Toronto Star

May 21, 1999

Same-sex ruling to rewrite many laws

Top court says gay couples to be recognized as legal spouses

By Tonda MacCharles and Tracey Tyler
Toronto Star Staff Reporters

OTTAWA - A landmark ruling by the Supreme Court of Canada recognizing same-sex spousal support will force federal and provincial governments to rewrite hundreds of laws, gay rights activists say.

In a long-awaited decision released yesterday, the country's top court ruled that Ontario's definition of ``spouse'' - which applies only to heterosexual couples - violates the equality guarantees in the Charter of Rights by discriminating against gays and lesbians.

David Corbett, a lawyer for the Foundation for Equal Families - which is challenging 58 federal laws in a case before the Ontario Superior Court - said there are about 1,000 laws across Canada that discriminate against same-sex couples.

In Ontario alone, some 90 laws may require amendments.

At issue were provisions in the Family Law Reform Act regarding support payments after the break-up of couples.

Writing for the majority in an 8-1 decision, Justices Peter Cory and Frank Iacobucci ruled that such discrimination cannot be justified because it undermines the very purpose of the law - to ease financial hardship for needy individuals after a break-up, and to shift the burden of support off the public welfare system and leave it with individuals who have the capacity to help their ex-partners.

``When a relationship breaks down,'' Cory wrote, ``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.''

The court gave Ontario six months to rewrite a section in its Family Law Act to give gays and lesbians the right to sue for alimony.

Otherwise, the court said, it will strike down the section, which obliges only married and common-law heterosexual spouses to pay support. That would entitle only legally married individuals - no matter what their sexual orientation - to claim support.

In a dissenting opinion, Mr. Justice Charles Gonthier found the law was not discriminatory because its main purpose is to ``recognize the social function specific to opposite sex couples.''

He said in straight couples, women bear the burden of child-rearing and, as a result, may become more ``economically disadvantaged'' when the relationship ends.

``Lesbian relationships are characterized by a more even distribution of labour, a rejection of stereotypical gender roles, and a lower degree of financial interdependence,'' Gonthier wrote.

On the campaign trail, Premier Mike Harris indicated he would abide by the ruling, and government lawyers will study what other laws may be affected


`This is part of that larger struggle forward'

``It's not my priority,'' said Harris. ``It's not my definition of family but it is others' and the courts have ruled that's constitutional.''

Opponents already say the decision is a narrow one affecting only spousal support, and should not be used to make changes to the definition of spouse or marriage in any other context.

Some, like the Canada Family Action Coalition, want to invoke a constitutional override provision known as the notwithstanding clause to sidestep the court's ruling.

But gay rights activists were ecstatic, saying the ruling will affect many laws beyond alimony guidelines and many provinces beyond Ontario. They argue all governments must change common-law spouse definitions to include same-sex couples.

The ruling comes in a case known as M. vs. H. that initially involved two lesbian partners who separated after a long-term common-law relationship.

The 50-year-old woman known only as M. was left destitute after they broke up.

She settled her claim with H. last year after winning in the lower courts, but hers became a test case for the Ontario government to appeal to the Supreme Court of Canada.

Yesterday, the high court said it was dealing strictly with the law governing the effects of a relationship break-up, not redefining marriage, but it effectively accorded long-term same-sex relationships the same dignity the law accords opposite-sex unions.

Martha McCarthy, who represented ``M'' - the victor in yesterday's ruling - hailed the decision as ``a great day in the history of equality in this country.''

``M'' released a statement: ``I have not only survived, but triumphed.''

Critics of the decision, McCarthy said, should remember that same-sex couples, just like heterosexuals, want relationships in which to raise children, ``co-operate, compromise and share.''

And, she added, critics should remember that ``all the great social struggles of this era'' were waged in the courts, and time has softened the negative reaction that greeted some decisions, such as the United States Supreme Court's ruling 27 years ago to end the ban on interracial marriages.

``Over time, we learn the humanity of those who were hated and see the error in old `truths,' '' McCarthy said. ``This is part of that larger struggle forward.''

But many critics were left unmoved.

``I think Canadians are going to be pretty upset by this,'' said Peter Stock, a spokesperson for the Canada Family Action Coalition. ``They understand marriage to be a man and a woman, and they're not going to accept this.''

But the Supreme Court's Cory anticipated that viewpoint, and rejected it.

``Being in a same-sex relationship does not mean that it is an impermanent or non-conjugal relationship,'' Cory said. ``Same-sex couples will often form long, lasting, loving and intimate relationships.''

The whole premise of the support law, Iacobucci wrote, was to ensure fair settlements of disputes between individuals who were financially interdependent, and to put the burden of support on to those spouses who can provide help, not on the public purse.

`I think Canadians are going to be pretty upset'

He rejected the Ontario government's argument that it was designed only to help women who suffered disadvantages in opposite-sex relationships, or that it was about the protection of children.

If that were so, the court said, the law would never have allowed separating men to claim support if they have a need. And if it was about children, the court said, the discriminatory law failed to protect the children in same-sex families that break up.

As well, Iacobucci noted, the court was not obliged to defer to the Legislature, since no other group would be harmed by extending support obligations to same-sex couples.

With files from Tracey Tyler

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