Family Law

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

382

CH AP TER 11

FAMILY LAW

A. INTRODUC TION

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.

B. M AR RI AGE 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 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.).