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Gay and lesbian couples win equal spousal rights in Ontario, Canada

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On 1999-MAY-20, "In a decisive 8-1 judgment, the Supreme Court said gay couples are no different than heterosexual couples in their ability to share loving unions and suffer tragic breakdowns in those relationships." 1,4 Thus, when common-law relationships fail -- whether heterosexual or homosexual -- the more economically disadvantaged spouse will be eligible to request spousal support payments from their ex-partner under the Family Law Act (FLA) of Ontario. A portion of the FLA law (R.S.O. 1990, c. F.3, s. 29) has restricted such privileges to heterosexual couples. The court ruled that the current law in Ontario implies that gays and lesbians are "less worthy of recognition and protection" than are heterosexual couples. That is discrimination based on sexual orientation and is thus unconstitutional. Referring to the Canadian Charter of Rights and Freedoms, the majority decision stated:

"In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political and social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration."

Ontario was in the middle of an election campaign when the ruling was made public. The premier of Ontario, Mike Harris, said: "As of today, our lawyers will have to look at how we comply with the Constitution of Canada...It is not my definition of family, but it is [the definition] of others. And the courts have ruled that it is constitutional." The leaders of the other two major parties (the Liberal and the New Democratic Party quickly agreed. This action prevented the gay/lesbian equal rights issue from becoming a divisive topic during the campaign.

The court has given Ontario six months in which to bring the spousal support act into line with the Canadian Constitution. If they fail to do this, then one section of the law will become invalid, and no separating common-law spouses in Ontario will be able to claim support. The Ontario government is not likely to let that happen.

Mr. Justice Peter Cory and Mr. Justice Frank Iaobucci wrote the majority opinion. They criticized the Province of Ontario's attempts to justify the existing law, saying that their arguments ranged from merely wrong-headed to nonsensical. They wrote that the exclusion of gays and lesbians from equal consideration under the law "perpetuates the disadvantages suffered by individuals in same-sex relationships, and contributes to the erasure of their existence."

The sole dissenting Judge, Mr. Justice Charles Gonthier, found the existing FLA law constitutional, even though it discriminates against gay and lesbian couples. He said that "cohabiting, opposite sex couples are the natural and most likely site for the procreation and raising of children...This is their specific, unique role." We expect that his statement will not be well received by the many lesbian couples who have had a child through artificial insemination and by the many gay couples who have adopted children.

The revisions to the act are expected to save money for the Government of Ontario. Many gay and lesbian former spouses are currently on welfare. Under an updated FLA, their spouse could be forced to make support payments. 

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History of the case:

In 1980, two Toronto women "M" and "H" met in Tibet, while both were on vacation. They started living together after their vacation. They jointly started up an advertising business. 12 years later, they separated under less than an amicable basis. "M" felt that she was severely economically disadvantaged and attempted to seek spousal support under the Family Law Act (FLA) of Ontario. She qualified for support in all respects but one: her relationship was homosexual and the law applied only to heterosexual couples. In 1996, the Ontario Court (General Division) granted "M" the right to sue her ex-partner for spousal support. The case was appealed to the Ontario Court of Appeal where "M" won again in 1996. 5 The Ontario Government appealed the decision to the Supreme Court of Canada; the court agreed in 1997 to hear the case. On 1998-MAR-18, the court heard the Government of Ontario's appeal. They issued their ruling on 1999-MAY-20. It gave the Province of Ontario six months to change the definition of "spouse" in the FLA.

The Attorney General for Ontario was the Appellant. "M" and "H" were the respondents. There were 10 organizations who were granted the status of interveners. We believe that The Foundation for Equal Families 3, the Women's Legal Education and Action Fund (LEAF), Equality for Gays and Lesbians Everywhere (EGALE) 6, the Ontario Human Rights Commission, and the United Church of Canada 8 agreed with the court that "failure to provide same rights to members of same-sex couples infringes [the] right to equality guaranteed by Canadian Charter of Rights and Freedoms" 4 We believe that the Evangelical Fellowship of Canada 9, the Ontario Council of Sikhs, the Islamic Society of North America, Focus on the Family Canada Association 7 and REAL Women of Canada 10 were in favor of retaining special spousal rights for heterosexuals.

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Implications to other Canadian laws:

Some 50 discriminatory Ontario laws and regulations will still remain on the books. They continue to define "spouse" in a discriminatory and unconstitutional manner, even after the definition of "spouse" is changed in the Family Law Act (FLA) of Ontario.   There is 1 set of Federal laws, 8 additional sets of Provincial laws and 3 sets of Territorial laws which are also clearly unconstitutional. If Ontario is typical of the other provinces, the total number of unconstitutional laws which need revision could easily exceed 600. The Foundation for Equal Families estimates this number to be in excess of 1,000.

Provinces have three options:

  1. To review all of their laws and change the definition of common-law spouses wherever the term is found.
  2. To do nothing unless they are specifically ordered to change a specific law by the courts.
  3. Use the "notwithstanding" clause to opt out of any court decision.

The Supreme Court hinted at the obligation of provincial governments to select the first option. However, they did not directly order the provinces to correct the laws. Any government which took the initiative to update its dozens of laws would probably lose many votes from homophobes who want to preserve special rights for heterosexuals. There are certainly voters who are concerned about civil rights and would prefer their government to grant equal rights for persons of all sexual orientations. But the loss of homophobes' votes would probably outnumber the gain in votes from those concerned about human rights. Updating laws would not be a winning move. Since any government's prime directive is to retain power, no province or territory is likely to voluntarily change its laws without first being ordered to by the courts.

Ralph Klein, the Premier of Alberta implied that his province might use the third option, by invoking "notwithstanding" clause to exempt his province from any similar decision by the Supreme Court in the future. The "notwithstanding" clause allows provinces to override the constitution on any matter affecting civil rights. In theory, it jeopardizes all of the human rights of every Canadian. In practice, the clause has only been implemented once, and in one Province. Quebec used it to give precedence to the French language in signs. Ralph Klein attempted to apply the clause to eliminate the rights of some disabled persons in Alberta to sue the government for damages. However, the resulting public outcry was so great that he quickly withdrew the suggestion.

We expect that the Provincial governments will stonewall by selecting the second option. Civil rights groups will then have to initiate perhaps hundreds of individual cases -- one for each discriminatory law. Canadian judges will  be required to follow the lead of the Supreme Court and declare such laws unconstitutional. Eventually, we expect that the Supreme Court will become so frustrated at the mountain of repetitive cases that they will instruct all provinces to update all of their legislation. Another option might be a series of class-action omnibus actions that would constitutionally challenge all of the unconstitutional laws in each of the provinces.

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Reaction to the Supreme court decision:

The battle to end special rights for heterosexuals in Canada is not between homosexuals and heterosexuals. It is largely between homosexuals and conservative Christians.

bullet The first negative reaction to the Supreme Court decision appears to have been from the "Canada Family Action Coalition." 2 On the day that the decision was handed down, their site criticized the court: "In its most outrageous decision to date, on May 20th the supreme Court of Canada overturned centuries of common law, tradition and social redefine the term 'spouse'... the decision...ignored biology, reasons and the natural law." They claim that 90 laws will have to be rewritten in Ontario and 55 at the federal level. They advocate widespread use of the "notwithstanding" clause to preserve the status quo.
bullet Michelle Douglas, president of Foundation for Equal Families, expressed the hope that the federal and provincial governments will overhaul their statutes to include gay and lesbian couples. She estimated that there are over 1,000 statutes in need of revision. Otherwise, she foresees more court battles.
bullet Focus on the Family (Canada) has a Q & A list about the M & H case. 7 It was written prior to the actual decision. They expressed concern that the Supreme Court may "open the door to redefining the family" by including gay and lesbian couples and their children. They claim that "if the Supreme Court redefines the legal term "spouse," Canada will be the first country in the world to do so." They advocate that Ontario use the "notwithstanding clause" to preserve the traditional, heterosexual-only "definitions of 'spouse,' 'marriage,' and 'family'."

On 1999-MAY-20, Focus issued a press release. 13 Darrel Reid, Focus' president, commented:

"The basis for marriage is now ideology, not biology. We’ve given away centuries of family tradition. For the first time in written history, ‘spouse’ has been re-defined – and that has to be seen as a new and negative development for the family...This decision is going to confer a legitimacy on same-sex relationships that would ultimately weaken the family, which is, after all, the basic unit of society. Focus believes that our politicians and the courts should be doing all they can to strengthen the traditional family, not weaken it."

bullet The Evangelical Fellowship of Canada issued a National Alert on 1999-MAY-21. The Alert states, in part:

"Some of the benefits and obligations of married spouses have been extended to common law heterosexual couples who, like married couples, are uniquely able to procreate.  Thus, common law couples form families, and face the economic burdens associated with bearing and raising children. 

If benefits or obligations are to be extended to other forms of domestic relationships, this should be done without redefining or undermining the marital relationship.
" 11

The implication is that homosexual couples are unable to procreate. The term "procreate" is defined in Webster's dictionary to mean "to produce young; beget offspring." 12 The EFC statement seems to be in error, because it overlooks lesbian couples who use artificial insemination to procreate. Those couples "beget offspring" in exactly the same way as do heterosexual couples who find themselves infertile.

This many be a dangerous strategy for the EFC, and similar conservative Christian groups. They have tied the value of a marriage or common law relationship to the couple's ability to procreate. Many people may misinterpret this as referring to a couple's actual procreation. The EFC may be viewed by the public as devaluing the marriages of couples who:

bullet are infertile and heterosexual
bullet decide to defer procreation
bullet decide to never have children.
bullet are involved in blended families with children of a former marriage
bullet adopt children.

as well as couples who:

bullet are infertile and homosexual.

The EFC is in growing danger of becoming perceived as an anti-family agency.

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Implications concerning gay/lesbian marriages:

The regulations governing marriage throughout Canada are contained in the Federal government's Marriage Act. This act currently requires that couples seeking marriage consist of one man and one woman. It is difficult to see how this act can be constitutional if the same definition for spouse was ruled unconstitutional in the Ontario FLA. Because gays and lesbians are not allowed to marry, they lack many of the protections that are routinely granted to married couples, including  the division of property, the disposal of the marital home, and pension benefits.

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  1. Kirk Makin, "Gay couples win rights: they are entitled to the same spousal support as common-law couples, top court rules." The Globe and Mail, Toronto ON, 1999-MAY-21, Pages A1 and A8. Other articles on A9; editorial in A14.
  2. Canada Family Action Coalition has a web site at:
  3. Foundation for Equal Families has a web site at:
  4. An unofficial version of the Supreme Court ruling is at: A version in French is at:
  5. An unofficial copy of the Ontario Court of Appeal decision is at:
  6. Equality for Gays and lesbians Everywhere (EGALE) has a web site at:
  7. Focus on the Family's web site is at: They have an essay dated 1999-MAY-17 about this case at:
  8. The United Church of Canada's web site is at:
  9. The Evangelical Fellowship of Canada has a web site at:
  10.   Real Women of Canada have a web site at:
  11.   "National Alert," Evangelical Fellowship of Canada, 1999-MAY-21.
  12.   Websters New World Dictionary, 3rd college edition, Prentice Hall, (1988), Page 1073.
  13.   Dr. Darrel Reid, "Focus alarmed by M & H Decision," Press release, Focus on the Family (Canada), 1999-MAY-20.

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