Supreme Court has ruled that the federal government has the authority to redefine marriage. Then they stated that churches have a right to refuse to perform them, and provinces may refuse to recognize them. [ update: full text here– ed]
Well, that settles everything!
A couple of questions for which I don’t know the answer – perhaps one of my readers does. In a tough child custody battle, would a remarried gay couple assume a prefered position in the eyes of the courts (vs a co-habitating gay parent) over the single parent ex-spouse? ie: the husband leaves, remarries his boyfriend, and then petitions for custody of the children based on having a “two parent” household and better financial status? Is the court allowed to weigh concerns of parents that may have religious or moral objections about their children being exposed to a gay lifestyle?
With the legal definition of marriage expanded, how does this affect the legal obligations that are applied to long time common law relationships? If same sex marriage becomes law, do existing long term gay couples instantly recieve common law status for purposes of property division, support, etc. in the same way that long term heterosexual relationships have? (I know it varies from province to province.)
The debate over same sex marriage isn’t venturing into these areas nearly often enough. Virtually all the focus is on the issue of “commitment” and sexual orientation, or, to be blunt – who gets to boink whom under the umbrella of state sanction. If that were the fundamental purpose of marriage, we wouldn’t need marriage at all.
Long-term gay couples already are considered common law as far as property division, support, etc. If my partner and I broke up, he’d have a legal right to my pension, property, etc. etc. no different than heterosexual couples. This has been in place for many years now.
I know there’s actual legislation in Saskatchewan as of a couple of years ago and you can “register” common law relationships (in Quebec I think). Thanks for the answer.
The “best interests of the child(ren)” allows (nay, requires) the courts to consider all the factual circumstances in deciding custody and access. The scenarios you list are entirely possible, Kate.
Todd has summarized the law accurately, but it’s a point worth emphasizing – even prior to today’s decision (and for at least several years), Canadian same-sex partners have been entitled to all of the same rights and privileges as common-law and married couples. Don’t believe it? – go read the Ontario Court of Appeal decision in Halpern (easily accessible over the web) and note the paucity of truly substantive bases those “eminent” jurists relied on to foist gay “marriage” on us all in spite of the political process considering the issue that was even then underway.
Which raises the issue – what has been the real purpose of the last two or three years worth of gay “marriage” litigation? In other words, what “right” of marriage enjoyed by common-law/married heteros has been denied gays to warrant the mad dash off the the SCC (who, despite having heard from a record number of intervenors, didn’t somehow need the usual 12 to 24 months to render a decision, not that they had prejudged it or anything) and the assurance of the latest “progressive” sycophant of a justice minister that all other matters facing our nation (security, mad-cow, sponsorship “inproprieties”, etc, etc, etc) will be swept aside to address this most egregious of societal shortcomings.
The answer, of course, is this (presumably) final round of gay-“marriage” zealotry has had nothing to do with “rights”, per se. It has simply been a battle for a word, “marriage”. So why have tens of millions of dollars of precious judicial resource been spent on fighting over what a word means? Because gays perceive that the final obstacle to acceptance of their strange sexual proclivities is to confuse society, by changing the meaning of a word, into regarding their relationships to be indistinguishable from that relationship which society has traditionally honoured as sacrosanct.
Will it work? I suspect not – as many voices in the wilderness have tried to point out, marriage has been sacrosant not because society benefits from the profound “love” two adult individuals develop for each other, but because, generally speaking, marriage provides the best (though certainly not the only) environment for the raising of children. As is pointed out ad nauseum, it is true many marriages never produce children and many marriages are entered into by persons with no intention of having children. So what – the fact that many people earn law degrees but never practice law doesn’t mean that the entrance requirements of law school should be relaxed as a consequence. If society has reached a point (and perhaps it has) where it is now the exception, rather than the rule, that couples get married to have families, then perhaps it’s time to reconsider marriage, but surely that’s a process we all have a right to engage in.
Perhaps (a more thoughtful and enlightened) 1995 SCC (in a decision, surprise surprise, today’s SCC didn’t cite) put it best:
“But [marriage’s]ultimate raison d’�tre transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual. It would be possible to legally define marriage to include homosexual couples, but this would not change the biological and social realities that underlie the traditional marriage”
My, how far we’ve come.
If you want to catch a fly, you have to think like a fly.
Any need for our nation to procreate naturally has been nullified by our huge immigration rate. Why bother to encourage close-knit heterosexual couples to conceive and raise their own children? They’ll only grow up to be self-sufficient and independent adults, and goodness knows how they’ll vote – they might even vote out of existence the welfare state which they don’t need.
Better to split the nation up into as many small, mutually distrustful groups of government dependents as possible.
Stay tuned for the bestowal of benefits on polyamorous couples and the extension of Sharia law. The country is not quite fractured enough yet to guarantee continual Liberal majorities.
In Ontario there is no automatic property division arising from a common law relationship.There is a common misconception that if a couple is together for a certain period of time there is automatic sharing of property. There is not. Support obligations are another matter.
A common law partner, or any person for that matter, who has made a contribution to the acquisition or maintenance of propery can be awarded an interest if the Court finds there has been an unjust enrichment. In such case the court may award a constructive trust i.e. declare that A (the owner) holds title subject to a constructive trust for B (the heretofore uncompensatd contributor).
All of which is espectfully submitted.
I will now go vote for Kate (for the 5th time)
“(T)he court may award a constructive trust i.e. declare that A (the owner) holds title subject to a constructive trust for B (the heretofore uncompensatd contributor).”
If the above is an attempt to demonstrate “injustices” actually do exist at law between hetero- and homo- partnerings, please refer me to any current superior court in any Canadian province who would not, at the speed of light, find such a constructive trust to exist if the claimant was the gay partner of the property owner. In Alberta, that most “progressive” of provinces, the courts have already preferred a deceased’s gay partner of some 5 or 6 years to the biological children of the deceased in tossing out the Intestate Successions Act (so much for gay “marriage” strengthening families). Also, the “injustice” alluded to in your example applies equally to hetero- and homo- common law partners, so where is the discrimination?
I (and I suspect the majority of Canadians) would not regard the fact that a “right” was based on judicial, rather than legislative fiat, to represent a substantive difference in treatment, or at least not one that required the orgy of appeasement demonstrated in the last couple of years by the Lieberals, the press and the courts on the issue of redefining “marriage”.
‘Strange sexual proclivities…’. Oh firewalls, you slay me. How do you know that my sexual ‘proclivities’ are any stranger than yours?
“How do you know that my sexual ‘proclivities’ are any stranger than yours?”
Sorry, Todd, my mistake – meant to say “queer”.
“Also, the “injustice” alluded to in your example applies equally to hetero- and homo- common law partners, so where is the discrimination?” firewalls ‘r us
Dear firewalls ‘r us,
You have misunderstood my point.I wasn’t suggesting there was any discrimination in the example I cited. I was simply disagreeing with Todd’s statement in the first post in this thread. At least in Ontario- there is no automatic sharing of property by common law couples – straight or otherwise. And I wasn’t suggesting that there ought to be.
“You have misunderstood my point”
My apologies – it just seemed the sort of example raised by those scrambling to find some type of “discrimination” for an activist court to hang its hat on. Whether recognizing common-law property sharing rights equivalent to those of married couples is appropriate or not was a matter resolved, for better or worse (sorry, couldn’t help myself) decades ago.