Same-Sex Relationships Across Borders
Martha Bailey*
The term “recognition” of marriage applies to
both the status of marriage and the incidents flowing
from
that status. Recent developments in the law
regarding same-sex couples in both Canada and the
United States have raised important questions about the
recognition of same-sex relationships across borders.
This article introduces some of the private international
law aspects of same-sex relationships in Canada. The
province
the
notwithstanding clause in order to block the federal
government’s proposed
recognition of same-sex
is offered as an example of the private
marriages
international law issues that might arise.
of Alberta’s
promise
use
to
spousal
status”,
The author also considers issues related to the
recognition of cross-border same-sex civil unions,
“ascribed
and contracts within
relationships. She asks whether civil unions that are
distinguished from marriage under the law of their
creation can be treated as marriage within the meaning
of the forum law and concludes that the answer will
likely depend on the type of civil union in question
given the diversity of such arrangements. “Ascribed
spousal status”–the state of those who are subject to
the incidents of marriage-is deployed quite differently
in different jurisdictions and therefore,
the author
points out, creates potential problems of forum
shopping and evasion. Finally, contracts entered into by
parties to a relationship may not be recognized by any
jurisdiction other than the one where the contract was
concluded.
The author concludes that in light of the great
diversity of approaches to the recognition of same-sex
relationships,
it is time for Canada to give more
attention to, and to work with other countries on, cross-
border issues.
La notion de vreconnaissancea
du mariage
s’applique A la fois au statut du mariage lui-m~me et de
ses effets incidents. Des daveloppements juridiques
rrcents concemant
les couples de m8me sexe au
Canada et aux Etats-Unis ont soulev6 des questions
importantes concemant la reconnaissance des relations
de m~me sexe A travers les frontires. Cet article
prisente certains aspects de droit international priv6 (ou
de oconflits de lois>) des relations entre conjoints de
m~me sexe au Canada. La promesse de l’Alberta de se
servir de la clause nonobstant pour emp&her, dans la
province,
reconnaissance des mariages entre
personnes
le
gouvemement frdrral est un exemple d’enjeu de droit
international priv6 qui pourrait surgir.
du m~me
proposre
sexe
par
la
L’auteure examine 6galement les questions lides A
la reconnaissance transfrontali~re des unions civiles de
m~me sexe, du ,,statut matrimonial attribu$,, et des
contrats A l’intrrieur de relations. Elle se demande si les
unions civiles qui sont distingures du mariage dans la
juridiction de leur creation peuvent 8tre traitres comme
des mariages selon l’acception de la loi du for. Elle
conclut que la r6ponse ddpendra probablement du type
d’union civile en question, 6tant donn6 la diversit6 de
ces arrangements. Le statut matrimonial attribu6& -A
savoir l’6tat de ceux qui sont assujettis aux incidents du
mariage –
se d6ploie de faqons diff6rentes selon les
juridictions, ce qui, constate
l’auteure, cr6e des
problsmes d’61ection de for>> et d’6vasion. Enfin, les
contrats conclus entre
relation
pourraient n’Wetre reconnus que dans la juridiction ob ils
ont 6 rdigrs.
les parties A une
L’auteure conclut qu’A la lumisre de la grande
diversit6 d’approche concemant la reconnaissance de
relations entre partenaires de m~me sexe, il est temps
que le Canada s’attarde aux problsmes transfrontaliers
qui en drcoulent, et collabore avec d’autres pays sur la
question.
* Associate Professor, Faculty of Law, Queen’s University. The author would like to thank Amy
Kaufman, LL.B. 2004 and Lily Ng for their research assistance.
McGill Law Journal 2004
Revue de droit de McGill 2004
To be cited as: (2004) 49 McGill L.J. 1005
Mode de rrffrence: (2004) 49 R.D. McGill 1005
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Introduction
I. Status Versus the Incidents of Status
II. Marriage
III. Civil Unions
IV. “Ascribed Spousal Status”
V. Status Versus Contract
Conclusion
1007
1010
1012
1019
1028
1030
1032
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Now there can be no doubt but that marriage, which is a
personal contract, when entered into according to the
rites of the country where the parties are domiciled and
the marriage celebrated, would be considered and treated
as a perfect and complete marriage throughout the whole
of Christendom.
But it does not therefore follow, that, with the
adoption of the marriage contract, the foreign law adopts
also all the conclusions and consequences which hold
good in the country where the marriage was celebrated.
Birtwhistle v. Vardill, [1839] 5 E.R. 1308 at 1322 (H.L.)
Introduction
This paper is about the recognition of same-sex relationships across borders. It is
important to emphasize at the outset the distinction between “recognition” in the sense
of a state extending status or legal rights and obligations to same-sex couples under its
domestic laws, and “recognition” in the sense of a state giving effect to status or legal
rights and obligations created by a foreign law.
In Egan v. Canada, L’Heureux-Dub6 J., dissenting, referred to “recognition” in
the former sense:
Official state recognition of the legitimacy and acceptance in society of a
particular type of status or relationship may be of greater value and importance
to those affected than any pecuniary gain flowing from that recognition….
Given the marginalized position of homosexuals in society, the metamessage
that flows almost inevitably from excluding same-sex couples from such an
important social
that society considers such
relationships to be less worthy of respect, concern and consideration than
relationships involving members of the opposite sex.’
is essentially
institution
Justice L’Heureux-Dub6’s point that failure to assimilate the status of same-sex and
opposite-sex couples violates the Charter’s guarantee of equality has now been
accepted by courts and legislatures across Canada.2 The issue of same-sex marriage is
now before the Supreme Court of Canada pursuant to the federal government’s
reference to the Court for an opinion on a draft bill to open up marriage to same-sex
couples.3 If the Supreme Court of Canada affirms the constitutionality of the draft bill
1 [1995] 2 S.C.R. 513 at paras. 86, 90, 124 D.L.R. (4th) 609.
2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982, c. 11, s. 15. See infra notes 38 to 41 and accompanying text.
3 For a copy of the draft bill and the three questions originally put to the Supreme Court of Canada,
see “Reference to the Supreme Court of Canada” (July 2003), online: Department of Justice Canada
question to the reference on 28 January 2004: “Fact Sheet: Reference to the Supreme Court of
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and
the discriminatory nature of the traditional definition of marriage, and if
Parliament proceeds to enact the bill to open up civil marriage to same-sex couples,
the assimilation of status will be largely complete.
The recent period of intense debate and rapid transformation of the law relating to
same-sex couples has not included much consideration in Canada of cross-border
issues.4 American legal scholars, in contrast, have generated a large body of literature
on the recognition of foreign same-sex relationships in the past few years.5 And
American legislators at the federal6 and state7 level have enacted laws on the issue
over the past few years.
Canada on Civil Marriage and Recognition of Same-Sex Unions” (January 2004), online: Department
of Justice Canada
4 But see Donald J. MacDougall, “Marriage Resolution and Recognition in Canada” (1995) 29
Fam. L.Q. 541; Wendy Adams, “Same-Sex Relationships and Anglo-Canadian Choice of Law: An
Argument for Universal Validity” (1996) 34 Can. Y.B. Int’l Law 103; Martha Bailey, “How Will
Canada Respond to Same-Sex Marriage?”
(1998) 32 Creighton L. Rev. 105; Martha Bailey,
“Hawaii’s Same-Sex Marriage Initiatives: Implications for Canada” (1998) 15 Can. J. Fam. L. 153.
5 See e.g. Mark Strasser, “Marriage, Transsexuals, and the Meaning of Sex: On DOMA, Full Faith
and Credit, and Statutory Interpretation” (2003) 3 Hous. J. Health L. & Pol’y 301; Scott Fruehwald,
“Choice of Law and Same-Sex Mamage” (1999) 51 Fla. L. Rev. 799; Kaleen S. Hasegawa, “Re-
Evaluating
the Limits of the Full Faith and Credit Clause After Baker v. General Motors
Corporation” (1999) 21 Hawaii L. Rev. 747; F H. Buckley & Larry E. Ribstein, “Calling a Truce in
the Marriage Wars” [2001] U. Ill. L. Rev. 561; Christopher D. Sawyer, “Practice What You Preach:
California’s Obligation to Give Full Faith and Credit to the Vermont Civil Union” (2003) 54 Hastings
L.J. 727; Note, “In Sickness and in Health, in Hawaii and Where Else?: Conflict of Laws and
Recognition of Same-Sex Marriages” (1996)109 Harv. L. Rev. 2038; Barbara J. Cox, “Adoptions by
Lesbian and Gay Parents Must be Recognized by Sister States Under the Full Faith and Credit Clause
Despite Anti-marriage Statutes that Discriminate Against Same-Sex Couples” (2003) 31 Cap. U. L.
Rev. 751; Barbara J. Cox, “Same-Sex Marriage and Choice-of-Law: If We Marry in Hawaii, Are We
Still Married When We Return Home?” (1994) Wis. L. Rev. 1033; Ken I. Kersch, “Full Faith and
Credit for Same-Sex Marriages?” (1997) 112 Pol. Sci. Q. 117; Andrew Koppelman, “Dumb and
DOMA: Why the Defense of Marriage Act is Unconstitutional” (1997) 83 Iowa L. Rev. 1; Andrew
Koppelman, “Same-Sex Marriage, Choice of Law, and Public Policy” (1998) 76 Tex. L. Rev. 921;
Christopher Rizzo, “Banning State Recognition of Same-Sex Relationships: Constitutional
Implications of Nebraska’s Initiative 416” (2002) 11 J. L. & Pol’y 1; “Symposium on
Interjurisdictional Marriage Recognition” (1998-1999) 32 Creighton L. Rev. (this volume was a
special issue on cross-border same-sex relationship issues).
6 The United States enacted the Defense of Marriage Act, Pub. L. 104-199, 110 Stat 2419 (1996)
[DOMA], subsection 3(a) of which defines marriage for purposes of federal law as “only a legal union
between one man” and “spouse” as “a person of the opposite sex who is a husband or a wife.”
Subsection 2(a) provides that: “No state, territory, or possession of the United States, or Indian tribe,
shall be required to give effect to any public act, record, or judicial proceeding of any other State,
territory, possession, or tribe respecting a relationship between persons of the same sex that is treated
as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim
arising from such relationship.” This latter provision, which is constitutionally suspect and probably
unnecessary, was intended to protect states from being forced by the full faith and credit clause of the
American Constitution to recognize same-sex marriages. U.S. Const. art. IV 1 provides that “[f]ull
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The relatively hectic level of activity south of the border is partly attributable to
the larger size of the country and its legal academy. Differences in the constitutional
division of powers and in the choice of law rules for marriage also play a role. In the
US, marriage and divorce are matters of state, rather than federal, jurisdiction8 and
each state has its own law regarding the validity of marriage. Choice of law rules for
the essential validity of marriage in the US also vary by state, but the general rule is
lex loci celebrationis, rather than lex domicilii.9 Finally, the opposition to same-sex
marriage is more widespread and politically effective in the US. When legalization of
same-sex marriage became a possibility in some states, tremendous attention was
given to the possibility of having to recognize a same-sex marriage that took place in
another state.”
In Canada, there is broad support for, or at least acceptance of, extending the
incidents of marriage and, now, the status of marriage to same-sex couples. The
federal government has exclusive legislative jurisdiction over the essential validity of
marriage, and so marriage recognition across provinces is not a major issue.” But the
recognition of truly foreign same-sex marriages and of sister province and truly
foreign civil unions or incidents flowing from cohabitation or contract is an important
and difficult issue that requires some attention. The aim of this paper is to introduce
some of the problems and to generate further consideration of the private international
law aspects of same-sex relationships in Canada.
faith and credit shall be given in each state to the public acts, records, and judicial proceedings of
every other state.”
7 After the passage of DOMA, ibid., 38 US states passed “mini-DOMA” laws. The text of each
state’s legislation is available at the Web site of the Family Research Council, which advocates
against same-sex unions: Kristie Rutherford, “Marriage Laws: State by State”, online: Family
Research Council
Sec. 30-1-19(e) provides: “The state of Alabama shall not recognize as valid any marriage of parties
of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction
regardless of whether a marriage license was issued.”
8 U.S. Const. amend. X, provides that the “powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, [which powers include marriage and divorce] are
reserved to the states respectively, or to the people.”
9 See e.g. Bloch v. Bloch, 473 F.2d 1067 (3d Cir. 1973). The Restatement (Second) Conflict of Laws,
art. 283(2) provides: “A marriage which satisfies the requirements of the state where the marriage was
contracted will everywhere be recognized as valid unless it violates the strong public policy of
another state which had the most significant relationship to the spouses and the marriage at the time of
the marriage.” The lex loci celebrationis is the law of the legal unit where a marriage is celebrated.
The lex domicilii is the law of the legal unit where a person is domiciled.
10 In “Developments in the Law: The Law of Marriage and Family” (2003) 116 Harvard L. Rev.
1996, the author writes: “The near-legalization of same-sex marriages in Hawaii in Baehr v. Lewin
sparked an explosion of literature on interstate recognition of nontraditional marriages” (at 2082).
1 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3, s. 91(26) (giving exclusive jurisdiction over
“marriage and divorce” to the federal government), s. 92 (12) (giving exclusive jurisdiction over
“solemnization of marriage in the province” to provinces), reprinted in R.S.C. 1985, App. II, No. 5.
Alberta has announced its unwillingness to recognize same-sex marriages; this will be discussed
below.
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I. Status Versus the Incidents of Status
Marriage confers both spousal status and the incidents of marriage. R.H.
Graveson defined status as
a special condition of a continuous and institutional nature, differing from the
legal position of the normal person, which is conferred by law and not purely
by the act of the parties, whenever a person occupies a position of which the
creation, continuance or relinquishment and the incidents are a matter of
sufficient social or public concern.12
The “incidents” are the “special rights, duties, privileges or incapacities”‘ 3 that flow
from the status of marriage and include, for example, charges of bigamy, 4 the lack of
capacity of parties to valid, subsisting marriages to marry 5 again, and the requirement
that a person be married in order to obtain a divorce.’ 6
Marital status is governed by a party’s “personal law”, which in Canada is the law
of a party’s domicile. 7 The rules governing capacity to marry vary from jurisdiction
to jurisdiction, but the principle of “universality” is generally applied to status, that is,
a status validly acquired under a party’s personal
law will be recognized
everywhere.’
It is theoretically possible to refuse recognition to a foreign marriage on
the grounds of public policy, but this discretion is rarely exercised. 9 If the parties had
capacity to marry under their personal law, the marriage will usually be recognized in
Canada, even if such a marriage would not have been permitted in Canada. Legal
incidents flowing from marital status under Canadian law will apply to foreign
marriages for any matters governed by Canadian law. Thus, for example, a party to a
foreign marriage could be charged with bigamy for going through a form of marriage
with a third party in Canada; would be denied a licence to marry in Canada unless and
12 R.H. Graveson, Status in the Common Law (London: U of London, Athlone Press, 1953) at 2
[Graveson, Status].
‘” Canada (A.G) v. Canard (1975), [1976] 1 S.C.R. 170 at 205, 52 D.L.R. (3d) 548.
14 Criminal Code, R.S.C. 1985, c. C-46, s. 290.
‘” Bate v. Bate (1978), 1 R.F.L. (2d) 298 (Ont. H.C.J.).
16 Ibid.; Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), ss. 2, 8.
7 Brook v. Brook (1861), [1861-73] All E.R. Rep. 493, 9 H.L. Cas. 193 [Brook cited to All E.R.];
art. 3083 C.C.Q. The meaning of domicile under the Civil Code of Quebec comes from the common-
law definition. Art. 75 C.C.Q. provides that: “The domicile of a person, for the exercise of his civil
rights, is at the place of his principal establishment.” J.-G Castel and Janet Walker provide a helpful
summary of the common law concept of domicile, the problems with the doctrine, proposals for
reform, and statutory provisions governing domicile in Manitoba and Quebec in Canadian Conflict of
Laws, 5th ed., looseleaf (Markham: Butterworths, 2002) at paras. 4.1-4.19g. Nationality rather than
domicile is the relevant connecting factor in many civil law systems.
18 See Graveson, Status, supra note 12 at 118-19.
19 In Cheni v. Cheni, [1962] 3 All E.R. 873, [1963] 2 W.L.R. 17, the court ruled that an Egyptian
marriage between an uncle and a niece that would have been within the prohibited degrees of
consanguinity under English law would be recognized in England, saying that “it would be altogether
too queasy a judicial conscience which would recoil from a marriage acceptable to many peoples of
deep religious convictions, lofty ethical standards and high civilisation” (at 883).
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until the foreign marriage was dissolved by divorce; could apply for a divorce in
Canada; and could apply for, or be ordered to pay, spousal support.
Much of the jurisprudence on recognition of foreign marriages addresses the
special problem of polygamy. This case law is helpful in the current discussion
because it demonstrates the sturdiness of the principle of universality of status.
Despite the fact that polygamy remains a criminal offence
the
universality principle has been applied even to polygamous marriages. “[Plolygamous
marriages valid in the country where they were entered into and where the parties
were domiciled would be recognized as valid by Canadian Courts.”21 While
“acceptance of the principle of recognition of status does not of itself imply that all the
incidents of that status will be recognized,”22 many incidents of marriage are extended to
those in polygamous marriages. These include spousal support rights and obligations,
succession rights, and, in some provinces, marital property division.23 Indeed, it has been
said that “[flor almost all practical purposes under the law of Ontario, a spouse who
contracted a valid polygamous marriage abroad has the same legal rights and obligations
as a spouse who is party to a traditional monogamous marriage.”24
in Canada,2”
Some incidents of marriage will not be extended to those in polygamous unions.
For example, parties to a polygamous marriage have been denied permanent resident
status in Canada because of the possibility that they would practice polygamy in this
country in violation of the Criminal Code.25 These parties also may not obtain a
divorce under Canada’s Divorce Act.26 This review of the case law shows that the
principle of universality is applied even in the case of polygamy–despite
the
illegality of polygamous marriages in this country-and the incidents of marriage that
do not rest on the monogamous nature of the relationship are given effect in the
absence of any violation of public policy.
Another point that is important to our discussion is the reality that marriage is no
longer a prerequisite for all the incidents of marriage.27 These incidents are now
20 Criminal Code, supra note 14, s. 293(1).
21 Ali v. Canada (Minister of Citizenship and Immigration) (1998), 154 ET.R. 285 at para. 7 [Ali],
applying Tse v. Canada (Min. of Employment & Immigration), [1983] 2 EC. 308, 144 D.L.R. (3d)
155 (F.C.A.).
22 Graveson, Status, supra note 12 at 103.
23 The definition of “spouse” for all purposes of Ontario’s Family Law Act, R.S.O. 1990, c. F.3, s.
1(2), includes a party to “a marriage that is actually or potentially polygamous, if it was celebrated in
a jurisdiction whose system of law recognizes it as valid.” Even in the absence of statutory reform,
courts have given effect to polygamous marriages for various purposes. See e.g. Re Hassan and
Hassan (1976), 12 O.R. (2d) 432, 69 D.L.R. (3d) 224 (H.C.J.).
24 Julian D. Payne & Marilyn A. Payne, Canadian Family Law (Toronto: Irwin Law, 2001) at 30.
25Ali, supra note 21.
26 Divorce Act, supra note 16, s. 2(1).
27 For a helpful overview of the “unbundling” of the incidents of marriage from the status of
marriage, see Winifred Holland, “Intimate Relationships in the New Millennium: The Assimilation of
Marriage and Cohabitation?” (2000) 17 Can. J. Farn L. 114.
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attached to newly created institutions similar to marriage like the Vermont “civil
union”2 or the Danish “registered partnership”; 9 some are assigned to couples who
cohabit outside of marriage;3″ and some flow from a status or private rights and
obligations created by contract.31 The unbundling of the incidents of marriage from
the status of marriage in Western countries has generated private international law
problems,32 as has the recent opening of civil marriage to same-sex couples. There is a
question as to whether status and incidents accorded under foreign law will be given
effect under domestic laws.
II. Marriage
Cross-border same-sex marriages are relatively easy to address, because the rules
regarding recognition of foreign marriages are fairly clear. Common law Canada
determines the validity of marriage according to the law of the domicile of each of the
intended spouses at the time of the marriage (the “dual domicile rule”).33 In Quebec,
the rule is that “[m]arriage is governed with respect to its essential validity by the law
applicable to the status of each of the intended spouses.”34 There is also some support
for the rule that the law of the parties’ intended domicile is the appropriate choice of
law.35 Formal validity of marriage is governed by the lex loci celebrationis.36 In
28 See infra note 75.
29 Registered Partnership Act, Act No. 373, 1 June 1989 (Denmark).
30 See e.g. Modernization of Benefits and Obligations Act, S.C. 2000, c. 12.
31 For example, in Alberta parties may become “adult interdependent partners” by contract: Adult
Interdependent Partners Act, S.A. 2002, c. A-4.5, s. 3(1)(b). With the exception of sections 17, 23, 26,
52, 57, 59, 60, 71, and 72, the act was proclaimed in force 1 June 2003. Section 17 (effective 1
January 2001), section 23 (effective 1 January 2004), section 52 (effective 1 September 2004), section
57 (effective 1 January 2004), sections 60 and 71 (effective 18 October 2004). Parties in Ontario may
enter into a cohabitation agreement: Family LawAct, supra note 23, s. 53.
32 The problems are discussed in a note drawn up by the Permanent Bureau of the Hague
Conference on Private International Law, “Private International Law Aspects of Cohabitation Outside
of Marriage and Registered Partnerships”, Prel. Doc. No 9 (May 2000).
33 See Schwebel v. Ungar (1963), [1964] 1 O.R. 430, 42 D.L.R. (2d) 622 (C.A.), aff’d [1965]
S.C.R. 148, 48 D.L.R. (2d) 644. The common law rule that the capacity to marry is governed by the
lex domicilii was enunciated in Brook, supra note 17, where the House of Lords refused recognition
of a marriage that was valid under the lex loci celebrationis but was void for being within the
prohibited degrees under the law of the putative husband’s domicile (England). In Brook, Lord
Campbell, L.C. stated: “It is quite obvious that no civilised state can allow its domiciled subject or
citizens, by making a temporary visit to a foreign country, to enter into a contract, to be performed in
the place of the [domicile] if the contract is forbidden by the law of the place of [domicile] as contrary
to religion, morality, or any of its fundamental institutions” (at 497).
34 Art. 3088 C.C.Q.
35 See e.g. Adrian Briggs, The Conflict of Laws (Oxford: Oxford University Press, 2002) where the
author, adopting a government interest analysis, writes that “there is much to be said for the view that
the law of the society in which the spouses are going to live has the closest interest in whether they
have capacity to live as husband and wife” (at 226). The Federal Court of Appeal has also supported
this rule: Canada v. Narwal (1990), 26 R.F.L. (3d) 95 [Narwal].
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Quebec, formal validity “is governed by the law of the place of its solemnization or
by the law of the country of domicile or of nationality of one of the spouses.”37
Same-sex marriages are now taking place in Massachusetts, pursuant to a ruling
of that state’s highest court;38 in the Netherlands and Belgium pursuant to statutory
reforms;39 and in the provinces of Ontario, British Columbia, and Quebec pursuant to
rulings of their respective appellate courts.4” Canada’s federal government has
determined that it will not appeal the rulings and has referred a bill to open up civil
marriage to same-sex couples to the Supreme Court of Canada for an opinion on its
constitutionality.41 Because the essential validity of marriage is within the exclusive
legislative competence of the federal government, a same-sex marriage that takes
place in Ontario, British Columbia, or Quebec that is valid under each party’s
domiciliary law and formally valid under the province’s marriage law should be
recognized across the country. Refusal to recognize such a marriage within Canada
could be challenged as a violation of section 15 of the Charter, just as the exclusion of
same-sex marriages was successfully challenged
in the courts of those three
provinces.
Alberta has proactively used the “notwithstanding” clause of the Charter in its
Marriage Act, subsection 1 (c) of which provides that “‘marriage’ means a marriage of
a man and a woman.”42 The extent to which the constitutional division of powers will
permit Alberta to act on its opposition to same-sex marriage by refusing to solemnize
such unions is a matter of debate.43 For the purpose of this paper, the discussion will
focus on the extent to which Alberta could refuse to give effect to a sister province or
36 Keddie v. Currie (1991), 85 D.L.R. (4th) 342, [1992] 1 W.W.R. 340, 3 BCAC 291.
37 Art. 3088 C.C.Q.
38 Goodrich v. Department of Public Health, 440 Mass. 309, 798 N.E. 2d 941 (2003). See also Re
Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N.E.2d 565 (2004), which rejects civil
unions as a constitutional alternative to opening up civil marriage to same-sex couples.
39 Same-sex marriages have been taking place in the Netherlands since 1 April 2001. Kees Waaldijk
of Leiden University provides an unofficial translation of the Dutch law to open civil marriage to
same-sex couples and statistics on the number of Dutch marriages of same-sex and opposite-sex
couples since the change in the law online at
2003 and the official version is available in French online at
40 Halpern v. Canada (2003), 65 O.R. (3d) 161, 225 D.L.R. (4th) 529 [Halpern]; EGALE Canada
Inc. v. Canada (A.G) (2003), 225 D.L.R. (4th) 472, [2003] 7 W.W.R. 22; La Ligue Catholique pour
les Droits de l’Homme c. Hendricks, [2004] J.Q. no 2593 (C.A.) (QL).
41 Reference Re Legal Capacityfor Marriage, [2003] S.C.C.A. No. 325 (QL).
42 Marriage Act, R.S.A. 2000, c. M-5, ss. 1(c), 2. The preamble of the act includes the statements
that marriage “is an institution the maintenance of which in its purity the public is deeply interested
in” and “is the foundation of family and society, without which there would be neither civilization nor
progress” and that “marriage between a man and a woman has from time immemorial been firmly
grounded in our legal tradition, one that is itself a reflection of long standing philosophical and
religious traditions.”
43 See e.g. Broddy v. Alberta (Director of Vital Statistics) (1982), 41 A.R. 255, 142 D.L.R. (3d) 151
(C.A.).
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foreign same-sex marriage. Through its focus on Alberta, the following discussion
illustrates how private international law principles can undermine efforts to establish
same-sex marriage.
The province of Alberta would not be able to override the federal definition of
marriage for purposes outside its legislative competence. For example, flowing from
marriage to one person is the incapacity to marry anyone else unless and until the first
marriage is dissolved by death or divorce. This particular incident of marriage falls
under the exclusive legislative competence of the federal government, that is, capacity
to marry. Alberta would have to recognize this incident of a foreign or sister province
same-sex marriage. It would be ultra vires the province to refuse to recognize the
incapacity to marry by issuing a marriage licence to someone whose same-sex
marriage has not been dissolved. In other words, the incapacity flowing from a status
imposed by federal law could not be overridden by Alberta’s rules regarding the
solemnization of marriage.
This discussion of matters that are ultra vires the province leads to the question of
whether Alberta could refuse to give effect to sister province or foreign same-sex
marriages with regard to matters within its legislative competence. There are three
distinct issues to consider. (1) Could Alberta legislators exclude parties to a same-sex
marriage from the incidents of marriage created by Alberta law? (2) Could Alberta
courts refuse to recognize and enforce a judgment relating to a same-sex marriage
granted by a sister province or foreign court on the grounds that it violated Alberta’s
public policy? (3) If Alberta’s choice-of-law rules required application of a foreign
law relating to a same-sex marriage, could Alberta courts override the choice-of-law
rule on public policy grounds?
For matters within its legislative competence (e.g., spousal support), Alberta
could by statute explicitly provide that the rights and obligations created by that
province’s domestic spousal support law extend only to opposite-sex married couples
and not to same-sex married couples, provided it used the “notwithstanding” clause to
shelter the discriminatory law from Charter scrutiny. Such legislation would not
purport to deny the essential validity of same-sex marriages but would refuse to
extend equal treatment to such couples. The result would be incoherent. Parties to a
same-sex marriage who had relocated to Alberta and then separated would not be
entitled on the basis of their marital status to seek support, whereas parties to a same-
sex “adult interdependent partnership” would be entitled to do so under Alberta’s
Family Law Act.” The members of the same-sex married couple might, in fact,
qualify as “adult interdependent partners” if they had lived together in a relationship
of interdependence for three years.45
Another possibility is for a party who is resisting enforcement of a sister province
or foreign judgment relating to a same-sex marriage to invoke the public policy
‘ S.A. 2003, c. F-4.5, s. 57 (not yet proclaimed in force).
45 See Adult Interdependent Partners Act, supra note 31, s. 3(1)(a)(i).
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defence. At common law there is a limited judicial discretion to refuse to recognize a
foreign judgment46 on public policy grounds. It would be difficult, however, to make
out a case that enforcement of a judgment relating to a same-sex marriage violated
Alberta’s public policy as this term is understood in private international law.
Canadian courts have defined the public policy defence very narrowly, taking the
view that it should be reserved for rare cases in which recognition of a foreign
judgment would undermine the essential public or moral interest. 7 In light of the fact
that Alberta extends some incidents of marriage to same-sex couples by devices such
as “adult interdependent partnerships”, it would be difficult to show that enforcing a
judgment relating to the same or similar incidents flowing from a same-sex marriage
would offend Alberta’s public policy.
Another reason that public policy would be hard to invoke is that there may be no
such defence as regards other provinces. Although seemingly preserved in the
reciprocal enforcement statutes in force across Canada,48 the public policy defence to
enforcement of sister province judgments probably has not survived the Supreme
Court of Canada’s decisions of the early 1990s. In Morguard Investments Ltd. v. De
Savoye, La Forest J. stated
that Canada’s constitutional arrangements make
unnecessary an explicit “full faith and credit” clause and that “a regime of mutual
recognition of judgments across the country is inherent in a federation.”49 The implicit
requirement to give “full faith and credit” to sister province judgments was
“constitutionalized” in Hunt v. T&N Plc.”0 Assuming that the other requirements for
enforcement were met, it is doubtful that an Alberta court could refuse on public
policy grounds to recognize and enforce, say, a judgment for damages for the
wrongful death of a same-sex spouse granted to the surviving spouse pursuant to the
dependents’ relief provisions of Ontario’s Family Law Act.5 In the context of an
explicit full faith and credit clause, the US Supreme Court has long since ruled that
the public policy defence cannot be invoked to refuse enforcement of a sister state
judgment, even when “the cause of action upon which the judgment was based is
against the law and public policy of the state … in which enforcement is sought.”52 In
46 See Boardwalk Regency Corp. v. Maalouf(1992), 6O.R. (3d) 737,88 D.L.R. (4th) 612 (C.A.).
47 In Beals v. Saldanha, [2003] 3 S.C.R. 416 at paras. 71, 75, 234 D.L.R. (4th) 1, 2003 SCC 72
[Beals], Major J., noting that the public policy defence “prevents the enforcement of a foreign
judgment which is contrary to the Canadian concept of justice,” stated that it “is not a remedy to be
used lightly” and that it “should continue to have a narrow application.”
48 See e.g. Reciprocal Enforcement of Judgments Act, R.S.A. 2000, c. R-6, s. 2(6)(f).
41 [1990] 3 S.C.R. 1077 at paras. 38, 39, 76 D.L.R. (4th) 256 [Morguard].
50 [1993] 4 S.C.R. 289, 109 D.L.R. (4th) 16.
51 Supra note 23, s. 61. Although the definition of “spouse” in Ontario’s Family Law Act has not yet
been amended to include parties to a same-sex marriage, presumably it will have to be in light of the
decision in Halpern, supra note 40.
52 Fauntleroy v. Lum, 28 S.Ct. 641 at 643, 210 U.S. 230 (1908). Note, however, that the
constitutionally suspect DOMA, supra note 6, purports to empower states to refuse to recognize sister-
state judgments “respecting a relationship between persons of the same sex that is treated as a
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the absence of an explicit “DOMA”-type statute prohibiting the recognition and
enforcement of extra-provincial judgments relating to the incidents of same-sex
marriages,53 Alberta courts will almost certainly recognize such judgments.
Alberta’s options as regards the incidents of marriage are also clear in respect of
enforcement of spousal support orders since there is no public policy defence for
sister province orders in the relevant reciprocal enforcement legislation. Although the
public policy defence is preserved for support orders made by foreign reciprocating
states,’ 4 it is unlikely that a party resisting enforcement could meet the stringent test
for the “public policy” defence simply because the foreign order was made in the
context of a same-sex marriage. This is particularly so because Alberta would be
required by its statute to register sister province support orders in favour of one party
to a same-sex marriage and because Alberta extends support rights and obligations to
same-sex couples under its own legislation.
A final question is whether a party could successfully argue that an Alberta court
should refuse to apply a foreign or sister province law dictated by Alberta’s choice-of-
law rules on the grounds that the law is related to same-sex marriage and thus violates
Alberta’s public policy. For example, if an Alberta court had jurisdiction to hear a
claim for damages arising from the death of the plaintiff’s same-sex spouse
negligently caused by a defendant in Ontario, could the court refuse to apply the lex
marriage,” and some states have enacted “rnini-DOMA” laws that attempt to block such judgments.
For example, the Tex. Fain. Code tit. 1 6.204 (2003) (Lexis) provides:
Recognition of Same-Sex Marriage or Civil Union
(a)
(2)
In this section, “civil union” means any relationship status other than marriage
that:
(1)
is
cohabitating persons; and
grants to the parties of the relationship legal protections, benefits, or
responsibilities granted to the spouses of a marriage.
to marriage or applies primarily
intended as an alternative
to
(b) A marriage between persons of the same sex or a civil union is contrary to the
public policy of this state and is void in this state.
(1)
(c) The state or an agency or political subdivision of the state may not give effect to a:
public act, record, or judicial proceeding that creates, recognizes, or
validates a marriage between persons of the same sex or a civil union in
this state or in any other jurisdiction; or
right or claim to any legal protection, benefit, or responsibility asserted as
a result of a marriage between persons of the same sex or a civil union in
this state or in any other jurisdiction.
(2)
53 See e.g. Tex. Fam. Code, ibid.
54 See e.g. Interjurisdictional Support Orders Act, S.A. 2002, c. 1-3.5, s. 19(3)(b)(ii). Note that all
provinces and territories of Canada and many foreign states are reciprocating states under the act. See
Alta. Reg. 4/2003, s. 18, Schedule of Reciprocating Jurisdictions.
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loci delicti on the grounds of public policy?55 The public policy exception to the lex
causae is narrowly construed. 6 In regard to the tort example given here, the Supreme
Court of Canada has suggested in Tolofson that the public policy exception has no
application in cases of torts occurring in a sister province. Pursuant to Tolofson, courts
retain a limited discretion to apply the lexfori in international cases in order to avoid
injustice, but only in exceptional circumstances.57 Thus, even if the lex causae is a
truly foreign law, it is unlikely that a party could successfully invoke the public policy
exception. In the absence of an explicit “mini-DOMA” statute that provided for
application of the lexfori in place of the lex causae,58 an Alberta court would almost
certainly apply the lex causae.
In regard to spousal support, the matter is clear. The choice-of-law provision in
Alberta’s Interjurisdictional Support Orders Act does not include a public policy
exception and would require Alberta courts to apply extra-provincial laws for the
support of same-sex spouses. For example, a party to a Massachusetts same-sex
marriage may separate from his or her spouse and relocate to Alberta. The party may
then seek a support order in Alberta against the spouse still resident in Massachusetts.
Pursuant to the act, the Alberta court would first look to the law of Alberta, but if the
claimant was not entitled to support under Alberta law (i.e., if Alberta had enacted
discriminatory support legislation using the “notwithstanding” clause),
the act
provides that “the Alberta court must apply the law of the jurisdiction in which the
claimant and the respondent last maintained a common habitual residence.”59
What, then, of Alberta’s proclaimed intention to resist the opening up of civil
marriage to same-sex couples? The province would have to give effect to the
incidents of a same-sex couple’s marital status for matters outside its legislative
competence. It is probably not possible for an Alberta court to refuse recognition of a
sister province judgment relating to the incidents of a same-sex marriage on public
policy grounds, and unlikely that the stringent public policy test would be met even in
the case of truly foreign judgments. It is also improbable that an Alberta court would
refuse to apply the lex causae dictated by the province’s choice-of-law rules on public
policy grounds. It is theoretically possible for Alberta to enact discriminatory
legislation for matters within its legislative competence,
to withdraw from the
reciprocal enforcement of a spousal support scheme, and to enact a “mini-DOMA”
55 In Tolofson v. Jensen, [1994] 3 S.C.R. 1022, 120 D.L.R. (4th) 289 the Supreme Court of Canada
ruled that the lex loci delicti should apply to tort claims. The lex loci delicti is the law of the legal unit
where a wrong is committed.
56 In Boardwalk Regency v. Maalouf, supra note 46 at 616, Lacourci~re J.A. stated that “where
foreign law is applicable, Canadian courts will generally apply that law even if the result may be
contrary to domestic law.” The lex causae is the system of law that is applicable to a given question
pursuant to a choice-of-law rule of the forum.
57 Somers v. Fournier (2002), 60 O.R. (3d) 225, 214 D.L.R. (4th) 611 (C.A.). The lexfori is the
local or domestic law of the legal unit to which the court where an action is brought belongs.
58 See e.g. Tex. Fam. Code, supra note 52.
59 Interjurisdictional Support Orders Act, supra note 54, s. 12(3).
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law. Given that the only discernible benefit of taking these extreme measures would
be to signal opposition to the use of “marriage” in regard to same-sex relationships,
one hopes that Alberta will instead accept the likely introduction of federal legislation
and the general national acceptance of same-sex marriage.
Turning from the issue of the extent to which extra-provincial same-sex marriages
must be recognized, the next question is whether all same-sex marriages can be
recognized under existing choice-of-law rules. The problem most likely to arise is
lack of essential validity under the domiciliary law of one or both parties. For
example, a same-sex couple domiciled in Alabama, a state that does not permit or
recognize same-sex marriage, may get married in Ontario. Ontario permits “tourist”
marriages between parties unconnected to the province without any inquiry into
whether the parties have capacity to marry under their domiciliary law.6″ Because the
marriage would be essentially invalid under the lex domicilii, it would not be
recognized pursuant to Canada’s choice-of-law rules, unless, perhaps, the parties
intended to acquire a matrimonial domicile in Canada and did, in fact, do so after their
marriage.6′ The same result would follow if the parties married in the Netherlands or
Belgium (unless the intended matrimonial domicile rule could be applied). Although
the Netherlands and Belgium require that at least one of the parties be a citizen or
habitual resident (domiciliary) of the country,62 it would be possible for a party
domiciled in, say, the Netherlands to marry a party domiciled in, say, Alabama. Under
the dual domicile rule, the marriage would not be recognized in Canada because one
of the parties would lack capacity under the lex domicilii.
An argument can be made, however, that if a party’s personal law denies capacity
to enter into a same-sex marriage, that incapacity should be ignored on public policy
grounds.63 There is some precedent for this approach. In Sottomayer v. De Barros (No.
2),6 an English court refused to give effect to the incapacity of a Portuguese
domiciliary to marry in England her first cousin, an English domiciliary, without
dispensation from the Pope. The court stated that “[nlumerous examples may be
suggested of the injustice which might be caused to our own subjects if a marriage
were declared invalid, on the grounds that it was forbidden by the law of the domicile
of one of the parties.”65 Examples cited by the court were US anti-miscegenation laws
and laws imposing incapacity to marry at all on members of religious orders.66 In
cases of marriages celebrated in England, English courts have also refused to give
60 The rules regarding solemnization of marriages in Ontario are set out in the province’s Marriage
Act, R.S.O. 1990, c. M.3.
61 Narwal, supra note 35.
62 Kees Waaldijk, “Others May Follow: The Introduction of Marriage, Quasi-Marriage, and Semi-
Marriage for Same-Sex Couples in European Countries” (2004) 38 New Eng. L. Rev. 569 at 576-77,
582-83.
63 See Briggs, supra note 35 at 231.
64 [1879] L.R. 5 P.D. 94 [Sottomayer].
65 Ibid. at 104.
66 Ibid. at 104.
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effect to an incapacity to remarry imposed on an adulterous wife under the law of
Natal67 and to an incapacity imposed on a Hindu man to marry outside his religion.68
The exception to the generally applicable dual domicile rule expressed in these cases
has been criticized, but Graveson points out that the exception is limited in scope-it
applies only to marriages that take place in England-and has a very specific purpose,
that is, “to protect domiciled Englishmen and Englishwomen on entering
into
marriages with persons domiciled abroad … “69 This established exception to the dual
domicile rule could be applied to marriages that took place in Canada between a
Canadian domiciliary and a party domiciled in a state that prohibits same-sex
marriage. But it would not apply to marriages celebrated abroad.
It may be possible to build on the Sottomayer line of cases and to argue for a
broader exception to the dual domicile rule in regard to same-sex marriages celebrated
abroad or where neither party is a Canadian domiciliary. In light of the values
enshrined in international human rights documents and the Charter, it is at least
arguable that giving effect to a foreign law prohibiting same-sex marriage would be
discriminatory, an unjustifiable interference with the freedom to marry, and contrary
to public policy. Belgium has determined that “any foreign legal prohibition on same-
sex marriage must be considered discriminatory and contrary to Belgian public
order,” and, as an exception to its general rule, will permit same-sex marriages to be
celebrated in the country even if prohibited by the national law of one of the parties
(at least one must be a citizen or habitual resident of Belgium).7″ Belgium’s invocation
of the public order exception is in the context of issuing marriage licences, not
recognizing foreign marriages, but the principle that a foreign prohibition on same-
sex marriage is contrary to public policy and will not be given effect may perhaps be
applied more generally.
III. Civil Unions
Various names are applied to schemes under which couples may register their
partnerships with the state and thereby acquire most of the incidents of marriage, but I
will use the term “civil union” here. The first civil union law was enacted in Denmark
in 1989″ in order to address the discriminatory exclusion of same-sex couples from
the incidents of marriage and to extend formal state recognition of, and support for,
lasting and stable same-sex relationships.72 Civil union laws have now been enacted in
many European countries.73 In the US, Vermont enacted a civil union law74
in
67 Scott. v. Her Majesty’s Attorney General, [1886] L.R. 11 P.D. 128.
68 Chetti v. Chetti (1908), [1909] P. 67.
69 R.H. Graveson, The Conflict of Laws, 5th ed. (London: Sweet & Maxwell, 1965) at 222.
70 Waaldijk, supra note 62 at 582-83.
71 Registered Partnership Act, Act No. 373, 1 June 1989 (Denmark).
72 See Linda Nielsen, “Family Rights and ‘Registered Partnership’ in Denmark” (1990) 4 Int’l J. L.
Fam. 297 at 298.
73 See Waaldijk, supra note 62.
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response to a decision of the Vermont Supreme Court that exclusion of same-sex
couples from the incidents of marriage violated the common benefits clause of the
state constitution. 5 Other US states and municipalities have extended various rights
and obligations to same-sex couples,76 but Vermont has been the first US state to
extend all of the incidents of marriage within the state’s legislative competence to
same-sex couples by means of a civil union law.
Canada’s first civil union law was enacted in the province of Nova Scotia, in
response to the decision of the provincial appellate court in Walsh v. Bona.” Nova
Scotia’s legislation permits cohabiting couples of the same or opposite sex to register
as “domestic partners” and thereby become entitled to many of the rights and
obligations of married couples, including those contained in Nova Scotia’s family
property statute.”
Quebec’s similar but broader civil union law came into force a year after Nova
Scotia’s.79 Quebec had not previously extended private family law rights to unmarried
couples on the basis of cohabitation, as had the common law provinces, because of a
reluctance to thrust the rights and obligations of marriage on those who had not
74 An Act Relating to Civil Unions, 2000 VT, H.847, in force in relevant part 1 July 2000 (the
insurance provisions came into force 1 January 2001).
75 Baker v. Vermont, 744 A.2d 864, 170 Vt. 194 (1999). The “common benefits clause” of the
Vermont Constitution (Vt. Const. art. 7) provides: “That government is, or ought to be, instituted for
the common benefit, protection, and security of the people, nation, or community, and not for the
particular emolument or advantage of any single person, family, or set of persons, who are a part only
of that community … ”
76 See e.g. Hawaii’s “reciprocal beneficiaries” law, U.S., H.B. 118, An Act Relating to Unmarried
Couples, 1997, Reg. Sess., Hawaii (in force 1 July 1997).
77 (2000), 183 N.S.R. (2d) 74, 5 R.F.L. (5th) 188 (C.A.), rev’d by S.C.C. in Nova Scotia (A.G) v.
Walsh, [2002] 4 S.C.R. 325, 221 D.L.R. (4th) 1 [Walsh]. Nova Scotia’s Minister of Justice, Michael
Baker, on introducing the second reading of the domestic partnership bill (Bill 75, 1st Sess., 58th
Leg., Nova Scotia, 2000 (Law Reform (2000) Act, S.N.S., c. 29), stated:
The second decision which has prompted legislative change is known as Walsh and
Bona. In this case the Nova Scotia Court of Appeal found that the Nova Scotia
Matrimonial Property Act, which defines a spouse as a married
individual,
discriminates against common-law spouses and therefore contravenes the Canadian
Charter of Rights and Freedoms. The court gave the Province of Nova Scotia 12
months to enact legislative change. We are complying with this decision by amending
the Vital Statistics Act. The new section allows individuals to register as domestic
partners. Essentially, they can file a domestic partnership statutory declaration. Once
filed, the declaration means that the legal rights and obligations under several Statutes
would apply to the partners (Nova Scotia, 58th General Assembly, Hansard, 99/00-96
(14 November 2000) at 8705 (Michael Baker)).
78 An Act to Comply with Certain Court Decisions and to Modernize and Reform Laws in the
Province, S.N.S. 2000, c. 29, ss. 32-45 (in force 4 June 2001).
79 An Act Instituting Civil Unions and Establishing New Rules of Filiation, S.Q. 2002, c. 6 (in force
8 June 2002).
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chosen to marry.”0 Quebec’s civil union law respects the autonomy of the parties by
extending private family law rights and obligations only to couples of the same or
opposite sex who register their union, but it also expands the rights of unregistered
cohabiting couples of the same or opposite sex in such matters as consent to health
care for an incapacitated partner. Quebec’s reforms are distinct from Nova Scotia’s in
that they are broader and include rules relating to filiation and adoption.8
Compared to other forms of unmarried cohabitation, it may be relatively easy to
develop private international law rules in regard to civil unions because they are
analogous to marriages “and consideration can be given to applying familiar
techniques to the establishment, effects and dissolution of a partnership. 82 On the
other hand, there are challenges dealing with a status unknown in domestic law that
require careful consideration.83
If the choice-of-law rules regarding validity of marriage were applied to civil
unions, the dual domicile rule would apply to essential validity and lex loci
celebrationis to formal validity. Application of the dual domicile rule, however, would
create a problem if the domicile of the parties has no domestic counterpart to civil
unions and nothing to say about capacity to enter into a civil union. In Vermont, for
example, the large majority of civil unions have been formed by out-of-state couples,
most of whom are domiciled in other states with no provisions regarding civil
unions.84 Vermont has “anti-evasion” provisions in regard to marriage and deems void
any marriage by out-of-staters who try to evade the marriage prohibitions of their
80 In 1998, then Minister of Justice, Serge M~nard, stated: “Lorsque le l~gislateur a rvis6 le droit
de la famille, tant en 1980 qu’en 1991, il s’est interrog6 sur l’opportunit6 de prfvoir des consequences
civiles aux unions de fait. S’il s’est abstenu de le faire, c’est par respect pour la volont6 des conjoints:
quand ils ne se marient pas, c’est qu’ils ne veulent pas se soumettre au regime l6gal du mariage”:
Quebec, National Assembly (18 June 1998), online: Assemblfe nationale du Qubec
81 In regard to filiation, see art. 538.3 C.C.Q.: “If a child is born of a parental project involving
assisted procreation between married or civil union spouses during the marriage or the civil union or
within three hundred days after its dissolution or annulment, the spouse of the woman who gave birth
to the child is presumed to be the child’s other parent…. “And art. 539.1 C.C.Q.: “If both parents are
women, the rights and obligations assigned by law to the father, insofar as they differ from the
mother’s, are assigned to the mother who did not give birth to the child.” In regard to adoption, see
art. 578.1 C.C.Q.: “If the parents of an adopted child are of the same sex and where different rights
and obligations are assigned by law to the father and to the mother, the parent who is biologically
related to the child has the rights and obligations assigned to the father in the case of a male couple
and those assigned to the mother in the case of a female couple. The adoptive parent has the rights
and obligations assigned by law to the other parent. If neither parent is biologically related to the
child, the rights and obligations of each parent are determined in the adoption judgment.”
82 Permanent Bureau of the Hague Conference on Private International Law, supra note 32 at 5.
83 For a general discussion of the problems relating to foreign forms of status, see Graveson, Status,
supra note 12 at 102-10.
84 See Report of the Vermont Civil Union Review Commission, Office of the Legislative Council,
Montpelier, Vermont (January 2003) at Appendix B.
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domicile by holding their wedding in Vermont.” But there is no equivalent rule for
civil unions. Quebec provides that the lex loci celebrationis governs both the essential
and formal validity of a civil union,86 thus eliminating the potential problem of
applying the dual domicile rule to determine essential validity when the civil law
status may be unknown under the domiciliary law. Nova Scotia has no choice-of-law
provision regarding the validity of civil unions.
The issue of choice-of-law rules for validity of civil unions seems to have been
largely ignored in the few cross-border cases that have arisen. Instead, the focus has
been on whether the incidents of marriage under forum law should be applied to those
with a foreign-acquired status that has no counterpart in forum law. In response to
arguments that a foreign civil union should be treated as a marriage under forum law,
some courts have adopted the two-pronged analysis used in the early polygamy cases.
The court in Hyde v. Hyde and Woodmansee took the view, first, that a polygamous
marriage was not a marriage within the meaning of the English divorce statute and,
second, that, in any case, to treat it as such would violate the public policy of
England.8″ Similarly, some courts have concluded that foreign civil unions are not
marriages within the definition of a particular forum law.88 In states that prohibit
same-sex marriage, courts have also said that treating a foreign same-sex civil union
as a marriage within the meaning of forum law would violate public policy.89
A Texas court took a different position in an uncontested action to dissolve the
Vermont civil union of two Texas residents under the Texas divorce statute.9″ The
judge reportedly determined that the full faith and credit clause of the US constitution
obliged Texas to recognize the civil union law of Vermont, and ruled that, despite the
prohibition against same-sex unions in Texas, there was no prohibition against
dissolving such a union.9″ The case is, however, not a reliable authority for those
seeking to have civil unions recognized because it has long been established that the
full faith and credit clause does not require that courts give effect to the statutes of
sister states that violate forum public policy.9″ One result of this decision may be the
enactment of more explicit “mini-DOMA” laws in states opposed to the recognition
of same-sex unions. The decision also does not address the problem identified in both
85 Vt. Stat. Ann. tit. 15 6 (2003) (Lexis).
86 Art. 3090.1 C.C.Q.
87 (1866) L.R. 1 P.D. 130, [1861-73] All E.R. 175 [Hyde v. Hyde cited to L.R.P.D.].
88 See e.g. Rosengarten v. Downes, 71 Conn.App. 372, 802 A.2d 170 (2002) [Rosengarten], appeal
dismissed as moot, 261 Conn. 936, 806 A.2d 1066 (2002); D. and Kingdom of Sweden v. Council of
European Union, 2001 E.C.R. 1-4319.
89 See e.g. Burns v. Bums, 253 Ga.App. 600, 560 S.E. 2d 47 (2002).
90 In the matter of the marriage of R.S. and J.A., Texas No. F-185,063 (279th Dist. Ct. Tex., 2
March 2003) (unreported).
91 Molly McDonough, “Court Oks Divorce Without Recognizing ‘Marriage’: Gay Couple’s Civil
Union, Created in Vermont, Is Dissolved in Texas” (21 March 2003) 2 No. 11 A.B.A. J. E.-Report 2
(Westlaw).
92 See Loucks v. Standard Oil Co. of New York, 224 N.Y 99, 120 N.E. 198 (C.A. 1918).
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M. BAILEY – SAME-SEX RELATIONSHIPS ACROSS BORDERS
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Burns and Rosengarten that Vermont itself distinguishes between marriages and civil
unions. By applying a Texas law available only to those who are married, the judge
was, in effect, extending to the couple a status they did not enjoy under Vermont law.
One could argue, however, that the Texas judge was taking a common sense
approach. After all, Vermont law provides that its divorce laws apply, mutatis
mutandis, to the dissolution of civil unions. And if the Texas court had not dissolved
the civil union, one member of the couple would have had to acquire residency in
Vermont for a year in order to obtain a dissolution in that state.” But why bother
dissolving the civil union if it would have no legal effect outside of Vermont? Perhaps
the judge was implicitly recognizing the possibility that the civil union could be given
legal effect for some purposes outside Vermont.
The most carefully reasoned of the US civil union recognition cases is Langan v.
St. Vincent’s Hospital, which is currently on appeal.94 There is no public policy against
same-sex unions in New York, it is one of only twelve states that have not enacted a
“mini-DOMA” law, and the state and city of New York extend many incidents of
marriage to same-sex couples.95 The issue was whether the plaintiff, who had entered
into a Vermont civil union with his partner, was a “spouse” within the meaning of the
New York wrongful death statute. The court ruled in favour of the plaintiff, entitling
him to assert a claim for pecuniary losses resulting from the death of his partner at the
defendant hospital.
The court cited New York’s choice-of-law rule applicable
to marriages-
“marriage contracts, valid where made, are valid everywhere, unless contrary to
natural laws or statutes” 96-and applied this rule to the Vermont civil union. This was
appropriate, reasoned the court, in light of the fact that the Vermont civil union is like
marriage in that it is “a civil contract regulated by the state in its conduct and its
dissolution.”97
Under Vermont’s law, the court noted, a party to a civil union is subject to all of
the incidents of marriage under state law and “is included in the definition of the term
spouse, family, immediate family, dependent, next of kin and ‘other terms that denote
the spousal relationship as those terms are used throughout the law.”‘ 98 The
application of the term “spouse” to parties to a civil union under Vermont law was
important to the decision of the court, which stressed that it was not applying a
93 This problem, which was also identified in Rosengarten (supra note 88), does not arise in regard
to Dutch civil unions because, pursuant to article 33.1 of the Registered Partnership Act, a Dutch
court always has jurisdiction to dissolve a civil union that was entered into in the Netherlands.
14 765 N.Y.S.2d 411, 196 Misc. 2d 440 (Sup. Ct. 2003) [Langan cited to N.YS. 2d].
95 1bid. at 414-15.
96 Ibid. at 414, citing Shea v. Shea, 294 N.Y 909, 63 N.E.2d 113 (C.A. 1945).
97 Ibid. at 418.
98 Ibid. at 417, citing Vt. Stat. Ann., supra note 85, 1204(b).
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“functional” definition of spouse, but rather giving full faith and credit to Vermont
law under which the plaintiff was literally a “spouse”.”
In an inversion of the reasoning adopted in Hyde v. Hyde, where the court took
the view that a polygamous union might be called a marriage but is not a marriage,”
the New York court concluded that a Vermont civil union, though not labelled a
marriage, is, in effect, a marriage: “A civil union under Vermont law is distinguishable
from marriage only in title … “and “conforms in all respects to the requirements for a
marriage.”.
The court reasoned that giving effect to the civil union was supported by the
principles of full faith and credit and comity. It held that the term “spouse” in the
wrongful death statute could fairly be interpreted to include civil union spouses and
that the statute ought to be construed in conformity with constitutional requirements if
possible. The court considered that the only difference for state purposes between a
marriage and Vermont civil union was the sexual orientation of its partners.”0 2 The
sexual orientation of the partners was irrelevant to the purpose of the wrongful death
statute, which was to compensate the victim’s dependents. It would therefore violate
the constitutional guarantee of equal protection to exclude a party to a legally
sanctioned same-sex union from the definition of “spouse” for the purpose of the
wrongful death statute.
The Langan decision was expressly limited to interpretation of the word “spouse”
in a wrongful death statute, which did not itself include a definition of the term. And it
was an “easy” case in the sense that Vermont civil unions are identical to marriage
under state law except in name; the term “spouse” is applied to a member of a civil
union under Vermont law. In Langan the problem of the diversity of the incidents of
civil unions and of the terms used for parties to a civil union did not arise.
Nevertheless, certain principles can be gleaned from the case that are more broadly
applicable. Entering into a civil union creates a status that is regulated in its conduct
and dissolution by the state. Applying the principle of universality, this status should
be recognized everywhere unless contrary to the public policy or statutes of the
forum. Although a civil union may not be a “marriage” for all purposes and parties to
a civil union may not be “spouses” for all purposes under forum law, effect should be
given to the foreign status to the extent possible. If the only significant difference
” Ibid. at 422.
1oo Supra note 87. The court said: “But there is no magic in a name; and, if the relation there
existing between men and women is not the relation which in Christendom we recognise and intend
by the words ‘husband’ or ‘wife,’ but another and altogether different relation, the use of a common
term to express these two separate relations will not make them one and the same, though it may tend
to confuse them to a superficial observer” (at 134).
101 Langan, supra note 94 at 417, 418.
102 Although the judge considered the issue one of sexual orientation, it should be noted that the real
difference between the Vermont civil union and a marriage is the sex of the partners.
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between a civil union and a marriage
discriminatory to refuse to give effect to a civil union status.
is the sex of the partners, it may be
The Langan decision is important not just in regard to recognition of foreign civil
unions but also to recognition of foreign same-sex marriages. Eliot Spitzer, the
Attorney General of New York, cited Langan as the most relevant New York case
when he issued an opinion that foreign same-sex marriages validly performed must be
recognized in New York. Although New York law does not permit parties to enter into
a same-sex marriage within the state, Spitzer stated that “New York common law
requires recognizing as valid a marriage, or its legal equivalent, if it was validly
executed in another state, regardless of whether the union at issue would be permitted
under New York’s Domestic Relations Law.”‘ 0 3
There is no issue of same-sex civil unions violating public policy in Canada. Even
Alberta has no policy against extending the incidents of marriage to same-sex
couples, provided the word “marriage” is not used. But there is an issue of whether a
civil union that is distinguished from marriage under the law of its creation can be
treated as a marriage within the meaning of forum law.
the civil union dissolved,
Where the law of the state that created the civil union is the lex causae, there
should be little difficulty. For example, parties to a Vermont civil union may not get
married under Vermont law unless and until their civil union is first dissolved.” A
party domiciled in Vermont and with civil union status in that state would lack the
capacity to many. If that party subsequently married, say in Ontario, without first
having
the Ontario marriage would be considered
essentially invalid in Canada pursuant to the lex domicilii. Another example would be
of a civil union partner who wants to bring an action for wrongful death in Ontario in
relation to an accident that took place in Nova Scotia. Nova Scotia law would be the
lex causae pursuant to Tolofson, 5 and under Nova Scotia law a civil union partner
may bring such an action. 6 Thus, giving effect to the incidents of a civil union
created under a foreign law that is also the lex causae is not problematic.
But what if forum law applies? For example, a party to a Nova Scotia civil union
may apply for a division of family property in Ontario. Ontario’s Family Law Act
provides that:
The property rights of spouses arising out of the marital relationship are
governed by the internal law of the place where both spouses had their last
common habitual residence or, if there is no place where the spouses had a
common habitual residence, by the law of Ontario. 10 7
Marriage” New York limes (4 March 2004) Al.
103 Marc Santora, “Same-Sex Marriage: The Law; Spitzer’s Opinion Mixed on Status of Gay
104 Vt. Stat. Ann., supra note 85, 1204(d).
105 Tolofson, supra note 56.
106 Vital Statistics Act, R.S.N.S. 1989, c. 494, s. 54(2)(a); Fatal Injuries Act, R.S.N.S. 1989, c. 163.
107 Supra note 23, s. 15.
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If the parties’ last common habitual residence was Nova Scotia, the law of that
province will apply. Under Nova Scotia law a civil union partner may apply for
division of matrimonial property.”8 But if the parties’ last common habitual residence
was Ontario, then Ontario law will apply.” Only “spouses” as defined in the Family
Law Act are entitled to apply for division of the matrimonial property. The act
provides that:
(1)
… “spouse” means either of a man and woman who,
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or
void, in good faith on the part of a person relying on this
clause to assert any right.
(2)
In the definition of “spouse”, a reference to marriage includes a
marriage that is actually or potentially polygamous, if it was
celebrated in a jurisdiction whose system of law recognizes it as
valid.
10
Could the term “spouse” in the act be interpreted to include parties to a civil union,
assuming that the words “either of a man and woman” are replaced with “two
persons”-in compliance with
that no other
amendments are made?
the Halpern decision”‘-but
Borrowing from the reasoning in Langan, it may be possible to interpret the term
“spouse” to include a party to a civil union. The universality principle would support
giving effect to a sister province status. Parties to a civil union are included in the
definition of “spouse” for the purpose of matrimonial property division in Nova
Scotia. But Langan did not involve a statutory definition of “spouse”. Interpreting
“spouse” to include a party to a civil union might be possible in the absence of a clear
statutory definition, but the Family Law Act defines “spouse” in an unambiguous way
that does not include parties to a civil union.
It may be possible to challenge the constitutionality of the act’s definition of
“spouse” on the grounds that it discriminates on the basis of marital status contrary to
section 15 of the Charter. The Supreme Court of Canada has ruled that exclusion of
unmarried cohabiting persons of the opposite sex from a statutory matrimonial
property regime is not discriminatory within the meaning of subsection 15(1) of the
108 Vital Statistics Act, supra note 106, s. 54(2)(g); Matrimonial Propery Act, R.S.N.S. 1989, c. 275.
109 Although Nova Scotia’s civil union law is limited to parties who are residents of or own property
in Nova Scotia, it would certainly be possible for residents of the province to enter into a civil union
and subsequently move or for couples residing elsewhere but who own property in the province to
enter into a civil union there.
10 Supra note 23, ss. 1(1), (2). The limitation of the definition to “either of a man and woman” has
111 See supra note 40.
not yet been changed to reflect the opening up of civil marriage to same-sex couples.
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Charter.”2 But the Court’s decision was based largely on respect for the autonomy of
the parties. The majority stated that those who marry can be said to freely accept the
rights and obligations of marriage, and that the decision not to marry should be
respected. Justice Gonthier, in a concurring opinion, described matrimonial property
regimes as contractual in nature and stated that such laws are aimed at dividing assets
according to the regime chosen by parties, either explicitly or implicitly by getting
married. Parties to a Nova Scotia civil union, however, have chosen to take on some
of the rights and obligations of marriage, including matrimonial property rights and
obligations, by registering their partnership. Much of the reasoning behind the Walsh
decision would thus not apply.
Another possibility would be to uphold one party’s claim for matrimonial
property division on the basis of contract. As Gonthier J. pointed out in Walsh,
matrimonial property regimes are contractual
in nature. In Rosengarten, the
Connecticut court left open the possibility that a claim could be made in contract or
equity by a party to a Vermont civil union for property division or support, although
no express or implied contract was alleged by the petitioner in that case.”3 Parties to a
Nova Scotia civil union, then, might argue that they have effectively contracted for
division of their property in accordance with the Nova Scotia matrimonial property
statute. The contract device may well be effective in regard to private law rights and
obligations between the parties to a civil union, but it would not assist in claims
against third parties based on civil union status.
Matrimonial property rights and obligations are among the few incidents of
marriage that have not been extended to unmarried couples in most provinces.
Because most incidents of marriage have been extended to unmarried couples, it will
not always be necessary to address the civil union recognition issue. For example,
under Ontario’s Family Law Act, support rights and obligations are extended to same-
sex partners, defined as those who have cohabited for three years or who have
cohabited in a relationship of some permanence if they are the natural or adoptive
parents of a child.’14 Parties to a civil union who meet the definition of “same-sex
partner” will have support rights and obligations on that basis. For some purposes,
there is no required period of cohabitation. For example, under the Compensation for
Victims of Crime Act, a dependent same-sex partner who was “living with the
deceased victim in a conjugal relationship outside marriage immediately before the
death of the deceased victim” is eligible for compensation.” 5 To the extent that the
parties qualify for the incidents of marriage based on cohabitation, whether or not
they are married or parties to a civil union, there is no difficulty.
112 Walsh, supra note 77.
113 Supra note 88 at 394.
114 Supra note 23, ss. 29, 30.
“‘ R.S.O. 1990, c. C.24, ss. 1, 5.
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But if parties to a foreign civil union do not meet the statutory test to qualify for a
particular incident of marriage,
there will be a problem. Creative statutory
interpretation might be possible, at least in regard to ambiguous provisions. Charter
challenges to provisions that discriminate on the basis of marital status may be
successful. And contract claims on private rights and obligations between the couple
may be advanced. Perhaps the best solution would be statutory reform to extend
incidents of marriage to those who are parties to a civil union. The diversity in the
terminology used and the incidents connected to civil unions will, however, pose a
challenge to legislators. Some civil unions, like those in the Netherlands, are virtually
identical to marriage. Others, like those performed under the Hawaiian scheme, are
very limited in nature and not analogous to marriage. Still others, including most
European models, are analogous to marriage except in regard to filiation and adoption
rules. In the case of foreign marriages, those that meet the forum test for validity are
subject to all of the applicable incidents of marriage under forum law (except that
polygamous marriages are not given effect for all purposes), and no inquiry is made
as to the incidents of marriage under the law governing validity. Given the diversity of
civil unions, recognition for the purpose of applying forum law will probably have to
depend on an examination of the incidents flowing from the particular civil union that
is the basis for the claim.
IV. “Ascribed Spousal Status”
Commentators have used the term “ascription” to describe the extension of the
incidents of marriage to unmarried parties who cohabit in a conjugal relationship,” 6
and the term “ascribed spousal status” to describe the state of those who are thus
subject to the incidents of marriage.” 7 But statutes extending the incidents of marriage
to cohabiting couples do not create a portable status, unlike marriage. It has been
pointed out that “[w]here legal consequences are attached to cohabitation on an ad
hoc basis, with varying definitions of cohabitation applying for different purposes, the
questions surrounding status do not assume the same significance.””..8 The issue is not
whether a status resulting from “ascription”
is essentially and formally a valid
application of the principle of universality to unmarried cohabitation but is rather
whether to give effect to rights and obligations established under the lex causae.
As far as giving effect to rights and obligations created under a foreign law is
concerned, there would be no public policy reason to refuse to apply the lex causae.
For example, a party may sue for the wrongful death of a “same-sex partner” within
the meaning of Ontario’s Family Law Act.”9 If the tort giving rise to the action
116 See e.g. Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close
Personal Adult Relationships (Ottawa: Minister of Public Works and Government Services, 2001).
117 See e.g. Brenda Cossman & Bruce Ryder, “What is Marriage-Like Like?: The Irrelevance of
Conjugality” (2001) 18 Can. J. Farn. L. 269.
118 Permanent Bureau of the Hague Conference on Private International Law, supra note 32 at 5.
119 Supra note 23, ss. 29, 61.
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occurred in Ontario, other provinces would apply the law of Ontario pursuant to the
Tolofson decision. Similarly, there would be no public policy reason to refuse
recognition of foreign money judgments based on rights and obligations of cohabiting
couples under foreign law. Provided the recognition rules outlined in Morguard and
Beals were met, the foreign judgment would be enforced. 2 The problems would arise
in regard to the application of forum law to parties who had cohabited elsewhere.
With the increase in unmarried cohabitation, many states have enacted laws to
extend certain incidents of marriage on the basis of qualifying cohabitation. Statutory
definitions of qualifying cohabitation vary between and within states according to the
purpose of the legislation. And some states do not extend incidents of marriage to
unmarried cohabitants in any significant way because of a policy of maintaining
marriage as a privileged status.’21 Thus, a party who has a right to claim support based
on the statutory definition of cohabitation in one jurisdiction, may not meet the test for
support in another. This diversity of approaches to unmarried cohabitation creates the
potential problems of forum shopping and evasion.
Statutory definitions of cohabitation do not include requirements
that the
cohabitation take place within the forum. Thus, it is possible for parties who cohabit
in a state that extends no incidents of marriage to unmarried partners to subsequently
move to, or be temporarily present in, a state that does and to immediately qualify for
the incidents of marriage based on a period of cohabitation which took place in the
other state. Conversely, parties who cohabit in a state that extends incidents of
marriage to unmarried partners may not have access to those incidents of marriage if
they subsequently move to, or are temporarily present in, a state that does not.
Within Canada, marital property laws provide an example of the diversity of laws
relating to cohabitation. In most provinces, unmarried cohabitation does not give rise
to statutory marital property rights and obligations. Saskatchewan’s statute, however,
extends such rights and obligations to those who have cohabited continuously for two
years.’22 Parties who cohabit in Saskatchewan for two years may subsequently move
to, say, Ontario, where cohabitants do not have statutory marital property rights and
obligations. If the parties later separated, it is possible that the Ontario law would
apply as the law of the parties’ “last common habitual residence”,’23 and the claimant
would not have a statutory right to apply for a division of the parties’ property.’24
120 Morguard, supra note 49; Beals, supra note 47.
121 Permanent Bureau of the Hague Conference on Private International Law, supra note 32 at 3.
122 Family Property Act, S.S. 1997, c. F-6.3, s. 2(1).
123 Family Law Act, supra note 23, s. 15.
124 An unmarried partner may be able to claim a share of the other’s property under the common
law doctrines of unjust enrichment or contract or under the Civil Code of Quebec provisions on
partnership, contract, or unjust enrichment: Peter v. Beblow, [1993] 1 S.C.R. 980, 101 D.L.R. (4th)
621; De LIsle v. Carton, [1997] A.Q. no 2057 (Q.C.A.) (QL), application for leave to appeal
dismissed with costs 4 December 1997, [1997] S.C.C.A. No. 451 (QL).
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Statutory requirements for support claims are similarly diverse, and the problem
of forum shopping for the purpose of such claims was raised in Toope v. Syvertson.’25
The parties initially cohabited in Alberta and later in British Columbia where they
subsequently separated. The claimant then moved to Ontario and applied for spousal
support in that province. She qualified for support in Ontario, but was out of time to
bring a claim in British Columbia. The issue was whether the provisional support
order made in Ontario should be confirmed in British Columbia. Based on the explicit
wording of the reciprocal enforcement legislation then in place, the British Columbia
court was required to take notice of, and apply, Ontario law. The Ontario support
order was therefore confirmed despite the fact that the respondent had never lived in
Ontario and that the claimant did not qualify under the law of the parties’ last common
habitual residence.
Pursuant to the new reciprocal enforcement legislation, which does away with the
old system of provisional and confirmation orders, a court determining entitlement to
support first applies forum law, but if the claimant is not entitled to support under
forum law, the court must apply the law of the parties’ last common habitual
residence.’26 The new legislation, which gives the claimant the benefit of the most
favourable law, does not address the potential problem of forum shopping. Although
the claimant must be a resident of the province in order for the court to have
adjudicatory
rule may encourage
relocation from a jurisdiction where the statutory requirements of support are not met
to one where the claimant does qualify. Conversely, the choice-of-law rule alleviates
the problem of evasion, because a resident of, say, Ontario could avoid a statutory
support obligation imposed under Ontario law only by moving to a non-reciprocating
jurisdiction.
the favourable choice-of-law
jurisdiction, 27
V. Status Versus Contract
Choice of law rules for contracts are different from those governing personal
status. Generally, contracts are governed by “the proper law of the contract”, that is,
the law chosen by the parties or, in the absence of a choice, the law of the state most
closely connected with the transaction. 28 Personal status, on the other hand, is
governed by the lex domicilii. For same-sex relationships governed by contract, then,
the first step is to determine whether the issue is simply the enforcement of a foreign
contract or if there is either a status, or at least a framework of rights and obligations
underlying the contract, that must be considered.
2′ (1995), 5 B.C.L.R. (3d) 174, 11 R.F.L. (4th) 69 (S.C.).
126 Interjurisdictional Support Orders Act, S.O. 2002, c. 13, s. 13(2).
127 See Emerson v. Emerson, [1972] 3 O.R. 5, 27 D.L.R. (3d) 278 (H.C.J.). Art. 3143 C.C.Q.
provides: “A Quebec authority has jurisdiction to decide cases of support or applications for review of
a foreign judgment which may be recognized in Quebec respecting support when one of the parties
has his domicile or residence in Quebec.”
128 See New Holland (Canada) Credit Co. v. MacPherson, [2003] O.T.C. 366 (Sup. Ct. J.).
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Same-sex partners may by agreement confer on themselves private rights and
obligations in the absence of any statutory regime conferring status or governing such
contracts. Although at one time common-law cohabitation agreements were viewed as
contrary to public policy and unenforceable, this has long since ceased to be the
case.129 In M. v. H., Iacobucci J., for the majority, assumed the existence and validity
of such contracts in his discussion of the limits of contract as an alternative to
statutory rights and obligations.13 Enforcement of foreign contracts would be
governed by the proper law of the contract, subject to any mandatory rules of the
forum. An example of such a mandatory rule is subsection 58(c) of Ontario’s Family
Law Act stating that no provision in a cohabitation agreement respecting custody or
access to children is enforceable in Ontario.1 31
Same-sex partners may also enter into a cohabitation agreement in the context of
a statutory regime conferring status, or at least default rights and obligations, and
providing for such contracts. For example, Ontario’s Family Law Act extends certain
rights and obligations to “same-sex partners” on the basis of cohabitation and
including the right to enter into a “cohabitation agreement”:
Two persons of the opposite sex or the same sex who are
cohabiting or intend to cohabit and who are not married to each other
may enter into an agreement in which they agree on their respective
rights and obligations during cohabitation, or on ceasing to cohabit or
on death, including,
(a)
(b)
(c)
(d)
ownership in or division of property;
support obligations;
the right to direct the education and moral training of their
children, but not the right to custody of or access to their
children; and
any other matter in the settlement of their affairs.132
Some provinces have explicit choice-of-law rules governing statutory cohabitation
agreements. For example, Ontario’s Family Law Act provides that:
The manner and formalities of making a domestic contract and
its essential validity and effect are governed by the proper law of the
contract, except that,
129 See e.g. Chrispen v. Topham (1986), 28 D.L.R. (4th) 754, 48 Sask. R. 106 (Q.B.), aff’d (1987),
39 D.L.R. (4th) 637, 59 Sask. R. 145 (C.A.).
130 [1999] 2 S.C.R. 3 at paras. 121-24, 171 D.L.R. (4th) 577.
131 Supra note 23.
132 Ibid., s. 53(1).
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(a)
a contract of which the proper law is that of a jurisdiction
other than Ontario is also valid and enforceable in Ontario if
entered into in accordance with Ontario’s internal law.
133
The act explicitly empowers the court to override the cohabitation agreement in
defined circumstances and, more broadly, provides a set of default rules that may
replace or supplement the agreement.’ 34
While status, as a matter of public law, cannot be created by contract alone, a state
may confer status on parties who enter into a contract.’35 For example, under Alberta
law, parties, including same-sex partners, may elect to become “interdependent
partners” by entering into an agreement.’36 Those who enter into an interdependent
partnership agreement create for themselves rights and obligations
that would
otherwise not exist. For example, an adult interdependent partner has the rights of a
spouse in cases of intestate succession.’37 The incidents of an adult interdependent
partnership, a hybrid of civil union and contract, can be given effect when Alberta law
applies. And Alberta judgments based on adult interdependent partnership status
should be recognized and enforced across Canada. But parties
to an adult
interdependent partnership will have the same difficulty as those who have entered
into a civil union in having their status recognized under any law but that of Alberta.
Conclusion
Canada gives extensive recognition to same-sex relationships under its domestic
laws and is one of the few countries in the world in which it is possible to celebrate a
same-sex marriage. A state’s domestic laws on same-sex relationships, however, are
not conclusive of issues relating to recognition of foreign same-sex relationships. The
principles of private international law may lead to a decision about a foreign same-sex
relationship that is different from the result under domestic law. Foreign same-sex
marriages that are not essentially valid under the parties’ domiciliary law and formally
valid under the lex loci celebrationis may not be recognized. In the absence of
statutory reform, it may not be possible to extend the incidents of marriage to a
foreign civil union. There may be no statutory authority for extending incidents of
marriage to cohabiting parties despite the fact that these incidents apply to them under
the law of their last common habitual residence. Contracts may be an effective
mechanism for enforcement of private rights and obligations between partners, but
cannot create a portable status. The breathtakingly fast development of domestic laws
recognizing same-sex relationships has resulted in a diversity of approaches that
create private international law challenges. As Canada moves forward with the bill to
“‘Ibid., s. 58(a).
134 See e.g. Bosch v. Bosch (1991), 6 O.R. (3d) 168, 84 D.L.R. (4th) 626 (C.A.).
135 See Graveson, Status, supra note 12 at 62ff.
136 Adult Interdependent Partners Act, supra note 31.
137 Intestate Succession Act, R.S.A. 2000, c. I-10, s. 3.
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open up civil marriage to same-sex couples, it may now be time to give more attention
to, and to work with other countries on, cross-border issues.
