2 min

Roll back or what?

Funeral act sparks debate

Credit: Xtra West files

The uproar was loud and seemingly instantaneous. One minute the governing BC Liberals were quietly putting a bill on funeral and related services through its third-reading paces; the next minute all hell broke loose. That’s when the NDP opposition began telling everyone who would listen that the Liberals were rolling back gay rights in this province.

And people did listen. Emails abounded and even a couple of reporters picked up on the story. But the story may not be as clear-cut as the opposition suggests.

At issue: who gets to decide how to dispose of a loved one’s remains. First dibs go to whomever the deceased named in his or her will. Second dibs go to the spouse. So who counts as a spouse in BC, you ask? Excellent question. That’s what all the uproar was about.

The old Funeral Services Act, which the then-ruling NDP passed in 1996, defined ‘spouse’ as the person who was either married to the deceased when he or she died, or living with the deceased in a “marriage-like relationship, including a marriage-like relationship between persons of the same gender.”

That was right in the act, plain for all to see, and changeable only be a public vote in the legislature.

The proposed new act, in contrast, no longer includes a definition of spouse; that will be left to the accompanying regulations. And that’s why people are so upset.

“The problem is the regulations can be changed by an order in council so it’s not as good a protection,” says local gay lawyer Ken Smith. ‘It’s a lot easier to change regulations than it is to change legislation.”

But a spokesperson for the government says there’s nothing to worry about. The regulations will include gay partners, both married and common-law, in their definition of spouse, Brett Lowther says. “Everybody will be treated equally.” Married or common-law, gay or straight: the definition of spouse will encompass them all.

It just won’t be written in the act itself.

So are gay spousal rights being rolled back in BC? It’s hard to say, says Smith. It’s true that the definition of spouse has already evolved in BC to include gay and straight cohabiting couples, so it may no longer be necessary to explicitly mention that in the act itself, he muses.

But leaving it to the regulations can be chancy because they are easier to change, he repeats.

Indeed, Lowther openly admits that the government moved the definition to the regulations to make it easier to modify as society evolves. “The definition of common-law relationships and marriage can change over time,” he explains. This way the government can keep up with the changes without having to amend the act.

Despite the uproar, the act passed its final reading Mar 23 and is now waiting to be royally proclaimed at the end of the session. Both NDP MLAs and two gay Liberals, Lorne Mayencourt and Ted Nebbeling, voted against it.

Another government spokesperson hedged when asked if the bill will still be proclaimed as planned. The government will discuss the concerns that have been raised before presenting the bill for proclamation, Cindy Rose told Xtra West.

If it doesn’t get proclaimed, the bill will have to be re-introduced from scratch next session.