Canada Justice

The Family Redefined

The Supreme Court expands spousal support provisions to include separated gay couples

D’Arcy Jenish May 31 1999
Canada Justice

The Family Redefined

The Supreme Court expands spousal support provisions to include separated gay couples

D’Arcy Jenish May 31 1999

The Family Redefined

Canada Justice

The Supreme Court expands spousal support provisions to include separated gay couples

D’Arcy Jenish

Rebecca Hunter and her partner of 6½ years, Debra Lamb, were making their way through rush-hour traffic on a busy Toronto expressway last Thursday when they heard the report over the car radio. The Supreme Court of Canada had nullified an Ontario law denying samesex partners access to spousal support if their relationship ended. The decision, declaring the law unconstitutional, forces the provincial government to contemplate amending that and almost 90 other pieces of legislation in order to extend equal rights to homosexual couples. Outside of Ontario, several premiers acknowledged that they, too, may have to rewrite dozens of laws in their provinces.

For Hunter and Lamb, high-school teachers who jointly own a home, a cottage and other assets, the high court ruling was both a legal and symbolic victory for gays and lesbians. “We shouted as soon as we heard the news,” said Hunter.

“This society is finally recognizing that homosexual couples deserve the same rights as heterosexual couples.”

The Supreme Court ruling came in a case known only as M. vs. H. It involves a lesbian couple who split up in 1992 and became embroiled in an acrimonious dispute over dividing their assets, which included homes, property and a business. Lawyers who worked on M. vs. H. estimate that across Canada there may be as many as 1,000 provincial statutes that discriminate against gays and lesbians. British Columbia had already taken the lead among the provinces by amending several laws to give homosexuals rights to child custody, access and spousal support among other things.

As well, a Toronto-based organization pressing for gay rights, the Foundation for Equal Families, has launched a legal challenge to 58 federal laws that it says violate the equality provisions of the Charter of

Rights and Freedoms. Despite the tasks ahead, gay and lesbian activists were in a celebratory mood following last week’s ruling. “This is truly a great day in the history of our equality in this country,” said Toronto lawyer Martha McCarthy, who represented the plaintiff M. throughout her seven-year battle.

In her constitutional argument, McCarthy, backed by several rights organizations and the United Church of Canada, focused on a section of Ontario’s Family Law Act that allows one spouse from a failed marriage or common-law relationship to apply to the courts for financial support. But the legislation’s definitions of spouse does not include men or women in samesex unions. In an 8-1 ruling, with Mr. Justice Charles Gonthier dissenting, the Court gave the province six months to

amend the law. “The exclusion of samesex partners from the benefits of the spousal support scheme,” ruled the majority, “implies that they are incapable of forming intimate relationships of economic interdependence. This differential treatment discriminates ... by violating the human dignity of individuals in same-sex relationships.”

Premier Mike Harris said he would comply, however reluctantly. In midcampaign for a June 3 election, Harris said that, if returned to office, his government will respect the ruling even though he subscribes to a more traditional notion of family. Conservative religious leaders responded guardedly. Aloysius Cardinal Ambrozic, Roman Catholic archbishop of Toronto, said the provincial government should strive to protect the economic rights of same-

sex couples while maintaining the sanctity of marriage as a union between a man and a woman. Added Gary Walsh, president of the Evangelical Fellowship of Canada: “We encourage legislatures to meet the ruling without eroding any further the place of marriage in this culture. Let marriage be marriage.”

But elements of both church and state appear to be lagging behind public opinion on the issue. A national poll conducted in April, 1998, by the Toronto-based Angus Reid Group revealed that 75 per cent of Canadians believe that human rights legislation should protect gays and lesbians from discrimination. The survey, taken shortly after the Supreme Court ordered the Alberta government to include sexual orientation as a prohibited grounds of discrimination in its human rights act, found that 64 per cent of Albertans support such a measure. It also showed that fully 57 per

cent of respondents who declared themselves to be Reform party backers favour protection for gays and lesbians.

The two unidentified Toronto women at the centre of the landmark case, now in their 50s, met in 1980 while vacationing in Nepal. They began living together and in 1982 started an advertising company based on H.’s contacts and M.’s experience running a small bicycle courier firm. H. drew a salary of $6,000 monthly from the business while M. handled most of the domestic responsibilities. By 1989, however, they were no longer sleeping together and in September, 1992, M. moved out. According to McCarthy, H. changed the locks on

their homes, shut down the business while retaining her clients, and refused to divide the assets or provide support. That left M. almost penniless and without legal recourse except to sue her former partner.

After a lengthy civil suit, the two women reached an out-of-court settlement in January, 1998, under which H. agreed to pay M. the equivalent of her equity in the country property. While the lawsuit was in progress, M. launched a separate challenge to the constitutionality of Ontario’s Family Law Act. She won in two Ontario courts before the provincial government appealed to the Supreme Court. In a statement issued through her lawyer, M. described herself as “an accidental activist” who never intended to become embroiled in a seven-year legal dispute. “The fair and equitable division of property after the breakup of any other kind of relationship would never be questioned,” she said. “That it was was both unconscionable and intolerable.”

The ruling may prompt some gays and lesbians to examine potential financial obligations. But the overwhelming reaction was one of relief that their position under the law had finally been clarified. “I have many clients in M. s position,” said Toronto lawyer Kelly Jordan, 31, who attended a news conference with her partner, Jude Stewart. “They have been anxiously awaiting the decision.” They will now expect a legislative response from politicians across Canada. 03

Backing entitlements

The Supreme Court released two

other substantive decisions last week. The impact:

• The mother tongue of an accused person is a vital right. The court ordered a new trial—a fourth—for Jean Victor Beaulac, a bilingual B.C. francophone charged with murder who had been tried in English.

• Indians living off reserves should be allowed to vote in their bands’ elections. The court allowed 18 months for Parliament to repeal residency requirements in the Indian Act and for bands to amend voting practices. The court was ruling on the fate of a disfranchised Ojibwa from the Batchewana band near Sault Ste.

Marie, Ont.