Same-sex marriage in Saskatchewan

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Same-sex marriage became legal in Saskatchewan on November 5, 2004 as a result of a decision of the Family Law Division of the Saskatchewan Court of Queen's Bench. [1] [2] This decision followed similar cases in six other provinces and territories, and pre-dated by eight months the federal Civil Marriage Act of 2005, [3] which made same-sex marriage available throughout Canada. Later court decisions have dealt with the issue of marriage commissioners who object to performing same-sex marriages on the basis of their religious beliefs.

Contents

Saskatchewan was the seventh jurisdiction in Canada, and the tenth worldwide after the Netherlands, Belgium, Ontario, British Columbia, Quebec, Massachusetts, Yukon, Manitoba and Nova Scotia, to legalise same-sex marriage.

N.W. v. Canada (Attorney General)

In the fall of 2004, five same-sex couples brought an application in the Family Law Division of the Saskatchewan Court of Queen's Bench, seeking a judgment requiring marriage licence issuers appointed by the provincial government to issue marriage licences to same-sex couples. The application was based on the argument that the traditional common-law definition of marriage discriminated against same-sex couples on the basis of sexual orientation, contrary to the equality clause of the Canadian Charter of Rights and Freedoms . [lower-alpha 1] At the time of the application, courts in six other Canadian provinces and territories had upheld the constitutionality of same-sex marriage in Canada. The application named as parties both the Attorney General of Canada, Irwin Cotler, and the Attorney General for Saskatchewan, Frank Quennell. Both the federal and provincial governments were parties; the former because the substantive law governing the definition of marriage is a matter of federal jurisdiction under the Constitution of Canada, [6] and the latter because marriage licence issuers are provincial officials appointed under Saskatchewan's marriage legislation. [7] [8] Quennell had already stated in September 2004 that he would not oppose such a court bid. The Green Party of Saskatchewan supported the couples, and had issued a statement supporting same-sex marriage rights in April 2004, "Giving same sex couples the same range of choices as opposite sex couples is a simple question of fairness and human dignity. Either this government supports equality or it does not." [2]

On 3 November 2004, the five couples appeared before Justice Donna Wilson on the application. Neither the federal nor the provincial governments challenged the suit. Greg Walen, lawyer for one of the couples, had filed a statement of claim seeking a declaratory judgment that the common-law definition of marriage be changed to include the wording "two people to the exclusion of others", rather than "two people of the opposite sex". [9] On 5 November, Justice Wilson ruled that the common-law opposite-sex definition of marriage violated the equality rights of same-sex couples under the Charter, and that "the common-law definition of marriage for civil purposes is declared to be 'the lawful union of two persons to the exclusion of all others.'" [2] [10] Justice Wilson also ordered the federal and provincial attorneys general to pay court costs to the applicants, on a solicitor-client basis, fixed at a total of $10,000, divided evenly between the two governments. [11]

Walen of the Saskatoon law firm Scharfstein, Gibbings, Walen, & Fisher issued a statement following the court ruling that "[t]he judge found that it is unconstitutional to exclude same-sex couples from civil marriage and changed the law to include them. The judge agreed with the Ontario Court of Appeal that 'the dignity of persons in same-sex relationships is violated by the exclusion of same-sex couples from the institution of marriage'....The judge agreed with the Yukon court that the province had a choice whether or not to issue marriage licenses to same-sex couples, and it chose not to. As a result, costs were awarded on an increased scale against both the province and the federal government." Spokespeople for Canadians for Equal Marriage, Egale Canada and the Saskatchewan Federation of Labour welcomed the court decision. James Hein-Blackmore, a plaintiff in the case, said, "What this means to me is peace of mind. The day we were married was a great day of happiness as we professed our love to one another. But not having our marriage recognized here in Saskatchewan was a great burden. Now I know that no matter what happens in our lives or our health, I can rest assured that my husband will have all the legal rights to handle things the way we want them." [2] Attorney General Quennell said he would not appeal the decision.

M.J. v. Nichols

In 2005, Orville Nichols, a 30-year marriage commissioner and devout Baptist, refused to marry a same-sex couple, M.J. and B.R., because it conflicted with his religious beliefs. M.J. filed a complaint under the Saskatchewan Human Rights Code that "Mr. Nichols refused to perform a marriage between M.J. and B.R. on the basis of the prohibited ground of M.J.'s sexual orientation." [12] The Saskatchewan Human Rights Tribunal ordered Nichols to pay $2,500 in compensation to the couple for infringing their right to access public services without discrimination. [13] [14] In 2009, the Saskatchewan Court of Queen's Bench dismissed Nichols' appeal. [15] [16]

The Saskatchewan Government followed by proposing legislation which would have allowed marriage commissioners to refuse for this reason. In January 2011, on a reference question, the Saskatchewan Court of Appeal ruled that such a law would be unconstitutional. It was estimated at the time that about 1% of the existing marriage commissioners would resign or be fired because they were unwilling to issue licences to same-sex couples. [17] [2] Provincial law permits religious bodies and officials—but not marriage commissioners—to refuse to perform a marriage in their place of worship for religious reasons. [18]

Provincial legislation

In 2001, the Legislative Assembly of Saskatchewan passed two statutes, the Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001, [19] and the Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (No. 2), [20] which together changed the definition of "spouse" in 24 provincial laws to treat same-sex couples equally to opposite-sex couples. The changes included the areas of adoption, spousal support, inheritance rights, pensions, and property rights. This meant that same-sex couples were given the right adopt children jointly. The two acts received royal assent by Lieutenant Governor Lynda Haverstock on 6 July 2001. [19] [20]

Historically, the provincial Marriage Act, 1995 required marriage commissioners to pronounce a newlywed couple as "husband and wife". [7] In 2021, the Legislative Assembly of Saskatchewan repealed the Act and enacted in its stead the Marriage Act, 2021, which received royal assent by Lieutenant Governor Russell Mirasty on 13 May 2021. The new law uses gender-neutral language with regard to married spouses. Section 5-9(2) of the Act states that each of the parties shall, in the presence of the marriage commissioner and the witnesses, declare: [18]

I call on these persons here present to witness that I, A.B., do take you, C.D., to be my lawful wedded spouse. [SS 2021, c 16, s.5-9(2)(b)]

Marriage statistics

The 2016 Canadian census showed that there were 1,070 same-sex couples living in Saskatchewan. [21]

The first same-sex marriage in La Loche in the Clearwater River Dene Nation was performed in summer 2018 for a Dene two-spirit couple. [22]

Religious performance

In July 2019, the synod of the Anglican Church of Canada passed a resolution known as "A Word to the Church", allowing its dioceses to choose whether to perform same-sex marriages. [23] Following the vote, the Diocese of Saskatoon announced that its clergy would be permitted to solemnise same-sex marriages. [24] Same-sex marriages are not performed in the Diocese of Qu'Appelle, which encompasses the southern third of Saskatchewan. The marriage canon of the Anglican Church of Canada serves as the canon on marriage in the diocese. [25] The Diocese of Saskatchewan likewise does not perform same-sex marriages. [26]

A same-sex couple was married on December 31, 2014 in a Mennonite congregation in Saskatoon, the first same-sex marriage in the Mennonite Church Canada. [27]

See also

Notes

  1. ↑ Also simply referred to as the Charter (French: Charte; Cree: Nahēyihtowin; [4] Chipewyan: Yatı Nedhé) [5]

Related Research Articles

Common-law marriage, also known as non-ceremonial marriage, sui iuris marriage, informal marriage, de facto marriage, or marriage by habit and repute, is a legal marriage despite non-compliance with the requirements for a statutory marriage, at least in the jurisdictions where marriage can still be contracted this way.

<span class="mw-page-title-main">Same-sex marriage in Canada</span>

Same-sex marriage was progressively introduced in several provinces and territories of Canada by court decisions beginning in 2003 before being legally recognized nationwide with the enactment of the Civil Marriage Act on July 20, 2005. On June 10, 2003, the Court of Appeal for Ontario issued a decision immediately legalizing same-sex marriage in Ontario, thereby becoming the first province where it was legal. The introduction of a federal gender-neutral marriage definition made Canada the fourth country in the world, and the first country outside Europe, to legally recognize same-sex marriage throughout its borders. Before the federal recognition of same-sex marriage, court decisions had already introduced it in eight out of ten provinces and one of three territories, whose residents collectively made up about 90 percent of Canada's population. More than 3,000 same-sex couples had already married in those areas before the Civil Marriage Act was passed. Most legal benefits commonly associated with marriage had been extended to cohabiting same-sex couples since 1999.

This is a list of notable events in the history of LGBT rights that took place in the year 2004.

<span class="mw-page-title-main">Same-sex marriage in Yukon</span>

Same-sex marriage has been legal in Yukon since July 14, 2004, immediately following a ruling from the Supreme Court of Yukon. This made the territory the fourth jurisdiction in Canada, and the seventh worldwide, to legalise same-sex marriage, after the provinces of Ontario, British Columbia and Quebec. Yukon was the first of Canada's three territories to legalise same-sex marriage, and the only one to do so before the federal legalisation of same-sex marriage in July 2005 by the Parliament of Canada.

<span class="mw-page-title-main">Same-sex marriage in Ontario</span>

Same-sex marriage has been legal in Ontario since June 10, 2003. The first legal same-sex marriages performed in Ontario were of Kevin Bourassa to Joe Varnell, and Elaine Vautour to Anne Vautour, by Reverend 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 Court of Appeal for Ontario in Halpern v Canada (AG) upheld a lower court ruling which declared that defining marriage in heterosexual-only terms violated the Canadian Charter of Rights and Freedoms.

<span class="mw-page-title-main">Same-sex marriage in Quebec</span>

Same-sex marriage has been legal in Quebec since March 19, 2004 in accordance with a ruling from the Quebec Court of Appeal that the heterosexual definition of marriage violated the Canadian Charter of Rights and Freedoms. Quebec was the third Canadian province after Ontario and British Columbia and the fifth jurisdiction in the world to open marriage to same-sex couples.

<span class="mw-page-title-main">Same-sex marriage in British Columbia</span>

Same-sex marriage became legal in British Columbia on July 8, 2003, after a series of court rulings which ultimately landed in favour of same-sex couples seeking marriage licences. This made British Columbia the second province in Canada after Ontario, as well as the second jurisdiction in North America and the fourth worldwide, to legalise same-sex marriage.

<span class="mw-page-title-main">Same-sex marriage in Manitoba</span>

Same-sex marriage has been legal in Manitoba since September 16, 2004. In the case of Vogel v. Canada, the Court of Queen's Bench of Manitoba ordered the province to begin issuing marriage licences to same-sex couples. This decision followed a suit brought by three couples who were denied the right to marry. Both the provincial and federal governments had made it known that they would not oppose the court bid.

<span class="mw-page-title-main">Same-sex marriage in Nova Scotia</span>

Same-sex marriage has been legal in Nova Scotia since September 24, 2004 when the province began issuing marriage licences to same-sex couples immediately following a court ruling from the Nova Scotia Supreme Court. Nova Scotia was the sixth jurisdiction in Canada, and the ninth worldwide after the Netherlands, Belgium, Ontario, British Columbia, Quebec, Massachusetts, Yukon, and Manitoba, to legalise same-sex marriage.

<span class="mw-page-title-main">Same-sex marriage in Alberta</span>

Same-sex marriage has been legal in Alberta since July 20, 2005 upon the granting of royal assent to the federal Civil Marriage Act. Alberta was one of the four Canadian provinces and territories where same-sex marriage had not been legalised before the enactment of the Civil Marriage Act, along with Prince Edward Island, the Northwest Territories and Nunavut.

<span class="mw-page-title-main">Same-sex marriage in New Brunswick</span>

Same-sex marriage has been legal in New Brunswick since June 23, 2005 in accordance with a ruling from the Court of Queen's Bench of New Brunswick. This decision followed similar cases in eight other provinces and territories, and pre-dated by only one month the federal Civil Marriage Act of 2005, which legalised same-sex marriage throughout Canada. New Brunswick was the ninth jurisdiction in Canada to recognise same-sex marriage, and the twelfth worldwide.

<span class="mw-page-title-main">Same-sex marriage in Newfoundland and Labrador</span>

Same-sex marriage has been legal in Newfoundland and Labrador since December 21, 2004, when the province was ordered by the Supreme Court of Newfoundland and Labrador to issue marriage licences to same-sex couples. This decision followed similar cases in seven other provinces and territories, and pre-dated by seven months the federal Civil Marriage Act of 2005, which legalised same-sex marriage throughout Canada. Newfoundland and Labrador was the eighth jurisdiction in Canada to legalise same-sex marriage, and the eleventh worldwide.

<span class="mw-page-title-main">Same-sex marriage in Prince Edward Island</span>

Same-sex marriage has been legal in Prince Edward Island since July 20, 2005. The Canadian province began the process of updating its laws to recognize same-sex marriage after the passage of the Civil Marriage Act in the House of Commons of Canada. Prince Edward Island had been one of only four provinces and territories, with Alberta, the Northwest Territories and Nunavut, where same-sex marriage had not already been legalized by court challenges prior to the passage of the law.

<span class="mw-page-title-main">Fransaskois</span> Francophone residents of Saskatchewan, Canada

Fransaskois, , Franco-Saskatchewanais or Franco-Saskatchewanians are French Canadians or Canadian francophones living in the province of Saskatchewan. According to the 2016 Canadian Census, approximately 17,735 residents of the province stated that French was their mother tongue. In the same census, 125,810 Saskatchewanians claimed full or partial French ancestry. There are several Fransaskois communities in Saskatchewan, although the majority of francophones in Saskatchewan reside in the province's three largest cities, Saskatoon, Regina, and Prince Albert.

<span class="mw-page-title-main">Freedom of religion in Canada</span> Overview of religious freedom in Canada

Freedom of religion in Canada is a constitutionally protected right, allowing believers the freedom to assemble and worship without limitation or interference.

<span class="mw-page-title-main">LGBT rights in Canada</span> Rights of LGBT individuals in Canada

Canadian lesbian, gay, bisexual, and transgender (LGBT) rights are some of the most extensive in the world. Same-sex sexual activity, in private between consenting adults, was decriminalized in Canada on June 27, 1969, when the Criminal Law Amendment Act, 1968–69 was brought into force upon royal assent. In a landmark decision in 1995, Egan v Canada, the Supreme Court of Canada held that sexual orientation is constitutionally protected under the equality clause of the Canadian Charter of Rights and Freedoms. In 2005, Canada became the fourth country in the world, and the first in the Americas to legalize same-sex marriage. In 2022, Canada was the third country in the world, and the first in North America, to fully ban conversion therapy nationwide for both minors and adults.

The Court of King's Bench for Saskatchewan is the superior trial court for the Canadian province of Saskatchewan.

<span class="mw-page-title-main">Foundation for Equal Families</span>

The Foundation for Equal Families is a Canadian gay and lesbian rights group founded in 1994 following the failure of Bill 167 in the Legislative Assembly of Ontario. The group's mandate is "Dedicated to achieving recognition and equality for same sex relationships and associated family rights through education and legal action". Meeting this mandate was accomplished by intervening in various precedent-setting legal cases, through representation at various pride parades and most notably in suing the Canadian federal government over failure to amend 58 pieces of federal legislation that were charter-infringing due to the definition of spouse.

John Gary LaneKC, , commonly known as Gary Lane, is a judge and former political figure in the Canadian province of Saskatchewan. He represented Lumsden from 1971 to 1975 and Qu'Appelle from 1975 to 1976 as a Liberal and then Qu'Appelle from 1976 to 1982 and Qu'Appelle-Lumsden from 1982 to 1991 as a Progressive Conservative in the Legislative Assembly of Saskatchewan.

References

  1. ↑ N.W. v. Canada (Attorney General) , 2004 SKQB 434, 246 DLR (4th) 345, [2005] 5 WWR 410, 123 CRR (2d) 367, 11 RFL (6th) 162, 255 Sask R 298 (Sask. Q.B. (F.L.D.)
  2. 1 2 3 4 5 "Same-sex marriage in Saskatchewan, Canada". Ontario Consultants on Religious Tolerance. 11 October 2004. Retrieved 10 March 2011.
  3. ↑ Civil Marriage Act , S.C. 2005, c. 33.
  4. ↑ "Nēhiyawēwin Ka-āpacihtāht Pihcī Itasiwēwinohk Ohci Kihci-wiyasowīkamik Mīna Māmawohkamākēwin". ourcommons.ca (in Cree). Archived from the original on 7 August 2019.
  5. ↑ "IN THE MATTER OF Walter Bruce Janvier v. Chipewyan Prairie First Nation as Represented by its Chief and Council and Dustin Twin in his Capacity as Electoral Officer" (PDF). www.fct-cf.gc.ca. Archived from the original (PDF) on 22 June 2021.
  6. ↑ Constitution Act, 1867 , 30 & 31 Victoria, c. 3 (U.K.), R.S.C. 1985, App. II, No. 11, s. 91(26).
  7. 1 2 The Marriage Act, 1995 , SS 1995, c. M-4.1.
  8. ↑ N.W. v. Canada (Attorney General) , paras. 2, 10.
  9. ↑ Cook, Tim (4 November 2004). "Same-sex couples await Saskatchewan decision on marriage". The Globe and Mail. Retrieved 2016-06-28.
  10. ↑ N.W. v. Canada (Attorney General) , para. 7.
  11. ↑ N.W. v. Canada (Attorney General) , paras. 8-13.
  12. ↑ Nichols v. M.J., 2009 SKQB 299, para. 1.
  13. ↑ M.J. v. Nichols (2008), 63 C.H.R.R. D/145 (S.H.R.T.).
  14. ↑ "Rights tribunal rebukes marriage commissioner in same-sex ruling", CBC, May 30, 2008.
  15. ↑ Nichols v. M.J., 2009 SKQB 299.
  16. ↑ "Commissioner who refused to marry same-sex couple loses appeal". Ottawa: CBC. 23 July 2009. Retrieved 10 March 2011.
  17. ↑ Marriage Commissioners Appointed Under The Marriage Act (Re), 2011 SKCA 3.
  18. 1 2 Marriage Act, 2021 , SS 2021, c. 16.
  19. 1 2 Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 , SS 2001, c. 50.
  20. 1 2 Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (No. 2) , SS 2001, c. 51.
  21. ↑ "Families, households and marital status: Saskatchewan". www12.statcan.gc.ca. 8 February 2017.
  22. ↑ "Jenny & Terresa Wedding". www.sweetmoonphotography.ca. September 4, 2018.
  23. ↑ Zeidler, Maryse (13 July 2019). "Anglican Church rejects same-sex marriage approvals in vote". CBC News.
  24. ↑ "Equal Marriage by Diocese". proudanglicans.diohuron.org. Retrieved 7 February 2022.
  25. ↑ "Constitution & Canons of the Diocese of Qu'Appelle". Diocese of Qu'Appelle. 9 October 2017.
  26. ↑ "Constitution & Canons of the Diocese of Saskatchewan". Diocese of Saskatchewan.
  27. ↑ Bergen, Craig (January 5, 2015). "Saskatoon gay couple 1st to be married in Mennonite church". CBC News.
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