Marriage Capacity Act

An Act to amend the Marriage (Prohibited Degrees) Act (marriage between persons of the same sex)

This bill was last introduced in the 37th Parliament, 1st Session, which ended in September 2002.


Svend Robinson  NDP

Introduced as a private member’s bill. (These don’t often become law.)


Not active, as of Feb. 14, 2001
(This bill did not become law.)


All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Marriage Capacity ActPrivate Members' Business

October 29th, 2001 / 11:20 a.m.
See context

Canadian Alliance

James Moore Canadian Alliance Port Moody—Coquitlam—Port Coquitlam, BC

Mr. Speaker, we are here to address Bill C-264, an act to amend the Marriage (Prohibited Degrees) Act, whose purpose is to enable marriage between persons of the same sex.

The bill as proposed would add the following text to the Marriage (Prohibited Degrees) Act of Canada. It would add subclause 4.1:

A marriage between two persons is not invalid by reason only that they are of the same sex.

I will be opposing the bill on two grounds. First, it is not necessary to modify the Marriage (Prohibited Degrees) Act of Canada to permit same sex marriage. Second, marriage is principally a provincial and not a federal concern.

It must be noted that the Marriage (Prohibited Degrees) Act does not deal in any way with same sex marriage and/or the broader definition of marriage itself. The Marriage (Prohibited Degrees) Act of Canada, an act respecting the laws prohibiting marriages between related persons, states:

  1. (1) Subject to subsection (2), persons related by consanguinity, affinity or adoption are not prohibited from marrying each other by reason only of their relationship.

(2) No person shall marry another person if they are related

(a) lineally by consanguinity or adoption;

(b) as brother and sister by consanguinity, whether by the whole blood or by the half-blood; or

(c) as brother and sister by adoption.

  1. This Act contains all of the prohibitions in law in Canada against marriage by reason of the parties being related.

The amendment by the member for Burnaby--Douglas would add the following text:

4.1 A marriage between two persons is not invalid by reason only that they are of the same sex.

The member's amendment is totally and wholly unnecessary. At no point does the current act prohibit same sex unions. It only mentions the types of marriage which are not legally valid. Same sex unions do not appear on that list. It is based solely on common law consanguinity concerns. These exist purely for the purpose of minimizing the chance of genetic problems in the offspring of a marriage.

History has taught us that siblings should not marry. It has also taught us that parents should not marry their children. These are the types of relationships prohibited in the Marriage (Prohibited Degrees) Act. These prohibitions are based on genetics. Given that same sex couples cannot reproduce, the Marriage (Prohibited Degrees) Act does not address them in any way whatsoever.

At the same time it must be noted that the act does not discriminate on the basis of race, national or ethnic origin, colour, religion, sex, age, mental disability or physical disability.

Given that the act does not affect same sex couples and that no one has suggested it discriminates on the grounds covered in section 15 of the Canadian Charter of Rights and Freedoms, the proposed amendment is wholly unnecessary.

The second reason for opposing the amendment is that marriage is principally a provincial and not a federal concern. In the EGALE case, Mr. Justice Pitfield of the British Columbia Supreme Court wrote at paragraph 122 that same sex relationships were:

--a matter of civil rights of persons within British Columbia. That being the case, the provincial legislature may provide for their formalization and recognition should it wish to do so.

B.C.'s marriage act relies on common law to define “qualification of persons about to marry”. The relevant portion of the act, in chapter 282, reads:

In matters not provided for law of England prevails

6 Subject to this Act and any Act of Canada in force in British Columbia, the law of England as it existed on November 19, 1858 prevails in all matters relating to the following:

(a) the mode of solemnizing marriages;

(b) the validity of marriages;

(c) the qualification of parties about to marry;

(d) the consent of guardians or parents, or any person whose consent is necessary to the validity of a marriage.

The ability to amend the B.C. marriage act lies only with the provincial government of British Columbia. The previous NDP government chose not to make those amendments. It had nine years in absolute power with a majority government in the provincial legislature and it chose not to do so.

Two of British Columbia's former premiers, Mr. Glen Clark and Mr. Ujjal Dosanjh, happen to live in the same community as the member for Burnaby--Douglas who is sponsoring the legislation. Had he really wanted to amend B.C.'s marriage act the member would have taken up his cause with either of the two former premiers. They live in his riding. They are members of his party. They led a government of his own party and he presumably knows them on a first name basis. One of them, if not both of them, are constituents of his and vice versa.

The member had a golden opportunity to raise the issue with a sympathetic provincial government that had the jurisdiction to make the changes he seeks. He missed his chance to do so.

I respectfully submit that the legislation fails on the two grounds I have mentioned in my speech. If the hon. member really wanted to impact on whether people of the same sex have the right to unify in the institution of marriage, he should have taken his fight to the appropriate legislature. That would have been the provincial legislature and not the federal one. Frankly I am surprised that a lawyer does not know the difference.

Marriage Capacity ActPrivate Members' Business

October 29th, 2001 / 11:15 a.m.
See context

Vancouver Quadra B.C.


Stephen Owen LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, Bill C-264 proposes certain amendments to the Marriage Act to allow legal marriage for same sex couples. I will begin by commending the member for Burnaby--Douglas in as strong and sincere terms as I can for his tireless and principled work over many years for the equality of gay and lesbian Canadians. All members of the House and all Canadians should feel proud of his achievements and his determination.

At the outset I emphasize that the Government of Canada takes seriously its obligations to ensure equal treatment of all its citizens including gay and lesbian Canadians. It is because of this constitutional obligation that the government moved last year to enact the Modernization of Benefits and Obligations Act which provides equal treatment for common law same sex partners by extending the same benefits and obligations under federal law that are granted to common law opposite sex partners.

I am proud to say that not only does the Modernization of Benefits and Obligations Act fully comply with our constitutional obligations. It goes further than any other jurisdiction in Canada in ensuring equal treatment for gay and lesbian Canadians. I am also proud to say that Canada is in the forefront of the world in ensuring that gay and lesbian couples are treated under the federal law with dignity and respect.

Bill C-264 proposes to fundamentally alter the legal concept of marriage by legislatively overriding the common law and civil law rule on legal capacity that a marriage is “the union of one man and one woman to the exclusion of all others”.

Canada is unique in the world for many reasons, not the least of which is the fact that our laws are based on two of the great legal traditions, the common law and the civil law. In both these traditions there is a clarity as to the legal meaning of the term marriage which can be traced back into history. Because of this Canada is not alone in its understanding of the legal concept of marriage.

European countries that have provided a registration system similar to marriage have deliberately chosen to maintain a clear distinction in law between registration and marriage. In terms of the approach taken by the House last year, a review of other countries shows that few have enacted legislation designed to extend benefits and obligations to same sex couples on the same basis as to opposite sex couples.

As mentioned previously, the Modernization of Benefits and Obligations Act extends equal treatment to common law same sex couples and common law opposite sex couples with respect to federal benefits and obligations.

The act was a comprehensive piece of legislation. It amended 68 federal statutes falling within the mandate of some 23 federal departments and agencies. Some of the major federal statutes of general application that were modernized by the act include the Canadian pension plan, the Old Age Security Act, the Income Tax Act and the criminal code.

The Modernization of Benefits and Obligations Act provides a responsible and balanced approach to extending equal treatment to same sex couples and ensuring that same sex couples receive the same benefits and obligations under the law as opposite sex couples.

I will turn for a moment to some of the legal difficulties with the bill before us today. Because provincial and territorial laws are based on the same concepts of marriage that are reflected in federal law, Bill C-264 would affect hundreds of laws from coast to coast. Other legal rules about capacity to marry that are currently in the common law are based on the opposite sex nature of marriage. These rules have been developed over many years and would require radical and even legislative change to fit same sex couples.

For example, opposite sex couples can be granted an annulment under the common law for lack of consummation. Adultery is grounds for divorce. Incest in the criminal code is based on an opposite sex model. All these would need to be fundamentally altered to fit same sex relationships.

Various court challenges address a number of issues including constitutional jurisdiction with respect to altering the definition of marriage. The hon. member for Burnaby--Douglas has mentioned the B.C. case which is working its way to the British Columbia Court of Appeal. As such it would be premature to act at this time before we receive guidance from the courts on this point. Once we have received guidance from the courts parliament can decide to act if it is necessary and appropriate at that time.

With respect to Bill C-264, legally there is an additional problem. The bill proposes to simply change the title of the current act and add one clause. However the whole statute is based on opposite sex relationships and represents the entire set of limitations on who can legally marry whom. If the bill were to proceed without the appropriate adjustments it would effectively create a new discrimination.

The government believes strongly in ensuring equal treatment and legal recognition for people in both same sex unions and opposite sex relationships. Recognizing the commitment of spouses and common law partners, including those in same sex unions, is an important and worthy goal and one that is strongly supported by a majority of Canadians.

The Modernization of Benefits and Obligations Act achieves this objective. For these reasons the Minister of Justice cannot support Bill C-264.

Marriage Capacity ActPrivate Members' Business

October 29th, 2001 / 11 a.m.
See context


Svend Robinson NDP Burnaby—Douglas, BC

moved that Bill C-264, an act to amend the Marriage (Prohibited Degrees) Act (marriage between persons of the same sex), be read the second time and referred to a committee.

Mr. Speaker, today is an historic day for the gay and lesbian community in Canada. It is the first time in Canadian history that legislation is being debated that would allow gay or lesbian couples to legally marry in Canada.

I want to begin my comments this morning by thanking some of my colleagues in the House for supporting this landmark bill. I want to first thank my colleague, the member of parliament for Vancouver East, for seconding the bill and for her long history of support for equality for gay and lesbian people throughout Canada.

I also want to thank those members of the Liberal Party who supported the bill: the member for Toronto Centre--Rosedale, the member for St. Paul's and others. I hear some Liberal backbenchers heckling and indicating they do not support the bill. I would ask that they at least show respect for their own colleagues and for other members of the House. They may not accept equality but surely they can accept the right of members of the House to debate this important issue in an atmosphere of civility and dignity.

I would also like to thank the members of the Bloc Quebecois who supported this important bill and especially the member for Hochelaga--Maisonneuve, who cannot participate in the debate this morning but who has, for a long time, been promoting justice and equality for gay and lesbian communities in Canada. I also thank the member for Joliette, who will participate in the debate and support the bill.

I would also like to extend my appreciation to the member for Kings--Hants from the Progressive Conservative Democratic Coalition for his support for the principle of this important legislation.

It is clear that the Canadian public is well ahead of political leaders and of the government when it comes to this important issue of the basic right of equality of gay and lesbian people who choose to marry to be able to do so. The most recent public opinion poll showed that something like two-thirds of Canadians across Canada in every region of Canada were prepared to accept this equality. We are not talking about any kind of special rights or privileges. What we are talking about are equal rights, equal rights that are guaranteed to gay and lesbian people under section 15 of the charter of rights and freedoms.

Under section 15 of our charter, which came into force in April 1985, all Canadians are equal. With respect to gay and lesbian people, the Supreme Court of Canada has ruled that gay and lesbian people are included under section 15 when they are involved in committed and loving relationships.

We have certainly made significant progress on the journey toward full equality both federally and at the provincial and territorial level. Last year landmark legislation was passed in the House of Commons, Bill C-23, legislation that extended a whole range of rights and responsibilities to gay and lesbian people and couples.

However Bill C-23 fell short in the critical area of recognition of the right to marry. In one of the final days of debate on the bill, the Liberal Minister of Justice introduced an amendment that shamefully explicitly excluded affirmation of the right of gay and lesbian people to marry.

I am confident the courts will ultimately rule that equality means equality and that we as gay and lesbian people should be entitled to the equal right to marriage.

I also want to acknowledge the important work EGALE has done on the issue of equality for gays and lesbians and on many other issues. EGALE is a national organization that speaks out on behalf of gay, lesbian, bisexual and transgendered people across the country. It has been tireless in its advocacy of equality and I salute the members of EGALE for continuing to work hard on this issue.

Many individuals, couples and organizations across the land have supported the right to full equality. I am proud as a New Democrat that my party is the only national party with a clear policy that calls for recognition of equality for gay and lesbian people in marriage and in all other areas of society. I speak today on behalf of the members of my caucus and the leader of my party, the member for Halifax, who has also, from the very beginning of her career and days in politics, been a tireless advocate for equality for gay and lesbian people.

A number of churches and religious leaders have also been in the forefront of this struggle. I particularly want to acknowledge the work done by Rev. Brent Hawkes of the Metropolitan Community Church who has been promoting equality for many years. On January 14, 2001, Rev. Brent Hawkes, the pastor of the Metropolitan Community Church in Toronto, celebrated the marriage between Kevin Bourassa and Joe Varnell, as well as the marriage of Elaine Vautour and Anne Vautour.

As Rev. Brent Hawkes said:

We look forward to the day, when Canada embraces the diversity of all people, and legally recognizes what God already knows--that love has no bounds.

The bill itself is a very short bill. It is entitled the Marriage Capacity Act and states that “a marriage between two persons is not invalid by reason only that they are of the same sex”.

I would note parenthetically that obviously all of the existing barriers to marriage, for example, barriers to marriage between relatives, or between brothers and sisters, remain in the existing legislation under the Marriage (Prohibited Degrees) Act. Nothing changes that at all. Those barriers remain.

This would simply remove the common law barrier to same sex marriage. I would like to emphasize that this barrier goes back to a decision in the British courts from 1886 in a case called Hyde v Hyde. Those were the days when marriage had a very different meaning. In fact those were the days in which within the institution of marriage rape was legal and violence was legal. A husband was allowed to beat his wife as long as the stick that he used was no wider than the width of his thumb. Certainly a precedent dating back to those days and that recognition of marriage is not one which should be used to deny equality to gay and lesbian people today. It should certainly not be used in that way.

Indeed there are challenges to that. As I said, there is no statutory bar at the federal level. It is strictly judge made law and in Quebec, Ontario and British Columbia there are currently cases proceeding in the courts to challenge that legal barrier.

In Quebec, a gay couple launched a court challenge, and we hope the two partners will win their case.

In Ontario the city of Toronto is supporting that legal challenge and in British Columbia the former attorney general, Andrew Petter, had the courage to speak out in support of the legal challenge as well.

There has been one ruling to date specifically on these challenges. It came in a British Columbia court decision by Mr. Justice Ian Pitfield, and I must say that many of us were astonished at that decision because it flies in the face of not only justice and reason but fairness. He found that the constitution of Canada itself, in his words, expressed an intention that discrimination would be permitted. This is an extraordinary ruling and one that I am confident will be overturned by the courts when it goes to the British Columbia Court of Appeal and ultimately to the Supreme Court of Canada.

The bill would change the law to allow those gay and lesbian people who choose to marry to do so. It would not in any way affect religious marriage and it is important to underline that. It is strictly about civil marriage. Those faiths that are prepared to celebrate and affirm the marriages of gay and lesbian couples within their faith community would be permitted to do so. Those not prepared to do so would not in any way be required or forced to do so. Just as, for example, within some faiths there are barriers to interfaith marriages today that are not legally challenged in any way so too would that discretion still be there for religions not prepared to recognize the equality of their gay and lesbian parishioners.

I might be asked, what difference does marriage make and why do gay and lesbian people want the right, the choice, the option of marriage? I think it is important to recognize that marriage is the most prominent way today in which two persons' romantic love and commitment to each other are recognized and affirmed. Excluding gay and lesbian people from the institution of marriage sends a clear message that our relationships, the relationships of same sex couples, are somehow not as worthy of recognition and affirmation. On the other hand, including same sex marriages in civil marriage would send a positive message to all Canadians, one that says that regardless of whether someone loves a man or a woman that love will be valued, honoured, affirmed and treated with equal dignity and respect.

I often have the privilege of speaking in schools in my constituency and elsewhere. Kids like to talk about the lives of members of parliament and they ask what kind of life I have, what the challenges are, what I like about the job and what is difficult about the job. Sometimes kids will ask if I am married. I tell them I am not married, that I have a partner whose name is Max, we have been together for seven years and love one another very much, we want to spend the rest of our lives together and that relationship is very important to us and is the most important relationship in my life. Those kids will often ask why I cannot get married or why I do not get married or if I do not want to marry him. I tell them I do want to and I would like to have that choice, but I do not have it because the laws of this country do not allow me, as a gay man, that choice.

How would giving me and my partner Max that choice in any way weaken heterosexual marriage? How would it in any way weaken the strength, the love, the commitment of heterosexual partnerships? It would not change that at all. Surely heterosexual marriage is not so fragile that allowing gay and lesbian people to marry would cause it to come tumbling down like a house of cards. Surely in this time of such pain, in the aftermath of the horrors of September 11, any steps that we can take as a society to strengthen the affirmation of love in our society in a positive way is something we should be encouraging.

Marriage is about love and commitment. It is true that some gay and lesbian couples would not want to get married if that choice were available, just as some heterosexual couples choose to live common law, but surely we should recognize the right of choice. Canada would not be the first country to do so. The Netherlands moved earlier this year to fully recognize marriage for gay and lesbian couples.

I am confident that it will happen in Canada as well, but why should gay and lesbian people be forced through the courts? Why should we be wasting taxpayers' money to fight for this small but important step on the road to full equality?

Sometimes it is said that we cannot allow gay and lesbian people to marry because marriage is about children and procreation. The best answer to that came in a very eloquent editorial in the Globe and Mail just this month. It said:

The issue of children is a red herring; many couples who are married do not procreate, many couples procreate outside marriage and many gay couples raise children, adopted or conceived with the egg or sperm of one partner. Expanding the tent would enable loving gays in committed relationships to agree to the solemn obligations of the marriage contract. And what are we talking of, if not respect for family values?

That is what I want to appeal to today in closing, those traditional family values. We as gay and lesbian people are families also. The bill would allow the full and equal recognition of our families. I call on all members of the House to support this important legislation.

Marriage (Prohibited Degrees) ActRoutine Proceedings

February 14th, 2001 / 3:10 p.m.
See context


Svend Robinson NDP Burnaby—Douglas, BC

moved for leave to introduce Bill C-264, an act to amend the Marriage (Prohibited Degrees) Act (marriage between persons of the same sex).

Mr. Speaker, today being Valentine's Day, the day that we celebrate love and romance, it is timely that I table the bill that would amend federal law to clearly recognize same sex marriages, the right of gay and lesbian people to marry their partners if they choose to do so.

The bill reflects the inclusive spirit of the charter of rights as well as recent Supreme Court of Canada rulings, and celebrates the diversity of Canadian families. It in no way threatens traditional heterosexual marriage or religious traditions. Rather, it acknowledges that our relationships as gay and lesbian people are just as strong, just as loving, just as committed as any others. Canada should follow the lead of the Netherlands in recognizing same sex civil marriages.

Finally, Mr. Speaker, I hope you will indulge me on this special Valentine's Day by allowing me to wish Happy Valentine's Day to my partner Max across the land in Burnaby, British Columbia.

(Motions deemed adopted, bill read the first time and printed)