Family Law

• Author: M.H. Ogilvie
• Pages: 382-400

382

CHAPTER 11

FAMILY LAW

A. INTRODUCTION

Relationships between husband a nd wife and between parent and child

are of essential importance in the belief systems of virtually all of the

religions in Canada 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 faith community. At one time, the

common law regulated a wider variety of conduct between the gen-

ders and generations than it does today, including breach of promise

to marry, fornication, adultery, homosexuality, and divorce, with legal

doctrines ref‌lecting the once predominance in Canada of the sole para-

digm of the Christian understanding of marriage as an exclusive, life-

long union between a man and a woman, whose primary purpose is

the procreation and reari ng of ch ildren. Over the past half-century, the

common law has moved away from ref‌lecting Christian teachings on

marriage and family life, so that the only areas left in which religion is

still a factor to be considered by the courts 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 religious groups.

At the same time as the varieties 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 example. Whether or not the common law

Family L aw383

should regard homosexuals as capable in law of forming “marriages,”

or of having or adopting children to form “families,” has been under

social and political debate in Canada, with considerable new law emer-

ging as a result in the last three decades.

This chapter will consider these topics in relation to family life but

only insofar as issues of religion are explicitly concerned. Religious

people of all faiths continue to regard sexual conduct and concepts of

“family” to be subject to the teachings of their respective faiths, 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.

B. MARRIAGE AND DIVORCE

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 within the province.2 Historically, the English common law rec-

ognized only those marriages solemnized 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 qualif‌ied to solemnize legally recognized marriages,

regardless of the religious institution, as well as to others so licensed

by the provinces. Such marriages are to be solemnized according to

the rites, customs, and usages of the religious institution in question.

Generally, provincial marr iage legislation regulates such matters as the

application process for a legally valid marriage; 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.).