¹ Egan v. Canada (1995) 124 D.L.R. (4th) 609 (S.C.C.) [hereinafter Egan].

² R.S.C. 1985, c. 0–9, s. 2.

³ Although it is an important issue, I do not wish to discuss the suitability of pursuing formal equality with respect to same-sex marriage as a vehicle for civil rights for lesbians and gay men. Nor will I be dealing with whether access to state-subsidized benefits should be based on spousal status. For a discussion of these issues, refer, e.g., to: Wolfson, E., “Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men, and the Intra-Community Critique” (1995) 21 N.YU. Rev. L. Soc. Change 567Google Scholar; Ryder, B., “Becoming Spouses: The Rights of Lesbian and Gay Couples” (1993) Special Lectures, L.S.U.C. 399.Google Scholar; Eskridge, W., “A History of Same-Sex Marriage” (1993) 79 Virginia L. Rev. 1419CrossRefGoogle Scholar; Duelos, N., “Some Complicating Thoughts on Same-Sex Marriage” (1991) 1 Law and Sexuality 3Google Scholar; Ryder, B., “Equality Rights and Sexual Orientation: Confronting Heterosexual Family Privilege” (1990) 9 Can. J. Fam. L. 39Google Scholar; Herman, D., “Are We Family? Lesbian Rights and Women’s Liberation” (1990) 28 Osgoode Hall L.J. 789.CrossRefGoogle Scholar

⁴ (1974) 20 R-F.L. 112 (Man. Co. Ct.) [hereinafter North].

⁵ (1993) 14 O.R. (3d) 658 (Ont. Ct. Gen. Div.) [hereinafter Layland].

⁶ (1866) L.R. 1 P. & D. 130 (H.L.) [hereinafter Hyde].

⁷ Ibid., 133. Ironically, despite the reference to marriage as a “voluntary union for life,” the court was at the time considering a divorce action.

⁸ There has been a great deal of litigation with respect to same-sex spousal status, particularly in the employment context; not all of the results have been positive. For tribunal and court decisions that have accorded benefits and/or spousal status to same-sex couples see, e.g.: Vogel v. Manitoba (1995) 126 D.L.R. (4th) 72; Guevremont and the Public Service Alliance of Canada v. Canada Post Corporation, Arbitration Decision, Vancouver B.C., Mar. 8, 1994; Lorenzen v. Treasury Board, Public Service Staff Relations Board, File Numbers 166–2–23963 and 166–2–24000 (Galipeau), June 1993; Leshner v. Ontario (1992) 16 C.H.R.R. D/184 (Ont. Bd. Inquiry); Knodel v. British Columbia (Medical Services Commission) (1991) 58 B.C.L.R. (2d) 356 (B.C.S.C.); Veysey v. Correctional Services of Canada (1990) 109 N.R. 300 (F.C.A.); Braschi v. Stahl Associates Company (1989) 74 N.Y. (2d) 201 (N.Y.CA.); K. (Re) (1995) 23 O.R. (3d) 679 (Prov. Div.), M. v. H. (1996) 31 O.R. (3d) 417 (CA.).

For those decisions that denied benefits or spousal status, see, e.g.: Egan, supra note 1; Ontario Blue Cross v. O.H.R.C. and Clinton (1994) 21 C.H.R.R. D/342 (Ont. Gen. Div.); Attorney-General (Canada) v. Mossop, [1993] 1 S.C.R. 554; Hewens v. Treasury Board, Public Service Staff Relations Board, File No. 1662–2–22733, Nov. 25, 1992; Re Andrews et al. and Minister of Health for Ontario et al (1988) 64 O.R. (2d) 258 (H.C.); Anderson v. Luoma (1986) 50 R.F.L. (2d) (B.C.S.C.).

⁹ This alternative was explored by the Ontario legislature in response to a report by the Ontario Law Reform Commission (Report on the Rights and Responsibilities of Cohabitants under the Family Law Act (1993)). The legislature chose instead to introduce Bill 167, which would have resulted in an omnibus amendment of all provincial legislation dealing with spousal relationships to include same-sex partners within the definition of “spouse.” The bill was defeated when then Premier Rae allowed a free vote rather than relying on his party's majority status in the legislature to enact the legislation. Similar legislation will not likely be pursued in Ontario any time in the near future.

¹⁰ The Lov om registrerei partnerskab [Registered Partnership Act], Act No. 372, June 7, 198g [hereinafter Partnership Act].

¹¹ The Norwegian Act on Registered Partnerships for Homosexual Couples, The Ministry of Children and Family Affairs, Oslo, Norway, Apr. 1993.

¹² See supra note 10, s. 3, which provides as follows:

• (1) Subject to the exceptions of section 4, the registration of a partnership shall have the same legal effects as the contracting of marriage.

• (2) The provisions of Danish law pertaining to marriage and spouses shall apply similarly to registered partnership[s] and registered partners.

¹³ See ibid., s. 4, which provides as follows:

• (1) The provisions of the Danish Adoption Act regarding spouses shall not apply to registered partners.

• (2) Clause 3 of section 13 and section 15(3) of the Danish Legal Incapacity and Guardianship Act regarding spouses shall not apply to registered partners.

• (3) Provisions of Danish law containing special rules pertaining to one of the parties to a marriage determined by the sex of that person shall not apply to registered partners.

• (4) Provisions of international treaties shall not apply to registered partnership[s] unless the other contracting parties agree to such application.

¹⁴ The reference to the application of treaties in s. 4(4) does not necessarily indicate that no extraterritorial application was intended when the legislation was enacted. The provision merely indicates that any extraterritorial application would be by reference to conflicts analysis rather than through a treaty mechanism, unless the parties to the treaty agree otherwise.

¹⁵ Baehr v. Lewin, 852 P.2d 44, 75 (Haw. 1993) [hereinafter Baehr].

¹⁶ Baehr v. Miike, December 3, 1996, Civil Case No. 91–1394, First Circuit Court, Hawaii.

¹⁷ When Hungary’s constitutional court recently struck down a law barring same-sex common law marriage, Hungary become the first Eastern European nation to extend traditional marriage rights to same-sex couples. The Court instructed the legislature to amend the law on common-law marriages, Ptk 578/G, to include same-sex couples by Mar. 1, 1996. Common law marriages are recognized when couples live together on a permanent basis in a sexual relationship, and the legal status extends substantially identical rights to common-law partners as are available to married couples. However, the Court specifically refused to recognize legal marriage for same-sex couples, continuing the definition of formal, civil marriages as a union between a man and a woman. (Budapest, Hungary, Reuter, Mar. 8, 1995.)

On May 17, 1995, the European Parliament formally stated that discrimination on the basis of sexual orientation should be prohibited by the Treaty of the European Union. The Parliament’s resolution states: “The Treaty should contain a clear rejection of racism, xenophobia, sexism, discrimination on grounds of a person’s sexual orientation, anti-Semitism, revisionism, and all forms of discrimination, and guarantee adequate legal protection against discrimination for all individuals resident in the European Union.” Presumably this will result in additional pressure to extend legal recognition to same-sex relationships within the European Union.

¹⁸ Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 91(26) [hereinafter the Constitution Act, 1867].

¹⁹ Ibid., s. 92(12), (13).

²⁰ Scrimshire v. Scrimshire (1752) 2 Hagg. Con. 395; Berthiaume v. Dastous, [1930] A.C. 79; Starkowski v. Alt. Gen., [1954] A.C. 155.

²¹ Brook v. Brook (1861) 9 H.L.C. 703 [hereinafter Brook].

²² The public policy exception is an important escape device in conflicts rules. The exception permits a domestic court to decline to apply foreign law if to do so would violate norms of essential justice and morality in the forum jurisdiction.

²³ 26 Geo. 2, c. 33 [hereinafter Lord Hardwicke’s Act].

²⁴ McLean, J.D., Morris: The Conflict of Laws, 4th ed., 155 (London: Sweet & Maxwell, 1993).Google Scholar

²⁵ See the “Gretna Green” cases: e.g., Compton v. Beararoft (1769) 2 Hag. Con. 444η, 161 E.R. 799; Simonin v. Mallac (1860) 2 Sw. & Tr. 67.

²⁶ Prohibitions based on consanguinity involve marriages between persons who are considered to be too closely related by blood, while prohibitions based on affinity involve marriages between persons who are already too closely related by marriage.

²⁷ 5 and 6 Will. 4, c. 54 [hereinafter Lord Lyndhurt’s Act].

²⁸ Supra, note 21.

²⁹ Ibid., 709.

³⁰ Ibid., 712, per the Lord Chancellor (Lord Campbell).

³¹ An escape device is a doctrine that allows a court to decline to apply a foreign law dictated by the results of a conflicts analysis. For example, courts will not enforce foreign laws that are penal in nature or violate public policy norms of essential justice and morality.

³² Brook, supra note 21 at 711, per the Lord Chancellor (Lord Campbell).

³³ Brook, supra note 21 at 722, per Lord St. Leonards.

³⁴ Personal law refers to issues of status such as marital status and familial relationships, which are decided by reference to the law of the person’s domicile. A person’s status therefore remains constant notwithstanding interjurisdictional mobility.

³⁵ An extensive review and analysis of the law of domicile is not possible within the confines of this paper. For a discussion of this topic, see Castel, J.-G., Canadian Conflict of Laws, 75–93 (3d ed., Toronto: Butterworths, 1994).Google Scholar

³⁶ Ibid., 334.

³⁷ Supra note 18.

³⁸ Ibid.

³⁹ Ibid., s. 92(13).

⁴⁰ Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46 [hereinafter Marriage Act].

⁴¹ Part I of the Constitution Act, 1982, being Schedule Β to the Canada Act 1982 (U.K.), 1982, c. 11, s. 15 [hereinafter the Charter].

⁴² Following Egan, supra note 1, sexual orientation is an analogous ground of discrimination under s. 15 of the Charter. Given the plurality of the decision, a discussion of the implications and outcome of a potential s. 15 challenge is beyond the scope of this analysis.

⁴³ Separate conflicts rules govern rights and obligations such as child support, spousal support, child custody and access enforcement, and adoption orders. A conflict might arise within the context of the recent decision in Re K. ( 1995) 23 O.R. (3d) 679 (Ont. CL Prov. Div.), wherein NevinsJ. granted an application for an adoption order by four same-sex couples. In each case, the child was adopted by the biological parent’s same-sex partner. These families would want to have the adoption order recognized in any subsequent jurisdiction. Another example would be enforcement of spousal support, given that the Court held in M. v. H. (1996) 31 O.R. (3d) 417 (C.A.) that same-sex partners are able to access support provisions available to common law couples pursuant to the Family Law Act, R.S.O. 1990, c. F.3. A consideration of these regimes, however, is beyond the scope of this article.

⁴⁴ In Re the Marriage Law of Canada, [1912] 7 D.L.R. 629 (P.C.), the Court held that provincial legislative jurisdiction over the solemnization of marriage in the province pursuant to s. 92 (1) of the Constitution Act, property and civil rights in the province pursuant to s. 92(13), and matters of a merely local or private nature pursuant to s. 92(16) operate by way of exception to federal legislative authority over marriage and divorce pursuant to s. 91 (26). The Court considered whether it was intra vires for the federal legislature to enact remedial legislation purporting to validate marriage ceremonies. The most significant matter for determination, however, was the distribution of legislative powers with respect to marriage. One argument presented was that all issues of validity were reserved for federal jurisdiction and that the provinces were limited in their authority to enacting legislation over the formalities of the contract of marriage. The other argument was that provincial authority operated by way of exception to federal powers, and it was constitutionally permissible for provincial legislatures to enact antecedent conditions with respect to solemnization that could affect the validity of the marriage itself. The Privy Council accepted the latter argument, and this case is still good law.

Outright contradiction, however, may not be permitted. While age is a matter of capacity, provincial legislation requiring parental consent for marriage between parties below a certain age as a precondition for solemnization was upheld in A. G Alta. v. Neilson and Underwood, [1934] S.C.R. 635 at 640 as a matter of form not related to capacity. In Re Howe Louis (1971 ) 14 D.L.R. (3d) 49 (B.C.C.A.), the impugned provincial legislation validated forms of marriage performed in a province before a certain date, provided that the parties were not under a legal disqualification to contract the marriage, notwithstanding that the required formalities were not observed. The legislation was held to be intra vires the province as relating in pith and substance to the solemnization of marriage and having only incidental effect on the issue of capacity. In Christians (Wiltshire) v. Hill (1981) 22 R.F.L. (2d) 299 (Alta. Q.B.), the Court considered provincial legislation purporting to regulate marriage on the basis of prohibited degrees of affinity and consanguinity by refusing to issue a marriage licence to parties in violation of the prohibited degrees as set out in the provincial regulations. The Court held that, as long as the provincial legislation was in harmony with federal legislation concerning the prohibited degrees, the legislation was valid, but, where the application of the provincial law would lead to contradictory results, the legislation was ultra vires of the province.

As in conflict of laws, characterization of the issue within the context of the division of powers can materially affect the result, and the determination of whether a matter is one of formality or capacity is not straightforward. In North, supra note 4, the Court found that the issue was not one of the proper allocation of legislative authority, but of whether there was a marriage according to the common law definition as set out in Hyde, supra note 6. In Layland, supra note 5, the Court referred to North in deciding the issue of capacity in a similar manner. The issue remains undecided, and a case of same-sex capacity for marriage decided by the Supreme Court at this time may not set out a clear and exact demarcation between formality and capacity based on the allocation of legislative authority over marriage. The Court may rely on the application of s. 92 ( 13) with respect to property and civil rights in the province to divert from a characterization analysis to a consideration of the permissive scope of provincial authority over the concomitant rights and responsibilities of any form of domestic relationship.

⁴⁵ (1990) 76 D.L.R. (4th) 256 [hereinafter Morguard].

⁴⁶ Ibid., 273, per La Forest J.

⁴⁷ Ibid., 271.

⁴⁸ (1993) 109D.L.R. (4th) 16 (S.C.C.) [hereinafter Hunt].

⁴⁹ R.S.Q. 1977, c. D-12.

⁵⁰ (1994) 120D.L.R. (4th) 289 (S.C.C.) [hereinafter Tolofson].

⁵¹ Hunt, supra note 48 at 20, per La Forest J.

⁵² U.S. Constitution, art. 4, s. 1.

⁵³ Clarke v. Lo Bianco (1991) 84 D.L.R. (4th) 244 (B.C.S.C.); Minkler and Kirschbaum v. Sheppard (1991) 60 B.C.L.R. (2d) 360 (B.C.S.C.); Federal Deposit Insurance Corp. v. Vanstone (1992) 88 D.L.R. (4th) 448 (B.C.S.C.); Resorts International Hotel Inc. v. Auerbach (1991) 89 D.L.R. (4th) 688 (Que. A.C.); Boardwalk Regency Corp. v. Maalouf (1992) 88 D.L.R. (4th) 612 (Ont. CA.); as examined in Coakley, S., Finkle, P., and Barrington, L., “Morguard Investments Ltd.: Emerging International Implications” (1992) 15 Dalhousie L.J. 629.Google Scholar

⁵⁴ S. Coakeley, P. Finkle and L. Barrington, supra note 53.

⁵⁵ Tolofson, supra note 50 at 303, per La Forest J.

⁵⁶ The Supreme Court apparently last considered a conflicts question with respect to capacity to marry in Sckwebel v. Ungar, [1965] S.C.R. 148. The decision of the Court focused on the elements necessary to establish domicile and recognition of a foreign divorce decree and merely confirmed the relevance of domicile and the applicability of the traditional rule that capacity to marry is governed by the party’s prénuptial domicile.

⁵⁷ A forum court is the court where the action is brought for determination.

⁵⁸ Ballati, H., “Til Death Do Us Part: Granting Full Faith and Credit to Marital Status” (1995) 68 S. Cal. L. Rev. 397 at 412.Google Scholar

⁵⁹ Morguard, supra note 45 at 269.

⁶⁰ European Communities Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (1979) 18 I.L.M. 20.

⁶¹ Tolofson, supra note 50 at 308.

⁶² Castel, supra note 35 at 164.

⁶³ Marriage Act, supra note 40.

⁶⁴ Egan, supra note 1 at 625. La Forest J. held, Lamer C.J.C., Gonthier and Major JJ. concurring, that “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.”

⁶⁵ See, e.g., Boardwalk Regency Corp. v. Maalouf (1992) 6 O.R. (3d) 737 (Ont. C.A. ). In order to resist the recognition and enforcement of a foreign judgment on public policy grounds, the public policy must concern essential justice and morality. The action concerned the enforcement of an unpaid gambling debt, and the Court’s search for the location of a relevant public policy objection is illustrative of the direction a principled judiciary would take in determining whether a foreign same-sex marriage should not be recognized in Canada on grounds of public policy. While gambling is not a legal activity within Canada as it is in New Jersey where the debt originated, the relevant provisions of the Criminal Code had decriminalized the activity by permitting it to be carried out in certain circumstances. In addition, there was no indication that the prohibition was intended to have extraterritorial effect. Therefore, enforcement of the foreign judgment did not violate conceptions of essential justice and morality.

⁶⁶ Cheni v. Cheni, [1962] 3 All E.R. 873 at 883 (P.Div.) [hereinafter Cheni].

⁶⁷ Ibid., 883. See also R. v. Brentwood Superintendent Registrar of Marriages; Ex parte Arias, [1968] 3 All E.R. 279 (Q.B.) [hereinafter Brentwood]; Qureshi v. Qureshi, [1972] Fam. 173.

⁶⁸ In Wolfson, E., “Winning and Keeping Equal Marriage Rights: What Will Follow Victory in Baehr v. Lewin?” (1995) 1 National Journal of Sexual Orientation and the Law 290 at 301,Google Scholar note 29.

⁶⁹ Castel, supra note 35 at 340–41. In Ontario, provincial legislation governing the rights and obligations of marriage applies to polygamous marriages as well, whether actually or potentially polygamous, provided that the marriage was celebrated in a jurisdiction whose system of law recognizes it as valid. See the Family Law Act, R.S.O. 1990, c. F.3, s. 1(2).

⁷⁰ Brentwood, supra note 67 at 284, per Sachs L.J.