Toronto
7 min

Clean up your Act!

What M versus H says, & what it means

NOT YET. The Supreme Court Of Canada goes out of its way to state the decision has nothing to do with marriage. Credit: Xtra files

Congratulations, we’re finally spouses. Sort of.

Actually, we’re only legal when we’re exes.

In a long awaited decision (it’s taken more than a full year!) the Supreme Court Of Canada has ruled that one teeny tiny chunk of the Ontario Family Law Act, which defines a spouse as someone of the opposite sex, is unconstitutional.

The case involves a lesbian known only as M, who was suing H for spousal support payments.

And that part of the Family Law Act, section 29, only covers married folks, and unmarried opposite-sex couples who lived together in a “conjugal relationship.”

Yet while the court ruled that same-sex couples should be considered “conjugal,” and therefore spouse-like, the decision does not mean gay men and lesbians are now included in the definition of spouse. The Ontario government has six months to clean up its Act.

If it’s not fixed by then, the definition of spouse in section 29 will be of no force or effect – in other words, it will just cease to exist. In the meantime, gay and lesbian couples will remain in a kind of spousal purgatory.

But the decision in M versus H is nevertheless an historic one, that for the very first time recognizes that same-sex couples are entitled to the same legal treatment as unmarried, opposite-sex couples.

Still, we might want to put the champagne glasses down for just a moment, and think about what we have just won. This case was about spousal support. Not government- or employer-sponsored benefits. It was not about getting pension benefits, or income tax deductions for our partners. It was not about being able to sponsor them for immigration purposes, or putting them on our health plan at work. It was not about getting any goodies from government or employers at all.

What we have won is the right to sue each other when our relationships break down.

We might want to think carefully about unequivocally celebrating a decision that fits in all too well with the end of the welfare state as we know it.

The decision is about privatizing social responsibility – shifting responsibilities from governments to families. It’s about saying that governments no longer have a responsibility to provide for the basic needs of its citizens.

After wending their way through lower courts, M and H eventually settled their financial issues. But the Ontario attorney-general appealed to the Supreme Court of Canada. The Mike Harris government simply couldn’t live with a lower court conclusion that the definition of spouse in the Family Law Act now included same-sex couples.

So, everyone headed off to Ottawa and the top court. And along the way, the parties and the attorney-general were joined by hordes of intervenors.

On M’s side were the usual suspects: the Foundation For Equal Families, the Women’s Legal Education And Action Fund, Equality For Gays And Lesbians Everywhere (EGALE), the Ontario Human Rights Commission and the United Church Of Canada.

H, on the other hand, was stuck with a motley crew. Not a single gay group backed her.

She and the government of Ontario were joined by equality blockers and religious organizations: the Evangelical Fellowship Of Canada, the Ontario Council Of Sikhs, the Islamic Society Of North America, Focus On The Family, and REAL Women Of Canada.

The religious types argued against gay rights. H and the Ontario government argued that gay relationships are different from straight ones. The Harris government – that cutting-edge advocate of gay and lesbian liberation – argued that homo relationships shouldn’t be assimilated into a heterosexual model. We, according to the Ontario AG, don’t structure our relationships around such outdated heterosexual ideas as dependency.

Yep, the very same folks who’ve brought us four years of slash and burn policies – cutting every aspect of government spending they could think of – were now arguing against a change in the law that would save them money.

How? Because expanding the definition of spouse would mean more folks could look to their exes for support, instead of to government. As in, say, welfare.

A good fiscal conservative – devoted to cutting government spending and encouraging private self-reliance – would have supported this constitutional challenge.

But the Harris government showed its real colours – its moral conservative colours. Although it dressed its arguments up in fancy equality language, its agenda was still one based on saving the family from the so-called homosexual agenda.

The case was heard in March 1998. And after 14 months of nail-biting suspense, the Supreme Court finally issued its eight to one ruling on May 20.

Mr Justice Peter Cory, writing half of the majority opinion, noted: “Same-sex couples will often form long, lasting, loving and intimate relationships. The choices they make in the context of those relationships may give risk to the financial dependence of one partner on the other.

“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. As the intervenor EGALE submitted, such exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence.”

Mr Justice Frank Iacobucci, writing the other half of the majority opinion, spoke to the objective of spousal support, which he described as “equitable resolution of economic disputes that arise when intimate relationships between individuals who have been financially interdependent break down.” It also alleviates “the burden on the public purse by shifting the obligation to provide support for needy persons to those parents and spouses who have the capacity to provide support….”

The justices said that neither of these objectives could possibly justify the exclusion of same-sex couples. Rather, including them would only help promote these objectives.

M versus H is a groundbreaking decision, and any other outcome would have been an enormous defeat for gay and lesbian rights.

But it’s no coincidence that the first major victory in the recognition of same-sex spousal relationships doesn’t involve any rights from government. Despite the Harris government’s moral opposition, the case was perfect in these days of so-called fiscal responsibility – equality that won’t cost the government any money.

In fact, equality in this case will actually help the government save money by privatizing support obligations.

It’s also worth noting that the Supreme Court was careful to not overturn its earlier decisions. Remember Jim Egan? He tried to get Old Age Security benefits for his partner of 42 years. In a five to four decision, the answer was no. According to (the now dead) Mr Justice John Sopinka, the court just couldn’t go imposing obligations on governments to spend money, even though the exclusion of some is discriminatory.

While it may be difficult to reconcile the two cases in the future, one admittedly cynical reading is that same-sex couples will now be entitled to equality rights, just as long as they don’t cost anything.

You don’t have to scratch far beneath the surface to see how neatly this decision fits with all the other policies that are destroying the welfare state. And this doesn’t just mean getting people off welfare. It’s about cutting spending in health care, education and social services.

All of these cuts mean that more responsibility is being transferred back to the family. It is the family that now must take care of the sick, the elderly, the young. It is the family that must play a bigger role in educating children. It is the family that must pick up the slack dropped by the government.

Privatization is not just about enforcing the spousal support obligations of private family members. It’s about saying that if you have a need that can’t be met by the market – turn to your family.

And if you don’t have a family – tough. If your family is too poor to provide for all these needs – tough. If your family is violent and dysfunctional and abusive – tough.

The only ones who should be popping champagne corks are the fiscal conservatives among us; the gay and lesbian folks who really do believe that the market should rule, and families should take care of their own.

Those of us who think governments have a bigger role to play in ensuring the well-being of its citizens will find the victory bittersweet.

And let’s remember what we’ve just won.

Some of us have won the right to sue our exes. And a bunch of us have won the right to be sued, and to make the big pay out.

And pay we will.

The Supreme Court has been radically expanding the nature of support obligations that family members have for one another.

In an April decision, the Supreme Court held that an obligation to pay spousal support may exist, even if the spouse didn’t suffer any disadvantage as a result of the relationship.

It didn’t matter that she had never been economically dependent during the relationship. The fact that she was now sick, and couldn’t work, was enough to impose an obligation on her ex to pay – indefinitely, and possibly for the rest of their lives.

In light of M versus H, we, too, may very well have to support a ex-partner who falls upon hard times unrelated to our relationship – sickness, or simply unemployment.

So here’s one of the lessons of the ruling, and our struggle for same-sex spousal recognition: Be careful what you wish for. You might actually get it.

In fairness, it isn’t all doom and gloom.

The court acknowledged that the ruling may have implications for a whole bunch of other statutes which have very similar definitions of spouse.

Mr Justice Iacobucci stated: “The legislature may wish to address the validity of these statutes in light of the unconstitutionality of section 29 of the FLA. On this point, I agree with the majority of the Court Of Appeal which noted that if left up to the courts, these issues could only be resolved on a case-by-case basis at great cost to private litigants and the public purse.”

The court has tossed the ball back to governments, and told them they need to clean up their acts – all of them.

If they don’t, the court has made pretty clear what will happen in the future. Each definition of spouse will have to be challenged – case by case. And all of these definitions are going to come tumbling down, like a house of cards.

By the time the house of cards has collapsed, there will be better news. We will not just have the right to sue each other for support, but will have amassed a range of rights and benefits, alongside our obligations and responsibilities.

Equality has to start somewhere. It’s started with an easy case – with private support obligations that fit easily within a fiscal conservative agenda. Luckily, it won’t end here.

Of course, by the time the likes of Harris have finished destroying our social safety net, there may not be many other rights and benefits left. Families will be left to take care of their own. Those of us with spouses and families will be inside the new private safety net. Those without families, or with families too poor, too dysfunctional or too abusive, will fall right through.

Brenda Cossman is an associate professor at the University Of Toronto’s Faculty of Law.