776 THE ADVOCATE
VOL. 76 PART 5 SEPTEMBER 2018
That there is indeed a federal,
common law definition of marriage
was confirmed by a case
referred to in W.(N.), Halpern v.
Toronto (City),3 where the Ontario
Court of Appeal, in per curiam reasons
for judgment, said:
The definition of marriage in
Canada, for all of the nation’s 136
years, has been based on the classic
formulation of Lord Penzance
in Hyde v. Hyde (1866), L.R. 1 P.D.
130 (Eng. P.D.A.), at 133: “I conceive
that marriage, as understood
in Christendom, may for
this purpose be defined as the
voluntary union for life of one
man and one woman, to the
exclusion of all others.”4
Hyde was cited by the Supreme
Court of Canada in a decision that
held that its common law definition
was invalid, Reference re Same-
Sex Marriage.5 Notably, the court
did not hold that the Hyde definition
was contrary to s. 15 of the
Charter, but that it failed to meet a
modern concept of “marriage” for
purposes of the federal marriage
power in the Constitution Act, 1867.
In other words, the court held that
the federal government has the
power to define “marriage”.
In W.(N.), the Hyde definition
was replaced with a broader definition:
For the reasons set forth in
Halpern, the application herein is
granted. I make the following
orders, in the wording submitted
to me and approved by the applicants
1. The common law definition
of marriage for civil
purposes is declared to be
“the lawful union of two
persons to the exclusion
of all others” and civil
marriage between two
persons of the same sex,
who otherwise meet the
substantive and procedural
requirements of the
federal law governing
capacity to marry, and
whose applications otherwise
meet the procedural
requirements of The Marriage
Act, 1995 (Saskatchewan)
is declared to be a
lawful and valid marriage
In conclusion, there is a common
law definition of “marriage”:
two people who live together voluntarily
in a marriage-like relationship
are married to each other
regardless of whether they undergo
a provincially regulated marriage
1. 2004 SKQB 434.
2. Ibid at para 10 emphasis added.
3. (2003), 65 OR (3) 161 (CA).
4. Ibid at 166–67 emphasis added.
5. 2004 SCC 79.
6. Supra note 1 at para 7.