Gay and lesbian couples win
equal spousal rights in Ontario, Canada
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.
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.
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:
- To review all of their laws and change the definition of common-law spouses wherever the
term is found.
- To do nothing unless they are specifically ordered to change a specific law by the
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
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.
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.