(Ontario Real Estate Source)
By Brian Madigan LL.B.
You might wonder about the laws that apply to marriage in Ontario.
In accordance with the Constitution Act, 1867 (formerly the British North America Act), legislative powers relating to marriage between the federal and provincial governments were divided between the federal and provincial governments.
•· The federal government has exclusive jurisdiction over "Marriage and Divorce": s. 91(26).
•· The provinces have exclusive jurisdiction over the solemnization of marriage: s. 92(12).
Federally, there is one Act, known as "Marriage (Prohibited Degrees) Act.
It imposes certain restrictions upon the entitlement of parties to marry one another based upon degrees of consanguinity. The key operative provision is as follows:
"No person shall marry another person if they are related lineally, or as brother or sister or half-brother or half-sister, including by adoption."
This simply means ascendants and descendants may not marry at all. Collaterals may marry provided they are not of the second degree which would be brothers and sisters.
The Ontario Court of Appeal changed the long standing definition of marriage on 10 June 2003 in Halpern vs. Attorney General of Canada.
The Court sumarized the issue as follows:
"The definition of marriage in Canada, for all of the nation's 136 years, has been based on the classic formulation of Lord Penzance in Hyde v. Hyde and Woodmansee (1866), L.R. 1 P.&D. 130 at 133: "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others." The central question in this appeal is whether the exclusion of same-sex couples from this common law definition of marriage breaches ss. 2(a) or 15(1) of the Canadian Charter of Rights and Freedoms ("the Charter") in a manner that is not justified in a free and democratic society under s. 1 of the Charter."
The Court concluded:
1)the rights of the applicants (same sex couples) were violated, by preventing them from marrying one another, contrary to the Charter of Rights and Freedoms.
2)the new reformulated the common law definition of marriage is "the voluntary union for life of two persons to the exclusion of all others".
The matter of marriage, its qualifications, restrictions, definition, prohibitions, conditions, rights, and entitlements has not been made subject to further review.
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through Royal LePage Innovators Realty, Brokerage 905-796-8888
www.OntarioRealEstateSource.com
