Family Law
| Author | M.H. Ogilvie |
| Pages | 365-380 |
Chapter Eleven
Family
Law
A.
INTRODUCTION
Relationships between husband
and
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 togeth-
er
with their natural
and
adopted children,
is
understood
to be the
micro-
cosm
of the
larger
faith
community.
At one
time,
the
common
law
regulated
a
wider variety
of
conduct between
the
genders
and
generations
than
it
does
today,
including breach
of
promise
to
marry,
fornication, adul-
tery,
homosexuality,
and
divorce, with legal doctrines reflecting
the
once
predominance
in
Canada
of the
sole paradigm
of the
Christian understand-
ing of
marriage
as an
exclusive, life-long union between
a man and a
woman,
whose primary purpose
is the
procreation
and
rearing
of
children.
Over
the
past
half-century,
the
common
law has
moved away
from
reflect-
ing
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 upbringing
of
children
of
divorced parents
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 prohib-
ited human
relationships
have come
to be
regulated
for
their
own
legal
protection
in
contemporary society,
of
which homosexual relationships
365
366
RELIGIOUS INSTITUTIONS
AND THE LAW
are
the
chief example. Whether
or not the
common
law
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
emerging
as a
result.
This chapter will consider these topics
in
relation
to
family
life
but
only
insofar
as
issues
of
religion
are
explicitly concerned. Religious peo-
ple of all
faiths
continue
to
regard sexual conduct
and
concepts
of
"fami-
ly"
to be
subject
to the
teachings
of
their respective
faiths,
and
some lobby
for
the
restoration
of
their views
to the
common law. However, since their
regulation remains within religious
law but not
secular law, this chapter
will
focus
only
on the
secular
law
insofar
as
religion
is
concerned.
B.
DIVORCE
The
constitutional power
to
solemnize marriages
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
recog-
nized only those marriages solemnized
by
clergy
of the
established
Church
of
England,
and
this
situation
prevailed
in the
early years
in the
original common
law
colonies
in
pre-modern
Canada. However,
by the
early
nineteenth century,
the
right
to
solemnize 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.
On the
other hand,
the
constitutional power over marriage
and
divorce
is
enjoyed
exclusively
by
Parliament, pursuant
to
section
91(26)
1
R.S.C. 1985, App.
II, No. 5.
2
R.S.A.
1980,
c.
c.
282; Marriage
Act, R.S.M.
1987,
c.
M-50;
c.
M-3; Solemnization
of
Act, R.S.N. 1990,
c.
S-19;
Solemnization
of
1989,
c.
c.
EE.I.
1988,
c.
M-3;
and
R.S.S.
1978,
c.
M-4.
It is
self-evident
that
from
a
civil
law
perspective,
there
can be no
valid
marriage
unless
the
civil
law
statutory
requirements
are
complied
with
and a
mere
religious
ceremony
is not
enough:
Upadyhaha
v.
Sehgal,
unreported
decision
of 12
September
2000
(Ont. S.C.J.).
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