National Post

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Friday, May 21, 1999

The legal evolution of same-sex spousal rights

Elena Cherney
National Post

The Supreme Court of Canada has clearly been moving toward granting gay couples the same rights as heterosexual ones over the last decade, according to legal experts.

"The Supreme Court has done a good job on gay rights in signalling where they're going," says Peter McCormick, a political science professor at Brock University.

Lower courts, provincial legislatures, and various other bodies have been moving in the same direction.

It was the Ontario Court of Appeal that began the process of recognizing gay couples in August 1992, when it ruled in the case of Graham Haig and Joshua Birch. The court decided the federal government's refusal to provide legal protection against discrimination on the basis of sexual orientation infringed upon equality rights guaranteed under the Charter of Rights and Freedoms.

Less than one month later, a human rights tribunal ruled that same-sex spouses are entitled to collect survivor pension benefits. In that instance, Michael Leshner, a gay lawyer with the Ministry of the Attorney General, had filed a complaint on behalf of his live-in partner.

An Ontario provincial court judge also beefed up the rights of gay couples by finding Ontario's legal definition of "spouse" to be a violation of the charter and then granting adoption rights to four lesbian couples.

But the judgment that really prepared the ground for the M. v. H. ruling, says David Rayside, a professor of political science at the University of Toronto and author of On the Fringe: Gays and Lesbians in Politics, was in the 1995 Egan-Nesbit case.

The gay couple had been together since 1947 and sued the federal government to obtain the same old-age benefit rights as heterosexual couples.

While the court called the discrimination justifiable because equating homosexual and heterosexual unions was "a novel concept," the justices agreed the British Columbia couple was discriminated against; even the four dissenting judges wrote that they recognized the rights of gays and lesbians.

"Egan and Nesbit was the set-up for M. v. H.," says Prof. Rayside.

While yesterday's ruling in M v. H grants gay couples a new legal standing, it will not necessarily encourage homosexual couples to press for the right to marry, says Prof. Rayside.

Common-law heterosexual relationships have gained such widespread legal and social acceptance in Canada that few gays see the need to lobby for gay marriage ceremonies, he says.

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