Same Sex Divorce and Civil Marriage Act - Family Law

Review of the The Civil Marriage Act, S.C. 2005, c. 33

by Darryl Aarbo

I have had the opportunity to review the federal  Civil Marriage Act in force since June 26, 2013.  It carries the citation of 2005, but was not formally proclaimed until 2013.

As far as I am aware I am preparing the first divorce under this legislation in Alberta.  I have contacted the Clerk and this information has been confirmed to me.

I will not bore you with the technicalities of how to proceed with the divorce under the Civil Marriage Act, as opposed to the Divorce Act, because it is essentially the same procedure as a divorce using slightly modified Court forms.  Of particular note, however, is that the parties do not seem to be able to  seek corollary relief upon the divorce.  This means that they cannot seek spousal support, child support or deal with custody and access.  The legislation only deals with obtaining a divorce.

The reason this legislation came into its existence is because Canada allows same sex marriage.  What has happened is that couples have married in Canada then moved abroad.  If these couples find themselves in a jurisdiction that does not recognize same sex marriage then they cannot get divorced.  If a country does not recognize same sex marriage then they are not going to recognize same sex divorce.  This has put a number of couples throughout the world in an extremely difficult position.  They cannot get divorced.

The reason they cannot get divorced in Canada is because our Divorce Act requires them to be a resident for at least one year.  One cannot be a resident in Alberta and some other country at the same time.  The two are mutually exclusive.

What is particularly interesting about the legislation is that Part 2 of the legislation deals with the dissolution of marriage for non-resident spouses.  It is a fairly straight forward and technical legislation that allows people caught in this conundrum to obtain a divorce in Canada even if they live abroad.

What is also of particular note about the legislation is Part 1.  Part 1 of the legislation deals with the solemnization of marriage.  Why this is unusual is because this is the exclusive jurisdiction of the provinces.  Nevertheless, s. 3 of the legislation states that: “It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.”

Section 3.1 states and goes on to explain that the reason for this section is to reserve a freedom of conscience and religion guaranteed under the Charter.  It seems to be a twisted logic that the Charter of Rights and Freedoms is itself used to justify another breach of the Charter of Rights and Freedoms.  Normally the Courts engage in a balancing of rights, as opposed to using one right to override another right. 
In any event, it is this writer’s opinion that those sections ultra vires the federal government.  In other words, these sections would violate the Constitution Act, 1867.  The Constitution Act, 1867 divides up the powers between the provinces and federal government.  The solemnization of marriage is a provincial responsibility and it would appear that the federal government is trying to legislate within this realm. 

Darryl Aarbo

darrylaarbo@courteyaarbo.ca