A spouse is a spouse regardless of gender (Globe and Mail)
The law should have no sexual preference in matters of the heart, the Supreme Court of Canada ruled yesterday in a decision that will properly advance the equality rights of gays and lesbians in Canada. The case involves two Ontario women, known only by their initials M and H. During their decade-long conjugal relationship, H took primary responsibility for the couple’s business affairs, while M concentrated on the domestic front. When the relationship foundered, M found herself alone and impoverished. She tried to sue for spousal support payments from her former partner but was thwarted because the Ontario Family Law Act narrowly defines spouse in heterosexual terms. M and H have long since settled their particular dispute, but M agreed to let her case go to the Supreme Court, on appeal from the Attorney-General of Ontario, as a legal challenge to the definition of spouse. As she said in a statement yesterday: “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.” In making its decision, the Supreme Court had to examine the intention and purpose of the FLA and test it against the equality rights embedded in the Charter of Rights and Freedoms. The FLA specifically accords rights to cohabiting opposite-sex couples who have lived together in a conjugal relationship for at least three years, in terms of an obligation to supply spousal support to the dependent partner — regardless of gender. M could satisfy the requirements demonstrating need and permanency, but her claims were disqualified because she and her partner were the same, not the opposite, sex. M’s argument was that, by defining spouse as “either of a man and woman,” the FLA violated her equality rights. Section 15 of the Charter guarantees every individual equal protection and benefit of the law without discrimination based on a number of factors, including sex. The Supreme Court agreed with two lower courts that, by distinguishing between same-sex and opposite-sex conjugal partners, the law was drawing a formal distinction between M and others on the basis of a personal characteristic, namely sexual orientation. In deciding that such a distinction is discriminatory, the court said: “The exclusion of same-sex partners … promotes the view that M, and 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 actual circumstances. Such exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence.” Equality is not an absolute right in the Charter. Like all other rights, it is subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The court asked itself what the “pressing and substantial objective” could be for denying spousal benefits to same-sex couples under Section 29 of the FLA. The Province of Ontario argued on appeal to retain the heterosexual definition of spouse on the grounds that women have a special vulnerability in relationships because they still generally assume the primary responsibility for the care and raising of children. That is undoubtedly so, but as the FLA entitles opposite-sex partners to apply for spousal support regardless of whether the relationship has produced children, the court properly rejected this argument. The purpose of the FLA is to promote economic equality within a conjugal couple. That will not be achieved by excluding same-sex partners. Wisely, in ordering its remedy, the court determined that it would be excessive to strike down the whole Family Law Act. Instead, it repudiated the offending Section 29, but put the ruling in abeyance for six months to allow the province to do the right thing and amend its definition of spouse in all the relevant statutes first. It is long past time not only for Ontario, but for all provinces, to demonstrate that equality before the law truly does include everybody. Copyright © The Globe and Mail 1999 |
