canada
 * (Layland V. Ontario decision)

Court of Appeal ruling
In 2003, the couples in Halpern appealed the decision, requesting that the decision take effect immediately instead of after a delay. On June 10, 2003, the Ontario Court of Appeal confirmed that current Canadian law on marriage violated the equality provisions in Section Fifteen of the Canadian Charter of Rights and Freedoms in being restricted to heterosexual couples. The appeals court struck down the stay of judgment given in the 2002 ruling, thereby causing the judgment to come into effect immediately. Although marriage is a federal law, the court only had jurisdiction to implement the ruling within Ontario. The province thus became the first jurisdiction in North America to recognize same-sex marriage. Consequently, the City of Toronto announced that the city clerk would begin issuing marriage licences to same-sex couples. The next day, the Ontario attorney general announced that his government would comply with the ruling.

The court also ruled that two couples who had previously attempted to marry using an ancient common-law procedure called reading the banns would be considered legally married.

Provincial Legislation
On February 24, 2005 a bill was passed in the provincial legislature which performed 'housekeeping' on various Ontario laws, to bring their wording into line with the court ruling. As well, the bill ensures that no religious institution or clergy will be forced to perform a ceremony against their beliefs. There is no such provision for civil officials.

Divorce
On September 13, 2004, the Ontario Court of Appeal declared the Divorce Act also unconstitutional for excluding same-sex marriages. It ordered same-sex marriages read into that act, permitting the plaintiffs, a lesbian couple, to Divorce.