First, this section highlights the constitutional competence in regulating marriage and related matters. Then, it offers some remarks about marriage and the conclusion that it is an unsuitable option for new families in Canada.
The competence of the federal government to regulate registration schemes is unclear.37 By contrast, marriage squarely falls within the powers of the Federation. As to the federal and provincial jurisdiction in marriage-related matters, both the federal and the provincial (or territorial) governments have jurisdiction. When skimming through the Constitution Act, 1867,38 the prima facie relevant provisions are section 91(26), which confers upon Parliament legislative power over “Marriage and divorce,”
and section 92(12), which endows provinces with the power to regulate “The solemnization of marriage in the Province.”
37 L. COMMISSION CAN., BEYOND CONJUGALITY: RECOGNIZING AND SUPPORTING CLOSE ADULT
RELATIONSHIPS 121 (2001), available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1720747&rec=1&srcabs=1524246&alg=7&pos=
3 (last visited Oct. 20, 2018).
38 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App. II, No. 5.
However, the majority of enacted provisions in marriage-related matters falls under a different umbrella: section 92(13), pursuant to which provinces have the power to regulate “property and civil rights in the Province.” A non-exhaustive list of matters covered by this section would include: filiation, adoption, matrimonial property, succession, guardianship, legitimacy, and spousal support.39
The scope of section 91(26), on “Marriage and divorce,” was clarified as early as 1912.
The Privy Council rendered a judgment on whether the Dominion Parliament had exclusive jurisdiction over all questions concerning the validity of the contract of marriage, including the conditions of validity.40 The question also revolved around whether the provincial jurisdiction over the formalities necessary to authenticate the contract extended to the conditions of validity. On that occasion, the Council held that provinces had jurisdiction in respect of the solemnization of marriage, in such a way that might also affect the validity of the contract in their territory.41
The contours of the constitutional division of legislative authority were further clarified in a recent seminal case. The case concerned the constitutionality of “the Proposed Act,” whereby Parliament, following the civil rights litigation, defined the legal capacity to enter a valid marriage. Under the new definition marriage was the
“lawful union of two persons to the exclusion of all others.” The Court thereto held the Act was intra vires Parliament,42 as referable to the power under section 91(26) to determine the legal capacity to marry, and that the law was not unduly interfering with the provinces’ powers over property rights and solemnization of marriage. In short, the Parliament of Canada can set the substantive conditions of marriage, referred to as the essential validity of marriage, and provinces retain the power over formal conditions (in French, conditions de forme.)
The present analysis proposes a comprehensive and principled approach to protecting new families. After 2004, it is clear that extending marriage to other families is intra vires Parliament. By contrast, it is not clear that an alternative regime to marriage could be enacted by Parliament. The power under Section 92(13) to regulate “property and civil rights in the Province,” combined with the emphasis that these alternative regimes
39 GUY RÉGIMBALD &DWIGHT NEWMAN,THE LAW OF THE CANADIAN CONSTITUTION 502 (2017).
40 Reference Re: Marriage Act (Canada), 1912 46 S.C.R. 132, at par. 11.
41 Id, at par. 33.
42 Reference re Same-Sex Marriage, [2004] 3 SCR 698, 2004 SCC 79 (CanLII), at par. 16.
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place on material benefits, as opposed to symbolic benefits, seems to suggest that provinces are better suited to address the problem. Hence, the task of protecting new unions through a comprehensive scheme should be assigned to the provinces.
As to the reasons why marriage is not the proper vehicle to protect new families, they are many and revolve around the inappropriateness of an incrementalist approach, and the inability of new families to dovetail with the marital ideal. The marriage equality struggle was the product of a deliberate choice to compromise on same-sex marriage as a stepping-stone to achieving further equality for other unions in the future. Many scholars and activists, while recognizing the shortcomings associated with an incremental approach, believed that these (partial) reforms could be conducive to equality for new families in the future. Under the mentioned approach, what would come next is extending marriage to polyamorous relationships.
However, incrementalism comes at queer families’ expenses because it causes exclusion rather than inclusion.43 Nibbling protections for self-identified discrete groups, as same-sex couples, further entrenches the marginalization of couples unable to fit dominant notions of familyhood,44 marked by conjugality, exclusivity, and often childrearing. The marriage equality narrative entrenches marriage as a traditional and foundational institution in a way that harms unrecognized relationships.45 With its emphasis on conjugality and intimacy as the central markers of deserving relationships, this narrative epitomizes the entrenchment of marriage and marital-like relationships and pushes legal recognition of new families one step further away.
By contrast, a principled approach that addresses from scratch the functional attributes of familyhood tends to be more interested in including rather than excluding all families. It is uncontroversial that marriage does not fit non-conjugal couples. First, I would not want to marry my sister,46 while I would be willing to register her to assign some benefits. Second, marriage has a clear pedigree of exclusion and discrimination.
43 Nausica Palazzo, Identity politics e il suo reciproco: riflessioni giuridico-politiche sull'attivismo queer, in ANNALISA MURGIA AND BARBARA POGGIO (EDS.), PROSPETTIVE INTERDISCIPLINARI SU FORMAZIONE, UNIVERSITÀ, LAVORO, POLITICHE E MOVIMENTI SOCIALI (2017).
44 Id.
45 Nausica Palazzo, The Strange Pairing: Building Alliances Between Queer Activists and Conservative Groups to Recognize New Families (University of Michigan Public Law Research Paper No. 615, 2018).
46 Cassie Williams, Nova Scotia sisters who've lived together 38 years want survivor benefits, CBC, October 28, 2016, http://www.cbc.ca/news/canada/nova-scotia/nova-scotia-sisters-living-together-benefits-pension-access-1.3826095 (last visited 26 May 2018).
While it has now been made gender-neutral, it can hardly be disentangled from conjugality and the other markers mentioned above. Not only can it hardly be disentangled from conjugality, but, due to the marriage equality movement, the link between the two is also now stronger than ever.47
This concern over the influence of conjugality can only be attenuated, yet not overcome, by the Supreme Court’s decision to adopt a living tree principle in the interpretation of the meaning of marriage, “which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”48 This approach is open to any adjustment required by evolving notions of equality. It expressly refuses to rely on frozen concepts and to inquire over a purportedly “natural”
meaning of marriage. Yet, the considerations vis-à-vis the unsuitability of marriage for new families apply to Canada. Especially, the descriptive considerations around the fluidity, non-exclusivity, and structural non-heteronormativity49 of these families suggest that they can hardly square with marriage, no matter what liberal and large interpretation is given to eligibility requirements.
2.2. Extending the protections through a comprehensive registration scheme
The current ascriptive system for common law marriages raises concerns in terms of autonomy. As seen, the system covers conjugal couples in many provinces and schemes at the federal level. The trend towards the customization of personal relationships and self-regulation of private matters is severely curtailed by an approach that ascribes a status that parties not necessarily want.
In addition to the concerns vis-à-vis autonomy, the approach is not comprehensive. It lacks consistency across areas in that it only applies in specific areas of law, upon deliberation by a public authority or (in the context of private law entitlements) upon request of one party. The same concern around inconsistency applies to registration
47 Brenda Cossman & Bruce Ryder, Fifteen Years Beyond Beyond Conjugality, 30 CAN.J.FAM.L. 241 (2018) (“…from a federal legislative perspective, the aftermath of the Beyond Conjugality report has been precisely what it feared and the opposite of what it sought to achieve: the legal definition of coupled conjugality has been extended to the previously excluded and as a result has become more deeply entrenched at the heart of the state’s approach to relationship recognition and support.”).
48 Reference Re: Marriage Act (Canada), 46 S.C.R, at par. 22.
49 Laura A. Rosenbury, Friends with Benefits, 106 MICH.L.REV. 189, 231 (2007).
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systems that are not comprehensive but that are designed to confer specific benefits.
This unique partial registration system is in force in two provinces, Manitoba and Nova Scotia, and allows unmarried conjugal couples to register with the government agency to gain a few marital benefits, such as property division rules.50
The lack of consistency of both systems risks rendering couples “family” for some purposes and strangers for other purposes. However, some cases cast doubt on the viability of such an approach. For instance, as to the detachment of public law definitions from the private law ones, it has been argued that a disconnection is not permissible. It amounts to a violation of the Charter to be treated as a “spouse” in the context of social assistance, without being a spouse for purposes of private law. In Falkiner,51 an Appeal court for Ontario assessed the constitutionality of the “spouse in the house” rule, establishing a rebuttable presumption that opposite-sex people living together were spouses. As a consequence of the application of the rule, the applicant, allegedly in a “try on” relationship with his boyfriend, had social assistance terminated upon reclassification by the Community and Social Services (due to the other “spouse”
income.) The Court conceded that, when the policy maker choses a private law definition of “spouse,” she cannot choose a different definition for another purpose, especially when the autonomous definition yields a negative impact on a vulnerable group. This decision casts doubt on the constitutionality of what has been named deprivative recognition, that is the trend in both Canada and the U.S. that leads to couples’ recognition for purposes of withholding benefits or privileges.52
The benefits associated with a comprehensive registration scheme are thus many and range for the due respect for the need of autonormativity and customization of private relationships that connotes modern family arrangements. It is also congruent with the need to provide a comprehensive set of prerogatives across different areas of law. It is, ultimately, less intrusive in that it requires the parties to take affirmative steps to gain recognition, without a state intrusion into the realm of private lives. The perks of a comprehensive registration scheme have also been acknowledged by the Law Commission of Canada:
50 Family Property Act, CCSM c F25.
51 Falkiner v. Ontario (Minister of Community and Social Services), 2002 CanLII 44902 (Ont. Ct. App.).
52 Erez Aloni, Deprivative Recognition, 61 UCLAL.REV. 1276 (2014); Nicola Barker, Rethinking Conjugality as the Basis for Family Recognition, 6 OÑATI SOCIO-LEGAL SERIES 1249 (2016).
“Like marriage, registrations have the characteristics of voluntariness, stability, certainty and publicity. They provide an orderly framework in which people can express their commitment to each other, receive public recognition and support, and voluntarily assume a range of legal rights and obligations. These regimes also provide for an orderly and equitable resolution of the registrants’ affairs if their relationships break down.”53
Thus, in addition to the reasons that warrant the introduction of a registration system in the United States, in Canada the system becomes necessary to remedy the distributive injustice associated with the partial and pure ascription system currently in force. A comprehensive registration scheme is the preferred legal remedy. The section devoted to building a policy argument will thus support the introduction of such a remedy.
2.3. Area-specific approach
As noted above, the extension of marriage could fall within the scope of the powers of Parliament. By contrast, given the jurisdiction over property and civil rights, alternative regimes to marriage most likely fall within the competences of the single provinces. Besides jurisdiction, there is no guidance on the constitutionality of introducing alternative regimes to marriage. Hence, the section that attempts to build a constitutional argument54 will not address the compatibility with the Charter of introducing or extending such alternative regimes. In the constitutional context, the preferred remedy is to seek an extension of benefits on a case-by-case basis.
The same strategy was initially pursued by both same-sex couples and parties to a common law marriage. This area-specific or protection-driven approach, unlike the comprehensive approach, benefits from extensive case law. Especially, it can draw on several decisions regarding common law marriages/de facto couples and same-sex
53 L.COMMISSION CAN.,supra note 37, at 117.
54 See infra par. 4.
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couples. It also has the perk of avoiding the highly contentious issue of whether the constitution protects negative or affirmative rights.55
The same conclusion applies to human rights codes. The protections against specific acts of misconduct, combined with the liberal and large interpretation of “service,”56 are conducive to framing claims so as to seek benefits on a case-by-case basis. Put differently, human rights codes are structured in such a way that claimants tend to challenge a discriminatory exclusion from certain benefits. Thus, a protection-driven approach is the preferred remedy in the context of human rights codes as well.