Can young people get married?

Scenario:

Mark is a seventeen-year old high school student who has just finished grade 11.  He loves soccer, playing the guitar and going to parties with his friends. He is the vice-president on his school’s student council and is a member of the swim team.  He has been dating his boyfriend, Nathan, since the end of 10^th grade and they are both thinking of getting married. They have a great relationship and Mark cannot see himself being with anyone else but Nathan.

Mark’s home life has been difficult lately, as his father left the family several years ago and has not been in contact with them since he has left.  His mother has legal custody.  His mother has had to work two jobs and spends most of her free time with her boyfriend, John. Mark’s sister Kelly is away at university in Vancouver and he rarely sees her. Mark feels as though Nathan is the only constant, loving person in his life and thinks that marriage would solidify the loving relationship he has with his boyfriend.

Can Mark get married to his boyfriend Nathan? If he is able to marry Nathan, what would their rights be as a same-sex marriage couple in Canada?

Marriage and Age

Regardless of how old you are, marriage is a big commitment and whether to get married is an important decision.

In Ontario, the Marriage Act is the law that contains rules about who and how people can get married.  It says that any person who is “of the age of majority” can get married – in Ontario, that means being 18 or older.  People who are 16 or 17 can still get married, but they must have written permission from both of their parents.  If a young person’s parents live apart, or there is only one living parent, then only the parent who has legal custody needs to give written permission.  Having legal custody of a child means having the right to make important decisions for the child, about things like education and health care.

If Mark and Nathan decided they wanted to get married, Mark would have to get written permission from his mom.  He would not need to ask his dad for permission, because Mark’s mom has custody.  If Mark’s mom did not give her permission, Mark could apply to the court to see if a Judge will make an court order allowing him to get married even without his mom's permission.

Marriage and Sex/Gender

If Mark and Nathan wait until they are both 18, they can get married without needing parental permission.  In Canada, both same-sex and opposite sex couples can marry each other.  While the legal rights that come with marriage are different depending on the province, all married couples in a province – regardless of sex/gender – receive the same rights.   Many of these rights are related to property.  They have to do with things like paying income tax, or splitting assets (property and money) if a married couple divorces.

History of Same-Sex Marriage in Canada

It hasn’t always been possible for two people who are the same sex/gender to get married in Canada.  In 1999, the Supreme Court of Canada ruled that same-sex couples should have the same financial and legal benefits that married couples should have – but that didn’t mean that same-sex marriage itself was legal.  At that time, marriages were only performed between a man and a woman in Canada.

But Canada has a law called the Charter of Rights andFreedoms, which is part of the Canadian Constitution.  This means that the Charter takes priority over other laws that are not in the Constitution, including laws about marriage.  The Charter says that every person in Canada should receive equal benefit and protection under the law – regardless of certain personal characteristics (like sexual orientation).

In 2002, seven Ontario couples challenged the limits placed on marriage in Ontario based on the Charter, and the court ruled that limiting marriage to opposite-sex couples was a violation of the Charter.  In 2003, Ontario’s Court of Appeal confirmed that ruling.  From that point on, Ontario began allowing same-sex couples to marry.  (In 2004, the laws about divorce were also changed, so that same-sex married couples could get divorced.)  Within a couple of years, court challenges in most other provinces led to same-sex marriage in those provinces, too.  In 2005, the Canadian government passed the Civil Marriage Act, which defined marriage as a legal union between two people.

Newlyweds: these men got married during Toronto's 2012 Pride parade
Photo from  http://www.thestar.com/ajax/photoplayer/1220160--photos-pride-parade-in-toronto 

Scenario was written by PLE Team volunteer Inez Leutennger, who is a paralegal student.  Legal info was written by JFCY volunteer Leora Jackson, a law student at U of T.