Backgrounder

M & H v Ontario

About the case

The case is known as M & H. V Ontario. It concerns an appeal by the Government of Ontario of an Ontario Court of Appeal decision involving a lesbian couple whose relationship ended. M applied for spousal support from her ex-partner H. Ontario’s Family Law Act only permits partners of the opposite sex to make a claim for spousal support. The courts therefore decided to resolve at the outset the important constitutional issue of whether same-sex couples have a right to seek spousal support.

The Ontario Court of Appeal ruled that the “opposite sex” definition of “spouse” in the Family Law Act violated the equality rights of gays and lesbians under s.15 of the Charter of Rights and could not be justified by the government. The Attorney General of Ontario lodged an appeal to the Supreme Court of Canada. EGALE intervened in support of M’s position.

The appeal is limited to the constitutional question of whether same-sex couples have a legal right to apply for support. (In fact, we understand that M and H have now reached a settlement of their differences and the case is continuing on the policy issues only.)

Relationship Recognition for Gays and Lesbians

EGALE has long argued in support of relationship recognition for gays and lesbians. EGALE’s approach is based on the following principles:

• gays and lesbians should have access to the same range of relationship options as heterosexuals;
• we are entitled to equal treatment, and discrimination within existing legal and social institutions should be eliminated;
• government programs should apply equally to all who fit within the purpose of a particular program whether or not they are heterosexual.

With respect to the M & H case, application of these principles would mean that the Family Law Acts would provide for support payments to all couples whether heterosexual or homosexual. If such a change was made, gays and lesbians, as with heterosexuals who formed a couple, would not automatically be entitled to spousal support, but would at least have the right to have their claim considered.

Egale Canada ©2010

Advancing equality and justice for lesbian, gay, bisexual, and trans-identified people and their families across Canada