Alberta Report

Monday, May 31,1999

Playing House

Politicians Cower As The Supreme Court Overrides The Natural Family Order

How swift is the pace of modern social change? Scarcely a year ago, the Supreme Court of Canada ordered the Alberta government to grant homosexuals special protection under the province's human rights law. Just two months ago, in March 1999, the Klein administration extended the right of private adoption to same-sex couples. And last week, the Supreme Court threw out the heterosexual definition of spouse under Ontario's Family Law Act. In the space of just a few months, Canada has become one of the most gay-positive nations on earth.

Initial public reaction to last Thursday's 8-1 decision by the nation's top court seemed muted, at least compared to the firestorm that erupted in Alberta last year when the court decreed in its Vriend ruling that provincial human rights law must protect homosexuals from discrimination related to employment and housing. The political class, meanwhile, responded much as it did when confronted with Vriend; they deferred to the court and mumbled that the latest legal victory for gay rights will probably have minimal impact on family law. Social conservative activists also reprised their performance in Vriend; they accused the judges of usurping the role of legislators and demanded that governments invoke Section 33 of the Charter of Rights and Freedoms-the so-called opt-out or notwithstanding clause-to protect the heterosexual definition of family from the court's edict.

The Supreme Court ruling, 14 months in the making, arose from a dispute between two Ontario lesbians, known only by the first initials of their lawyers, M and H. The pair of middle-aged Toronto women met while touring through Tibet in 1980. They pooled their resources and started an advertising agency. H took charge of business matters, while M assumed a domestic role. For more than a decade, the lovers enjoyed an affluent lifestyle, spending weekends at their country vacation home and travelling extensively.

But the relationship ended acrimoniously in 1992, and H took all the money and property, leaving her partner penniless. Because Ontario's Family Law Act exclusively defined the term "spouse" as a partner of the opposite sex, M was unable to sue for support payments. In January 1998, she dropped her alimony claim in exchange for a share in the equity of the country home. Yet the case continued in the courts because, according to M's lawyer, Martha McCarthy, her client was determined to prevent other lesbians from being placed in a similar predicament.

The Supreme Court found that the Ontario law was discriminatory under Section 15 of the charter, and gave the Ontario government six months to amend its Family Law Act (FLA) to put homosexuals and heterosexuals in common law marriages on an equal legal footing. The court relied on its own decision, four years ago, when it "read in" sexual orientation as a protected personal characteristic (like race and gender) under Section 15, to overturn the FLA.

Writing for the majority, Justice Peter Cory observed that "same-sex couples will often form long, lasting, loving and intimate relationships." Choices made within these relationships, he argued, may give rise to the financial dependence of one partner on the other. The law should ensure that a dependent partner "who has contributed to the couple's welfare in intangible ways will not find himself or herself utterly abandoned."

Mr. Justice Cory also asserted that homosexuals, as individuals and as a group, are subject to "pre-existing disadvantage, stereotyping, prejudice or vulnerability." As the law stands, he said, it exacerbates these gay travails, and "contributes to the general vulnerability experienced by individuals in same-sex relationships."

The lone dissenting judge, Justice Charles Gonthier, insisted he sees no evidence that "the exclusion of same-sex couples from...the FLA is motivated by animus toward gays or lesbians." Furthermore, he noted that both partners in same-sex relationships are generally wage-earners who do not share the same level of economic interdependency as opposite-sex couples, especially those with children. "Co-habiting opposite-sex couples are the natural and most likely site for the procreation and raising of children," observed Mr. Justice Gonthier. "This is their specific, unique, role."

The majority of the judges said it was not their job to consider whether their decision might affect spousal definitions in other federal and provincial laws. And in the immediate aftermath of the ruling, some experts insisted the ruling only narrowly applied to common-law relationships. But Mr. Justice Gonthier predicted that it is "not only foreseeable, but very likely," that the court's "constitutionally mandated expansion of the definition of 'spouse' would open the door to a raft of other claims."

By some estimates, up to 1,000 federal and provincial laws may ultimately have to be amended to conform to the new definition of spouse. Everything from matrimonial property laws to income-tax forms could face a rewrite. All legislation governing domestic relations, workers' compensation, pensions, wills and estates may be affected.

Gwen Landolt, vice-president of the conservative women's group REAL Women, says the legal definition of spouse under marriage law is definitely threatened by the Supreme Court ruling. "They've opened the gates to the pack-dogs to attack the traditional family," asserts Ms. Landolt. People should not be fooled by reassurances from politicians that the ruling affects only common-law relationships, she adds. Marital law will face challenges, she predicts, and the precedent set in M vs. H will be used to erase opposite sex definitions.

"Why would two single, able-bodied women who are capable of working need spousal benefits?" asks Hermina Dykxhoorn, president of Alberta Federation of Women United for Families (AFWUF). Family laws, she argues, were designed to protect women in traditional marriages who sacrifice paid work to raise children. Mrs. Dykxhoorn says M and H should be treated as business partners rather than spouses. "The Supreme Court's decision will increasingly normalize deviant same-sex relationships," she says.

The first instinct of conservatives opposed to the ruling was to demand that governments invoke the charter's opt-out clause to protect all family-related law. Peter Stock, national affairs director of Canada Family Action Coalition (CFAC) (which bought a full-page ad in last Friday's National Post decrying the ruling, asking for donations and urging readers to lobby their politicians), says governments must either opt out of the decision on their own or conduct referenda asking voters if they want to use the notwithstanding clause. Failure to take such action, says Mr. Stock, will almost certainly result in the full legalization of gay marriage and much more, including a huge push to promote homosexuality in schools. "These consequences," Mr. Stock argues, "are not in the best interests of society, and threaten children."

CFAC aimed its initial lobbying efforts at Ontario Conservative Premier Mike Harris, evidently hoping that Mr. Harris might seize on the opt-out proposal as a potential vote-getter in the current provincial election campaign. But the premier's initial reaction was not encouraging. "The case in question has made its way through due process, and has been ruled upon by the highest court in Canada," he said. "There is no further avenue of appeal." Mr. Harris added that while he personally did not agree with the ruling, he would not fight it because he does not believe in using Section 33 to outflank judicial decisions.

"Harris," fumes Calgary Reform MP Jason Kenney, "is being coy and trying to avoid criticism by the CBC and the Toronto Star." Some conservatives hope that an immediate and fierce public backlash against the decision in Ontario might prompt Mr. Harris to change his mind. A substantial minority of the MPPs in his caucus are thought to be very upset by the ruling, and some fear that Tory voters may defect to the fledgling Family Action Party, perhaps enough to cost the PCs a few seats in swing ridings.

It was unclear at the end of last week whether the opt-out debate would also ignite at the federal level. Some Reform MPs indicated they would favour pressing the Liberal government to invoke the notwithstanding clause, as they did a few months ago when a British Columbia Supreme Court judge legalized possession of child porn. The Grits resisted then, and would no doubt do so again. In fact, the federal government is planning to amend 58 statutes at an estimated cost of up to $14 million to conform with the M vs. H ruling. Justice Minister Anne McLellan told reporters last week that a strategy had been developed "by which we will be compliant with existing jurisprudence in this area."

Other provinces signalled their intentions at the Western Premiers' Conference in Drumheller. Just hours after the ruling was unveiled, Saskatchewan's Roy Romanow shrugged and said that "if this is the law of the land, it is the law of the land." Similarly compliant, Manitoba Premier Gary Filmon said "we'll take a look at everything under our jurisdiction and make sure it complies." British Columbia's Glen Clark, whose government was already proceeding with legislation aimed at equalizing hetero- and homosexual spousal status under provincial law, called the Supreme Court ruling "very good's time we treated people with equity and dignity regardless of their sexual orientation."

Only Alberta Premier Ralph Klein hinted that his province might not automatically capitulate to the court. Mr. Klein said he would consider using the notwithstanding clause, but only if-and he emphasized the word "if"-the Tory caucus should decide they "want to go that way." The premier was deliberately vague, however, his standard tactic to defuse attention. "If I could say it could [go to referendum], you're going to construe it as 'will,'" he complained to reporters. "Anything" he emphasized, "could happen."

Meanwhile, at a media scrum at the Legislature in Edmonton, provincial Justice Minister Jon Havelock was being equally dodgy. "I need time to review the decision," said Mr. Havelock. "There is so much legislation. We need to keep in mind how long it took [the government] in the Vriend case-six or seven months."

What the minister meant by this last comment is unknowable. In fact it took the government but a few days to capitulate to the Supreme Court after the Vriend decision. Despite a huge public demand for the province to opt out, or hold a referendum asking voters if they wanted to reject the ruling, the Klein administration did nothing other than promise to erect "fences" around other legislation that might be targeted by the gay rights crusade in future. "The ruling," Mr. Klein told the Edmonton Sun on April 10, 1998, "does not change the law or government policy on same-sex marriages, adoption rights or pedophilia."

Last week, Mr. Havelock confidently asserted that although the high court's latest ruling could have a significant impact on some Alberta legislation, it will not impact marriage. But when he was asked if the government would consider using the opt-out clause to protect the definition of spouse under Alberta law, he was non-committal. "As we've also indicated in the past," Mr. Havelock said, "we would use the notwithstanding clause with respect to marriage if it was available to us, and it's not clear whether it would be or not."

The question in Alberta today, as was the case in Vriend, is whether there are enough dedicated social conservative Tory MLAs to force their gay-friendly premier and cabinet to resist the homosexual agenda. They were not successful in Vriend, nor were they obviously effective when the government recently granted homosexuals the right to be adoptive parents. "I would hope that we stand with Albertans," Mr. Klein said of the adoption move. "What we're doing is a reflection of their opinions."

According to the 1998 Alberta Justice Issues Research report, the Tories actually stand with just under half of Albertans. A poll of 1,007 people found that 48% believe gays should be treated the same as heterosexuals under Alberta laws governing marriage, adoptions and foster parenting. However, everyone concerned knows that random-sample telephone surveys are notoriously unable to measure moral opinions accurately.

In a curious bit of timing, just a week before the M vs. H decision came down, the Alberta government yanked a piece of legislation that would have governed the use of referenda in situations where the province was considering opting out of major constitutional rulings. The bill has apparently only been delayed until the fall, or perhaps next spring, but it is unclear why the Tories put it in limbo. Then again, as Mr. Havelock notes, the legislation as drafted does not force the government to abide by the wishes of the voters expressed through a referendum.

With or without the opt-out referendum legislation in place, it seems clear that Alberta will be the focal point of what may be Canada's final battle over the traditional legal definition of family. Voters in other provinces appear to have wearied of the debate and tuned out. Reform MP Kenney, who calls the M vs. H ruling "one of the most outrageous exercises of raw judicial power in the history of modern democracy," says citizens must awaken to the fact that not only are ageless societal values under attack, but responsible government itself is threatened by judicial usurpation of the role of elected legislators.

Medicine Hat lawyer and conservative activist Dallas Miller agrees that the fate of family law and responsible government in Canada is likely in the hands of Albertans. "We've got eight unelected judges making a revolutionary decision concerning family law," says Mr. Miller. "Although the Alberta government has committed to building fences, it hasn't shown any leadership in the past. Clearly, this is the time to bring out the fencing material."

Conservative ideologues like Messrs. Kenney and Miller might be dismissed as partisan fearmongers, but it is not so easy to ignore the dire warnings of the Supreme Court judge from Quebec who wrote the dissenting opinion in M vs. H. The case "raises elemental social and legal issues," wrote Mr. Justice Gonthier. "I believe that the stance adopted by the majority today will have far-reaching effects beyond the present appeal."


The Juggernaut gathers speed

1977: Quebec becomes the first province to ban discrimination on the basis of sexual orientation in its Charter of Rights.


1989: A homosexual successfully challenges a federal penitentiary's refusal to allow him to visit his partner.


1991: A B.C. Supreme Court rules that the province's Medical Services Act is discriminatory because it denies gays medical coverage as couples while providing it to common-law heterosexual couples.


1993: A labour relations board orders the federal government to give the same family and bereavement benefits received by heterosexual couples to a civil servant and his partner.


1998: The Alberta government accepts the Supreme Court's ruling in the Vriend decision and includes same-sex relationships in its human rights legislation.


May 13, 1999: The Alberta government changes wording in the Child Welfare Act to allow homosexual step-parents to adopt.


May 20, 1999: The Canadian Supreme Court declares Section 29 of Ontario's family law-which excludes gays and lesbians from seeking alimony-unconstitutional.

-- Carmen Wittmeier

Copyright © 1999 United Western Communications Ltd.
All Rights Reserved.