National Post

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Monday, June 07, 1999

Widow denied spousal pension by Supreme Court cries foul
Same-sex alimony 'unfair'

Southam News

Nancy Law is furious that the Supreme Court of Canada awarded alimony in a same-sex relationship just two months after refusing her survivor's pension benefits because she was widowed too young.

OTTAWA - A British Columbia woman who lost her Supreme Court fight to collect survivor benefits from her late husband's Canada Pension Plan because the court ruled she was too young is launching a letter-writing campaign to lobby Ottawa to change its pension rules.

Nancy Law, of Courtney, B.C., was 30 and childless when her husband of 11 years died in 1991. Her application for survivor's pension benefits was turned down because federal law stipulates that widows and widowers must be at least 35 to collect.

Ms. Law's argument that she had been discriminated against because of her age was panned by the Supreme Court in a March ruling.

But the recent M. v. H. decision, which found that denying same-sex couples the same legal right to alimony as heterosexual couples is an affront to human dignity that sends a misguided message that gay relationships do not deserve respect, has angered Ms. Law.

She wants to know why the Supreme Court sided with the Toronto lesbian known only as M. just two months after it rejected her case, which she considers to be similar.

"How can these judges sleep at night knowing they ruled against me and in favour of them?" Ms. Law asked. "If I had been a 30-year-old homosexual and lost my spouse, I probably would have won."

Legal scholars are at odds over whether the Supreme Court rulings were inconsistent in the two cases, both dealing with equality provisions of the Charter of Rights.

"It shows the unfairness of the way the court has interpreted the charter," Ms. Law's lawyer, Jim Sayre, said.

"They've reduced it to a key club where you have to be a member of an organized group to have equality rights. The offence of the indignity strikes me as exactly the same in both situations."

In the Law ruling, the nine judges tightened the guidelines for equality rights in the charter, which effectively make it easier for members of historically disadvantaged groups, such as lesbians, to succeed in their claims.

Younger women like Ms. Law are in a good position to become self-sufficient, the court ruled, agreeing with the federal government that survivor benefits are meant to protect older women with poor financial prospects.

Justice Charles Gonthier, the lone dissenter in the M. v. H. judgment, made a similar argument in that case when he asserted that alimony should be reserved for heterosexual relationships to protect women who stay home to raise children.

In sum, the court effectively found that gays and lesbians are in need of protection because they already occupy a disadvantaged position in society, while young women like Ms. Law do not.

"It seems like the M. v. H. decision is the right one, but I think Nancy Law has an argument, too," Rod Phillips, a history professor at Carleton University in Ottawa, said.

"One is age discrimination and the other is gender discrimination. I would have ruled in favour of both."

Patrick Monahan, a law professor at Toronto's York University, disagrees.

He says the decision in the Law case was correct because it deals with public pensions and the government had to make a cutoff somewhere.

"You just can't have open-ended benefit programs with no limit to them," he said.

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