Globe and Mail

Gay couples win rights

They're entitled to the same spousal support as common-law couples, top court rules

Friday, May 21, 1999
KIRK MAKIN
Justice Reporter; With a report from Jill Mahoney in Drunheller, Alta.

The struggle for gay rights took a historic leap forward yesterday with a landmark Supreme Court of Canada decision likely to send scores of discriminatory statutes crashing down around the country.

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.

It said that under Ontario's Family Law Act gay couples should have the same rights as heterosexuals who can qualify for support payments when common-law relationships founder.

The provincial statute unfairly demeans the human dignity of gays by implying they are "less worthy of recognition and protection" than other citizens, the court said.

"So, we'll have to conform with the law -- and we will," Ontario Premier Mike Harris told reporters. "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 Supreme Court gave Ontario just six months to repair the act. It also hinted broadly that other provincial statutes that discriminate against gays ought to be changed at the same time.

Within the deadline is a ticking legal time bomb. If the province fails to comply on time, the section which includes unmarried couples under the provisions of the act will become invalid.

Legal experts said yesterday that the judgment sends an unmistakable message to all governments that other inequalities against same-sex couples -- such as pension and employment benefits -- are equally untenable.

However, Alberta Premier Ralph Klein suggested his province might use the Constitution's nothwithstanding clause to override any similar decision affecting Alberta.

"Is the caucus ready to deal with it? Yes, but I don't know if we're ready to go in that direction," he said.

Spokespeople for the gay community were exultant in the wake of the court's decision. "Today, the Earth moved in Canada and around the world," said Michael Leshner, a gay activist and Ontario government prosecutor. "This miraculous decision marks the liberation of gays and lesbians in this country."

Others warned politicians not to drag their heels in changing unconstitutional laws.

"This is a call to action for these governments," said Michelle Douglas, president of the Foundation for Equal Families. "Their failure to act now is inexcusable. The governments must accept the responsibility and change all laws that discriminate against us."

However, Justice Minister Anne McLellan was careful to say she views the ruling as only dealing with provincial law and the province of Ontario -- as opposed to those contentious areas left under federal jurisdiction that still arguably discriminate against gays.

She noted in passing that the equality section of the Charter was created by politicians who knew precisely what they were doing.

"It is not unusual for mature democracies like ours to have bills of rights to protect the rights of minorities from majorities," Ms. McLellan said.

The case involved M and H -- a couple who met while on vacation in Tibet in 1980. Once they returned to Toronto, they launched an advertising business and cohabited. In 1992, they split up under acrimonious circumstances.

M was left virtually penniless. Through her lawyer -- Martha McCarthy -- she attempted to obtain support from her former partner under the Family Law Act but was refused because she was in a same-sex relationship. Later at trial, Superior Court Judge Gloria Epstein ruled the act's definition of spouse unconstitutional, a judgment later upheld by the Ontario Court of Appeal.

Ironically, M and H craved anonymity all along, and deplored the enormous publicity surrounding their case. Indeed, they quietly settled their differences several months ago.

However, the case quickly took on a practical and symbolic momentum. It was the Ontario government itself that appealed the lower court decision to the Supreme Court.

In its majority decision, written by Mr. Justice Peter Cory and Mr. Justice Frank Iacobucci, the court said Ontario's attempts to justify its discriminatory law ranged from merely wrong-headed to nonsensical.

"Their exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships, and contributes to the erasure of their existence," the majority said.

Lawyers for Ontario had argued that the underlying purpose of the family law provisions was to allow a financially-dependent spouse -- usually a woman -- to gain support after a relationship breakdown. The Supreme Court acknowledged the truth of this, but said the phenomenon is not restricted to women.

"This general social reality does not detract from the principle that dependencies can and do develop irrespective of gender in intimate conjugal relationships," it said.

The court also pointed to the financial burden represented by poverty-stricken ex-spouses who end up on welfare rolls.

"It is nonsensical to suggest that the goal of reducing the burden on the public purse is advanced by limiting the right to make private claims for support to heterosexuals," the court said.

It also gave short shrift to Ontario's claim that it has moved incrementally toward achieving the ideal of equality. "In fact, there is no evidence of any progress with respect to this group since the inception of the spousal support regime," the court said.

In a concurring judgment, Mr. Justice Michel Bastarache said that while the act is unconstitutional, that does not mean legislators cannot make moral judgments when they set policy.

"Society has an interest in the traditional family," he said. "The vast majority of children born in our society are born and raised in this environment, notwithstanding the development of reproductive technologies which arguably make this family form biologically unnecessary.

"In truth, this opposite-sex family form is a product of socialization."

FROM THE MAJORITY M v. H DECISION

First, individuals in same-sex relationships face significant pre-existing disadvantage and vulnerability, which is exacerbated by the impugned legislation.

Second, the legislation fails to take into account the claimant's actual situation.

Third, there is no compelling argument that the ameliorative purpose of the legislation does anything to lessen the charge of discrimination in this case.

Fourth, the nature of the interests affected is fundamental -- namely, the ability to meet basic financial needs following the breakdown of a relationship characterized by intimacy and economic dependence.

The impugned legislation has the deleterious effect of driving a member of a same-sex couple who is in need of maintenance to the welfare system, and it thereby imposes additional costs on the taxpaying public.

The exclusion of same-sex partners from the benefits of the spousal support scheme implies that they are judged to be incapable of forming intimate relationships of economic interdependence, without regard to their actual circumstances. Taking these factors into account, it is clear that the human dignity of individuals in same-sex relationships is violated by the definition of "spouse" in s. 29 of the FLA [Family Law Act].

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.

From Mr. Justice Charles Gonthier, in dissent:

While the legislature does not force individuals in same-sex relationships to provide support, it also does not prevent them from doing so by way of contract or otherwise. This may result in some additional expenses, but it is difficult to see how this possible expense results in discriminatory non-recognition of the group.

Acknowledging individual personal traits is a means of fostering human dignity. By recognizing individuality and rejecting forced uniformity, the law celebrates differences, fostering the autonomy and integrity of the individual.

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