National Post

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Wednesday, May 19, 1999

Landmark ruling on lesbian's claim due tomorrow

Jonathon Gatehouse
National Post

The relationship lasted for just over a decade, but its messy aftermath may spark one of the biggest upheavals in Canadian family law.

After 14 months of deliberation, the Supreme Court of Canada is expected to rule tomorrow on a Toronto lesbian's quest to strike down an Ontario law that bars homosexuals from suing their former partners for alimony. If accepted, the woman's constitutional challenge would force the province to expand its definition of a spouse to include gays and lesbians, and rewrite dozens of laws affecting everything from pensions to adoption, setting a legal precedent for the rest of Canada.

"If you push it to the maximum, it could mean that the bulk of the family laws in Canada are unconstitutional," Jay McLeod, a University of Western Ontario law professor, said yesterday. "It [will be] a fundamental restructuring of the family."

The legal dispute between the two women -- known only and M and H -- has been winding its way through the courts for more than six years. The pair, now both in their 50s, met and fell in love while travelling in Tibet in 1980. When they returned home to Toronto, M moved into H's home and took over most of the domestic chores. During their time together, the pair shared income and expenses, pooling their resources to acquire a commercial property in downtown Toronto and a vacation house in the country. They also formed a business partnership, establishing a successful advertising agency and buying other companies.

By the late 1980s, however, the relationship had started to sour. According to H's court testimony, the women stopped being physically intimate in 1987, and moved into separate bedrooms two years later. In 1992, M finally moved out.

"The day she left, H changed the locks on both the city and the country houses and closed the joint bank accounts," said Martha McCarthy, M's lawyer. "She changed the name of the business, the phone numbers, and told the accountants not to talk to her."

M, said Ms. McCarthy, was left with little more to show for the decade-long affair than the shirt on her back and the change in her purse. When she sought legal counsel, M was told that she was not entitled to sue for support because same-sex relationships are not recognized under Ontario's Family Support Act.

"You don't have to be a scholar in constitutional litigation to know that this was discrimination under the Charter," said Ms. McCarthy, whose firm, McMillan Binch has provided free legal counsel to M.

The pair settled their legal differences in 1998, after three days of hearings in Family Court, but the charter challenge has continued because of Ontario government opposition. While the former NDP government supported M's bid to change the rules, the current Conservative government does not, and has sought to overturn a December, 1996, decision by the Ontario Court of Appeal striking down the support provisions.

"It has become a matter of principle for her," said the lawyer. "She wants to know that others will not suffer as she did."

For their part, gay and lesbian organizations are eagerly awaiting tomorrow's Supreme Court decision, hoping for a ruling that will encourage the federal and provincial governments to dismantle laws that deny equal status and benefits to homosexuals.

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