Toronto Star

Friday, May 21, 1999

`Human dignity is violated by the definition'

Excerpts from yesterday's judgment

The following are excerpts from a Supreme Court decision released yesterday that said same-sex couples should have the same rights as heterosexuals.

The majority decision, which knocked down the definition of spouse in Ontario's Family Law Act, was written by Justice Peter Cory and Justice Frank Iacobucci.

The vote was 8-1. ``First, individuals in same-sex relationships face significant pre-existing disadvantage and vulnerability, which is exacerbated by the impugned legislation.

Second, the legislation at issue fails to take into account the claimant's actual situation.

Third, there is no compelling argument that the ameliorative purpose of the legislation does anything to lessen the charge of discrimination in this case.

Fourth, the nature of the interest affected is fundamental, namely the ability to meet basic financial needs following the breakdown of a relationship characterized by intimacy and economic dependence.

The exclusion of same-sex partners from the benefits of the spousal support scheme implies that they are judged to be incapable of forming intimate relationships of economic interdependence, without regard to their actual circumstances.

Taking these factors into account it is clear that the human dignity of individuals in same-sex relationships is violated by the definition of ``spouse'' in section 29 of the Family Law Act.''



``The definition clearly indicates that the legislation decided to extend the obligation to provide spousal support beyond married persons. Obligations to provide support were no longer dependent upon marriage. The obligation was extended to include those relationships which:

Only individuals in relationships which meet these minimum criteria may apply for a support order under Part III of the Family Law Act.

Same-sex relationships are capable of meeting the last two requirements. Certainly same-sex couples will often form long, lasting, loving and intimate relationships. The choices they make in the context of those relationships may give rise to the financial dependence of one partner on the other.''



``The exclusion of same-sex partners from the benefits of section 29 of the Family Law Act promotes the view that . . . individuals in same-sex relationships generally are less worthy of recognition and protection.

It implies that they are judged to be incapable of forming intimate relationships of economic interdependence as compared to opposite-sex couples, without regard to their actual circumstances.

As the intervener EGALE submitted, such exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence.

The human dignity of individuals in same-sex relationships is violated by the impugned legislation.

In light of this, I conclude that the definition of spouse in section 29 of the Family Law Act violates section 15 (1) (of the Charter of Rights).''

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