PRELIMINARY ANALYSIS

M. v. H., File No. 25838 (Supreme Court of Canada 1999)

Marriage Law Project

21 May 1999

This case involved a challenge to the Ontario Family Law Act=s (FLA) definition of Aspouse@ which included married couples and opposite sex couples who had cohabited for three years (less if children were involved). In 1992, a lesbian couple split up and one of the parties sought a property division and spousal support, thereby challenging the spousal support law=s failure to include same-sex couples. The Motions Judge found the challenged statutory definition in conflict with the Canadian Charter of Rights and Freedoms and ordered that the statutory language regarding cohabiting couples be changed to include same-sex couples. The Court of Appeals affirmed and the Ontario Attorney General appealed to the Supreme Court of Canada.

The Supreme Court also found that the statutory definition violated the Canadian Charter of Rights and Freedoms, but modified the remedy in an 8-1 decision. The court reasoned that the challenged law made a distinction between individuals in same-sex and individuals in opposite-sex couples by omitting individuals in same-sex couples from the definition of spouse in the FLA which constituted a sexual orientation classification. To determine whether the challenged law violated the Canadian Charter of Rights and Freedoms, the court asked whether the classification involved a ground enumerated or analogous to an enumerated ground in the Charter, whether the law violated the Charter in denying a benefit and if so, whether the denial was justified by a sufficient governmental interest.

The court noted that sexual orientation is an analogous ground in the Charter. Then, it turned to the second prong of the analysis--whether the law violated the charter in denying a benefit. This requires a showing that the law denies a benefit and that the denial demeans the dignity of a group. The benefit denial was clear, and the court applied a 3-part test to determine the effect of the denial: (1) Was the affected group historically disadvantaged? The court answered that it was because prejudice against individuals in same-sex couples has existed for some time. (2) Did the law properly take into account the plaintiff=s situation? The court answered that it didn=t because same-sex couples are able to enter into Aconjugal@ relationships which are not Aimpermanent@ just like opposite-sex couples, but the law only excludes same-sex couples. (3) Was the interest protected by the law fundamental? The court held that it was. Thus, the court found the law disadvantaged individuals in same-sex couples.

The court then addressed the issue of whether the denial of the benefit was justified. This analysis involved two parts. First, does the legislation further a pressing and substantial objective? The court held that the FLA does. The purposes identified by the court were to provide a fair resolution of economic disputes when an intimate relationship breaks up and to ease the burden of public finances that would be caused by having to support individuals in failed relationships. Second, the court asked (1) if there was a nexus between the law=s aims and its means of achieving those aims, (2) if any impairment of rights caused by the denial were minimal and (3) if the bad effects of the law were outweighed by good effects of the law. In answering the first question, the court held that excluding same-sex couples prevented them from having a fair resolution of break-up related disputes, so there was no nexus between the laws aims and means. Next, the court held that there was no adequate substitute for FLA spousal benefits so the denial was not minimal. Finally, the court held that the underlying objectives of the legislation (fairness for couples in intimate relationships) were undermined by its means (protecting only opposite-sex intimate relationships), so its bad effects outweighed the benefits of the legislation.

The remedy the court provided was to completely void the statutory definition of spouse. The court suspended the effect to its order for six months so the legislature could fix the statute. It also noted that its ruling might affect definitions of spouse in other laws and urged the legislatures of Canada to fix those laws voluntarily rather than litigating each provision.

The first concurrence briefly reiterated the court=s Charter analysis. The second concurrent did the same but added that excluding same-sex couples from the statute could not be justified by a desire to promote the traditional family as the dissent argued.

The dissent argued that the purpose of FLA was to recognize opposite-sex couples as the fundamental unit of society and to address issues of dependence that are only present in opposite-sex relationships. Thus, the exclusion of same-sex couples was consonant with the purposes of the act. The dissent also argued that the law was not discriminatory because it was not based on stereotypes but rather on intrinsic differences in opposite-sex and same-sex relationships.