National Post

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Monday, May 24, 1999

The spouse trap

Karen Selick
National Post

Triumphant, jubilant, celebratory -- these are the words being used to describe the mood of gays and lesbians since the Supreme Court of Canada handed down its decision last week in the case of M. v. H.

I don't understand why.

Having practised family law for 14 years, I've met a lot of people who think being included in the Family Law Act is something less than an unmitigated joy. Some have found themselves saddled with an order to support an alcoholic or drug-addicted spouse, possibly for the rest of their lives. Some are supporting estranged spouses who inflicted repeated physical violence upon them. Some have the privilege of paying support to a spouse who abandoned the relationship for an adulterous affair, then packed up the kids and followed their paramour 2,000 miles away.

The Supreme Court speaks repeatedly of being included in the Family Law Act as a "benefit," without ever considering that for half the people affected, it is a painful burden. This is the typical Canadian socialist mentality: "Money grows on trees, let's redistribute it."

Before this lawsuit, gays and lesbians had the best of both worlds. They were free of this treatment by the courts unless they made a conscious, mutual decision to opt in. Any gay couple who wanted to subject themselves to this notion of justice could sign a contract incorporating all the rights and obligations of the Family Law Act and related case law. Or they could steer a third course, binding themselves to mutual support but adopting temporal, geographical or conduct-related limits.

Far from "violating the human dignity" of gays, as the Supreme Court alleged, this situation granted them the extraordinary dignity of being able to arrange their own affairs on terms of absolute equality, free from the heavy hand of the state.

What the plaintiff M. and gay groups who intervened in this lawsuit sought to do was to drag all their gay and lesbian confreres -- including the defendant H. -- into a legal regime they did not consent to, a regime that did not even exist when they elected to enter into their same-sex relationships. Not only did these litigants want to give up their own freedom, they wanted to take away the freedom of other homosexuals, and they wanted to do it retroactively. Homosexuals already in relationships would have been trapped, with no bargaining power to opt out if their partners would not agree to give up their newly minted "rights."

Fortunately, the Supreme Court foiled this plan, although unintentionally, I'm sure. Instead of amending the definition of "spouse" in Section 29 to include same-sex partners (as the lower courts had suggested), the court struck out Section 29 altogether.

The result, when this decision takes effect in six months, will not be to include same-sex relationships in the Family Law Act. It will be to exclude opposite-sex, common-law relationships from the Act. Unless the legislature takes action, only legally married couples will be covered by the act.

In fact, it is social conservatives who should be celebrating this decision -- the folks who are always harping on about the importance of marriage and the special recognition it deserves from the state. When Mike Harris, the Ontario Premier, says he will respect the decision of the court, perhaps he means that quite literally. If he wins the election, he need just sit back and do nothing for the next six months and -- presto! -- we'll be back to the 1960s, when only those who had gone through a marriage ceremony were entitled to claim support.

Although I'm not a conservative, I do think this would be an improvement over most of the alternatives. At least those who have taken marriage vows have demonstrated some affirmative intention to assent to the state's interference in their affairs. Why anyone would do so, given the state's power to change the rules of the game at any time, is a mystery to me. Nevertheless, if they assent knowing that the whole thing is a legal crap shoot, they have only themselves to blame.

As for everyone else, they would be left free to opt in to this regime (or some tailor-made variant of it) by contract, if it was mutually agreeable to both parties, or remain out. It would be the best of both worlds again, for both gay and straight unmarried couples.

Of course, there will always be those who wish to use the power of the state to bludgeon their former partners into giving them something they did not agree upon. Depend on it: If Ontario fails to enact legislation giving back spousal support rights to common-law couples, they'll be rushing into court objecting that the regime the Supreme Court set up in M. v. H. discriminates against them vis-a-vis married couples. And guess what? They're probably right.

Section 29 of the Family Law Act discriminated too -- not just against homosexuals, but against anyone who didn't meet its criteria. Childless couples who had cohabited continuously for three years were in; those who cohabited only two years, 364 days were out. Where's the logic, dignity, morality or justice in that arbitrary dividing line?

In truth, to eliminate all discrimination in support laws, there are two and only two logical possibilities. The first would be to allow everyone to make a support claim against everyone else, regardless of marital status, length of cohabitation and so on. Just grab a person richer than yourself off the street and sue 'em. Unfair, you say? Heck, that's pretty much what our welfare system does.

The only other logical possibility is that no one be allowed to make a support claim against anyone else unless the latter has caused the dependency of the former by tort (for instance, beatings) or breach of contract (for instance, abandonment after an explicit promise of support). Any other dividing line necessarily discriminates on an arbitrary basis between the two groups of people it divides.

In this era, when men and women are recognized as legal, moral, and intellectual equals, there is no excuse for adopting anything other than the contractual model of family relationships.

Karen Selick is a lawyer and columnist for Canadian Lawyer magazine.

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