Ronald Stevenson, a retired judge of the
Court of Queen’s Bench of New Brunswick, is a former Clerk of the New Brunswick
In every society and religion there are
rules prohibiting marriages between certain persons within defined familial
relationships. Generally the prohibitions apply to persons closely related
either by consanguity (blood relatives) or by affinity (relatives by marriage).
Since 1867 Parliament has enacted five Public Acts of general application and
eleven Private Acts to authorize marriages of couples who sought exemptions
from these prohibitions. The Private Acts, passed between 1975 and 1984,
prompted a review of the law and resulted in the enactment in 1990 of a statute
that redefines the prohibitions. This article outlines the evolution of
marriage law and the decline of religious influence on attitudes towards it.
Pre-Confederation law in Canadian common law
jurisdictions was derived from the law of England. The classes of couples
prohibited, or said to be prohibited, from marrying were those originally set
out in a table published by Archbishop Parker in an Admonition in 1563, adopted
by the Church of England as Canon 99 in 1603, and annexed to the Book of Common
Prayer in 1662.
Prohibited marriages in Quebec were defined
in the Civil Code of 1866. The prohibition against a man marrying his deceased
wife’s sister had been controversial from at least the 17th century.1
The first attempt to change the law in
post-Confederation Canada began on February 25, 1880 when the Member of
Parliament for Jacques Cartier, Mr. Girouard, introduced a bill that would have
provided that a marriage between a man and the sister of his deceased wife, or
between a woman and the brother of her deceased husband, would be legal and
valid. Mr. Girouard was prompted to introduce the bill when he was approached
by a lady who had married her deceased sister’s husband. Children had been born
to both marriages. The father had entailed his substantial estate in favour of
his legitimate children. She wanted to know if the children of her marriage were
excluded. Under the Civil Code that marriage was absolutely null and void. The
bill was debated at some length on second and third readings and in Committee
of the Whole. At the second reading stage a hoist motion was defeated 140-19.
On April 21 Senator Ferrier introduced the
Bill in the Upper House. On moving second reading he said there was:
a cry for relief from the grievous
disability now resting on the people of Canada" and that the Bill would
give relief from the disabilities to which they are now subjected by the
unscriptural ecclesiastical law which prevails, especially in the code of
jurisprudence of the province of Quebec ... The Roman Catholic Church grants a
dispensation to any of its people who wishes to marry a sister-in-law but their
children are still under the disabilities of the civil law. ... Protestants
have the unyielding iron law of affinity, reinforced by the bishops, a law
which has no foundation in the Bible.
Senator Dickey moved another hoist of the
bill "in order to give time to consider the various petitions to the
Senate for and against the bill, and to ascertain the sentiment of the people
on the question at the next session of Parliament". On April 28 the bill
was killed when the hoist motion was carried by a vote of 33-31.
Two years later Mr. Girouard again
introduced a bill in the House of Commons. It would permit a man to marry his
deceased wife’s sister, but not the converse. Mr. Girouard explained that the
language of the bill would repeal laws rather than make the marriages lawful.
The changes had been made in the hope of gaining support. The bill was given
second reading without debate by a vote of 137-34.
The same year Mr. Strange (York North) made
two motions intended to expand the bill to cover marriages with a deceased
husband’s brother. The first was defeated on division, the second by a vote of
87-49. The House then concurred in minor amendments that had been made in
Committee of the Whole and gave the bill third reading.
The next day Senator Ferrier introduced the
bill in the Senate. After 3 days of debate a six months hoist proposed by
Senator Bellerose was defeated 40-19.On April 13 the bill was considered in
Committee of the Whole and was reported without amendment. It received Royal
Assent on May 17.2
While his name was not mentioned in any of
the debates, the circumstances of Sir Alexander Tilloch Galt may have
influenced the course of parliamentary action.
A Father of Confederation and the first
federal Minister of Finance, Galt was appointed as Canada’s first High
Commissioner to London in 1880. In 1848 he had married Elliott Torrance who
died shortly after the birth of their only child on May 24, 1850. In 1851 he
married Elliott’s youngest sister, Amy Gordon Torrance. The wedding took place
in New York because of the deceased wife’s sister rule in Canada. When Sir
Alexander became High Commissioner it appeared that Lady Galt would not be
received at court because of the same rule. Galt was prepared to resign rather
than be presented without his wife. The Prince of Wales, who in the House of
Lords had been supporting efforts to change the law, personally intervened with
Queen Victoria and it was arranged that Lady Galt would be presented. It seems,
however, that she may not actually have been presented due to a period of
mourning for another of the Torrance sisters.3
In 1890 Parliament amended the 1882 statute.4
The amendment added a section repealing all laws prohibiting marriage
between a man and the daughter of his wife’s sister when no law relating to
consanguinity was violated, with respect to both past and future marriages. The
bill was introduced in the Senate by Senator Almon. He said it was Parliament’s
duty to remove "the anomaly from the law". No satisfactory answer was
given to Senator Power’s question as to why the bill did not extend to the
daughter of the deceased wife’s brother as well as to the daughter of a sister.
When the bill was considered in Committee of the Whole Senator Power moved an
amendment with respect to the daughter of a brother. The amendment was
On March 31 the Minister of Justice, Sir
John Thompson, sponsored the bill in the House of Commons. It passed through
second reading, committee consideration and third reading with only eight lines
of discussion being recorded in Hansard.
In 1923 Parliament took the next step by
passing an Act to make lawful the marriage of a woman to her deceased husband’s
brother or such brother’s son.5 Senator Hardy said the bill would
put a woman on the same plane as a man so far as marriage rights were
concerned. Many such marriages had been entered into by those who assumed that
if it was legal to marry a deceased wife’s sister it was of course legal to
marry the brother of a deceased husband. In committee of the whole the
Government and Opposition Leaders, Senators Dandurand and Lougheed, supported
the bill in the briefest of interventions. The bill was given third reading and
sent to the House where the sponsor, Mr. McMaster (Brome), was the only
speaker. He pointed out that the 1880 bill, had it passed, would have
accomplished the same result (at least with respect to the deceased husband’s
In 1932 Parliament passed the last of the
piece-meal marriage statutes. An Act to Amend the Marriage and Divorce Act6
provided for marriages to the daughter of a brother of a deceased wife or to
the son of a sister of a deceased husband.
There was limited discussion in both Houses
directed mainly to a comparison with a statute passed in England the previous
year and to the question of whether the bill would apply to marriages already
entered into. It appears from statements made by Senator Griesbach that the
bill may have been designed to meet the needs of a particular couple who had
been advised that they could not legally become husband and wife. He gave an
example of a situation to which the bill would apply. An elderly man with a
young wife dies. The young widow wishes to marry her deceased husband’s
brother’s son who is her age. The amendment would cover such a case.
Senator Meighen (who was the Government
Leader but spoke as a private member) said that all of the Canadian amendments
had been made in anticipation of special cases and no general review of the
merits of the question had taken place. The restrictions had been removed piece
by piece. No further changes were considered until the 1970s.
When Newfoundland entered Confederation the
pre-1835 English marriage laws still prevailed there, including the prohibition
against a man marrying his wife’s sister. Article 18 of the Terms of Union of Newfoundland
with Canada provided that, subject to the Terms, all laws in force in
Newfoundland at or immediately prior to the Union would continue subject to
being repealed, abolished or altered by Parliament or by the provincial
Legislature according to the division of powers in the British North America
Acts, 1867 to 1946.
Article 18(2) provided that Statutes of the
Parliament of Canada could be brought into force in Newfoundland by Act of
Parliament or by Proclamation of the Governor General in Council. Several Acts
and Proclamations were passed and issued under that provision. On May 28, 1952
an omnibus Proclamation was issued which (as amended by a Proclamation on June
28, 1952) brought into force in Newfoundland, on July 1, 1952, all statutes of
the Parliament of Canada that had been in force at the date of the Union and
were still in force other than 13 Acts or parts of Acts listed in a Schedule to
the Proclamation.7 One of the Acts listed in the Schedule was the Marriage
and Divorce Act. Thus the prohibitions contained in the original Table of
Kindred and Affinity remained in effect in Newfoundland until 1991.
Among marriages forbidden by the Table of
Kindred and Affinity and by the Civil Code were those between persons related
as uncle and niece or as aunt and nephew. Several couples who were thus related
petitioned Parliament for Private Acts to exempt them from the prohibitions.
Nine of the eleven private marriage Acts passed between 1975 and 1984
authorized such couples to marry.
The first such bill was introduced in the
House of Commons in 1975. Speaking to second reading Mr. Poulin (Ottawa
Centre), on behalf of the sponsor, Mr. Campbell (LaSalle-Émard-Côte-St. Paul),
explained that Richard Fritz, 32, wished to marry his half-niece, Marianne
Strass, 25. Marianne Strass’ father and Richard Fritz were half-brothers. The
marriage was prohibited by the Civil Code and only Parliament, in the exercise
of its legislative authority over marriage, could change the law or provide an
exemption. The parties had consulted their doctor and had "been assured
with respect to their consanguinity. There should be no problem with respect to
children". The parties’ church was prepared to grant any necessary
dispensation. The bill was referred to the Standing Committee on Miscellaneous
Private Bills and Standing Orders, was reported without amendment and given
The bill passed through all stages in the
Senate. During the brief debate a number of senators advocated a review of
marriage legislation as preferable to having to deal with applications for
exemptions from the existing law. The bill received Royal Assent on July 30.8
During the parliamentary session of 1977-78
two similar bills were passed concerning uncles and nieces of the full blood.
The bills were passed with a minimum of debate and became law on March 22,
In 1983-84 Parliament passed eight exemption
Acts.10 Three were sought by uncles and nieces of the full blood,
one by an aunt and nephew of the full blood, one by an uncle and niece by
marriage and one by an aunt and nephew by marriage. Each of the other two bills
authorized the marriage of a divorced person with a niece or nephew of that
person’s former spouse. As already noted, from the introduction of the first
exemption bill in 1974 parliamentarians had expressed support for a review of
the law respecting marriage. It had been only a few years since Parliament had
been relieved of the responsibility for granting statutory divorces to persons
domiciled in provinces without divorce courts. Members did not want to be faced
with an endless queue of petitioners seeking exemption from out of date
restrictions on marriages. The Senate delayed the first four exemption bills
introduced during the 1983-84 session until it adopted, on February 9, 1984, a
motion to refer the subject matter of the public general law against marriage
between related persons to the Standing Committee with instructions to report
its recommendations, if any, for amendment of the law.
The Minister of Justice, Mark McGuigan,
appeared before the committee. He suggested the Senate was in the best position
to review all related issues and invited the committee to get the views of
experts and the reaction of churches and of society’s moral leaders.
Dr. Abby Lippman, an eminent geneticist and
an associate professor at McGill University, appeared before the committee to
address genetic and eugenic concerns. The Standing Committee reported all eight
bills without amendment.
On April 12, 1984 the bills passed all
stages in the House of Commons without debate. Marcel Lambert entered a caveat
that no more such bills should be entertained until the general law had been
changed. The eight bills received Royal Assent on April 17.
Seven of the eleven private Acts were sought
by residents of Quebec, three by residents of Saskatchewan and one by a couple
resident in Ontario.
The Standing Committee had, in 1978,
concluded that the Civil Code did not prohibit marriages between persons who
were sister and brother by adoption and had declined to report an exemption
bill sought by such a couple. The appropriate ecclesiastical authority had
accepted the Committee’s report as clearance for the marriage to take place.
The Alberta Court of Appeal also concluded that adoptive relationships did not
fall within the prohibited degrees of consanguinity and affinity.
On April 3, 1984 Senator Stanbury introduced
Bill S-13. It would make void only marriages between persons related lineally
by consanguinity, between brothers and sisters, and between half-brothers and
half-sisters. It would not prohibit marriages between persons related only by
affinity or adoption. Speaking to second reading Senator Stanbury cited
ambiguities in the existing law, timeliness of reform, desirability for
uniformity, and the desire to eliminate private bill exemptions as
justifications for presenting the bill.
The chairman of the Standing Committee wrote
to all major religious denominations in Canada inviting comment on related
moral and religious issues. A memorandum that accompanied those letters
contained this succinct statement of the reasons for the bill:
In the view of some, many of the marriage
prohibitions are outmoded and unnecessary. The risk of the birth of genetically
defective children is said to be insignificant in all but the marriage of close
blood relations. And the prohibitions based on marital relationship are also
viewed as anachronistic.
The denominations were asked to respond to
several questions with respect to, inter alia, fixed doctrinal views, the
practice of dispensations, objections to the proposed reform, and their views
with respect to adoptive and step-relationships.
The responses, which were published as part
of the committee’s proceedings,11 covered a spectrum ranging from
approval by the Jehovah’s Witnesses, who found the bill to be in harmony with
their practice, to the strong objections of the Greek Orthodox Church which
retained many prohibitions including one against marriage of a godparent with
either a godchild or the parent of a godchild (spiritual affinity). Several
respondents favoured a prohibition with respect to those in adoptive
relationships. Bill S-13 died when the 32nd Parliament was dissolved on July 9,
When the next Parliament met in December another
bill was introduced in the Senate and referred to the Standing Committee.
During 1985 the committee considered the bill on several occasions and received
conflicting submissions about adoptive relationships, something the bill did
not directly address.
On November 6, 1985 the Standing Committee
adopted several amendments to the bill, including one to prohibit marriages
within adoptive relationships. On December 18 the Senate adopted the report but
deferred third reading. The next day Senator Flynn proposed an amendment that
would prohibit marriage between those related lineally by adoption but not
between siblings by adoption. The debate was adjourned. On April 29, 1986 the
Senate agreed to the Flynn amendment and the bill, as amended, was given third
reading. However, the House of Commons took no action on the bill and it died
when the session was prorogued on August 28, 1986.
On February 12, 1987 a third bill was
introduced in the Senate. By then there were 22 petitions for private bills
filed with Parliament. The bill provided that
related lineally or as brother and sister could not marry
and aunt/nephew marriages would be allowed
person whose marriage was dissolved by divorce could marry the brother, sister,
nephew , niece, uncle or aunt of the divorced spouse
person whose spouse had died could marry the uncle or aunt of the deceased
by adoption would not be a bar to marriage except lineally, i.e one might not
marry an adopted child or grand-child.
On March 31 the bill was read a second time
and referred to the Standing Committee. The Committee reported the bill without
amendment and the Senate gave it third reading on June 16.
In the House of Commons Mr. Nicholson
(Niagara Falls) moved second reading and reference to a legislative committee.
It seems there was some concern within the government about the content of the
bill. Mr. Gérin, the Parliamentary Secretary to the Minister of Justice and
Attorney General, moved that the bill not be read a second time but that the
order be discharged, the bill withdrawn and the subject matter be referred to
the Standing Committee on Justice and Solicitor General. That motion was agreed
to without debate or division.
The Commons committee agreed to hold two
meetings to deal with the reference. Senator Nurgitz, chairman of the Senate
Standing Committee, appeared as a witness and outlined the background of the
bill. Professor Hubbard of the Faculty of Law at the University of Ottawa also
appeared. His comments on the bill are published as part of the committee
proceedings. He said Parliament should either prohibit or permit marriages in
case of adoptive relationships. Silence would only invite contradictory
judicial decisions and it was unlikely the Supreme Court of Canada would ever
have an opportunity to give a definitive ruling. He thought it strange to
remove an existing prohibition with respect to step-parents and step-children
while adding a prohibition with respect to adopted children. He said the law
should reflect dispassionate conclusions rather than conditioned reflexes and
advocated a law that would impose minimum restrictions on individual freedoms
and civil liberties and be consonant with public welfare. The Commons committee
did not consider the matter again and did not make a report.
Reform of the marriage law was next taken up
on June 21, 1989. On that date Senator Nurgitz told the Standing Committee
there was some indication that the Minister of Justice was interested in
discussing the subject. There seemed to be a consensus in the committee that
the real problem was not with the Minister, but with officials in the
Department of Justice.
On January 23, 1990 Senator Nurgitz
discussed whether a new bill should be introduced. Senator Neiman felt there
should be some assurance of cooperation from the House of Commons; if the
Minister of Justice could not give that assurance, the Senate should proceed to
deal with the petitions for private bills. Senator Nurgitz said he had informed
the Minister (Doug Lewis) of the committee’s concern and the Minister had said
to proceed with a bill. The Minister’s support may have been partly due to the
fact that the applicants for one of the private bills were his constituents. The
committee agreed that the chairman should introduce the bill in the Senate.
Senator Nurgitz introduced the bill on
February 15, 1990. He spoke to second reading on May 9 and the bill was
referred to his committee. On June 6 the committee agreed, without discussion,
to add a provision prohibiting marriages between adoptive siblings. The bill
was reported with that amendment.
On June 7 Senator Nurgitz explained to the
Senate that the earlier approach to adoptive relationships caused some
difficulties for provincial agencies dealing with adoptions. He said the
committee wished to solve an old problem, not create a new one. The bill was
given third reading.
The House of Commons referred the bill to a
legislative committee. Senators Neiman and Nurgitz appeared before that
committee to explain the bill. After a brief discussion the committee agreed to
report the bill. It was read a third time. The bill received Royal Assent on
December 17. The bill provided for a delay in its coming into force of up to a
year in order that the provinces could amend provincial regulations and forms
that contained references to the previously existing prohibitions. Finally, on
December 17, 1991, the Marriage (Prohibited Degrees) Act12 became
the law of the land.
During the period from 1974 to 1990
Parliament was concerned, not with biblical or religious overtones, but with
making laws to fit the pluralistic society of the time. There has, however,
been recognition that organized religions may impose additional restrictions on
their members. For example in the Confederation Debates in the Legislative
Assembly of the Province of Canada the Solicitor General, the Hon. Hector Louis
Langevin, read the following statement of the purpose of assigning legislative
authority over marriage to the federal Parliament:
The word "Marriage" has been
placed in the draft of the proposed Constitution to invest the Federal
Parliament with the right of declaring what marriages shall be held and deemed
to be valid throughout the whole extent of the Confederacy, without, however,
interfering in any particular with the doctrines or rules of the religious
creeds to which the contracting parties may belong.13
And as recently as December 18, 1985 Senator
Those religions which wish to maintain a
large number of prohibitions are free to do so, and are free not to give their
sanction to adherents who do not comply.14
The Act of 1990 created one anomaly that
some had foreseen. Suppose a widower or divorcee with children of both genders
marries a widow or divorcee who also has both sons and daughters. The two
families are blended. If each parent adopts the children of the other, no
marriage can take place among members of the blended family. But if the parents
do not adopt, a step-son may marry his step-sister, or a step-parent might
marry a step-child.
Few statutes enacted to regulate personal or
familial relationships will succeed in covering every situation, nor will such
statutes always be free from anomalous results.
In the 1880s Senators and members of the
House of Commons engaged in spirited and informed debate about the meaning of
the scriptures. In recent debates there was no suggestion that the civil law
should reflect religious principles although the views of religious leaders
were solicited. The early attempts at marriage legislation focused on removing
particular restrictions from a centuries old law that was accepted without
question by many but ignored by those who wished to marry despite it. Later
amendments achieved gender equality. The initiation of individual exemption
bills brought Parliament’s attention to society’s rejection of the old rules
and the need to develop a law reflective of modern community standards.
1. Agitation for relaxation of that rule
intensified in England in the 19th century. A Royal Commission appointed in
England in 1847 recognized that it was common for the sister of a deceased
mother to assume her sister’s place "in the care of the children, and in
the superintendence of the domestic establishment". The sister of a
deceased mother seemed to the Commission to be "above all persons"
qualified to supply the vacancy in the family. The Commission left "to the
wisdom of the Legislature" whether the law should be relaxed or strengthened.
It would be 60 years before the law was changed. Several bills to reform the
law were introduced but none passed until 1907 when the Deceased Wife’s Sisters
Marriage Act, 1907, 7 Edw. 7, c. 47 was adopted.
2. An Act concerning Marriage with a
Deceased Wife’s Sister, S.C. 1882, c. 42.
3. O.D. Skelton: The Life and Times of Sir
Alexander Tilloch Galt (Toronto: Oxford University Press, 1920); pp. 260-261,
Donald Creighton: John A. Macdonald - The Old Chieftain (Toronto: MacMillan, 1955);
p. 290 ,W.S. MacNutt: The Days of Lorne (Fredericton: Brunswick Press, 1955);
pp. 57-58, H.B. Timothy: The Galts: A Canadian Odyssey (Toronto: McLelland and
Stewart, 1984); pp. 56-57, 135, John deP. Wright: "Origin of the Marriage
Act R.S.C. 1985" (1990), Law Society Gazette, Vol. 24, p. 127.
4. An Act to Amend An Act concerning
Marriage with a Deceased Wife’s Sister, S.C, 1890, c. 36.
5. S.C. 1923, c. 19.
6. S.C. 1932, c. 10.
7. The several Acts and Proclamations are
conveniently collected in an Appendix found in Volume 10 of the Revised
Statutes of Newfoundland, 1990.
8. S.C. 1974-75-76, c. 113.
9. S.C. 1977-78, c. 45 and c. 46.
10. S.C. 1984, chapters 52 to 59.
11. Canada, Senate, Standing Committee on
Legal and Constitutional Affairs, Proceedings, No. 7 (May 10, 1984), Appendix
12. S.C. 1990, c. 46; also found in the
loose-leaf and CD-ROM versions of the Statutes of Canada as chapter M-2.1.
13. Parliamentary Debates on the Subject of
Confederation of the British North American Provinces, February 21, 1865, p.
14. Canada, Senate, Debates, December 18,
1985, p. 1747.