Toronto Star

March 2, 1998

Same-Sex Rights Fight Heads to High Court

Province opposes move to rewrite family law act

By David Vienneau, Toronto Star Ottawa Editor

OTTAWA—The Supreme Court of Canada is being asked to rewrite Ontario’s family law to guarantee that gay and lesbian couples are treated the same as heterosexual common-law couples.

This would mean same-sex couples who have lived together for three years would have the same right as heterosexual couples to sue for spousal support should they break up.

But the significance of such a legal confirmation—which is being aggressively opposed by Premier Mike Harris’ government—could be much greater than just the narrow question of spousal support.

It could be expanded to mean that separated gay and lesbian couples would also have a legitimate claim on a former partner’s pension or a dead partner’s survivor benefits.

“The implications are that if same-sex couples have the same rights and obligations as heterosexual spouses in family law, then other practices that treat them differently from heterosexual spouses will not be sustainable,” Toronto lawyer Martha McCarthy said.

“If the Supreme Court agrees, success means that we would be moving towards equal treatment of all relationships regardless of sexual orientation.”

The province is not anxious for that to happen. In legal documents filed with the high court in advance of the March 18 hearing, provincial lawyers say these are political questions, not legal ones.

“This honourable court should not substitute its own view for the legislature’s,” Ontario government lawyer Robert Charney writes.

The province is appealing a 2-1 Ontario Court of Appeal decision that upheld a lower court ruling striking down a section of the Family Law Act that defined common-law couples as men and women who lived together for three years.

The appeal court endorsed the groundbreaking reasons of Madam Justice Gloria Epstein of the Ontario Court, general division. She declared the offensive wording unconstitutional and then took the almost unprecedented step of substituting a new definition of spouse that included same-sex partners.

Both courts ruled the law offended the equality rights provisions of the Charter of Rights and Freedoms by discriminating against gay couples.

“The evidence is overwhelming that cohabitation between partners who have intimate relationships, regardless of sexual orientation, creates emotional and financial inter-dependencies,” Madam Justice Louise Charron of the appeal court wrote.

“The evidence also shows that the same needs for dispute resolution exist upon breakup of these types of intimate relationships, regardless of sexual orientation.”

The issue arose because of a fractured relationship between a lesbian couple known only as M and H. After living for a decade in a house purchased by H, they split up in 1992. During their time together they had also acquired a business property and a country home.

After moving out of the house, an impoverished M sued in 1993 for spousal support. Ironically, after years of protracted and bitter litigation the two women reached an out-of-court settlement in January.

The province persisted with the appeal because it did not want the lower court rulings to stand. The high court has ordered the government to pay M’s legal bills.

McCarthy, who represents M, said a number of other gay rights court issues involving pension and survivor benefits are on hold pending the Supreme Court decision.

British Columbia is the only province that gives gays and lesbians the same rights as heterosexuals under family law.

Copyright © 1998 by The Toronto Star. All Rights Reserved.

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