|
PRB 99-7E
FEDERAL LEGISLATION
CONTAINING TERMS
RELATING TO SPOUSAL OR MARITAL STATUS
Prepared by:
Mary C. Hurley
Law and Government Division
14 September 1999
FEDERAL LEGISLATION CONTAINING TERMS
RELATING TO SPOUSAL OR MARITAL STATUS
The issue of same-sex couples’
entitlement to the same legislative treatment as is enjoyed by heterosexual common law
spouses has been an ongoing subject of debate. This paper is intended to clarify a key
feature of that debate by setting out an overview of how federal statutes currently
provide for spousal status, both quantitatively and qualitatively. As the following table
demonstrates, the vast majority of federal Acts do not define the term "spouse."
Many explicitly or implicitly restrict spousal status to married partners.
Statutes appearing in the table were
identified through a key word search of the Department of Justice online consolidated
statute data base, as it was updated to 31 December 1998 on 8 April 1999.(1) English keywords searched were "spouse,"
"spousal," "wife," "husband," "marriage,"
"married," "widow," and "widower."(2) The table does not purport to provide, and should not be
considered as providing, an exhaustive listing of statutes or provisions within statutes
in which terms of interest may appear or to which these terms relate.(3) Those statutes conferring benefits as that term is
commonly understood are indicated in bold face; where applicable, the section defining the
term "spouse," or containing the relevant deeming provision (d.p.),(4) is underlined. Legislation that neither
defines "spouse" nor contains provisions deeming an opposite sex common law
partner to be a "spouse" is reviewed in somewhat greater detail so as to provide
a fuller illustration of usage in "non-benefit" statutes.
It should be noted that Bill C-78, the Public
Sector Investment Board Act, adopted by the House of Commons on 25 May 1999, and by
the Senate on 14 September 1999, amends relevant sections in several of the public service
superannuation statutes discussed in the table.(5)
The amendments replace existing deeming provisions related to opposite sex spousal status
with provisions recognizing gender-neutral "survivor" status.(6)
LEGISLATION |
TERM(S) |
DEF. |
SECTION(S) |
DEPT. |
COMMENTS |
Agricultural Marketing
Programs Act, S.C. 1997, c. 20 (R.S.C. 1985, c. A-3.7) |
marriage,
married |
|
3(2) |
Agriculture & Agri-food |
Under the Act, presumption that
"cohabiting" (undefined) individuals not connected by blood, adoption or
"marriage," or persons connected by "marriage," are not dealing at
arm’s length(7) |
Bank Act, R.S.C. 1985,
c. B-1.01 |
spouse |
|
283(1), 486(1), 496(1), (5) -
(6),
566(3) |
Finance |
"Spouse" of person
making take-over bid is "associate of offeror"; "spouse" of person
with interest in bank shares is "related party of a bank"; bank may enter
transaction with "spouse" of bank director or officer, including loans on
preferred terms, etc.; court may impose additional fine in respect of monetary benefits
accrued to "spouse" of person convicted of offence under Act |
Bankruptcy and Insolvency
Act, R.S.C. 1985, c. B-3 |
marriage, married, spouse |
|
2(1), 4(2), 4(3), 91(3), 92,
93(1), 113(3), 121(4), 137(2), 138, 177, 178(1), 191, 219(2) |
Industry |
Persons connected by
"marriage" are "related"; settlements of property in consideration of
"marriage" or for the "spouse" of the settlor are not void against
trustee, while certain "marriage" contracts are void, etc.; "spouse"
of bankrupt not entitled to vote on appointment of trustee; family support claim arising
from order made before bankruptcy and at time when "spouse" living apart from
bankrupt is provable; "spouse" not entitled to claim dividend in connection with
trade of bankrupt until other claims settled; where settlements or contracts in
consideration of "marriage" made to defeat creditors, court may refuse order of
discharge; order of discharge does not release bankrupt from debt under order or agreement
for support of "spouse"; deposition of deceased "spouse" of bankrupt
admitted as evidence; debtor affidavit to include information about income and employment
of "spouse"; usage in Act indicates "spouse" refers only to
"married" partners |
Bridges Act, R.S.C. 1985,
c. B-8 |
wife, husband |
|
14 |
Public Works & Gov’t.
Services |
An inspection under the Act does
not relieve a company of responsibility to a person’s wife or husband for its act or
omission |
Business Development Bank of
Canada Act, S.C. 1995, c. 28
(R.S.C. 1985, c. B-9.9)(8) |
spouse |
|
31 |
Industry |
"Spouse" of Board
member or of child of Board member is "interested person" for purposes of
conflict of interest provisions |
Canada Evidence Act,
R.S.C. 1985, c. C-5 |
wife, husband, marriage (9) |
|
4(1) - (6) |
Justice |
Act makes special provision for
testimony of accused "husband" or "wife" vis-à-vis one another;
context restricted to partners to a "marriage" |
Canada Pension Plan,
R.S.C. 1985, c. C-8 (C.P.P.) |
spouse,
spousal, married
marriage |
yes |
2(1), 6(2), 42(1),
44(1), 55(1) - (4), (6) - (8), 55.1(1) - (6), 55.2(1) - (5), (7) - (10), 55.3(1) - (2),
58(1) - (6), (6.2), (8) - (9), 63(1) - (4), (7), (9), 65.1(1) - (9), (11) - (12), 66(5),
72, 75, 76, 80(1), 81(1) - (2), 82(1), (10), 83(1), (10), 87, 88(1) |
H.R.D.;
National Revenue |
Explicit definition of
"spouse" enacted by Parliament in 1986 for survivor’s pension purposes
includes heterosexual common law partner meeting prescribed conditions; since 1965
inception of C.P.P., opposite sex unmarried partners might collect benefits as
"surviving spouse" through a deeming provision (d.p.); C.P.P.’s exclusion
of same-sex partners has been and is challenged as discriminatory under Charter; Act
provides, inter alia, that employment by "spouse" is excepted
(non-pensionable), for division of unadjusted pensionable earnings between
"spouses," and assignment of retirement pension by contributor to
"spouse" |
Canadian Forces
Superannuation Act, R.S.C. 1985, c. C-17 (C.F.S.A.)(10) |
prior to Bill C-78:
spouse, married, marriage,
widow, widower |
d.p. |
prior to Bill C-78:
9(4), 11(2), 25(1), (3), (5), 25.1(1), (3), 26, 28, 29(1) - (2), 30(1) - (2),
31(1), 32, 34, 35, 35.1, 36(1), 67(2) |
National Defence |
Prior to Bill C-78, d.p.
enacted by Parliament in 1992(11) stated
conditions under which opposite sex common law partner might access survivor benefits as
deemed "surviving spouse"; terms of original d.p. enacted in predecessor statute
in 1955; d.p.’s opposite sex requirement excluded same-sex partners; Act also
restricted benefits to "surviving spouse" in prescribed "marriage"
circumstances; contributor’s pension benefits may be diverted to satisfy court order
for financial support to "spouse", "former spouse" or "other
person"; under Bill C-78, d.p. replaced: new concept of "survivor" defining
entitlement in place of "surviving spouse" includes both person who was
"married" to contributor and gender-neutral "person" having cohabited
with contributor in relationship of conjugal nature; new section provides for
apportionment of pension between two categories of "survivor" |
| Canadian Wheat Board Act,
R.S.C. 1985, c. C-24 |
marriage |
|
67(4) |
Natural
Resources |
Act requires application for new
S.I.N. in case of name change by reason of "marriage" |
| Carriage by Air Act,
R.S.C. 1985, c. C-26 |
wife, husband |
|
Schedule II: 1 |
Transport |
Liability of carrier in event of
passenger’s death enforceable for family members who suffer damage as a result,
including "wife" or "husband" of deceased |
| Citizenship Act, R.S.C.
1985, c. C-29 |
spouse, marriage, husband |
|
5(1.1), 11(2) |
Citizenship & Immigration |
"Marriage" under
prescribed circumstances, including acquisition of foreign nationality by
"husband," relevant to woman’s acquisition of citizenship; days applicant
for citizenship resides with citizen "spouse" in public service outside Canada
equivalent to days of residence in Canada |
| Merchant Navy Veteran and
Civilian War-related Benefits Act, R.S.C. 1985, c. C-31 |
spouse, married, husband, wife |
d.p. |
29, 34(1) - (2), 36, 53, 57
(by implication) |
Veterans
Affairs |
N.B.: compatible provisions
of Pension Act below, including d.p., apply to claims by military
beneficiaries subject to Parts I to X of this Act; allowances under the War Veterans
Allowance Act may be available to civilians covered by Part XI and persons who,
in relation to them, would also be entitled under that Act, including that Act’s
d.p.; Act also limits entitlement to pension of prescribed class of beneficiaries to
"surviving spouse," and places conditions on access to pension by
"surviving spouse" and "spouse" of beneficiaries in another class;
"surviving spouse" of deceased member of third class of beneficiaries who is in
necessitous circumstances may be awarded pension; context of Act and applicable
d.p.’s indicate only opposite sex partners are covered |
| Corporations and Labour Union
Returns Act, R.S.C. 1985, c. C-43 |
marriage |
|
2(1), (3) |
Industry;
Labour |
Persons connected by
"marriage" are "related" |
Canada Business Corporations
Act, R.S.C. 1985, c.
C-44 (12) |
spouse |
|
2(1) |
Industry |
"Spouse" or relative
of "spouse" is person’s "associate" for purposes of Act |
Canada Corporations Act,
R.S. 1970, c.
C-32(13) |
spouse |
|
100(1) |
Industry |
"Spouse" or relative
of "spouse" is person’s "associate" for certain purposes |
Cooperative Credit
Associations Act, S.C. 1991, c. 48 (R.S.C. 1985, c. C-41.01) |
spouse |
|
410(1), 420(1), 466(3) |
Finance |
"Spouse" of person
with significant interest in class of shares of association is "related party";
association may enter transaction with "related party" who is "spouse"
of association director; court may impose additional fine in respect of monetary benefits
accrued to "spouse" of person convicted of offence under Act |
| Corrections and Conditional
Release Act, R.S.C. 1985, c. C-44.6 |
spouse |
|
2(1) |
Solicitor
General |
"Victim" includes
"spouse" of incapacitated or deceased person having suffered injury through
commission of offence |
| Cree-Naskapi (of Quebec) Act,
S.C. 1984, c. 18 (R.S.C. 1985, c. C-45.7) |
married, marriage, husband, wife |
|
2(1), 174 |
Indian Affairs &
Northern
Development |
Act defines certain persons
"married" to Inuit as Inuit; under succession provisions, "consorts"
includes "married" partners and unmarried man and woman who live together as
"husband" and "wife" |
| Criminal Code, R.S.C.
1985, c. C-46 |
spouse, married, marriage,
husband, wife |
|
18, 23(2), 159(2), 214, 215(1),
(4), 278, 290(1) - (5), 291(2), 292(1), 293(1), 294, 295, 307(2), 329(1) - (3), 377(1),
718.2, 722(4), 738(1), 810(1), (3.2) |
Justice; Sol. Gen.; Agri. &
Agri-food |
Use of relevant terms in
provisions creating offences of bigamy, polygamy, and relating to spousal compulsion,
spousal sexual assault, spousal theft, etc., indicate their application to
"marriage" and marital relationship; provisions referring to evidence of abuse
of "spouse" as an aggravating factor in sentencing, defining "victim"
to include "spouse," providing for offender to make restitution to
"spouse," or for issuance of peace bonds to prevent injury to "spouse"
not explicitly referring to marital relationship; for purposes of offence of failing to
provide necessaries of life, opposite sex cohabitants are assimilated to "lawfully
married" partners |
| Customs Act, R.S.C. 1985,
c. C-52.6 |
marriage |
|
45(3) |
National Revenue |
For purposes of duty
calculation, persons connected by "marriage" are "related" |
Defence Services Pension
Continuation Act,
R.S.C. 1970,
c. D-3(14) |
prior to Bill C-78: marriage,
married, wife, husband, spouse, widow |
d.p. |
prior to Bill C-78: 10(3) -
(4), 25, 26, 26.1(1) - (4), (6) - (7), 27, 29, 32(1) - (2), 35.1(1) |
National Defence |
This Act continues the
predecessor statute to the C.F.S.A. for certain persons enrolled in Canadian Forces prior
to 1946, providing, prior to Bill C-78, for pension benefits to an officer’s
"widow," except in prescribed "marriage" circumstances; under update
of original d.p., a woman might be deemed an officer’s "widow" and to have
been "married" to him for pension purposes; contributor’s pension benefits
may be diverted to satisfy court order for financial support to "spouse,"
"former spouse" or other person; under Bill C-78, d.p. replaced: new concept of
"survivor" defining entitlement in place of "surviving spouse"
includes both person who was "married" to officer and gender-neutral
"person" having cohabited with officer in relationship of conjugal nature; new
section provides for apportionment of pension between two categories of
"survivor" |
| Diplomatic Service
(Special) Superannuation Act, R.S.C. 1985, c. D-2 |
spouse |
|
5(9) - (10), 9(2) - (3), (6),
11(5), 12, 14(2) |
Finance |
Total contributions of
deceased contributor under Act paid to "surviving spouse" as death benefit ;
"spouse" of pensioner or "surviving spouse" of deceased pensioner
under "alternate" benefit scheme entitled to pension, etc.; "spouse"
and "surviving spouse" not so entitled where diplomat has elected not to
contribute; contributor’s pension benefits may be diverted to satisfy court order for
financial support to "spouse" or "former spouse"; in context, usage of
terms suggests Act applicable to married partners |
Divorce Act, R.S.C. 1985,
c. D-3.4 |
spouse,
marriage, married, husband, wife |
yes |
2(1) - All |
Justice |
"Spouse" means a man
or a woman "married" to each other; Act necessarily applies only to these
persons |
| Canada Elections
Act, R.S.C. 1985, c. E-2 |
marriage, spouse |
|
15(1), 60, Schedule
II, Pt. II: 19(4), Pt. III: 21(3), 22(1), Pt. IV: 49(1) |
Leader of
Gov’t. in Commons |
Returning officer
may not appoint "spouse" as assistant returning officer; at general election,
"spouse" of Member of Parliament entitled to be entered on electoral list and to
vote in prescribed places; residence of "spouse" of member of regular forces may
be indicated as member’s residence; for purposes of registry of electors temporarily
residing abroad, "dependant" includes elector’s "spouse" or
person related by "marriage," etc.; registration application may indicate
residence of "spouse" as that of incarcerated elector; usage in Act indicates
"spouse" refers only to married partners |
| Employment Insurance Act,
S.C. 1996, c. 23 (R.S.C. 1985, c. E-5.6) |
marriage,
spouse |
|
29, 133, 140 |
H.R.D.;
National
Revenue |
Just cause for leaving
employment for purposes of entitlement to benefits may include obligation to move with
"spouse": in some administrative tribunal rulings under Act, term may be
extended to opposite sex common law partners and same-sex partners; prosecution may compel
"spouse" of person charged with offence to testify; Act requires application for
new S.I.N. in case of name change by reason of "marriage" |
European Bank for
Reconstruction and
Development Agreement Act, R.S.C. 1985, c. E-13.5 |
spouses |
|
Schedule: Article 52.2 |
Finance |
"Spouses" of Bank
Directors or employees resident in country where Bank’s head office located to be
given opportunity to take employment in that country, etc. |
Excise Tax Act, R.S.C.
1985,
c. E-15 |
marriage, spouse |
yes (mod.) |
123(1), 190(1) - (2), 191(5),
254(1), 254.1(1), 255(1), 325(1), (4) |
National
Revenue |
For purposes of G.S.T. and
prescribed other purposes, "former spouse" includes person of opposite sex who
cohabited with individual in conjugal relationship; "residential complex"
includes residence of "former spouse"; provision made for holding of real
property by individual as residence or for use of "former spouse," etc.;
"relation" includes "former spouse"; transfer of property to
"spouse" results in joint and several liability; provision made for special
property transfers to "spouse" where "marriage" breakdown |
| Farm Income Protection Act,
R.S.C. 1985, c. F-3.3 |
marriage |
|
10(3) |
Agriculture & Agri-Food |
Act requires application for new
S.I.N. in case of name change by reason of "marriage" |
Firearms Act, S.C. 1995,
c. C-39 (R.S.C. 1985,
c. F-11.6) |
spouse |
|
12(7), 55(2) |
Justice |
"Spouse" of
grandfathered individual eligible to hold licence authorizing possession of specified
firearm; when determining eligibility of applicant for licence, chief firearms officer may
interview applicant’s "spouse" |
Garnishment, Attachment and
Pension Diversion Act,
R.S.C. 1985, c. G-2 |
spouse |
|
32(1), 33(1) |
Justice; Nat’l.
Defence; Finance; Pub. Works |
For purposes of Part II re
pension diversion, "recipient" in respect of specified pension benefit does not
include "surviving spouse" of person to whom benefit payable; "spouse"
or "former spouse" named in financial support order may apply for diversion of
pension benefit payable to "recipient" |
| Government Annuities Act,
R.S.C. 1970, c. G-6 |
married, wife, husband |
|
8(3) |
H.R.D. |
Act sets conditions for
conversion of annuities of married man or woman for his/her "wife" or
"husband" |
Governor General’s
Act,
R.S.C. 1985, c. G-9 |
spouse, widow, wife |
|
7(1) - (3), 8(1), 11(1) |
Prime Minister |
"Surviving spouse"
of deceased annuitant entitled to 1/2 annuity for life, etc.; "widow" of
pre-1967 Governor General entitled to annuity; amounts payable to annuitant may be
diverted to satisfy court order for financial support to "spouse" or
"former spouse"; usage of terms in context suggests Act applicable to married
partners |
| Immigration Act, R.S.C.
1985, c. I-2 |
spouse
marriage |
yes |
2 (Regs.) |
|
Immigration Regulations, 1978
define "spouse" as opposite sex party to whom person joined in
"marriage"; in January 1999, announced government intentions to modernize
immigration policy and law included expansion of definition to include opposite sex common
law and same-sex partners; at present immigration policy considers the separation of bona
fide common law or same-sex partners grounds for humanitarian and compassionate
consideration for purposes of admission to Canada |
Income Tax Act, R.S.C.
1985, c. 1 (5th Supp.)
(as amended)
(I.T.A.)(15) |
spouse, marriage, married |
yes |
24(2), 40(4), 58(5), 70(6) -
(6.1), (7), 73(1), (3), (5), 74.1(1), 74.2(1), 74.5(3) - (5), 82(3), 104(27), 118(7),
118.8, 122.6, 122.61(1), 122.62(5) - (7), 146(1), (5.1), 146.1(1), 146.3(5.4), (14),
148(8.2), 160(1), (4), 160.1(2.1), 212(12), 248(22) - (23.1), 252(3) - (4) |
|
Parliament’s first
I.T.A. definition of "spouse," enacted in 1990, included opposite sex common law
couples that met the Act’s criteria, but for limited purposes only; definition
extended in 1993 to cover such couples for all the Act’s purposes, with additional
provisions ensuring references to "marriage" in I.T.A. applied to them as well;
opposite sex requirement excludes same-sex partners for all purposes in relation to which
"spousal" status relevant under Act; in April 1998 Rosenberg decision,
Ontario Court of Appeal found discriminatory definition unjustified under the Charter, and
ordered that, for purposes of pension plan registration only, the definition be enlarged
to include same-sex relationships; federal government decided not to appeal, making I.T.A.
sole federal statute in which "spouse" interpreted as including same-sex
"spouses" for limited purpose considered in court case |
| Indian Act, R.S.C. 1985,
c. I-5 |
widow,
widower,
husband,
spouse |
|
48(1) - (7), (12), (15), 68 |
Indian Affairs & Northern
Development |
Net value of estate not
exceeding certain amount goes to "widow" of intestate person, etc.; Minister may
direct that "widow" has right to occupy land in reserve that was occupied by
"husband"; "widow" not entitled to dower in land of deceased
"husband" dying intestate; Minister may order that payments of annuity or
interest payable to "Indian" who is imprisoned or who has deserted
"spouse" be paid to "spouse" |
Insurance Companies Act,
R.S.C. 1985, c. I-11.8 |
spouse |
|
307(1), 518(1), 529(1), (5) -
(6),
706(3) |
Finance |
"Spouse" of person
making take-over bid is "associate of offeror"; "spouse" of person
with interest in class of company’s shares is "related party," etc.;
company may enter transaction with "related party" who is "spouse" of
company director, and make loans or offer financial services on preferred terms to
"spouse" of senior officer; court may impose additional fine in respect of
monetary benefits accrued to "spouse" of person convicted of offence under Act |
Judges Act, R.S.C.
1985,
c. J-1 |
spouse, married |
|
27(6), 40(1), 44(1) - (4),
46.1, 47(4) - (6), 48(2), 49, 52(1) |
Justice |
Representational allowance
payable to judge’s "spouse"; removal allowance payable to "surviving
spouse" of identified judge; "surviving spouse" "married" to
superior court judge during tenure entitled to lifetime annuity; lump sum payable to
"surviving spouse" of judge who dies while holding office; annuities payable to
judge’s children based on percentage of annuity of "surviving spouse";
Governor in Council may make regulations for the payment from the C.R.F. of inheritance or
other taxes payable by judge’s "surviving spouse" to whom annuity granted;
judge’s benefits under Act may be diverted to satisfy court order for financial
support to "spouse" or "former spouse"; Act applicable only to
"surviving spouse" of marriage to judge(16) |
| Land Titles Act, R.S.C.
1985, c. L-5 |
marriage, married, wife, husband,
widow |
|
5 - 7, 168(3) |
Indian Affairs & Northern
Development |
Act provides for registration of
interest in land acquired by "married" women before "marriage," etc.;
obsolete bases of rights of "husband" and "widow" to deceased
spouse’s property are abolished; context restricted to partners to a
"marriage" |
Lieutenant Governors
Superannuation Act, R.S.C. 1985, c. L-8 |
spouse |
|
3(5), 5(4), 6(1), 7(1) - (3),
8, 9 |
Treasury
Board |
"Surviving spouse"
entitled to pension or to return of contributions made by contributor, unless L.G. has
elected not to contribute; interest calculated on contributions to which "surviving
spouse" entitled; Governor in Council may regulate method of determining amounts
recoverable from pension of "surviving spouse"; amounts payable to former L.G.
may be diverted to satisfy court order of financial support to "spouse" or
"former spouse"; usage of terms in context suggests Act applicable to married
partners |
Members of Parliament
Retiring Allowance Act,
R.S.C. 1985,
c. M-5 |
prior to Bill C-78: marriage,
spouse |
|
prior to Bill C-78: 2(1),
20(1) - (1.1), 22, 23(1), (4), 24, 26, 40(1) - (1.1), 43(1), (4), 44, 46, 49(1), (4),
64(1) |
Treasury
Board |
Prior to Bill C-78,
"joint and survivor benefit" included annuity paid to former member’s
"spouse"; percentage of retirement or compensation allowance was payable to
"spouse" of member or former member and, since 1995 amendment by Parliament, to
member or former member’s "conjugal" cohabitant of the opposite sex; in
prescribed circumstance, "spouse" entitled to joint and survivor benefit upon
death of former member; entitlement of "spouse" or "former spouse"
ceased upon division of allowance under Pension Benefits Division Act;
"surviving spouse" of deceased Prime Minister entitled to allowance, unless
division effected under above statute; Governor in Council might regulate manner of
determining amount of joint and survivor benefit payable to "surviving spouse";
same-sex partners were excluded from entitlement under Act; under Bill C-78, new concept
of "survivor" defining entitlement in place of "surviving spouse"
includes both person who was "married" to member or former member and
gender-neutral "person" having cohabited with member or former member in
relationship of conjugal nature |
Merchant Seamen
Compensation Act,
R.S.C. 1985, c. M-6 |
spouse, marries |
|
31(1) - (3), (9), 32(1), 33(1)
- (2), 44 |
Labour |
On death of seaman from
injury, dependent "surviving spouse" entitled to prescribed lump sum and monthly
payment, such monthly payments to cease if spouse "marries"; seaman’s
compensation may be diverted to "spouse" in certain circumstances |
| Old Age Security Act,
R.S.C. 1985, c. O-9 |
spouse,
husband, wife,
spousal, married, widow, widower |
yes
yes |
2, 12(5.1) - (6), 14(2)
- (7), 15(1) - (3), (4) - (7.1), (9), 19(1) - (2), (4) - (7), 20, 21(1) - (2), (4) - (10),
(12), 22(1) - (6), 23(1) - (2), 24(1) - (2), 25, 26(1), 28(2), 30(1) - (3), 33.11, 34,
39(1) |
H.R.D. |
Definition of
"spouse" enacted in 1975 "includes" opposite sex common law partners
who meet Act’s criteria;(17) Act
provides for income-tested monthly "spousal" allowance benefits for O.A.S.
pensioner’s "spouse" or "widow" meeting Act’s criteria;
spousal status/income relevant throughout Act, for example for purposes of calculating
pensioners’ monthly guaranteed income supplement; Act’s use of
"spouse" excludes same same-sex partners; in 1995 Egan decision, Supreme
Court of Canada found opposite sex spousal definition violated section 15 of Charter on
ground of sexual orientation, but was justified under section 1 |
| Parliament of Canada Act,
R.S.C. 1985, c. P-1 |
marriage |
|
40 |
Leader of Gov’t in
Commons |
Person on whom contract devolves
by reason of "marriage" not ineligible to be member of House of Commons, where
fewer than twelve months have elapsed since devolution |
Pension Act, R.S.C.
1985,
c. P-6 |
married, marriage, spouse |
d.p. |
3(1), (3), 21(1) - (2), (2.3),
(7), 31(2), 32(3), 34(8) - (11), 38(3), 42(6) - (7), 43,45(1) - (3.3), 47(1), (3) -
(4), 48(1), 51(1), 52(1) - (2), 53(1), 56(1), 57, 59.1, 64(1), 65(1), 66(1), 69(2), 71.
2(2) - (3),71.3(1), 71.4, 72(5), 80(2) |
Veterans
Affairs |
Current d.p. enacted by
Parliament in 1990, like original 1961 d.p., sets out conditions for opposite sex common
law partners to access benefits under Act as "spouse" or "surviving
spouse" of member of Canadian forces; same-sex partners are excluded; in addition,
since 1919 Act has provided for discretionary award of pension to person of opposite sex
who cohabited with deceased member of forces at and prior to her/his enrolment |
Pension Benefits Division
Act(18) (R.S.C. 1985, c.
P-31.8, Schedule II) |
spouse
married
marriage |
yes |
2, 4(1) - (4), 5(2),
(4), 6(2), 7(3), (5), 8(1) - (2), (4) - (5), 10, 12(1) - (2), 13(1) - (2), 16 |
Treasury
Board (Nat’l.
Defence; Pub. Works;
Sol. Gen.) |
In effect since 1994, this
parliamentary enactment authorizes division of most public sector pension benefits under
prescribed circumstances; Act defines "spouse" as person of opposite sex who is
"married" to, party to void "marriage" to, or cohabiting conjugally
with pension plan member for required period |
Pension Benefits Standards
Act, 1985, R.S.C. 1985,
c. P-7.01 |
spouse
marriage |
yes
yes |
2(1), 18(1) - (2),
22(2) - (3), (5), 23(1) - (2), (4) - (7), 24, 25(1), (4) - (8), 26(1) - (3), 27(1),
28(1) |
Finance |
Since first enacted by
Parliament in 1986, Act relating to pension plans in prescribed federal undertakings has
defined "spouse" for most purposes as person who is "married" to,
party to void "marriage" with, or opposite sex conjugal cohabitant of plan
member; for purposes of distribution of benefits upon divorce or separation,
"spouse" has the meaning of relevant provincial law relating to the distribution
of spousal property, etc.; in first case, same-sex partners necessarily excluded; in
second case, provincial legislation that recognized entitlement of same-sex couples would
govern |
| Privileges and Immunities
(North Atlantic Treaty Organisation) Act, R.S.C. 1985, c. P-24 |
spouse |
|
Schedule: Pt. III, Article 13 |
Foreign Affairs |
"Spouse" of
representative of Member State entitled to same exemption from, e.g., immigration
restrictions, as accorded to diplomatic personnel of comparable rank |
Public Service
Superannuation Act, R.S.C. 1985, c. P-36 (P.S.S.A.) |
prior to Bill C-78: spouse,
married, marriage, widower |
d.p. |
prior to Bill C-78: 8(8),
10(3) - (4), 10(10), 12(4), (6) - (8), 13(2) - (3), 13.1(1) - (3), 25(1), (3), (4)
- (6), 26(1), (3), (5) - (6), 26.1, 31(2), 32(1), 42(1), 42.1(1), 49, 61(1), 69(3) |
Treasury
Board |
Prior to Bill C-78, d.p.
enacted by Parliament in 1992 stated conditions under which opposite sex common law
partner might access survivor benefits as deemed "surviving spouse"; original
d.p. introduced in 1953; d.p.’s opposite sex requirement excluded same-sex partners;
like C.F.S.A., Act also restricted benefits to "surviving spouse" in prescribed
"marriage" circumstances; Act provides for contributor’s pension benefits
to be diverted to satisfy court order for financial support to "spouse,"
"former spouse" or "other person"; under Bill C-78, d.p. replaced: new
concept of "survivor" defining entitlement in place of "surviving
spouse" includes both person who was "married" to contributor and
gender-neutral "person" having cohabited with contributor in relationship of
conjugal nature; new section provides for apportionment of pension between two categories
of "survivor" |
| Royal
Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11 |
prior to Bill
C-78: spouse, married, marriage, widower |
d.p. |
prior to Bill
C-78: 8(7), 9(3), (7), 13(1), (3), 14, 14.1(1) - (3), 15, 17(2), 18(1), (3), 19(1),
(3), (5) - (6), 19.1, 20(1), 26.1(1), 35, 39(3) |
Solicitor
General |
Prior to Bill
C-78, d.p. enacted by Parliament in 1992 stated conditions under which opposite sex common
law partner might access survivor benefits as deemed "surviving spouse"(19); original d.p. introduced in 1959; like
C.F.S.A. and P.S.S.A., Act also restricted benefits to "surviving spouse" in
prescribed "marriage" circumstances; Act provides for contributor’s pension
benefits to be diverted to satisfy court order for financial support to
"spouse", "former spouse" or "other person"; under Bill
C-78, d.p. replaced: new concept of "survivor" defining entitlement in place of
"surviving spouse" includes both person who was "married" to
contributor and gender-neutral "person" having cohabited with contributor in
relationship of conjugal nature; new section provides for apportionment of pension between
two categories of "survivor"(20) |
| Canada Shipping Act,
R.S.C. 1985, c. S-9 |
marriage, spouse, widow, widower,
wife, husband |
|
41(1), 42(1), 54(1) - (2),
191(4), 223(3), 262, 267, 645 |
Fisheries &
Oceans;
Transport |
Act provides for transfer or
transmission of interest in ship on "marriage," recording of
"marriage" on board; for purposes of allotment notes, seaman’s "near
relative" includes "spouse"; Minister may pay value of property of deceased
seaman not exceeding $500 to claimant proving self to be "widow" or
"widower"; for purposes of fatal accident provisions, "dependant"
includes "wife" or "husband" of deceased person; Act provides for
actions by rival claimants for damages, including "wife" or "husband"
of deceased person |
| Special Import Measures Act,
R.S.C. 1985, c. S-15 |
marriage |
|
2(3) |
National
Revenue |
Persons connected by
"marriage" are "related," and hence "associated persons"
under the Act |
Special Retirement
Arrangements Act (21)
(R.S.C. 1985, c. P-31.8, Schedule I) |
spouse |
|
22 |
Treasury
Board |
Benefit under a special pension
plan or retirement compensation arrangement to which "surviving spouse" entitled
is not capable of being surrendered or commuted |
Supplementary Retirement
Benefits Act, R.S.C. 1985, c. S-24 |
spouse |
|
2(1), 4(3) - (5) |
Treasury
Board |
For purposes of Act,
"recipient" of benefits payable to prescribed public sector groups includes
person receiving pension as "surviving spouse" |
| Trust and Loan Companies Act,
R.S.C. 1985, c. T-19.8 |
spouse |
|
288(1), 474(1), 484(1), (5) -
(6),
534(3) |
Finance |
"Spouse" of person
making take-over bid is an "associate of offeror"; "spouse" of person
with interest in class of company’s shares is "related party," etc.;
company may enter transaction with "related party" who is "spouse" of
company director, and make loans or offer financial services on preferred terms to
"spouse" of senior officer; court may impose additional fine in respect of
monetary benefits accrued to "spouse" of person convicted of offence under Act |
| Veterans’ Land Act,
R.S.C. 1970, c. V-4 |
spouse, married, widow, widower |
yes |
11(9), 19(1) - (2), 37(2) - (3) |
Veterans Affairs |
"Spouse" may jointly
purchase land with veteran; life of veteran’s "spouse" may be insured to
provide for repayment of indebtedness associated with sale of land to veteran or deceased
"spouse";
court-ordered rights of "spouse" in land subject of a contract of sale, mortgage
or hypothec under Act are enforceable: for this purpose, "spouse" includes
person not "married" but recognized as spouse by law of province in which land
situated |
| Veterans Review and Appeal
Board Act, S.C. 1995, c. 18 (R.S.C. 1985, c. V-1.6)(22) |
spouse |
|
33 |
Veterans
Affairs |
A decision of an appeal panel as
to the source of income of a person’s "spouse" may be appealed |
| Visiting Forces Act,
R.S.C. 1985, c. V-2 |
spouse |
|
2 |
National Defence |
"Dependant" of member
of visiting force includes "spouse" |
| War Veterans Allowance Act,
R.S.C. 1985, c. W-3 |
spouse, widow, widower,
marriage, married |
d.p.
yes |
2(1), (3), 4(1), (3) -
(6.1), (8), 5(1) -(4), 6.2(2), 7(1), 8.1(1) - (4), 10(1) - (2), 11, 14(2) - (3), 18(1.1),
25, Schedule |
Veterans
Affairs |
The Act’s current d.p.,
enacted by Parliament in 1990, states the conditions under which a person of the opposite
sex who cohabits with veteran is deemed to be "married" to the veteran and to be
her/his "surviving spouse" for purposes of entitlement to allowance; original
d.p. enacted in 1961; opposite sex requirement excludes same-sex partners; Act also limits
entitlement in prescribed "marriage" circumstances |
| Young Offenders Act,
R.S.C. 1985, c. Y-1 |
spouse, married |
|
9(4) |
Justice |
"Spouse" of
detained/arrested young person who is married must be notified(23) |
(1) The Department of Justice advises, and the
author cautions, that legal materials at the Justice site are prepared for convenience of
reference only and have no official sanction.
(2) All provisions enumerated in the original English
document have been reviewed for the equivalent French terms, and the appropriate
adjustments made in the listing of French language provisions.
(3) Ten additional federal statutes are not included in the
chart as their use of search terms was deemed not relevant for present purposes. For
example, the Canadian Human Rights Act prohibits discrimination on the basis of
marital status, which is not defined; the Northwest Territories Act, the Yukon
Act, and the Nunavut Act confer legislative authority over the solemnization of
marriage in the territories. The remaining unlisted statutes are the Privacy Act,
the Marriage (Prohibited Degrees) Act, the Yukon First Nations Self-Government
Act, the Family Orders and Agreements Enforcement Assistance Act, the Bills
of Exchange Act, and the Public Service Employment Act.
(4) Statutory deeming provisions equate targeted persons or
circumstances to other persons or circumstances for certain defined purposes. In the area
under review, where the term "spouse" is not explicitly defined, a heterosexual
common law partner may, under conditions prescribed in the statute in question, be deemed
to be the "surviving spouse" of a deceased pension contributor or annuitant, and
to be "married" to that person, for purposes of entitlement to survivor
benefits.
(5) The legislation is entitled "An Act to establish
the Public Sector Pension Investment Board, to amend the Public Service Superannuation
Act, the Canadian Forces Superannuation Act, the Royal Canadian Mounted Police
Superannuation Act, the Defence Services Pension Continuation Act, the Royal Canadian
Mounted Police Pension Continuation Act, the Members of Parliament Retiring Allowances Act
and the Canada Post Corporation Act and to make a consequential amendment to another
Act."
(6) The legislation provides that, for purposes of
entitlement to survivor benefits in the listed legislation, a "survivor" is
either a person who was married to the contributor or officer, or a person who
"establishes that he or she was cohabiting in a relationship of a conjugal nature
with the contributor for at least one year immediately before the death of the
contributor": see, for example, subsection 53(3) and section 75 setting out
amendments to the Public Service Superannuation Act.
(7) This less common term could cover
cohabitants in a same-sex relationship. Its use, and the amendments in Bill C-78 relating
to "survivor" status, illustrate that key word searches using customary
vocabulary for purposes of drawing up a comprehensive list of legislation containing
references to some form of "spousal" relationship may not be fully reliable.
(8) Repealed and replaced the Federal Business
Development Bank Act.
(9) The word "spouse" appears only in the
marginal heading to section 4: "Accused and spouse."
(10) Prior to Bill C-78, recognition and treatment of
deemed spousal status and entitlement in the three major public sector pension statutes
(the Canadian Forces Superannuation Act, the Public Service
Superannuation Act and the Royal Canadian Mounted Police Superannuation Act)
were substantially similar. Under Bill C-78, treatment of "surviving" status and
entitlement in these statutes remains similar.
(11) Public Sector Pension Reform Act, S.C. 1992,
c. 46, section 43. Analogous provisions of this Act also amended d.p.’s in the Public
Service Superannuation Act (section 13) and the Royal Canadian Mounted
Police Superannuation Act (section 72).
(12) The Canada Cooperatives Act, S.C. 1998, c. 1,
also defines "associate" as including a person’s "spouse."
(13) Unconsolidated in R.S.C. 1985 but included in the
Department of Justice data base of consolidated statutes.
(14) This Act, the Government Annuities Act, and
the Veterans’ Land Act, were not consolidated in the 1985 R.S.C., and did not
appear on the Department of Justice online consolidated data base of federal legislation
prior to the update of 8 April 1999.
(15) The I.T.A. is not included in the Department of
Justice online consolidation. Relevant provisions were identified from the Topical Index
in Canadian Income Tax with Regulations, 68th Edition 1998 (consolidated to
10 July 1998), CCH Canadian Limited.
(16) In 1998, amendments to the Judges Act in Bill
C-37, now S.C. 1998, c. 30, included a proposal to extend the notion of "surviving
spouse" to opposite sex common law partners. This clause was removed from the bill in
the Senate.
(17) Act defines "widow" as including widower,
and meaning person whose "spouse" has died and has not become "spouse"
of another person.
(18) Enacted by Public Sector Pension Reform Act,
S.C. 1992, c. 46, Schedule II.
(19) The 1992 public sector pension reform statute added
an analogous d.p. to the Royal Canadian Mounted Police Pension Continuation Act,
R.S.C. 1970, c. R-10, under which an opposite sex partner might be deemed to be the
"widow" of a deceased officer (section 25.1(1)). This statute, which applies to
prescribed members of the R.C.M.P., was not consolidated in R.S.C. 1985 and is not
included in the Department of Justice online consolidated data base.
(20) As the title of the legislation implies, Bill C-78
makes analogous amendments to the predecessor statute to the R.C.M.P.S.A., the Royal
Canadian )Mounted Police Pension Continuation Act, which remains applicable to certain
former R.C.M.P. officers and constables.
(21) Enacted by Public Sector Pension Reform Act,
S.C. 1992, c. 46, Schedule I.
(22) This Act repealed and replaced the Veterans Appeal
Board Act, formerly R.S.C. 1985, c. 20 (3rd Supp.).
(23) The word "married" is removed in an
amendment to this provision that is not yet in force (S.C. 1992, c. 47, s. 82(3)).
|
|