Toronto Star

Thursday, May 20, 1999

Same-sex ruling may force hand in elections

Decision on spousal support expected today

By Tonda MacCharles
Toronto Star Ottawa Bureau

OTTAWA - A 50-year-old woman at the heart of a landmark gay and lesbian rights case to be decided today by the country's top court calls herself ``an accidental activist.''

That's because whatever the Supreme Court of Canada decides today in the case known as M. vs H. comes too late for her. The woman, known only as M., and her lesbian ex-lover H. settled M.'s claim for spousal support last year after she won in two lower courts.

But today's ruling - the result of Ontario's Conservative government's appeal of the earlier judgments - could have a huge impact for gay couples in this province and across the country if the high court decides that constitutional guarantees of equality mean the word ``spouse'' in family law applies not just to men and women, but to same sex partners too.

A ruling that rewrites Ontario family law would also land like a bombshell in the midst of the Ontario election, forcing the parties to take a stand on gay rights and the definition of ``a family.''

The decision would mean not only that same sex couples who split up would be obliged to pay alimony, but it could affect the definition of spouse under more than 50 Ontario laws and hundreds more provincial and federal statutes across the country.

Right now, only British Columbia has enacted comprehensive legislation recognizing gay rights in all aspects of family law.

``It's not about her situation at all anymore, it's purely a matter of principle to her at this point'' says her lawyer Martha McCarthy. ``She wants to know that others won't suffer as she did.''

M. says in a wry statement that her seven-year legal battle makes a ``root canal without anesthetic seem like a good time.''

But now, years after leaving the home she shared with H. with a few belongings and $5.64 in her bank account, she says, ``I am well, happy and enjoying a fruitful and uplifting life.''

Lawyer Chris Bredt, representing H. says his client, now 52, also ``wants to get on with her life'' but is hoping the court does not extend spousal support obligations to same sex couples.

He argued the law is ``justified based upon the sexual inequality in heterosexual relationships, and that doesn't exist in same sex relationships. If two women are living together, how can there be sexual inequality?

``There could be financial dependence that exists in that type of relationship, but it has nothing to do with sex.''

Bredt says H. believes gay and lesbian couples should be treated in an equal manner when a law disadvantages them, but not when it actually leaves them more choices about what kinds of relationships they have.

The different treatment for homosexual couples under Ontario's law is ``a difference that makes sense from the perspective of same sex couples because they're left with freedom of choice,'' says Bredt.

``They can do whatever they want. The government doesn't dictate anything to them. From her view, that's a better regime than the regime the government has imposed on the heterosexual couples.''

That's exactly what M.'s lawyer says is wrong about the way Ontario's family law treats homosexual ex-partners.

``The purpose of this case is to provide equal access to the court system to disadvantaged vulnerable members of a former couple and what M's story shows is that this is a real problem,'' says McCarthy.

M. and H. first met and became lovers in 1980 on a trip to Nepal.

In 1982 they moved in together, and over time invested together in a new advertising agency, a business property and a house in the country.

M. gradually became responsible for most of the domestic chores and H. took the lead in the ad business. Their financial affairs became closely intertwined.

`Purpose of this case is to provide equal access to the court system'

But when the relationship failed (and they argue whether it ended after five years when H. says they stopped being intimate and lived more like friends, or whether it ended after 10 years when M. left), the separation quickly became as bitter as any.

According to court documents, H. changed the locks on their city and country home, shut down their joint businesses, and gave M. no access to the income or capital the two had built together in their years together.

The settlement, reached last year, left M. with half the equity value of their country home that was originally built on a $79,000 plot of land, and built at a cost of $350,000.

Already, several groups have lined up to respond to whatever the court rules today.

The Canada Family Action Coalition says the high court should not attempt to rewrite a law enacted by an elected legislature, saying the family law definition of a marriage and of spouse recognizes ``the biological reality that it's a single man and a single woman who create a child.''

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