Ottawa Citizen

Friday May 21, 1999

Same-sex partners declared 'spouses'

Top court ruling expected to topple hundreds of laws

Janice Tibbetts
The Ottawa Citizen

Reuters / The executive director of Equality for Gays and Lesbians Everywhere, John Fisher, left, hugs partner Jerome St-Denis after hearing the court ruling.

Hundreds of laws denying equality to gays and lesbians are expected to come crashing down across Canada following a Supreme Court ruling yesterday that effectively changes the meaning of spouse to include same-sex couples.

Denying homosexual couples the same legal rights and responsibilities as heterosexuals is an affront to "human dignity" and sends a misguided message that gay relationships do not deserve respect, the court concluded.

The judges, in an 8-1 ruling, struck down as unconstitutional an Ontario family law barring gays and lesbians from seeking alimony when relationships collapse.

"Certainly, same-sex couples will often form long, lasting, loving and intimate relationships," wrote Justice Peter Cory in what is likely his last ruling before he retires next week.

"The choices they make in the context of those relationships may give rise to the financial dependence of one partner on the other. When a relationship breaks down, the support provisions help to ensure that a member of a couple who has contributed to the couple's welfare in intangible ways will not find himself or herself utterly abandoned."

Gay-rights activists embraced, cheered and talked of popping champagne corks in celebration of what they described as the most significant declaration in favour of homosexuals ever handed down by the high court.

"Welcome to a more equal Canada," a beaming John Fisher, of the group Equality for Gays and Lesbians Everywhere, said in the foyer of the Supreme Court with his partner of four years at his side.

The ruling was a defeat for the Conservative government of Mike Harris, who immediately promised to rewrite Ontario family law to abide by the decision. The court gave the government six months to overhaul its impugned family laws.

"It's not my definition of family," Mr. Harris said in Hamilton, where he was campaigning for the June 3 election. "But it is others, and the courts have ruled that's constitutional."

The decision, the culmination of a seven-year battle between two lesbians from Toronto known as M and H, is expected to affect everything from pensions to property and alimony to adoption across the country.

Several other premiers, including Saskatchewan's Roy Romanow and Manitoba's Gary Filmon, also said at a meeting of western premiers that they will go along with the ruling.

British Columbia is the only province that includes same-sex couples in the definition of spouse. Quebec has tabled similar legislation.

The federal government, battered by losses in the lower courts, also is planning to amend 58 statutes at an estimated cost of up to $14 million.

Justice Frank Iacobucci, who wrote the majority opinion with Judge Cory, cautioned that the ruling does not go as far as recognizing gay marriages, but is only intended to put homosexual couples on the same legal footing as common-law couples.

As well, Judge Iacobucci said, the decision does not amount to instant alimony for estranged homosexual couples, but only allows them through the doors of the family courts to seek redress instead of being forced on to welfare.

That, he concluded, is more important that ever, since gays and lesbians are increasingly raising children.

"Although their numbers are still fairly small, it seems to me that the goals of protecting children cannot be but incompletely achieved by denying some children the benefits that flow from a spousal support award merely because their parents were in a same-sex relationship," said the 182-page ruling, the longest handed down in years.

Justice Charles Gonthier, the lone dissenter in the case, sided with the Ontario government, which had argued that alimony should be reserved for heterosexual relationships to protect women who stay at home to raise children.

"While long-term same-sex relationships may manifest many of the features of long-term opposite-sex relationships, the same dynamic of dependence is not present,"he wrote.

Judge Gonthier, who described the ruling as a "watershed," disputed his benchmates' contention that their decision will not open the family courts to other non-traditional couples who live together, such as siblings and friends.

"I believe that the stance adopted by the majority today will have far-reaching effects beyond the present appeal," he warned. "The majority's decision makes further claims not only foreseeable but also very likely."

The decision no longer affects M and H, who had lived together for 10 years before they split up in 1992.

M, who had less than $10 in her bank account when they separated, found she couldn't sue for support from the wealthier H because Ontario's Family Support Act defines spouse as a partner of the opposite sex.

The estranged couple settled before the Ontario government took the case to the Supreme Court last year, so the ruling no longer affects them.

M, who considers the decision a symbolic victory, described herself yesterday as an "accidental activist."

"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 said in a statement that her elated lawyer, Martha McCarthy, read at a Toronto news conference.

H also claimed victory because the Supreme Court handed gays and lesbians the right to strike written agreements to opt out of the alimony obligations.

Ontario's former NDP government had supported M, who had won in the lower courts, but the Tory government, after coming to power, decided to appeal.

Despite pleas yesterday from church groups and others opposed to the decision, Mr.Harris said he would not use the Constitution's notwithstanding clause to override the ruling.

© The Canadian Press, 1999