2 min

What about BC?

How the Ontario marriage decision applies here

Credit: Robin Perelle

Dawn Barbeau headed to Toronto last week to join her partner Elizabeth, already there on business. They spent the weekend together, tucking in a marriage on Jun 21, summer solstice.

Said Barbeau, one of the plaintiffs in BC’s marriage case, “I am hoping to conceive a child this month, with an egg harvested from Elizabeth and sperm from an anonymous donor. It is important to me that we be married when our child is born.”

Though the Barbeaus-both women changed their last name to Barbeau several years ago-could not get married in BC before their child was born, their Ontario marriage will be valid here.

That odd state of affairs is a result of the different decisions between BC and Ontario about the marriage case, and the rules of Canadian federalism.

Last month, the BC Court of Appeal held that the federal restriction of marriage to a union between a man and a woman was discriminatory and unconstitutional. But it gave the federal government until Jul 12, 2004 to enact legislation curing the inequality.

In Ontario, however, the Court of Appeal just ruled Jun 10 that two people of the same sex could marry immediately.

So you can get married in Ontario. And the rules of Canadian federalism require that one province honour the marriages contracted in another-so you can be married in BC, you just can’t get married here. Yet.

Within a week of the Ontario ruling, the federal government promised to draft legislation permitting same-sex partners to marry, and to request the opinion of the Supreme Court of Canada as to its constitutionality. Once they have passed an amendment to the federal marriage laws, you will have the right to get married anywhere in Canada.

In another constitutional wrinkle, though the federal government has jurisdiction over “marriage and divorce,” the provinces have jurisdiction over “solemniztion of marriage.” So Alberta Premier Ralph Klein is threatening to refuse marriage licences to any Albertan queers wanting to get married there.

Constitutional experts agree, however, that he won’t be successful in his attempt to deny same-sex marriage, because to do so would be an unconstitutional encroachment into the federal government’s jurisdiction.

There may be very practical reasons for lesbians and gay men to marry, and to marry now: to be able to sponsor one’s non-Canadian partner for immigration immediately, instead of having to wait out a year in which only one of you can work; to qualify for government benefit plans which would otherwise require a period of cohabitation; to be entitled in every Canadian jurisdiction to be the person statutorily entitled to decide your partner’s care if they cannot decide for themselves.

So the Barbeaus won’t be the only ones heading for Toronto. And in addition to Canadians from other provinces, US queers are streaming over the border to tie the knot. By a delicious irony, though states are not required to recognize same-sex marriages of other states because of the US Defence of Marriage Act, the United States is required by international convention to recognize any marriage contracted in Canada.

Same-sex marriage is now a reality in Canada. That won’t change; though for a while yet, you may have to go to Ontario if you want to get married.

*A lesbian lawyer, barbara findlay, QC, is also a prominent Vancouver equality rights activist.