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Extending Spousal Status In Canada Essay, Research Paper

Charter litigation and the advocacy of gays and lesbians is forcing Canadian lawmakers to deal with issues related to the

regulation and support of domestic relationships, and in particular to consider how to extend legal recognition to same sex

relationships. A legislative response would be preferable in terms of consistency, fairness and expense. There is a substantial

financial and psychological burden placed on those who make individual Charter based claims, and, as recognized by the

Supreme Court of Canada in M v. H,(2) the courts are not well structured as institutions for developing coherent legal

regimes to deal with the myriad of issues that arise.

The regulation and support of same sex relationships, and other domestic relationships, requires some combination of

marriage, contract, and ascription. There may also be a role for the enactment of registered domestic partnership (RDP)

legislation. This paper identifies and comments on some issues that lawmakers will need to address as they consider

alternatives and respond to the challenge posed by M v H to extend the concept of “spouse.”

Until now, most legislators in Canada have displayed a marked reluctance to legally recognize same sex relationships, and

the responsibility for providing legal recognition to these relationships largely has fallen to the courts. Like others who have

written in this area, I hope for a legislative response, but fear that politicians may be reluctant to deal with potentially

contentious issues relating to the nature of the family. One may hope that if scholars, policy analysts, practitioners and

concerned citizens can help clarify and illuminate some of the issues that arise, and can explain the value of a legislative

response, politicians may be more likely to accept the challenge of providing for a fair and coherent legislative response for

the definition of “familial relationships.” Advocates for gays and lesbians have powerful equity and social policy based claims

to have laws that allow same sex partners to enter into a status with all the rights and obligations of other spouses. There

may also be utility in enacting legislation to allow a “near married” status that couples may chose to acquire, such as the

registered domestic partnership; however, due to the constitutional division of powers in Canada, there will be considerable

complexity in enacting a coherent “near married” RDP scheme in this country. There is also a role for domestic contracts

between same sex and other domestic partners, though there are real limitations on contracts as a “solution” for the issues

faced by those in domestic relationships. There is a range of situations in which the law should treat those in who have lived

in conjugal domestic relationships for a certain period as “spouses,” even though they have taken no steps to formalize their

relationship (by marriage, or registration if that is available.). This process of “deeming”individuals to be spouses is referred

to as “ascription.” There are important reasons for having ascription, even though it “imposes” spouse-like rights and

obligations upon those who have not chosen (or been permitted) to recognized acquire spousal status. However, if those

who live in conjugal relationships (including same sex partners) have the option of formalizing their relationships, there are

justification for having some distinctions between those who have chosen to formalized their relationships and those who live

together and acquire rights and obligations only by “ascription.”

Same Sex Marriage & Registered Partnerships: A Peculiarly Canadian Problem

There are strong equity and social policy based arguments in favour of giving same sex partners the same right as other

Canadians have to marry. Recent public opinion poles suggest that a majority of Canadians would support such action,(3)

though our politicians have been very reluctant to act. Shortly after the Supreme Court decision in M v H, the House of

Commons, by a vote of 216 to 55, supported a resolution affirming that “marriage is and should remain the union of one man

and one woman to the exclusion of all others, and that Parliament will take all necessary steps … to preserve this definition in

Canada.”(4) While some opponents of legal recognition of same sex relationships are homophobic, some of the opposition

has psychological, social, political and religious roots. And some in the gay and lesbian communities reject “marriage,” with

its heterosexual and gendered connotations, as a desired legal alternative.(5) In the near future, if same sex partners are to

gain the right to “marry” it seems most likely that they will have to look to the courts to secure this right, though there is

interest from some politicians in exploring various alternatives that do not totally equate same sex partnership with marriage.

It is noteworthy that in M v H and other Charter cases the successful discrimination argument was based on the unequal

treatment between same sex and heterosexual unmarried cohabitation, and the Supreme Court did not purport to legally

equate same sex unions to marriage.(6) While same sex partners have recently had very significant success in using the courts

to gain “spousal status” similar to unmarried heterosexual cohabitants, there has yet to be a successful claim in Canada (or

any other country) by same sex partners to the right to “marry.”(7)

The Supreme Court in M v. H. accepted that individuals in same-sex relationships are not “less worthy of recognition and

protection” than unmarried heterosexual cohabitants.(8) Accordingly the Charter requires governments to recognize same

sex partners in the same way that it recognizes opposite sex “common law” partners. However, this does not necessarily

mean the courts will rule that the Charter requires that the federal (or provincial) government enact legislation that gives

same sex partners the legal right to enter into the legal status of matrimony, with all the rights and obligations that might


This country’s division of constitutional responsibility between the federal and provincial governments creates a peculiarly

Canadian set of legal problems with both registered domestic partnerships and “same sex marriage.” Both levels of

government have some responsibility within their respective areas of jurisdiction in responding to the claims posed by M v H.

for legal recognition of same sex relationships.

The federal government has responsibility for “marriage and divorce” under s.91(26) of the Constitution Act, 1867. This

gives the federal government the responsibility for enacting laws governing capacity to marry, while the provinces have

jurisdiction over “solemnization of marriage” under s. 92 (12) of the Constitution Act, and “property and civil rights” under

s. 92(13).

It is clear that in 1867 the definition of marriage was “the voluntary union of one man and one woman to the exclusion of all

others,”(10) and that the ability to consummate the marriage by having heterosexual intercourse was an essential element of

“marriage.”(11) While the federal government has modified some of the common law rules governing the capacity of a man

and a woman to marry, for example to allow an uncle to marry his neice,(12) it has not tried to change the basic common law

definition of marriage.(13) There is an argument that it would be ultra vires s. 91(26) for the federal government to enact

legislation that would fundamentally alter and expand the very nature of “marriage” by allowing same sex couples to “marry.”

An argument could be made that the federal government could not expand its jurisdiction by fundamentally altering the legal

concept of “marriage” from what it was in 1867. Ultimately I do not find this argument I persuasive, but it is an argument that

will need to be considered in any law reform undertaking.

I believe that under s. 91 (26) of the Constitution Act the federal government can change the legal rules about “capacity” to

marry and could enact legislation amending the common law and allowing same sex partners to “marry”, and that if it did so,

this change would be binding for all purposes of provincial (or territorial) law. (And as noted above, there is a strong

argument that under the Charter the federal government is obliged to do this, but this argument has yet to succeed in the


While I think that the federal government could simply enact legislation that allows partners of the same sex to “marry,” if it

wished to do so it would also be constitutionally permissible for the federal government could use a different term for a

formalized same sex relationship. Clearly the parties to a “same sex marriage” would not be called “husband” and “wife,”

though these gendered terms are used at common law and in some provincial marriage statutes, and could still be used for

opposite sex spouses.(14) So I think that the federal power could extend to the recognition of the rights of same sex

partners(15) to enter a relationship that is called something other than marriage, such as a “domestic partnership,” as long

as the rights and obligations conferred by the status are fully equivalent to marriage for all purposes of Canadian

law.(16) The relationships would then be formalized in accordance with a process determined by provincial law, enacted

under the “solemnization of marriage” power. Such full legal recognition of same sex marriage in “all but name” would

address some of the political, religious and psychological concerns reflected in the recent House of Commons resolution.

Having a legally equivalent formally recognized same sex partnership with a distinct name may also help address some of the

legal concerns that will arise in the international context, since some jurisdictions will not recognize Canadian same sex

marriages.(17) I think that the federal government could validly legislate under s. 91(26) to give same sex partners the full

legal right to “marry,” but recognize this conjugal union with a distinctive name; as I noted, there are political and legal

arguments that might justify this distinctive treatment. However, I do not think that the federal government could invoke s.

91(26) to create a new “marriage-like” status (which I will refer to in this paper as the registered domestic partnership),

which would give the parties most but not all of the rights and obligations of a spouse, for example by excluding rights in

regard to children. Any federal RDP legislation that does not equate the essential rights and obligations of same sex and

opposite sex spouses would be creating a new type of “near-marital” status and would be limited by the Constitution Act ,

1867 to areas within exclusive federal jurisdiction, such as the Canada Pension Plan, immigration and federal income tax.

Such federal “near-marital” RDP legislation could not affect legal status for purposes of provincial areas of responsibility such

as property rights on termination of the relationship.

There is a significant area of provincial jurisdictional responsibility under the provincial power over “property and civil rights”

under s. 92(13) of the Constitution Act for creation of a set of “near-marital”(or “spouse-like”) rights and obligations for

those in a RDP. The provinces have the jurisdiction under s. 92(13) to grant limited “spousal status” for many important legal

purposes to same sex partners and other cohabitants, on such terms as the provinces may chose (subject to the Charter

provisions prohibiting discrimination).

Thus, there are this complex jurisdictional issues to address in establishing a near-marital RDP scheme. There would need to

be both federal and provincial RDP laws to have a comprehensive scheme. Hopefully any federal law would recognize

RDP’s made under any provincial laws as valid for federal purposes as well as allowing RDP’s for federal purposes for those

who reside in provinces that have failed to enact RDP legislation. Similarly, provincial laws should provide for recognition of

RDP’s made in other jurisdictions or under federal law.

The constitutional complexity of enacting RDP legislation may be an argument in favour of not pursing this alternative at all,

and simply expecting the federal government to allow same sex partners to marry.

Responding to M. v H.

The lobbying from some gay and lesbian advocates has prompted of some law reform commissions(18) and politicians to

begin to explore the near marriage Registered Domestic Partnership concept. The May 1999 Supreme Court decision in M

v. H may also increase pressure to act, though federal and provincial governments are responding more narrowly to the

immediate issue presented by that decision. Governments are responding by extending the statutory “ascription” definition to

place same sex partners in the same position as unmarried heterosexual partners.(19)

Governments, such as that in Ontario, are responding begrudgingly to the Supreme Court decision, emphasizing that they are

only acting because they have been forced to do so by the Court. Rather than changing the definition of “spouse,” Ontario

legislation adds the new concept of the “same sex partner,” with all the rights and obligations of the unmarried heterosexual

cohabitant, provided that there has been a period of shared residence, usually three years. There is a clear effort by

politicians to preserve the traditional definition of “spouse” for heterosexual “conjugal” relationships (married or unmarried).

Ontario Premier Harris disparagingly commented on same sex partners: “It is not my definition of the family.”(20)

Although the rights (and obligations) for same sex couples that are imposed by “ascription” as a result of M v. H. and other

court decisions are significant, there remain some very important differences between ascription and full legal recognition.

There is an obvious and profound psychological and social difference that results from gays and lesbians being treated

unequally and not having the option that allows them to have formal legal recognition for their relationship at any time they

wish. A major legal difference is that until the parties have cohabited for the prescribed period, they are not “spouses” and

not do not have the rights and obligations towards each other or other parties that spouses have. There may also be a lack

of clarity for the partners and others as exactly when the ascribed status is (or is not) attained. Further, there remain some

significant legislative differences between ascribed spouses and married spouses, such as in regard to marital property. While

differences in treatment may be justified if partners who cohabit have chosen not to formalize their relationship,

discriminatory treatment may not be justifiable if do not have this opportunity.

Near Marriage – The Registered Domestic Partnership:

For some politicians and advocates, the near- marital RDP has the advantage of being a compromise that may be

acceptable to many Canadians, at least as an interim measure on the road to eventual acceptance of the right of same sex

partners to marry. For provincial politicians, who lack jurisdiction over “marriage,” the enactment of RDP legislation may be

the best way to recognize the equality of same sex relationships.

For some intimate couples, both heterosexual and homosexual, entry into an institution other than “marriage” (with its

gendered and patriarchal connotations) may be preferable to marriage; the creation of a new near-marital institution may be

desirable. There may also be some non-conjugal partners who will want to enter into a RDP, depending on its social and

legal nature.

The nature of any RDP legislation that might be enacted in Canada will depend on what rights same sex partners have to

enter the status of marriage at the time of enactment. If same sex partners have the right to enter the status of marriage, and

the RDP is seen a true alternative for those who are choosing not to marry, there may be reasons for having significant

differences between the RDP and marriage. The RDP might, for example, be seen as an institution that only those without

children are eligible for, with automatic conversion to legal marriage if the registered parties should at some future time reside

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