National Post

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Friday, May 21, 1999

Landmark gay ruling could affect 1,000 laws
Same-sex couples win major victory in Supreme Court

Jonathon Gatehouse, with files from John Ibbitson, Sarah Galashan, and Shawn Ohler
National Post

In a landmark ruling that throws an estimated 1,000 laws across the country into question, the Supreme Court of Canada yesterday declared Ontario's Family Support Act unconstitutional because its definition of a spouse excludes men and women involved in same-sex relationships.

The eight-to-one majority decision, which came after 14 months' deliberation, upholds an earlier Ontario Court of Appeals finding in favour of a Toronto lesbian known only as M. The woman had argued she was being discriminated against because she did not have the legal right to sue H., her former lover of 10 years, for support.

"The legislation has drawn a formal distinction between the claimant and others, on the basis of a personal characteristic, namely sexual orientation," Justices Peter Cory and Frank Iacobucci wrote for the majority.

"The exclusion of same-sex partners from the benefits of [the Family Law Act] promotes the view that M., and individuals in same-sex relationships generally, are less worthy of recognition and protection.

"It implies that they are judged to be incapable of forming intimate relationships of economic interdependence compared to opposite-sex couples, without regard to their actual circumstances. Such exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships," the judges said, ruling the legislation violates the spirit of the Charter of Rights and Freedoms.

Martha McCarthy, M.'s chief counsel, hailed the decision as a major victory for all Canadians, not just gays and lesbians.

"The Supreme Court of Canada has recognized the equal rights of same sex couples once and for all," a jubilant Ms. McCarthy told a crowd of supporters and media at a Toronto hotel.

"It is a day for celebration . . . for everyone who cares about the cause of social justice and equality in this country."

The lawyer compared the decision to landmark civil rights victories for blacks in the United States and women in Canada.

She said the high court's clear and unequivocal pronouncement in support of homosexual rights sets a precedent that greatly favours future Charter challenges against laws that differentiate on the basis of sexual orientation.

Ms. McCarthy said her client, who has chosen to remain anonymous, is relieved to finally see the end of her six-year legal struggle.

In a written statement, M. described the case as the culmination of her lifelong battle against prejudice.

"At the end of the 20th century, it is long overdue that lesbian and gay people are not just tolerated in Canadian society, but are recognized and included as full, valuable, participating members," she wrote. "This decision will bring us one step closer to that goal."

In the wake of the ruling, organizations representing gays and lesbians called on all governments in Canada to bring their family laws into line with the spirit of the judgment. After an almost unbroken series of significant court victories for those seeking equality for homosexuals, politicians can no longer duck their responsibility to reform legislation that treats same-sex couples differently from heterosexual ones, they said.

"Where are the politicians?" asked Michelle Douglas, president of the Foundation for Equal Families, a national group that launched a Charter challenge against 58 federal laws this winter. "It's perplexing to us. How many more times do we have to come to them? How many more times do we need these strong, decisive decisions of the Supreme Court?"

Despite the ringing claims of victory, however, the immediate and long-term effects of the ruling are still far from clear.

While the Supreme Court accepted M.'s lawyers' claim of discrimination, it stopped short of agreeing to their demand that it rewrite the definition of spouse to include gays and lesbians. Instead, the justices have temporarily suspended their decision to strike down the law for six months to give Ontario legislators time to amend the offending section of the legislation.

Mike Harris, the Ontario Premier, said he has discussed the case with the other first ministers, adding that all provincial governments will respect the ruling.

"We indicated we will comply and we will," said the premier. "We'll respect the Constitution."

Mr. Harris refused to offer any insight as to whether his party intends to modify the 90 or so other provincial statutes, including adoption, marriage, and pension laws.

At the Western Premiers' Conference in Drumheller, Alta., Gary Filmon, the Manitoba Premier, said: "I don't think it's a hot button issue in Manitoba but we will respect the Supreme Court's views and implement whatever changes need to be made if any.''

Roy Romanow, the Premier of Saskatchewan, said his province is already '' well along the lines of complying'' with the decision.

"I think it's very good news,'' said Glen Clark, British Columbia's Premier. ''It's 1999 and it's time we treated people with equity and dignity regardless of their sexual orientation."

Martha Bailey, a Queen's University professor of family law, said provincial governments are faced with two options -- they can follow the narrowest possible interpretation of the Supreme Court's decision and modify only their family support laws, or they can read the writing on the wall and make the broader changes suggested by the spirit of the ruling.

"Legislators across the country have been very reluctant to act in this area because it has been considered politically risky," said Prof. Bailey.

But yesterday's decision might be too clear to ignore, she added.

"M. v. H. certainly puts the pressure on," said Prof. Bailey. "I think it's adding to the conversation at a time when societal attitudes are changing."

Not everyone was pleased with the ruling, however. Some things are not meant to be changed, said advocates for the traditional family.

"We don't believe that the court . . . should be deciding on matters of fundamental social policy," said Peter Stock of the Canadian Family Action Coalition. "There are good reasons that society has for imposing these restrictions. The primary one, the most important one, is for the protection and promotion of good child-rearing. The husband and wife family situation is the best environment in which to be raising children."




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