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Bill C-38

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1st Session, 38th Parliament,

53 Elizabeth II, 2004-2005

house of commons of canada

BILL C-38

An Act respecting certain aspects of legal capacity for marriage for civil purposes

Preamble

WHEREAS the Parliament of Canada is committed to upholding the Constitution of Canada, and section 15 of the Canadian Charter of Rights and Freedoms guarantees that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination;

WHEREAS the courts in a majority of the provinces and in one territory have recognized that the right to equality without discrimination requires that couples of the same sex and couples of the opposite sex have equal access to marriage for civil purposes;

WHEREAS the Supreme Court of Canada has recognized that many Canadian couples of the same sex have married in reliance on those court decisions;

WHEREAS only equal access to marriage for civil purposes would respect the right of couples of the same sex to equality without discrimination, and civil union, as an institution other than marriage, would not offer them that equal access and would violate their human dignity, in breach of the Canadian Charter of Rights and Freedoms;

WHEREAS the Supreme Court of Canada has determined that the Parliament of Canada has legislative jurisdiction over marriage but does not have the jurisdiction to establish an institution other than marriage for couples of the same sex;

WHEREAS everyone has the freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms;

WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs;

WHEREAS, in light of those considerations, the Parliament of Canada’s commitment to uphold the right to equality without discrimination precludes the use of section 33 of the Canadian Charter of Rights and Freedoms to deny the right of couples of the same sex to equal access to marriage for civil purposes;

WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians;

AND WHEREAS, in order to reflect values of tolerance, respect and equality consistent with the Canadian Charter of Rights and Freedoms, access to marriage for civil purposes should be extended by legislation to couples of the same sex;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short title

1. This Act may be cited as the Civil Marriage Act.

Marriage — certain aspects of capacity

2. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.

Religious officials

3. It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.

Marriage not void or voidable

4. For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex.

CONSEQUENTIAL AMENDMENTS

R.S., c. C-44; 1994, c. 24, s. 1(F)

Canada Business Corporations Act

2001, c. 14, s. 115

5. (1) Subsection 237.5(2) of the Canada Business Corporations Act is replaced by the following:

Interpretation

(2) For the purposes of this section,

(a) a personal body corporate is a body corporate that is not actively engaged in any financial, commercial or industrial business and that is controlled by an individual, or by a group of individuals who are connected by marriage, common-law partnership or any legal parent-child relationship or are connected indirectly by a combination of those relationships, whether or not the individuals through whom they are connected are members of the group; and

(b) a common-law partnership is a relationship between two persons who are cohabiting with each other in a conjugal relationship and have done so for a period of at least one year.

2001, c. 14, s. 115

(2) Subsection 237.5(3) of the Act is renumbered as subsection (1.1) and repositioned accordingly.

1998, c. 1

Canada Cooperatives Act

2001, c. 14, s. 218

6. (1) Subsection 337.5(2) of the Canada Cooperatives Act is replaced by the following:

Interpretation

(2) For the purposes of this section,

(b) a common-law partnership is a relationship between two persons who are cohabiting with each other in a conjugal relationship and have done so for a period of at least one year.

2001, c. 14, s. 218

(2) Subsection 337.5(3) of the Act is renumbered as subsection (1.1) and repositioned accordingly.

R.S., c. C-31; 1999, c. 10, s. 19

Civilian War-related Benefits Act

2000, c. 12, s. 83

7. Section 36 of the Civilian War-related Benefits Act is repealed.

R.S., c. 3 (2nd Supp.)

Divorce Act

8. (1) The definition “spouse” in subsection 2(1) of the Divorce Act is replaced by the following:

“spouse”
« époux »

“spouse” means either of two persons who are married to each other;

(2) Paragraph 2(2)(a) of the French version of the Act is replaced by the following:

a) pour lequel ils tiennent lieu de parents;

2001, c. 4, Part 1

Federal Law and Civil Law of the Province of Quebec Act

9. Section 5 of the Federal Law and Civil Law of the Province of Quebec Act is replaced by the following:

Consent required

5. Marriage requires the free and enlightened consent of two persons to be the spouse of each other.

R.S., c. 1 (5th Supp.)

Income Tax Act

10. (1) Paragraph (b) in the description of A in subsection 56.1(2) of the Income Tax Act is replaced by the following:

(b) where the amount became payable under an order made by a competent tribunal in accordance with the laws of a province, an individual who is the parent of a child of whom the person is a legal parent,

(2) The definition “child support amount” in subsection 56.1(4) of the Act is replaced by the following:

“child support amount”
« pension alimentaire pour enfants »

“child support amount” means any support amount that is not identified in the agreement or order under which it is receivable as being solely for the support of a recipient who is a spouse or common-law partner or former spouse or common-law partner of the payer or who is a parent of a child of whom the payer is a legal parent.

(3) Paragraph (b) of the definition “support amount” in subsection 56.1(4) of the Act is replaced by the following:

(b) the payer is a legal parent of a child of the recipient and the amount is receivable under an order made by a competent tribunal in accordance with the laws of a province.

11. Paragraph (b) in the description of A in subsection 60.1(2) of the Act is replaced by the following:

(b) where the amount became payable under an order made by a competent tribunal in accordance with the laws of a province, an individual who is a parent of a child of whom the taxpayer is a legal parent,

12. (1) Paragraph 252(1)(a) of the Act is replaced by the following:

(a) a person of whom the taxpayer is the legal parent;

(2) Subsection 252(1) of the Act is amended by adding the word “and” at the end of paragraph (c) and by repealing paragraph (d).

(3) Subsection 252(3) of the Act is replaced by the following:

Extended meaning of “spouse” and “former spouse”

(3) For the purposes of paragraph 56(1)(b), section 56.1, paragraphs 60(b) and (j), section 60.1, subsections 70(6) and (6.1), 73(1) and (5) and 104(4), (5.1) and (5.4), the definition “pre-1972 spousal trust” in subsection 108(1), subsection 146(16), subparagraph 146.3(2)(f)(iv), subsections 146.3(14), 147(19), 147.3(5) and (7) and 148(8.1) and (8.2), the definition “small business property” in subsection 206(1), subparagraph 210(c)(ii) and subsections 248(22) and (23), “spouse” and “former spouse” of a particular individual include another individual who is a party to a void or voidable marriage with the particular individual.

1990, c. 46

Marriage (Prohibited Degrees) Act

13. Subsection 2(2) of the Marriage (Prohibited Degrees) Act is replaced by the following:

Prohibition

(2) 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.

14. Subsection 3(2) of the Act is replaced by the following:

Marriage void

(2) A marriage between persons who are related in the manner described in subsection 2(2) is void.

2000, c. 12

Modernization of Benefits and Obligations Act

15. Section 1.1 of the Modernization of Benefits and Obligations Act and the heading before it are repealed.

Published under authority of the Speaker of the House of Commons

Available from:
Publishing and Depository Services
Public Works and Government Services Canada

Explanatory Notes

Canada Business Corporations Act

Clause 5: (1) and (2) Existing text of subsections 237.5(2) and (3):

(2) In subsection (1), “personal body corporate” means a body corporate that is not actively engaged in any financial, commercial or industrial business and that is controlled by an individual or a group of individuals, each member of which is connected by blood relationship, adoption or marriage or by cohabiting with another member in a conjugal relationship.

(3) Subsection (1) does not apply when the plaintiff brings the action as a member of a partnership or other association or as a trustee in bankruptcy, liquidator or receiver of a body corporate.

Canada Cooperatives Act

Clause 6: (1) and (2) Existing text of subsections 337.5(2) and (3):

(3) Subsection (1) does not apply when the plaintiff brings the action as a member of a partnership or other association or as a trustee in bankruptcy, liquidator or receiver of a body corporate.

Civilian War-related Benefits Act

Clause 7: Existing text of section 36:

36. Where any two persons to whom any pensions may be awarded under this Part are married to one another or are common-law partners of one another, pensions may be paid to them under this Part as if they were unmarried and had no common-law partner, but in every such case the additional pensions, if any, that may be awarded under this Part in respect of any dependent child or children shall be paid in respect of the injury to the husband unless the wife is not wholly or to a substantial extent maintained by him, in which case the additional pensions, if any, shall be paid in respect of the injury to the parent who is responsible for the support of the dependent child or children.

Divorce Act

Clause 8: (1) Existing text of the definition:

“spouse” means either of a man or woman who are married to each other;

(2) Relevant portion of subsection 2(2):

(2) For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or former spouses includes

(a) any child for whom they both stand in the place of parents; and

Federal Law and Civil Law in the Province of Quebec Act

Clause 9: Existing text of section 5:

5. Marriage requires the free and enlightened consent of a man and a woman to be the spouse of the other.

Income Tax Act

Clause 10: (1) Relevant portion of subsection 56.1(2):

(2) For the purposes of section 56, this section and subsection 118(5), the amount determined by the formula

A - B

where

A is the total of all amounts each of which is an amount (other than an amount that is otherwise a support amount) that became payable by a person in a taxation year, under an order of a competent tribunal or under a written agreement, in respect of an expense (other than an expenditure in respect of a self-contained domestic establishment in which the person resides or an expenditure for the acquisition of tangible property that is not an expenditure on account of a medical or education expense or in respect of the acquisition, improvement or maintenance of a self-contained domestic establishment in which the taxpayer described in paragraph (a) or (b) resides) incurred in the year or the preceding taxation year for the maintenance of a taxpayer, children in the taxpayer’s custody or both the taxpayer and those children, where the taxpayer is

...

is, where the order or written agreement, as the case may be, provides that this subsection and subsection 60.1(2) shall apply to any amount paid or payable thereunder, deemed to be an amount payable to and receivable by the taxpayer as an allowance on a periodic basis, and the taxpayer is deemed to have discretion as to the use of that amount.

(2) Existing text of the definition:

(3) Relevant portion of the definition:

“support amount” means an amount payable or receivable as an allowance on a periodic basis for the maintenance of the recipient, children of the recipient or both the recipient and children of the recipient, if the recipient has discretion as to the use of the amount, and

...

(b) the payer is a natural parent of a child of the recipient and the amount is receivable under an order made by a competent tribunal in accordance with the laws of a province.

Clause 11: Relevant portion of subsection 60.1(2):

(2) For the purposes of section 60, this section and subsection 118(5), the amount determined by the formula

A - B

where

A is the total of all amounts each of which is an amount (other than an amount that is otherwise a support amount) that became payable by a taxpayer in a taxation year, under an order of a competent tribunal or under a written agreement, in respect of an expense (other than an expenditure in respect of a self-contained domestic establishment in which the taxpayer resides or an expenditure for the acquisition of tangible property that is not an expenditure on account of a medical or education expense or in respect of the acquisition, improvement or maintenance of a self-contained domestic establishment in which the person described in paragraph (a) or (b) resides) incurred in the year or the preceding taxation year for the maintenance of a person, children in the person’s custody or both the person and those children, where the person is

...

is, where the order or written agreement, as the case may be, provides that this subsection and subsection 56.1(2) shall apply to any amount paid or payable thereunder, deemed to be an amount payable by the taxpayer to that person and receivable by that person as an allowance on a periodic basis, and that person is deemed to have discretion as to the use of that amount.

Clause 12: (1) and (2) Relevant portion of subsection 252(1):

252. (1) In this Act, words referring to a child of a taxpayer include

(a) a person of whom the taxpayer is the natural parent whether the person was born within or outside marriage;

...

(d) an adopted child of the taxpayer; and

(3) Existing text of subsection 252(3):

(3) For the purposes of paragraph 56(1)(b), section 56.1, paragraphs 60(b) and (j), section 60.1, subsections 70(6) and (6.1), 73(1) and (5) and 104(4), (5.1) and (5.4), the definition “pre-1972 spousal trust” in subsection 108(1), subsection 146(16), subparagraph 146.3(2)(f)(iv), subsections 146.3(14), 147(19), 147.3(5) and (7) and 148(8.1) and (8.2), the definition “small business property” in subsection 206(1), subparagraph 210(c)(ii) and subsections 248(22) and (23), “spouse” and “former spouse” of a particular individual include another individual of the opposite sex who is a party to a voidable or void marriage with the particular individual.

Marriage (Prohibited Degrees) Act

Clause 13: Existing text of subsection 2(2):

(2) No person shall marry another person if they are related

(a) lineally by consanguinity or adoption;

(b) as brother and sister by consanguinity, whether by the whole blood or by the half-blood; or

Clause 14: Existing text of subsection 3(2):

(2) A marriage between persons who are related in the manner described in paragraph 2(2)(a), (b) or (c) is void.

Modernization of Benefits and Obligations Act

Clause 15: Existing text of the heading and section 1.1:

Interpretation

1.1 For greater certainty, the amendments made by this Act do not affect the meaning of the word “marriage”, that is, the lawful union of one man and one woman to the exclusion of all others.