2019 QCCA 1484, 2019 QCCA 1484

Unofficial English Translation of the Judgment of the Court Droit de la famille — 191850 2019 QCCA 1484 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-025933-169 (540-12-018826-131) DATE: September 11, 2019 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. JACQUES DUFRESNE, J.A. NICHOLAS KASIRER, J.A. A.D. APPELLANT – plaintiff v. G.M.

RESPONDENT – defendant and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY – Impleaded party JUDGMENT [ 1 ] This is an appeal from a judgment of the Superior Court, District of Laval (the Honourable Christiane Alary), rendered on February 2, 2016, which ruled on the appellant’s applications as follows: FOR THESE REASONS, THE COURT: [105] REJECTS the conclusion of constitutional invalidity of articles 118 and 366 of the Civil Code of Québec ; [106] DISMISSES the claims for the relief sought; [107] DISMISSES the application for moral damages or for reimbursement of extrajudicial fees; [108] THE WHOLE , with legal costs. [ 2 ] For the reasons of Bich, J.A., with which Dufresne and Kasirer, JJ.A., agree, THE COURT : [ 3 ] GRANTS the application for leave to appeal de bene esse and GRANTS leave to appeal; [ 4 ] DISMISSES the appeal, with legal costs in favour of the respondent and the impleaded party.

MARIE-FRANCE BICH, J.A. JACQUES DUFRESNE, J.A. NICHOLAS KASIRER, J.A. Mtre Marie-Laurence Brunet Mtre Véronique Cyr Brunet & Associés

Counsel for the appellant Mtre Pascale Lafortune LAFORTUNE, AVOCATS Formerly Mtre Maryse Bélanger Mtre Valérie Couture-Perron MARYSE BÉLANGER, AVOCATE INC. Counsel for the respondent Mtre Jean-Yves Bernard Mtre Amélie Pelletier-Desrosiers Mtre Stéphanie Neveu Ministère de la justice (DGAJLAJ) Counsel for the impleaded party Date of hearing: November 2, 2017 REASONS OF BICH, J.A. [ 5 ] Does the attachment of civil consequences to a marriage solemnized by a minister of religion authorized to do so under

article 366 C.C.Q. infringe the spouses’ freedom of religion, thereby violating paragraph 2(

a) of the Canadian Charter of Rights and Freedoms [1] and

section 3 of the Quebec Charter of human rights and freedoms ? [2] Moreover, does such attachment give rise to the discriminatory treatment of the spouses, contrary to sections 15 of the Canadian Charter and 10 of the Quebec Charter ? I. General background [ 6 ] Let us first recall the context in which these issues arise, summarized as follows in the trial judgment: [3] [ translation ] [27] A.D. was born into a Catholic family that became Baptist after immigrating to Canada.

In his youth, A.D. diligently attended religious services, as did his family. [28] Today, A.D. goes to church about three to five times a year. He says he prays for a few minutes every morning when he wakes up. G.M. says she very rarely saw A.D. attend religious services during the eleven years they lived together, other than when A.D. was accompanying family members. However, she does not deny that he insisted on getting married. [29] A.D. and G.M. met while they were attending university. They are accountants by profession. A.D. officially asked G.M. to marry him in 1999.

They did not live together before the marriage. [30] G.M. was not insistent about having a religious marriage, but she did not object to it either. [31] Although A.D. is a Baptist by religion, the parties were married on August 25, 2001, in accordance with Catholic rites. G.M. made this choice, mostly for reasons that she describes as [ translation ] “esthetic”, because she found the church in her village more beautiful than the Baptist churches she knew. A.D. agreed, as the followers of both religions have faith in the same God. [32] A.D. says that he would have liked to have been married religiously only.

According to him, it was not possible. The evidence does not establish whether he made inquiries in this respect at the time. [33] The parties did not enter into a marriage contract prior to their union. They therefore adopted the regime of partnership of acquests by default. [34] Before the marriage, the parties discussed how their financial affairs would be managed. A.D. was of the view that the financial consequences imposed on the spouses by marriage are irrational, in particular because they do not take into account the financial contribution of each spouse.

The parties agreed that expenses would be shared equally, considering that their incomes were initially quite similar. [35] G.M. gave birth to a girl, X, on …, 2004. She stopped working to take maternity leave. A.D. paid her a certain amount to compensate her shortfall. [36] Regarding the years that followed, the parties’ versions differ as to the couple’s financial arrangements. That does not appear relevant to the issues the Court must decide at this time. [ 7 ] Given the importance that this point has taken on in the context of this debate, it is noted that the officiant of the parties’

marriage sent the registrar of civil status the declaration required under arts. 118 and 375 C.C.Q. [ 8 ] The parties ceased sharing a community of life in 2010 (according to the appellant) or in 2012 (according to the respondent). The appellant commenced the divorce proceedings at issue here in November 2013. II. Trial proceedings [ 9 ] The pages that follow will examine in some detail the appellant’s arguments, which changed during the proceedings.

We will see how a divorce proceeding that started off initially quite typical transformed into a constitutional debate that had its own share of twists and turns. [ 10 ] In the initial application he filed with the Superior Court on November 22, 2013, the appellant seeks, in addition to the divorce, the partition of the family patrimony and, specifically, the partition of the earning registered in each party’s name with the Régie des rentes du Québec, as well as the partition of the partnership of acquests.

In June 2014, he amended his application to claim an unequal partition of the family patrimony [ translation ] “in that he asks that the wife reimburse to him, out of her share of the family patrimony, the amount of $7,200 that the husband paid to her during her maternity leave to compensate for her decrease in salary, and thus the wife was in

part compensated for the unequal incomes of the parties during that period of the marriage.” [4] He also claims that the respondent, who had exclusive use of the family residence from October 2012 to April 2013, should pay him an indemnity. [ 11 ] The appellant amended his originating application again in December 2014 and alleged the following for the first time: [5] [ translation ] (

e) The husband asks that there be no partition of the family patrimony in view of the fact that the legislature infringes his right in paragraph 2(

a) of the Canadian Charter of Rights and Freedoms , by using his religious practice (obtaining the sacrament of marriage) to impose legal consequences on him by making an irrebuttable inference of his intentions (which intentions were not an economic union, as will be demonstrated at the hearing), by reducing the purpose of marriage to a single dimension, that of an economic union, without considering the social and religious institution that it represents and its other possible aspirations?

In addition, in this case, this limit on his freedom of religion cannot be explained/justified in a free and democratic society. It is all the more serious considering that the legislature included no mechanism allowing for a derogation from it in the case of religious marriages. [6] [ 12 ] Accordingly, the appellant asks the Court to: [ translation ] (

A) DECLARE the law regarding the partition of the family patrimony, and consequently its legal effects, unconstitutional in the context of religious marriages. (

B) DECLARE , if necessary, that the declaration of inconsistency of the related articles of the Civil Code of Québec be suspended for a period of thirty (30) days to permit the National Assembly to specifically exclude religious marriage from each

article so as to render the legislation consistent with the requirements of paragraph 2(

a) of the Canadian Charter of Rights and Freedoms .

ORDER the partition of the family patrimony and that such partition be established as of the date the parties ceased sharing a community of life, that is, January 1, 2010, in the event the Court finds the law regarding the family patrimony valid in the context of religious marriages. … THE WHOLE, WITH COSTS , including expert fees and the extrajudicial fees of counsel assigned to the case and the plaintiff. [ 13 ] This re-amended originating application, which impleads the Attorney General of Quebec, contains various alternative claims, in the event the Court affirms the validity of the statutory provisions related to the family patrimony (unequal partition of the family patrimony, partition and liquidation of the partnership of acquests, reimbursement of amounts that the appellant paid to the respondent during the marriage or expenses that he paid alone, and others). [ 14 ] In September 2015, before the trial judge heard the case, the appellant filed a detailed plan of argument of over 40 pages in the Superior Court record.

Essentially, in the plan of argument he reiterates that, by assigning legal consequences on patrimonial matters to religious marriage, the Civil Code of Québec hinders individuals’ freedom of religion. To this, he added a new ground: not only does the Civil Code infringe freedom of religion, it also introduces a discriminatory regime vis-à-vis believers, who are deprived of the possibility available to non-believers to choose between marriage and a de facto union and thus settle as they wish the economic aspects of their conjugality.

Finally, as a remedy, he claims a declaration of unconstitutionality of the Quebec law attaching legal effects to marriages solemnized by a minister of religion, to which he adds various monetary claims (reimbursement of extrajudicial and other accessory costs, compensation for time spent preparing the case, and damages). [7] Our understanding is that these claims concern only the impleaded party, the Attorney General of Quebec. [ 15 ] Finally, in November 2015, after the first day of the hearing before the Superior Court (October 21, 2015), a new amended originating application was filed in the Superior Court record under the title [ translation] “A mended application for declaratory conclusions and, alternatively, for divorce”.

In it, the appellant reformulates the theory of the case in the following terms: [8] [ translation ] 14. The husband respectfully submits that the regime of articles 118 and 366 C.C.Q., as drafted by the legislature and applied accordingly by the Judeo-Christian authorities, must be declared inoperative in view of its inconsistency with the right to freedom of religion and the right to equality protected by sections 2(

a) and 15 of the Canadian Charter of Rights and Freedoms and sections 3 and

10 of the Quebec Charter of human rights and freedoms ; 15. In the alternative, in the event the Court finds that the regime of articles 118 and 366 C.C.Q., as read and interpreted by the Judeo- Christian authorities, does not correspond to the intention and will of the legislature, the husband submits that this reading and

interpretation by the Judeo-Christian authorities infringes his right to freedom of religion and his right to equality within the meaning of paragraph 2(

a) and

section 15 of the Canadian Charter of Rights and Freedoms and sections 3 and 10 of the Quebec Charter of human rights and freedoms in a manner that is not trivial or insubstantial; 16. In light of the foregoing, the husband asks the Court to declare that articles 118 and 366 C.C.Q. violate paragraph 2(

a) and

section 15 of the Canadian Charter of Rights and Freedoms and sections 3 and 10 of the Charter of human rights and freedoms and cannot be justified as a reasonable limit in a free and democratic society: 17. The husband asks that he be granted a remedy consisting of: a. A broad

interpretation of these provisions so as to permit ministers of religion to solemnize religious unions without civil consequences, that is, by not automatically sending the declaration of marriage to the registrar of civil status; b. Alternatively, a declaration of invalidity with a suspension of time; 18. In view of the violation of the plaintiff’s right to freedom of religion, in view of the fact that it would have been possible to remedy the current situation by prioritizing a broad

interpretation of articles 118 and 366 C.C.Q., in view of the failure of the State and of the Judeo-Christian authorities to allow believers to expressly choose not to declare the solemnization of their union, in view of the modus vivendi of the parties during their union, in view of the absence of prejudice incurred by the wife following the breakdown of the parties’ union, and especially in view of the fact that the parties adhered to marriage in a limited manner for religious reasons and were never concerned with the effects of civil marriage, the husband is justified in asking that the marriage solemnized on August 25, 2001, in City A be declared non-existent and without effect; 19.

This application may be explained by the State’s unjustified interference with the spouses’ consent to the effects of civil marriage; 20. In this case, the parties freely consented to the religious effects of a religious marriage; 21. However, this free and enlightened consent of the parties to the marriage to which civil consequences have been imputed was not obtained in compliance with their Charter rights; 22.

The husband respectfully submits that a declaration of non-existence does not entail any putative benefit in favour of the wife in view of the fact that there is no contract, and thus, the parties’ conjugal situation has no legal existence; 23. The husband wishes to specify that it is for lack of a better term or legal concept that he resorts to the notion of non-existence, submitting in passing that the characterization is only accessory to the debate because it is sought in the context of a remedy under section 24(1) of the Charter ; 24.

The husband therefore seeks an order requiring the registrar of civil status to withdraw the parties’ act of marriage ; 25. Finally, the husband wishes to obtain compensation for the time spent contesting the application of this regime and thus seeks reimbursement of his extrajudicial fees; 26.

Accordingly, the husband asks that his extrajudicial fees be reimbursed in view of the violation of his Charter rights and that moral damages at the Court’s discretion, or alternatively in the amount of $10,000, be paid to him as compensation for the stress and inconvenience suffered; [ 16 ] The conclusions sought in this regard read as follows: [ translation ] FOR THESE REASONS, MAY IT PLEASE THE COURT TO: DECLARE UNCONSTITUTIONAL articles 118 and 366 C.C.Q., which violate paragraph 2(

a) and

section 15 of the Canadian Charter of Rights and Freedoms and sections 3 and 10 of the Charter of human rights and freedoms without justification as a reasonable limit in a free and democratic society; GRANT the following remedies: a. A broad

interpretation of these provisions so as to permit ministers of religion to solemnize religious unions without civil consequences, that is, by not automatically sending the declaration of marriage to the registrar of civil status; b. Alternatively, a declaration of invalidity with a suspension of time; DECLARE the marriage solemnized on August 25, 2001, in City A non-existent and without effect; ORDER the registrar of civil status to withdraw the parties’ act of marriage; ORDER that moral damages be paid to the husband, in an amount established at the Court’s discretion, or in the alternative, in the amount of $10,000; …

THE WHOLE, with costs, including extrajudicial fees against the impleaded party. [ 17 ] The second plan of argument filed by the appellant with the Superior Court, dated November 11, 2015, describes the constitutional defects affecting arts. 118 and 366 C.C.Q. in the following terms: [ translation ] 37. Before starting the analysis of the various theories, it is important to address the different conceptions of marriage; 38. Historically, marriage has been primarily a religious institution; 39. As demonstrated by Exhibits 16 to 19, marriage constitutes one of theseven (7) mandatory sacraments of believers; 40.

To be valid in the eyes of the Church, a marriage must be solemnized by a priest, or, as commonly referred to in the Civil Code of Québec , a minister of religion; 41. Once solemnized in accordance with the precepts established by canon law, marriage takes on the value of sacrament and entails rights and obligations for the believer; 42. In contrast, civil marriage, although inspired in part by the foundations of canon law, entails legal effects for the couple, and then takes on the form of a joint venture, thereby rejecting the primary purpose of the ceremony; 43. As Professor Alain Roy notes in his

article “Affaire Éric c. Lola – une fin aux allures de commencements” (2013) 1 C. P. du N. 294–296, marriage may constitute a socioeconomic union just as it may be merely a religious institution: [ translation ] Can the State legitimately define marriage in terms of economic partnership? Can it validly impose that conception of the matrimonial union on all those who wed? If we consider the Lola case and rely on the arguments of free choice that ultimately triumphed before the Supreme Court, we could certainly justify that definition and the resulting compulsory regime by referring to the factor of “consent”.

Nobody is forced to get married; those who consent to marriage therefore consent to its legal effects. But does such a premise not reduce marriage to its mere legal dimensions without regard for its other purposes? Marriage, it should be recalled, is also a social and religious institution.

Thus, if spouses wish to marry for reasons other than legal, the consent on which the State claims to rely to impose the current legal regime cannot be used as justification . … But what about other couples for whom matrimonial status has social or religious importance, but who are not or who are no longer in the situation of starting a family?

By subjecting them to a legal regime that assumes an economic interdependence that their relationship will never reflect, is the State not imposing on them a dilemma that amounts to a denial or rights? … Unless it eases its position, the Quebec State could very well be subject to another constitutional challenge. By imposing such a restrictive definition of marriage, does it not infringe the freedom of belief of couples for whom marriage is also a religious institution? … In short, marriage can be an economic partnership, but it is not necessarily one . [Emphasis added.] 44.

The plaintiff also shares the tenets put forward by the Comité consultatif sur le droit de la famille in its report titled Pour un droit de la famille adapté aux nouvelles réalités conjugales et familiale s (Québec: Ministère de la Justice du Québec, 2015) at 114–115, which states: [ translation ] It must be concluded that such a restrictive definition of marriage leaves very little room for the values of autonomy of the will and contractual freedom that underlie the Committee’s approach in conjugal matters .

Some will contest this criticism by invoking the consent to marriage expressed by the spouses – couples who do not share the definition of marriage prescribed by Quebec law are free to live their conjugal relationship in a de facto union.

If spouses decide to marry, it means that they both accept the legal consequences attached to that matrimonial status, consisting of the obligation to contribute proportionately to household expenses and of measures governing the protection of the family residence and the partition of the family patrimony, with which they will have to comply on the day of separation from bed and board or dissolution of the marriage. The Committee does not share this vision, which consists of reducing marriage soley to its legal dimensions at the expense of its other purposes.

Marriage, it should be recalled, is a social, cultural, and religious institution, and its appeal as such may be the determining factor, regardless of the legal effects that may be ascribed to it. Spouses may therefore simultaneously consent to marriage and unwillingly “suffer” the resulting mandatory legal effects . In short, marriage does not have the same significance for everyone. Some see it as a multifaceted relationship in which persons and economic interests are inexorably linked. For others, marriage is simply the basis for a union of persons, nothing more.

Spouses can therefore adhere to marriage although they in no way share the definition that the Quebec legislature ascribes to it. From this perspective, how can we claim to respect the autonomy of the will and the contractual freedom of the spouse? To the extent that we seek to amalgamate “consent to marriage” and “consent to the legal effects of marriage”, there is no justification

for submitting the spouses to reciprocal obligations contrary to their common will. If the autonomy of the will and contractual freedomare fundamental values in regard to de facto unions, the same should apply in matrimonial matters. [Emphasis added.] 45. The plaintiff submits that the various theories put forward must be analyzed through the lens of this paradox; 46. First of all, the plaintiff, like the impleaded party, recognizes that articles 365 et seq. of the Civil Code of Québec set out theformalities that must be respected for a union to produce civil effects; 47. The plaintiff also acknowledges that in this regard, the Code sets out in

article 366 C.C.Q. the persons who are authorized tosolemnize civil marriages, including ministers of religion; 48. However, the plaintiff submits, contrary to the impleaded party, that the Code requires ministers of religion to declare solemnizedmarriages to the registrar of civil status, which has the effect of imputing civil consequences to religious marriages; 49. Indeed, this obligation is inferred from a reading of

article 118 C.C.Q., which requires the authorities to promptly transmit thedeclaration of marriage to the registrar of civil status following the solemnization of the marriage; … 55. By requiring ministers of religion to automatically transmit a declaration of marriage for all unions solemnized to the registrar ofcivil status, the State thus infringes the rights to freedom of religion and to equality of believers, as will be demonstrated at a later time; 56. Indeed, the transmission of

an act of marriage indicates to the registrar of civil status that a marriage, in the civil sense, wassolemnized between two spouses; 57. In this way, marriage, which is religious in origin, is automatically given civil effects; 58. By imputing civil consequences to religious marriages, the State thus completely eradicates any choice believers may haveregarding their conjugal regime and its effects; … 63.

Thus, it is not possible for ministers of religion to withdraw themselves from the application of the regime of articles 118 and 366C.C.Q., a premise that is supported by both the testimony of Father Francesco Giordano, the obiter reasons of Beauregard, J.A., and theabsence of commentary supporting the Attorney General of Quebec’s argument; [18] The appellant also states, marking a certain shift in his arguments, that [translation] “it is not the effects of marriage, such as thefamily patrimony, that conflict with his religious beliefs”.[9] He explains that: [translation] 75.

On the contrary, the plaintiff submits that it is instead the practical application of the regime of articles 118 and 366 C.C.Q.,which entails an amalgam of the effects of religious and civil marriages that conflicts with his religious beliefs in that it forces him tomake a choice, to renounce a right; 76. Whether the plaintiff agrees with the rules as stipulated by the legislature is of little importance: what matters are the plaintiff’srights to freely practise his religion and to voluntarily choose the form and the effects of his conjugality, distinctly and independently ofeach other; 77.

It is also relevant to recall at this stage that the benefits of the free choice of the effects of conjugality and autonomy arefundamental values of the Quebec system that were reiterated and re-explained by McLachlin, C.J. in the well-known case of Quebec(Attorney General) v. A, 2013 SCC 5 , [2013] 1 SCR 61; [19] Yet, he also states the following in the same plan of argument: 79.

The plaintiff therefore submits that the State, by interpreting the definition of marriage so narrowly, through the regime of articles118 and 366 C.C.Q., that is, as a socio-economic union regardless of the mode of solemnization, infringes the freedom of belief ofcouples for whom marriage is primarily a religious institution. … 82. More particularly, considering that it was not possible for the plaintiff to obtain the sacrament of marriage without being boundby marriage, by having his marriage solemnized religiously before a competent officiant within the meaning of

article 366 C.C.Q. who issubject to the obligation inferred from

article 118 C.C.Q. to inform the registrar of civil status, the effects of marriage were imposed onthe plaintiff when the parties had agreed otherwise; 83. Although they had openly discussed and clearly agreed on an economic structure distinct from the regime applicable to marriedcouples, the parties did not have the opportunity to choose the conjugal regime of a de facto union; [20] Other excerpts from this plan of argument, which toned not be reproduced here, also illustrate, at least in appearance, theeconomic motivation of the appellant’s contestation, which, speaking of the freedom to determine the rules of his conjugality, concernmostly those of a patrimonial and pecuniary nature.

[ 21 ] In any event, incidentally to his constitutional conclusions, the appellant makes various claims against the respondent, in particular seeking the reimbursement of certain amounts of money. Alternatively, in the event his constitutional challenge is dismissed, he seeks partition of the family patrimony and of the partnership of acquests and reiterates his monetary claim. [ 22 ] The respondent and the Attorney General of Quebec are of the view that the provisions impugned by the appellant are not unconstitutional.

The respondent seeks an equal partition of the family patrimony and the partnership of acquests, among other things. [ 23 ] It should be noted that in February 2015, the divorce proceedings were split so that the constitutional issue could be decided first. [10] That issue was debated on October 21 and December 5, 2015. Judgment was rendered on February 2, 2016. [ 24 ] Finally, it appears that the spouses have shared the majority of what formed the family patrimony and the partnership of acquests, as the appellant stated: [ translation ] 93.

Following their separation, the parties effectively shared the property they acquired jointly, that is, their family residence, their cars, and their furniture. [11] [ 25 ] It appears these assets, as well as a timeshare condo, were the joint property of the parties and were paid by them in equal shares. [12] The only exception is the [ translation ] “amounts registered in pension plans by each of the parties, because these are the only assets to which the parties did not contribute equally”. [13] These amounts have not yet been partitioned. III.

Trial judgment [ 26 ] The trial judge first considered whether the provisions of the Civil Code of Québec concerning marriage infringed the appellant’s freedom of religion – a subject she addressed, as the appellant suggested in his pleadings, through the lens of arts. 118 and 366 C.C.Q. She found that they did not: [ translation ] [41] Freedom of religion extends to religious beliefs and the religious practices that stem from such beliefs.

The sacrament of marriage is therefore covered by freedom of religion. [42] First, A.D. must show that he sincerely believes in a practice or conviction having a nexus with religion [reference omitted]. If he establishes this, he must, as a second step, demonstrate that the law infringes his freedom of religion. He must then prove that the State conduct he impugns interferes with his ability to comply with this practice or belief in a manner that is more than trivial or insubstantial [reference omitted]. [43] A.D. sincerely believes in the sacrament of marriage, from a religious perspective.

He disagrees, however, with the economic consequences that marriage entails from the point of view of civil law. [44] A.D.’s personal conviction regarding the economic consequences of civil marriage has no nexus with religion and is not an infringement of his freedom of religion. [45] The impugned provisions certainly do not prevent A.D. from harbouring beliefs connected to his religion.

Nor did they prevent him from “undertak[ing] practices” having a nexus with his religion, in this case, getting married. [46] Thus, A.D. has not established on a balance of probabilities that the impugned provisions interfered with his ability to comply with his religion in a manner that is more than trivial or insubstantial. [47] In fact, there is no evidence in the record that any person whose religious beliefs required him or her to get married was prevented from doing so given the civil consequences of an economic nature resulting from the Civil Code .

Again, A.D. himself got married in a context where these statutory provisions existed. … [49] In fact, it is not A.D.’s religious beliefs that are affected by the application of the rules of the family patrimony and the partnership of acquests, but his assessment of them as an accountant. [50] During his pre-trial examination, referring to the rules of the family patrimony, A.D. stated: [ translation ] For me, marriage simply meant going to get the religious sacrament. What the law imposes on us, economically speaking, does not withstand scrutiny.

As an accountant, I understand the structure of a joint venture, the advantages, you share everything. So, what the law is telling us is that we’re a joint venture, one person contributes something according to his or her needs, the other contributes something, so when it is dissolved, there is a 50-50 partition. That makes no sense. If one person contributes 5, but when they separate he or she receives 50, it’s incoherent. [51] But the rules of the family patrimony do not conflict with A.D.’s religious beliefs.

They offend his understanding of a rational economic structure that should govern the parties: [ translation ] A. So, I don’t want to make any association between our economic structure and my religion or my protestant faith. It was A. as an

individual, with professional training in accounting, who is able to recognize an economic situation that does not withstand scrutiny from an economic perspective . Q. It wasn’t A. the believer ? A. No . … A. … That’s the difference between marriage, and I really distinguish between civil marriage, according to the rules, and religious marriage. So, civilly, economically, the spirit of the law, I agree, I agree with this spirit of the law, but, in my view, the structure is wrong. Q.

But just to make sure that I’ve understood properly, someone, a protestant who gets divorced could ensure material comfort in accordance with his or her religious principles? A. Absolutely . [Emphasis added.] [52] The Court concludes that articles 118 and 366 C.C.Q. are compatible with the right to freedom of religion protected by paragraph 2(

a) of the Canadian Charter and

section 3 of the Quebec Charter . [ 27 ] However, the judge went on to add the following remarks on the true scope of articles 118 and 366 C.C.Q.: [ translation ] [53] The Court adds that it disagrees with the premise on which A.D.’s theory rests . [54] A.D. [reference omitted] submits that the provisions of the Civil Code ensure that any minister of religion who solemnizes a religious marriage is also solemnizing a civil marriage . [55] The Attorney General of Quebec and G.M. submit rather that ministers of religion can solemnize religious marriages in accordance with their faith, without the marriage necessarily having civil consequences.

In such case, although the spouses are married religiously, the civil authorities simply do not recognize them as having the status of married persons . [56]

Article 366 C.C.Q. sets out the persons authorized to solemnize civil marriages. Ministers of religion are included, in accordance with the conditions set out in paragraph 2 of

article 366 C.C.Q. [57]

Article 118 C.C.Q. states that the declaration of marriage is made without delay to the registrar of civil status by the officiant. [58] These articles were adopted in the context of the 1991 reform of the Civil Code , which led to the reorganization of the department of civil status [reference omitted]. That reform was characterized, in particular, by a concern for secularization [reference omitted]. [59] For historical reasons, the department of civil status was for a long time purely religious in nature before becoming grounded in two parallel structures: one religious, the other secular.

That system no longer corresponded to the reality of Quebec society.

The lack of centralization of the information and incoherence in the application of the rules and procedures concerning civil status made the information available unreliable [reference omitted]: [ translation ] In the minds of many, the religious ceremony and the legal procedure of registering a civil fact were confused, with the result that several persons declared the same event in two places and others did not declare it at all. [60] Although now only the registrar of civil status may keep registers and draw up acts of civil status, ministers of religion retained the right to solemnize civil marriages, as set out in

article 366 C.C.Q. [61] That does not mean that a marriage solemnized by a minister of religion necessarily has civil consequences . [62] From the State’s perspective, marriage is a civil institution [reference omitted]. [63] The essential validity of marriage falls under federal jurisdiction [reference omitted] and is governed by the Civil Marriage Act , [reference omitted], which defined marriages as follows: 2.

Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. [64] The conditions for the solemnization of the marriage fall under provincial jurisdiction [reference omitted]. [65] Articles 365 et seq . of the Civil Code establish the formalities necessary for a union to produce civil effects. [66] To the extent that spouses call upon a minister of religion to solemnize a marriage that is solely religious, the Court sees no reason why the minister of religion would have to send the declaration of marriage to the registrar of civil status.

Of course, the parties would then not be married for civil purposes and could not claim that legal status from the point of view of civil law.

[67] In the Court’s view, the Code authorizes, but does not require, ministers of religion to solemnize unions that are both religious and civil [reference omitted]: [ translation] Finally, marriage is a civil act, although it may also be a religious act. In Quebec, the solemnization of marriage is often both civil and religious because “[e]very clerk or deputy clerk of the Superior Court … [and] every minister of religion authorized by law to solemnize marriages are competent officiants (art. 366 C.C.Q.).

In fact, there is nothing preventing civil and religious ceremonies from being held separately; they each then have only the effects attached to each type of solemnization . [Emphasis added.] [68] The case law [reference omitted] in Quebec and in the rest of Canada provides various examples of cases in which a court has acknowledged the existence of a religious marriage to which it cannot impute civil consequences. [69] A.D. grounds his

interpretation of the Civil Code in particular on an excerpt from the reasons of Beauregard, J.A. in the Court of Appeal’s judgment in Droit de la famille — 102866 [reference omitted], better known under the fictional name “ Éric v.

Lola ”. [70] According to A.D., this excerpt confirms the fact that marrying religiously results in the application of the rules set out in the Civil Code : [ translation] [186] If the legislature really wanted to give people the freedom to choose whether or not to take on the obligation to pay support, why did it not also offer this choice to people who want to have a marriage ceremony ? [187] If the legislature can exempt de facto spouses, but not married spouses, from the obligation to provide support, the latter, who will soon be the minority, could in turn argue that they are victims of discrimination. [Emphasis added.] [71] First, it should be recalled that this opinion was dissenting in part, and it was not accepted by the Supreme Court [reference omitted].

Moreover, in this excerpt, Beauregard, J.A. makes no distinction between marriages solemnized by ministers of religion and marriages that are civil only, which also require a ceremony. At no time does Beauregard, J.A. refer to a marriage that has consequences that are religious only and not civil. [Emphasis added, unless otherwise indicated.] [ 28 ] It should be noted that in the wake of these conclusions, the trial judge also found that the

interpretation given to art. 118 C.C.Q. by Catholic officiants (that they are bound to send the declaration of marriage to the registrar of civil status), which is incorrect in her view, [ translation ] “does not have the effect of invalidating [the law] or of infringing the rights enshrined in the Charters ”, [14] noting that [ translation ] “[i]t is the law itself and not the erroneous

interpretation submitted that must be analyzed”. [15] [ 29 ] Moreover, the judge ruled as follows on the issue of the discriminatory nature of the impugned provisions: [ translation ] [75] A.D. argues that, unlike non-believers, he is as a believer under the obligation to get married and therefore submit to the civil consequences of marriage. He claims that it is not possible for him under Quebec law to marry for religious purposes only without his union also incurring civil consequences.

According to him, the Civil Code has the effect of eradicating [ translation ] “the right to freely choose the effects of one’s conjugality and the autonomy of the will of believers” [reference omitted]. [76] A.D.’s burden [reference omitted] consists of demonstrating that: • the law establishes a distinction based on an enumerated or analogous ground; and that • the distinction creates a disadvantage by perpetuating prejudice or stereotyping. The distinction complained of must result from the law itself [reference omitted]. [77] A.D. submits that the law establishes a distinction based on religion.

In fact, he proposes the comparison of two groups: non- believers and believers who are required to get married in order to live together. [78] The Court does not see, in the provisions in question, that the legislature has made a distinction between these two groups in any manner whatsoever. The measures imposed by the legislature on persons opting for a civil marriage are no different for believers and non-believers . [79] These measures have no nexus with religion. The distinction is between married persons and unmarried persons.

A.D. is not invoking discrimination based on civil status here; he is invoking only religion . [80] Even if the Court accepted that the law creates a distinction based on religion, it does not create a disadvantage by perpetuating prejudice or stereotyping . [81] With respect to the notion of “disadvantage”, the Court notes, first, that the protective regime provided to married spouses is generally considered an advantage . The Supreme Court refers to it in such terms several times in Attorney General of Quebec v. A [reference omitted].

[82] Even assuming for the purpose of discussion that the legislature had created a disadvantageous distinction based on religion, the Court is of the view that such distinction is not discriminatory because A.D. has adduced no evidence demonstrating that the disadvantageous distinction invoked perpetuates a prejudice or stereotypes believers . [83] The Court is therefore of the view that articles 118 and 366 C.C.Q. are consistent with the right to equality protected by

section 15 of the Canadian Charter and

section 10 of the Quebec Charter . [Emphasis added.] [ 30 ] Finally, and for all these reasons, the judge found that there was no need to declare the parties’ marriage non-existent for civil purposes. She added: [ translation ] [97] Moreover, at the time he got married, A.D. knew that the marriage, which was to be solemnized in accordance with the provisions of the Civil Code , had civil consequences.

He nevertheless chose to get married without challenging the legal regime in place. [98] A.D. knowingly adhered to the legal framework established by the Civil Code , composed of a primary public order regime and a legal or conventional matrimonial regime. In the Court’s view, A.D. cannot invoke the Charters after the fact to escape his obligations. [99] In Amselem [reference omitted], the majority of the Court wrote: [62] … Conduct which would potentially cause harm to or interference with the rights of others would not automatically be protected.

The ultimate protection of any particular Charter right must be measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises. [100] Even if the Court were to consider that there had been an infringement of A.D.’s freedom of religion or right to equality, this infrigement would not pose an inconvenience comparable to that experienced by G.M. if she were deprived of the advantages conferred by the Civil Code that she was entitled to expect upon getting married.

In fact, the Court seriously doubts that A.D. would have invoked the constitutional arguments if there were no such issue. [ 31 ] The judge, who did not rule on s. 1 of the Canadian Charter or s. 9.1 of the Quebec Charter , also refused to award the damages and extrajudicial fees the appellant claims from the Attorney General of Quebec. IV. Appeal and arguments of the parties [ 32 ] The appellant appeals from the trial judgment.

He filed a notice of appeal in due time and, shortly thereafter, an application for leave to appeal de bene esse , which was referred to the judges tasked with hearing the merits of the case. [16] His appeal brief raises the following eight questions: [1] Is leave to appeal required under arts. 30 and 31 C.C.P.? [2] Did the trial judge err in stating that the Civil Code of Québec authorizes, but does not require, ministers of religion to solemnize religious and civil unions separately because there is no obligation for them to send the declaration of marriage to the registrar of civil status despite the terms of articles 118 and 375 C.C.Q.? [3] Does the combination of articles 118, 375, and 366 C.C.Q. infringe the right to freedom of religion protected by paragraph 2(

a) of the Canadian Charter and

section 3 of the Quebec Charter ? [4] Does the combination of articles 118, 375, and 366 C.C.Q. infringe the right to equality protected by

section 15 of the Canadian Charter and

section 10 of the Quebec Charter ? [5] If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society within the meaning of

section 1 of the Canadian Charter and

section 9 ( sic ) of the Quebec Charter ? [6] Did the trial judge err in finding that the testimony of the vice-chancellor of the archdiocese of Montreal was not relevant to the dispute? [7] Did the judge err in finding the application to declare the marriage non-existent inadmissible? [8] Did the trial judge err in finding that there would have been no need to award damages to the appellant even if the provisions of the Civil Code of Québec had been declared unconstitutional? [ 33 ] With respect to the first question (right to appeal), the appellant is of the view that he benefits from an appeal as of right, as it is a [ translation ] “final judgment” [17] concerning the special rights of the State within the meaning of the first paragraph of

article 30 C.C.P . If that is not case and

article 31 C.C.P . applies, leave to appeal should be granted and the appeal should be decided as its subject is of public interest. [ 34 ] The second and sixth questions are related (sending the declaration of marriage to the registrar of civil status). The appellant argues that the judge erred in deciding that ministers of religion authorized to solemnize marriages under

article 366 C.C.Q. are not obligated to send the declaration of marriage to the registrar of civil status. He would argue that, on the contrary, they are bound to do so, as confirmed by the testimony of the vice-chancellor of the archdiocese of Montreal, which testimony the judge unduly excluded. This requirement appears from the rest of

article 118 and, he adds,

article 375 C.C.Q. (which was not raised at trial), C.C.Q. which are clear provisions whose wording [ translation ] “is imperative in tone, and thus necessarily imposes the obligation to send the declaration”. [18]

[ 35 ] As for the third and fourth questions (violation of freedom of religion and the right to equality), the appellant repeats, while refining, the arguments previously presented regarding the invalidity of articles 118, 366, and 375 C.C.Q. In short, he argues that these provisions infringe freedom of religion guaranteed by the Canadian Charter and the Quebec Charter because they impose significant hardship on believers by depriving them of the possibility of establishing the rules of their conjugality, unless they renounce the edicts of their religion.

Thus, persons who belong to a religion that imposes marriage as the only mode of conjugal life cannot escape the consequences (particularly the patrimonial ones) that the Civil Code of Québec attaches to all marriages, without infringing their own beliefs through a de facto union or by abstaining from any conjugal relationship.

Non-believers are not subject to such hardship. [ 36 ] Moreover, the appellant argues that the provisions in question are contrary to the principle of equality recognized by the Charters in that they establish an unjustified distinction, based in this case on religion, between believing and non-believing persons. With respect to their conjugality, the latter benefit from a freedom of choice, which the former are denied.

If a non-believer refuses the legal consequences of marriage, he or she may opt for a de facto union, while believers who respect the precepts of their religion, and are therefore required to get married, cannot. [ 37 ] The appellant answers the fifth question (regarding whether the impugned provisions are saved by s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter ) in the negative. He notes that neither the Attorney General of Quebec nor the respondent, on whom the evidentiary burden rests, presented any evidence in this regard.

According to the appellant, the impugned provisions are not rules prescribed by law that can be justified in a free and democratic society, because they do not respond to any pressing and substantial concern and have no rational connection with the objective sought by the legislature.

Moreover, they do not minimally impair freedom of religion or the principle of equality as there is no evidence establishing that [ translation ] “the legislature, in its choice to amalgamate the legal and religious effects of marriage, weighed and studied various options in order to find the one that least infringes the fundamental rights at issue [reference omitted], or at the very least an option that can be characterized as situated within a range of reasonable measures”. [19] In any event, the appellant submits, it would be [ translation ] “difficult to imagine how a legislative choice to impose civil consequences on a group of persons could constitute a minimal impairment”. [20] Conversely, he suggests: [ translation ] 86.

On the contrary, it would be possible to avoid such infringement by (1) permitting couples who marry religiously to opt out of the legal effects of marriage subject to a clear legislative framework as advocated by the Comité consultatif sur le droit de la famille [reference omitted], or (2) implementing a complete separation between the church and the State such that only civil marriage has legal value and that religious practices no longer entail any civil consequences, as is the case with baptisms, bar mitzvahs, etc., for example by withdrawing the right to solemnize civil marriages from ministers of religion. [21] [ 38 ] In the current state of affairs, the prejudicial effects of the impugned provisions are not proportionate to the supposed benefits sought, and, the appellant submits: [ translation ] 88.

The current benefits of the uniform imposition of civil and legal consequences on all types of marriages, regardless of their many purposes, necessarily resides in the protection of married spouses who are economically weak and in the practical effect of the automatic transmission of declarations of marriage to the registrar of civil status. Yet if this benefit of protection were so important for society, the legislature would have imposed this mandatory regime on de facto spouses, who represent a large percentage of modern couples [reference omitted]. 89.

In contrast, the prejudicial effects consist of the impossibility for believing couples to benefit from both the free choice of the effects of conjugality and autonomy of the will and the right to freely practise their religion, independently of each other, contrary to non- believing couples. [ 39 ] With respect to the seventh and eighth questions (non-existence of the parties’ marriage and pecuniary remedies), the appellant essentially argues the following: [ translation ] 98. The curative provisions of the Constitution Act, 1982 must be given a broad

interpretation, which requires the courts to grant complete remedies that are adapted to the situation and effective [reference omitted]. A constitutional exemption incidental to a suspended declaration of invalidity is necessary in this case to ensure that justice is done. Here, that constitutional exemption takes the form of a declaration of non-existence of the marriage and of compensation for the infringement of rights protected by the Charters , as well as compensation for the moral damages suffered by the appellant in the process. 99.

Incidentally, it is necessary to address the argument concerning legal costs. The exceptional nature of this case is undeniable. This case allowed a debate that affects all believers and the institution of marriage in our modern society to be brought before the Superior Court and now the Court of Appeal.

In this context, the appellant asks that all his legal costs, including professional fees, which currently amount to over $15,000 – subject to adjustment, be awarded to him throughout [reference omitted]. [ 40 ] Accordingly, the conclusions of his appeal brief are as follows: [ translation ] THE APPELLANT ASKS THE COURT OF APPEAL TO: (

a) ALLOW the appeal; (

b) SET ASIDE the trial judgment;

(

c) DECLARE UNCONSTITUTIONAL articles 118, 375, and 366 of the Civil Code of Québec , in view of the violation of paragraph 2(

a) and

section 15 of the Canadian Charter of Rights and Freedoms and sections 3 and 10 of the Charter of Rights and Freedoms , without being justified as a reasonable limit in a free and democratic society; (

d) DECLARE the civil marriage solemnized on August 25, 2001, in City A, non-existent and of no effect; (

e) ORDER the registrar of civil status to withdraw the act of marriage of the parties from its registers; (

f) CONDEMN the Attorney General of Quebec to pay compensation to the appellant for the infringement of his rights guaranteed by the Charters , estimated at $75,000, or, in the alternative in the amount determined by the Court in its discretion; (

g) CONDEMN the Attorney General of Quebec to pay the legal costs, including the appellant’s professional fees, both at trial and on appeal; (

h) MAKE any additional order that this Court may deem fair and necessary. [22] [ 41 ] It should be noted that the appellant is no longer claiming a broad

interpretation of the impugned legislative provisions, as he did at trial. [ 42 ] The respondent, for her part, essentially defers to the arguments of the Attorney General of Quebec in regard to all of the questions of law. She wishes to draw the Court’s attention to certain facts, however, in particular the following: [ translation ] 17.

The appellant states that he brought these proceedings on the grounds that [ translation ] “it was not my objective to have a civil marriage given the legal provisions, um I can’t escape it” [reference omitted], because as an accountant, he was [ translation ] “able to assess the economic anomalies of civil marriage and the economic impact it has” [reference omitted] and that [ translation ] “it was A. as an individual, professionally trained as an accountant, who was able to recognize an economic situation that does not withstand scrutiny from an economic perspective” [reference omitted].

In fact, the appellant stated at least nine (9) times during his examination before defence that it was the accountant in him that did not agree with the impact of the law [reference omitted]. [ 43 ] The respondent also submits that, contrary to what the appellant claims, she never admitted the sincerity of the appellant’s religious belief, which she in fact questions and which she never saw expressed during their community of life. Last, she notes: [translation ] 25.

Although the respondent does not deny that she and the appellant had implemented certain economic rules during the marriage [reference omitted], she notes that at no time did she intend to avoid the application of the law regarding the partition of the family patrimony and the partnership of acquests upon divorce.

In fact, the respondent stated that the marriage had not brought about any economic change for her during the marriage [reference omitted], not upon its dissolution, which is quite different. [ 44 ] The Attorney General of Quebec agrees with the appellant on the first two questions. [ 45 ] Thus, in the Attorney General of Quebec’s view, pursuant to the first paragraph of

article 30 C.C.P . , the appeal is as of right because the judgment pertains to the special rights of the State within the meaning of

article 76 C.C.P . In the alternative, leave to appeal should be granted, and the constitutional issues should be decided immediately. [ 46 ] Moreover, reversing the position taken by its counsel before the Superior Court, the Attorney General also submits that the judge erred in declaring that ministers of religion who solemnize marriages pursuant to

article 366 C.C.Q. are not required to send the declaration of marriage to the registrar of civil status – on the contrary, they have the obligation to do so. [23] [ 47 ] Regarding the rest, the Attorney General is of the view that: [ translation ] 22. Marriage is therefore a civil act regardless of whether it was solemnized in a religious manner or not.

The expressions [ translation ] “civil marriage” and [ translation ] “religious marriage” used in common language refer only to the type of solemnization that the spouses have chosen. [ 48 ] It is the social institution of marriage that interests the legislature: [ translation ] 28.

The legal effects set out in the Civil Code of Québec arise from the very purpose of this institution, which seeks in particular to base family structure on egalitarian relationships between spouses and to protect a certain material security for all members of the family by providing, among other things, rules concerning the family patrimony and the family residence [reference omitted].

Generally speaking, the institution of marriage prioritizes family interests over the individual interests of the spouses [reference omitted]. [ 49 ] After a brief historical review of the treatment of the institution of marriage in Quebec, the Attorney General states: [ translation ] 73.

Marriage in Quebec, however, despite being imbued with a strong religious tradition and the fact that it may still be solemnized by a minister of religion, remains a civil institution conferring rights on the spouses and setting out obligations, not only between the spouses, but also in regard to third parties, including the State.

74. That being said, the religious neutrality required of the State prevents it from [ translation ] “interfering in matters of religion and belief”. … 77. That is why, in the State’s view, marriage is a legal institution that carries with it rights and obligations, regardless of the spouses’ reasons and underlying motivations, whether religious or not. 78.

Conversely, the civil institution of marriage is not defined by each party’s values or beliefs. [Reference omitted.] [ 50 ] As the Attorney General explains, to exist in law, marriage, an institution defined by the Civil Marriage Act , [24] must be solemnized in the manner set out in the Civil Code in articles 365 , 366, 368 to 374 , and 376 to 377 , which includes the requirement of a duly authorized officiant. Through

article 366 C.C.Q., the legislature authorizes several individuals (clerks and deputy clerks of the Superior Court, notaries, mayors, members of municipal borough councils, municipal officers, ministers of religion, persons designated by a Mohawk community, and other person) to solemnize marriages. The officiant simply needs to be designated or authorized by the Minister of Justice under the first or fourth paragraph of art. 366 C.C.Q. , and, in the case of a minister of religion, under the second or third paragraph.

In this way, the legislature has broadened access to marriage, and every marriage solemnized in accordance with these conditions produces the same legal consequences, regardless of the ritual (religious or other) observed. [ 51 ] That being said, the Attorney General submits that neither articles 118, 366, and 375, nor

article 391 et seq . C.C.Q.C.C.Q. infringes the appellant’s freedom of religion. For one, what the appellant complains of is in reality not an infringement of his religious beliefs, but rather of his economic beliefs. As the judge stated, [ translation ] “the appellant was unable to establish how any of the civil effects of marriage infringed his religious beliefs”. [25] Moreover, the Attorney General submits: [ translation ] 37.

As for the appellant’s testimony on the importance of marriage, the trial judge rightly concluded that the law definitely posed no obstacle to his will; as he wished, the appellant united his destiny to that of the respondent by means of a religious marriage solemnized by a Roman Catholic priest. [Reference omitted.] [ 52 ] Moreover, neither the impugned provisions nor those governing the civil consequences of marriage infringe

section 15 of the Canadian Charter or

section 10 of the Quebec Charter , and there is nothing discriminatory about them. [ 53 ] First, the Attorney General states, [ translation ] “if, as the appellant claims [reference omitted], his religious convictions required him to marry the respondent, that obligation does not arise from the law”. [26] The provisions of the Civil Code do not create any distinction or exclusion based on religion and apply to all spouses regardless of whether the marriage was solemnized by a minister of religion or by another authorized person and without any differentiation whatsoever based on the religion of the spouses or the religious motivations of their decision to marry. [ 54 ] Moreover, the provisions of the Civil Code do not impose any disadvantage on religious spouses on the basis of their religion, nor do they perpetuate any stereotype or prejudice against them.

In this regard, the Attorney General states the following in its brief: [ translation ] 52. Thus, contrary to the situation prevailing for persons in de facto unions, as examined by Supreme Court in Quebec (Attorney General) v. A . [reference omitted], it is certainly not possible to state that believers who get married belong to a historically stigmatized or ostracized group.

On the contrary, it is a matter of common knowledge and judicial notice that religious marriage has long been the dominant, even hegemonic, model in Quebec, as the quasi-exclusive mode of organizing conjugal relationships [reference omitted]. In this regard, the trial judge was well founded in equating the regime protecting married spouses with a benefit [reference omitted], and not an inconvenience. 53.

As stated in the trial judgment [reference omitted], the appellant adduced no evidence and made no demonstration to establish the existence of a pre-existing or historical disadvantage, vulnerability, stereotypes, or prejudice suffered by people in his situation. [ 55 ] In the Attorney General’s view, the fact that ministers of religion can solemnize marriages that are recognized by the State and that entail the consequences that the Civil Code of Québec associates with that type of union is not a disadvantage contrary to

section 15 of the Canadian Charter , nor does it compromise the right to full and equal recognition and exercise of a right or freedom within the meaning of

section 10 et seq . of the Quebec Charter . [ 56 ] Last, the Attorney General submits that, even if it were possible to find an infringement to freedom of religion or the right to equality in the impugned provisions, such infringement would be justified under both s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter .

It was for the purpose of respecting freedom of conscience and the right to equality of all persons that the legislature, in 1968, allowed marriage to be solemnized by a public officer and, later, by another authorized person representing the State, without removing that ability from ministers of religion, who, until then, had the historic monopoly. In this regard, if we refer to the work of the Civil Code Revision Office underlying this expansion, we can clearly see a willingness to open up the law to the requirements of a pluralistic society.

According to the Attorney General, that is why the legislature [ translation ] “favoured a balanced position consistent with allowing a civil officer to solemnize a civil marriage, while continuing to give full civil effect to marriages solemnized before ministers of religion [ translation ] ‘without the need for a purely civil solemnization beforehand or formalities subsequent to the religious ceremony’ [reference omitted]”. [27]

[ 57 ] Moreover, the fact that officiants are required to send the declarations of marriage to the registrar of civil status coincides with the legislature’s intention to centralize the civil status registers so as to ensure their integrity and permanence. [ 58 ] According to the Attorney General: [ translation ] 72.

This historical overview of articles 118, 366, and 375 C.C.Q. reveals that they have the following dual objective: the secularization of the civil status registers – for the purpose of recognizing a single civil status officer [reference omitted] and modernizing the keeping of such registers in compliance with freedom of conscience and the right to equality of all persons – while continuing to offer the possibility of a religious marriage ceremony for spouses who so desire.

The whole consistent with respect for a religious tradition associated with the solemnization of marriages since the first settlers arrived in New France [reference omitted] . 73.

Marriage in Quebec, however, although imbued with a strong religious tradition and despite the fact that it can still be solemnized by a minister of religion, remains a civil institution conferring rights on the spouses and setting out obligations [reference omitted], not only between the spouses [reference omitted], but also with respect to third parties, including the State [reference omitted]. [ 59 ] Otherwise, the impugned legislative provisions meet the Oakes test. [ 28] [ 60 ] The Attorney General adds that, in any event, even if that were not the case, the appellant would not be entitled to the remedies he claims.

Assuming the Court found the impugned provisions constitutionally invalid, that finding would have effect for the future only and would not affect marriages solemnized by ministers of religion before the judgment was rendered. There is therefore no possibility of declaring the appellant’s marriage non-existent. The other remedies he claims are unfounded. V.

Analysis [ 61 ] The following questions will be addressed in turn: - Can the appellant appeal the judgment of the Superior Court as of right or must he obtain leave, and if so, should leave be granted? - Do the impugned provisions infringe the appellant’s freedom of religion? - Do the impugned provisions infringe the right to equality enshrined in s. 15 of the Canadian Charter and s. 10 of the Quebec Charter ? - If so, are these provisions justified by s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter ? - Is the appellant entitled to the damages he claims and to the payment of his extrajudicial fees by the Attorney General of Quebec?

A. Exercise of the right to appeal: can the appellant appeal the judgment of the Superior Court as of right or must he obtain leave, and if so, should leave be granted ? [ 62 ] Because the divorce proceedings between the parties was split (see para. [26] above), the Court must answer these questions by applying the principles set out by the Court in Droit de la famille — 121718 , [29] Agence du revenu du Québec c.

Châtelain , [30] and Droit de la famille — 161983 . [31] First, appeals in cases governed by the Divorce Act [32] are “asserted … according to the ordinary procedure governing appeals to the appellate court/f ormé … selon la procédure habituelle applicable aux appels interjetés devant la cour d’appel ”, [33] which in Quebec, makes them subject to the usual requirements of the Code of Civil Procedure . [34] Moreover, even when the dispute concerns the rights of the State, only the judgment that terminates the proceeding may be appealed as of right pursuant to the first paragraph of art. 30 C.C.P . ; any other judgment is considered interlocutory and subject to leave as required under art. 31 C.C.P . [35] Last, in cases where the proceedings have been split (including when the splitting occurs in the context of divorce proceedings), [ translation ] “the first judgment rendered on the merits during a split proceeding, that is, the judgment rendered after the judicial application is instituted but before the judgment ending the proceeding, must now be appealed without delay, with leave of a judge of the Court of Appeal pursuant to

article 31 n.C.C.P.”. [36] [ 63 ] Accordingly, the appellant could not appeal Alary, J.’s judgment as of right. That judgment, even if it renders a final decision on the issues in dispute, nevertheless remains a judgment rendered in the course of a proceeding, subject to art. 31 C.C.P .

However, because the appellant also presented an application for leave to appeal de bene esse within the time limits, his rights in this respect are protected, and all that remains now is to determine whether that application should be granted. [ 64 ] That is the case, given the nature and importance of the constitutional questions in dispute, but also given the manner in which the file progressed.

Indeed, it is regrettable that a split was ordered in this case, although it may have seemed appropriate at first glance (the civil aftermath of the case depended in theory on the answers to the constitutional question). From another perspective, practically speaking, the split did not lead to any economy of resources or time, to the extent that the consequences, in particular patrimonial, of the parties’ divorce or of the nullity/non-existence of their marriage, as the case may be, would not have been particularly difficult to determine, from what we see in the appeal record.

In any event, it is obviously too late to go back, [37] and it is therefore appropriate to grant the leave sought and to answer the constitutional questions raised by the appeal. B. Constitutional issues: freedom of religion and the right to equality [ 65 ] Before going further, it is necessary to circumscribe the debate, which the Court will do in two parts. First, the Court will briefly reiterate the rules, which govern marriage and its legal consequences in Quebec law. Second, the Court will attempt to define the true subject of the appellant’s contestation.

1. The legal framework of marriage in Quebec law [ 66 ] We may begin with a generalizationthat is useful to recall.

The institution of marriage, often characterized as fundamental and essential to the organization of society, is generally the subject of law, [38] both domestically [39] and internationally. [40] The State has a legitimate and widely accepted [41] interest, and its history is indissociable from its judicialization . [42] The legal framework, at least in Western traditions, is superimposed on the social framework (including the religious framework), recognizes the institution, and at the same time structures and defines it.

Marriage as a social anthropological phenomenon is, if not absorbed by law, at least delimited and determined by it. That can be observed in Canada and Quebec, as elsewhere. [ 67 ] Parliament itself states the following in the

preamble of the Civil Marriage Act : [43] WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians; Attendu : … que le mariage est une institution fondamentale au sein de la société canadienne et qu’il incombe au Parlement du Canada de la soutenir parce qu’elle renforce le lien conjugal et constitue, pour nombre de Canadiens, le fondement de la famille; [ 68 ] This statement is not found in the Civil Code of Québec , at least not expressly.

It may however be inferred from its provisions, which govern the fundamental institutions of the general law, that the Quebec legislature shares the views of its federal counterpart on the subject. [ 69 ] Let us digress for a moment.

It is interesting to note that despite the jurisdiction conferred upon it in such matters by s. 91(26) of the Constitution Act, 1867 , the Canadian Parliament long avoided providing a legislative definition of marriage, such that Canadians and Canadian courts referred to its preconfederation, traditional, legislative, customary, or judicial definition, [44] consisting of a union and a community of life between a man and a woman, formalized by the exchange of consents before the community and characterized by a long-term undertaking (definition consistent with the preconfederation rules, including those in force in Quebec). [45] Only in 2005 [46] did Parliament adopt the Civil Marriage Act . [47]

Section 2 of that Act provides: 2. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. 2. Le mariage est, sur le plan civil, l’union légitime de deux personnes, à l’exclusion de toute autre personne. [ 70 ] This very broad definition, which opened marriage to persons of the same sex (whereas it was until then reserved for persons of different sex, a judge-made rule [48] ), is not concerned with the reasons or motivations, religious or other, of the persons wishing to unite in this way.

In this context (except for the inclusion of de facto unions in this very broad definition), the use of the word “lawful/ légitime ” refers to the conditions for the formation of marriage set out by Parliament, but also to the conditions and formalities of the solemnization of marriage that falls under the provincial legislatures under s. 92(12) of the Constitution Act, 1867 .

These conditions and formalities, the non-observance of which may result in the non-existence or invalidity of the marriage, reflect its public nature through an undertaking before the community and before an officiant authorized by the State (provincial in this case [49] ). [ 71 ] In this sense, marriage is simply the union of two persons (which excludes polygamous marriage) on the conditions set out respectively in federal or provincial law, depending on the aspect in question. The Supreme Court, in Reference re Same-Sex Marriage , [50] confirmed this de finition.

It should be noted that while not establishing “an objective core of meaning which defines what is “natural” in relation to marriage”, [51] beyond the idea of a union between two consenting persons to the exclusion of all others, the Supreme Court notes that “[o]ur law has always recognized that some conjugal relationships are based on marital status, while others are not”. [52] [ 72 ] The 2005 Civil Marriage Act was subsequently amended by Parliament to provide that marriage requires the free and enlightened consent of these two persons to be the spouse of each other ( s. 2.1 ), but that no person may contract marriage if they are under the age of 16 ( art. 2.2 ) or until a previous marriage has been dissolved or declared null ( art. 2.3 ).

Note that for Quebec, these requirements already existed in the Federal Law—Civil Law Harmonization Act, No. 1 , which came into force on May 10, 2001 : [53] 4. Sections 5 to 7, which apply solely in the Province of Quebec, are to be interpreted as though they formed part of the Civil Code of Quebec . 4. Les articles 5 à 7, qui s’appliquent uniquement dans la province de Québec, s’interprètent comme s’ils faisaient

partie intégrante du Code civil du Québec . 5. Marriage requires the free and enlightened consent of a man and a woman to be the spouse of each other. 5. Le mariage requiert le consentement libre et éclairé d’un homme et d’une femme à se prendre mutuellement pour époux. 6. No person who is under the age of sixteen years may contract marriage. 6. Nul ne peut contracter mariage avant d’avoir atteint l’âge de seize ans. 7. No person may contract a new marriage until every previous marriage has been dissolved by death or by divorce or declared null. 7.

Nul ne peut contracter un nouveau mariage avant que tout mariage antérieur ait été dissous par le décès ou le divorce ou frappé de nullité. [ 73 ]

Section 5 above was amended by the Civil Marriage Act and now states:

5. Marriage requires the free and enlightened consent of two persons to be the spouse of each other. 5.

Le mariage requiert le consentement libre et éclairé de deux personnes à se prendre mutuellement pour époux. [ 74 ] These conditions are supplemented by those of the Marriage (Prohibited Degrees) Act , [54] which prohibits marriage between people who have a relationship of ascendant, descendant, brother, sister, half-brother, or half-sister, including by adoption . [55] These prohibitions constitute “all of the prohibitions in law in Canada against marriage by reason of the parties being related /la totalité des règles de droit applicables au Canada en matière d’empêchements au mariage fondés sur des liens de parenté ” (s. 4). [ 75 ] Moreover, there is no doubt that the federal statutory provisions concerning so-called “civil” marriage (that is, marriage recognized by law) rests on the premise that such a marriage may result from religious solemnization, where the officiant is a minister of religion.

In this regard, recall s. 3 of the Civil Marriage Act , which states: 3. It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs. 3. Il est entendu que les autorités religieuses sont libres de refuser de procéder à des mariages non conformes à leurs convictions religieuses. [ 76 ] This provision echoes the

preamble of the Act , which states: WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs; Attendu : … que la présente loi n’a pas pour effet de porter atteinte à la garantie dont fait l’objet cette liberté, en particulier celle qui permet aux membres des groupes religieux d’avoir et d’exprimer les convictions religieuses de leur choix, et aux autorités religieuses de refuser de procéder à des mariages non conformes à leurs convictions religieuses; [ 77 ] In Reference re Same-Sex Marriage , [56] the Supreme Court found that s. 3 of the Civil Marriage Act (corresponding to s. 2 of the Bill at issue before it) exceeded the limits of the narrow jurisdiction that s. 91(26) of the Constitution Act, 1867 confers on Parliament in regard to marriage: 37 … The provision might be seen as an attempt to reassure the provinces and to assuage the concerns of religious officials who perform marriages.

However worthy of attention these concerns are, only the provinces may legislate exemptions to existing solemnization requirements, as any such exemption necessarily relates to the “solemnization of marriage” under s. 92(12).

Section 2 of the Proposed Act is therefore ultra vires Parliament. [ 78 ] Despite this opinion, the provision remained in the Civil Marriage Act , even though its counterpart already existed in art. 367 C.C.Q.: 367. No minister of religion may be compelled to solemnize a marriage to which there is any impediment according to his religion and to the discipline of the religious society to which he belongs. 367.

Aucun ministre du culte ne peut être contraint à célébrer un mariage contre lequel il existe quelque empêchement selon sa religion et la discipline de la société religieuse à laquelle il appartient. [ 79 ] Irrespective of its constitutional invalidity, the fact remains that s 3 of the Civil Marriage Act seems to confirm implicitly that Parliament, by defining the civil institution of marriage as it did in s. 2 of that Act , did not intend to exclude marriages solemnized by ministers of religion, although they are exempted from having to solemnize a union that is contrary to their beliefs.

If it were otherwise, this exemption would be useless. In the narrow field of jurisdiction conferred on it b

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