Family Law

AuthorM.H. Ogilvie
Relationships between husband a nd wife and between parent and child
are of essential i mportance in the belief systems of virtually all of the
religions in Canad a today, for which the family, that is, a man and a
woman together with their natu ral and adopted children, is understood
to be the microcosm of the larger fait h community. At one time, the
common law regulated a wider var iety of conduct between the gen-
ders and generations than it does tod ay, including breach of promise
to marry, fornication, adultery, homosexuality, and divorce, with legal
doctrines ref‌lecti ng the once predominance in Canada of the sole para-
digm of the Christian understanding of ma rriage as an exclusive, life-
long union between a man and a woman, whose prim ary purpose is
the procreation and reari ng of ch ildren. Over the past half-century, the
common law has moved away from ref‌lecting Chr istian teachings on
marriage and family life, so that the only area s left in which religion is
still a factor to be considered by the court s relate to the religious up-
bringing of child ren of divorced pa rents and also, in a restricted way, in
relation to divorce itself for certain relig ious groups.
At the same time as the va rieties of human relationships regulated
by the common law have decreased in some areas, some previously
prohibited human relationships have come to be regulated for their
own legal protection in contemporary society, of which homosexual
relationships are the chief ex ample. Whether or not the common law
Family L aw 383
should regard homosexuals as capable in l aw of forming “marriages,”
or of having or adopting children to form “fa milies,” has been under
social and political debate in Canada, with considerable new law emer-
ging as a result in t he last three decades.
This chapter will consider these topics in relation to family life but
only insofar as is sues of religion are explicitly concerned. Relig ious
people of all faiths continue to regard sexual conduct and concepts of
“family” to be subject to the teachings of their respective faith s, and
some lobby for the restoration of their views to the common law. How-
ever, since their regulation remain s within religious law but not secular
law, this chapter will focus only on the secular law insofar as religion
is concerned.
The constitutional power to solemnize ma rriages is, pursuant to section
92(12) of the Constitution Act, 1867,1 posited in the provinces, and all
provinces have enacted legislation governing who may solemnize mar-
riage wit hin the provi nce.2 Historically, the English common law rec-
ognized only those m arriages solemni zed by clergy of the established
Church of England, and this sit uation prevailed in the early years in the
original common law colonies in pre-modern Canada. However, by the
early nineteenth centur y, the right to solemni ze legally recognized mar-
riages was extended to other Christian denominations, and since that
time has been extended to those persons recognized by their religious
communities as quali f‌ied to solemnize legally recognized marriages,
regardless of the religious i nstitution, as well as to others so licensed
by the provinces. Such marriages are to be solemnized according to
the rites, customs, and us ages of the religious institution in question.
Generally, provincial marr iage legislation regulates such matters as the
application process for a legally valid marr iage; who may validly per-
form marriages, including clergy and provincially licensed marriage
1 R.S.C. 1985, App. II, No. 5.
2 Marri age Act, R.S.A. 2000, c. M-5; Marr iage Act, R.S.B.C. 1996, c. 282; Marr iage
Act, C.C.S.M. c. M-50; Marr iage Act, R.S.N.B. 2011, c. 188; Marriage Act, S .N.L.
2009, c. M-1.02; Solemnization of Marriage Act, R.S .N.S. 1989, c. 436; Mar riage
Act, R.S.O. 1990, c. M.3; Marriage A ct, R.S.P.E.I. 198 8, c. M-3; and Ma rriage Act,
R.S.S. 1995, c. M-4.1. It is self-evi dent that from a civil law per spective, there
can be no valid m arriage unless t he civil law statutory re quirements are com-
plied with and a me re religious ceremony is not enough: Upad yhaha v. Sehgal
(2000), 11 R.F.L. (5th) 210 (Ont. S.C.J.).

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