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Tuesday, April 25, 2000

Rules of engagement
National Post

The Nova Scotia Court of Appeal has a keen grasp of the obvious.

Last week, writing on behalf of a three-judge panel, Justice Edward Flinn ruled that marriage laws discriminate against people who aren't married.

Though we lack Judge Flinn's command of the legal craft, we'll hazard a guess that the Income Tax Act discriminates against people who earn money, the Criminal Code discriminates against people who commit crimes and the Elections Act discriminates against people who are under 18 years of age and foreigners.

Judge Flinn made his ruling after inspecting Nova Scotia's Matrimonial Property Act (MPA), one of the laws that define the marriage contract. It's a powerful law -- it tells husbands and wives that when they bind their lives together in marriage, they bind their property together, too. More importantly, if their marriage splits up, so does their wealth -- the house, cars, furniture, money and even RSPs. That's what makes marriage different from just being friends, or dating, or even living together -- it's a commitment, sealed with a legal contract that the state takes seriously.

Non-married friends who part ways can still pursue legal claims against each other, if they prove their case. A common-law couple that bought a home or built a business together, can still prove their entitlement to a judge. The MPA just switches the burden of proof and simplifies things for married couples -- everything is split 50-50, unless someone can give a judge a good reason to do otherwise.

Unfair, said Judge Flinn. He had heard the pleas of Susan Walsh, who was upset that she didn't get half her live-in boyfriend's estate after they broke up. "The MPA perpetuates the view that unmarried partners are less worthy of recognition, or value, as human beings or as members of Canadian society," wrote Judge Flinn. But the MPA didn't make those distinctions -- Ms. Walsh and her boyfriend did, every day for 10 years, by choosing not to join their lives and property in marriage.

So Judge Flinn ruled that the MPA violates Canada's Charter of Rights and Freedoms, and ordered Nova Scotia's elected law-makers to change the act within a year, or he'll do it for them.

It is hubris enough for a court to unilaterally alter the rules of marriage, and to order a Legislature to comply. But what are we to make of a court that would confer upon casual relationships the obligations and rights of the marriage contract -- after a break-up -- when the couple explicitly chose to avoid the obligations of marriage?

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