Same-sex marriage in Saskatchewan

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Same-sex marriage in Saskatchewan became legal 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.

Furthermore, same-sex couples have been able to adopt children jointly since 2001, after the Adoption Act was amended by the Legislative Assembly of Saskatchewan in July 2001.[4]

N.W. v. Canada (Attorney General)[edit]

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. 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 and the Attorney General for Saskatchewan. 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,[5] and the latter because marriage licence issuers are provincial officials appointed under Saskatchewan's marriage legislation.[6][7]

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".[8]

On 5 November 2004, 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][9]

Justice Wilson 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.[10]

M.J. v. Nichols[edit]

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, on the basis 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."[11] The Saskatchewan Human Rights Tribunal ordered Nichols to pay $2,500 in compensation to the couple for infringing their right under The Saskatchewan Human Rights Code to access to public services without discrimination.[12][13] In 2009, the Saskatchewan Court of Queen's Bench dismissed Nichols' appeal.[14][15]

The Saskatchewan Government followed by proposing legislation which would allow 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.[16]

Provincial legislation[edit]

The provincial Marriage Act, 1995 requires marriage commissioners to pronounce a newlywed couple to be "husband and wife". There are other instances of heterocentric language in the law, namely articles 25(3)(b), 25(7), 32(1)(c) and 35(1)(a) which assume parties to a marriage to be "husband and wife".[17]

References[edit]

  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. ^ a b "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. ^ "An Act to amend certain Statutes respecting Domestic Relations (No. 2)" (PDF). Government of Saskatchewan. Retrieved February 11, 2016.
  5. ^ Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), R.S.C. 1985, App. II, No. 11, s. 91(26).
  6. ^ The Marriage Act, 1995, S.S. 1995, c. M-4.1.
  7. ^ N.W. v. Canada (Attorney General), paras. 2, 10.
  8. ^ "Same-sex couples await Saskatchewan decision on marriage". Retrieved 2016-06-28.
  9. ^ N.W. v. Canada (Attorney General), para. 7.
  10. ^ N.W. v. Canada (Attorney General), paras. 8-13.
  11. ^ Nichols v. M.J., 2009 SKQB 299, para. 1.
  12. ^ M.J. v. Nichols (2008), 63 C.H.R.R. D/145 (S.H.R.T.).
  13. ^ "Rights tribunal rebukes marriage commissioner in same-sex ruling", CBC, May 30, 2008.
  14. ^ Nichols v. M.J., 2009 SKQB 299.
  15. ^ "Commissioner who refused to marry same-sex couple loses appeal". Ottawa: CBC. 23 July 2009. Retrieved 10 March 2011.
  16. ^ Marriage Commissioners Appointed Under The Marriage Act (Re), 2011 SKCA 3.
  17. ^ "The Marriage Act, 1995". www.canlii.org.

External links[edit]