Family Law

• Author: M.H. Ogilvie
• Pages: 365-382

365

CHAP TER 11

FAMILY L AW

A. I NTRODUC TION

Relationships between husband and wi fe and between parent and child

are of essential importance in the belief systems of virtua lly all of the

religions in Canad a today, for which the family, that is, a man and a

woman together with their natura l 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 Can ada of the sole para-

digm of the Chri stian understanding of marr iage as an exclusive, life-

long union between a man and a woman, whose primary purp ose is

the procreation and rearing of chi ldren. Over the past hal f-century, the

common law has moved away from ref‌lecting Chr istian teach ings on

marriage and family life, so that t he only areas left in which relig ion is

still a factor to be considered by the courts relate to the religious up-

bringing of children of d ivorced parents and also, in a rest ricted way, in

relation to divorce itself for certain relig ious groups.

At the same time as the var ieties 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

RELIGIOUS INSTITUTIONS AND THE LAW I N CA NADA366

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

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 t he last two decades.

This chapter will consider t hese topics in relation to family life but

only ins ofar as is sues of relig ion are explic itly concerned . Religious p eople

of all faiths continue to regard se xual 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. However, since their

regulation remains within religious l aw but not secular law, this chapter

will focus only on the secul ar law insofar as religion is concerned.

B. MARRIAGE AND DIVORCE

The constitutional power to solemnize m arriages is, pursua nt to section

92(12) of the Constitution Act, 1867,1 posited in t he provinces, and all

provinces have enacted legi slation governing who may solemnize mar-

riage within the province.2 Historical ly, the English common law rec-

ognized only those marriages solemnized by clergy of the established

Church of England, and this situation prevailed in the e arly years in the

origin al common law colonies in pre-modern Canada. However, by t he

early nineteenth century, the right to solemnize lega lly recognized mar-

riages was extended to other Ch ristian denomi nations, and since that

time has been extended to those persons recognized by their religious

communities as quali f‌ied to solemnize legally recogn ized marr iages,

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

by the provinces. Such marriages are to be solemni zed according to

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

Generally, provincial marri age legislation regulates such matters a s the

application process for a legally valid marr iage; who may validly per-

form marriages, including clergy and provincially licensed marriage

commissioners; the statu s of a second religious ceremony where a civil

1 R.S.C. 1985, App. II, No. 5.

2Marriage Act, R.S.A . 1980, c. M-5; Marriage Act, R.S.B.C. 1996, c. 282; Marr iage

Act, R.S.M. 1987, c. M-50; Marriage Act, R.S.N.B. 1973, c. M-3; Solemnization

of Marriage Act, R.S.N. 1990, c. S -19; Solemnization of Marriage Act, R.S.N.S.

1989, c. 43 6; Marriage Act, R.S.O. 1990, c. M.3; Marriage Act, R.S.P.E.I. 1988, c.

M-3; and Marriage Act, R.S.S. 1995, c. M-4.1. It is self-ev ident that from a civil

law perspec tive, there can be no valid ma rriage unless the ci vil law statutory

requirement s are complied with and a mere relig ious ceremony is not enough:

Upadyhaha v. Sehgal (2000), 11 R.F.L. (5th) 210 (Ont. S.C.J.).