Recent Legislative Amendments Dealing with Same Sex Partners

Recent Legislative
Amendments Dealing with
Same Sex Partners
(Current as of May 1, 2000)
by:
Pam MacEachern
-2-
Since the Supreme Court of Canada’s landmark decision in M. v. H., there has been a
flurry of activity to address long outstanding legislative discrimination against persons in same
sex relationships. New legislation has been enacted by the federal government, Ontario, British
Columbia, and Quebec. This legislation moves towards a full recognition of same sex
relationships on the same basis as common law opposite sex relationships. This paper briefly
reviews the decision in M. v. H. and these recent legislative changes.
1.
The Decision in M. v H.
On May 20, 1999, the Supreme Court of Canada released its decision in M. v. H. This
decision was the first time the Court declared legislation to be unconstitutional on the basis that
it failed to treat same sex couples equally to common law opposite sex couples. Although the
decision only dealt with the Family Law Act (Ontario), its reasoning brought into question the
constitutionality of every legislative provision in Canada which included common law couples
but excluded same sex couples1.
In M. v H., M. claimed support from her same sex partner. In doing so, she challenged the
definition of "spouse" under Part III of the Family Law Act (Ontario) on the basis that it was
unconstitutional because it excluded same sex couples. Under Part III, a spouse is defined to
include a man and a woman who are married to each other, and a man and woman who are not
married to each other and have cohabited continuously for a period of not less than three years,
or are in a relationship of some permanence, if they are the natural or adoptive parents of a child.
M. was successful both at the trial court level and before the Ontario Court of Appeal.
The Ontario government, an intervener in the case, appealed the decision to the Supreme Court
of Canada. On May 20, 1999, the Supreme Court of Canada released its decision, finding in an
8-1 majority that the definition of “spouse” under Part III denied M. equality before the law and
that this denial was not justified as a reasonable limit on rights in a free and democratic society.
1
The decision in M. v. H. did not address the constitutionality of distinctions made
between married couples and unmarried couples.
-3-
In arriving at this decision, Cory J., for the majority, stated:
"The societal significance of the benefit conferred by the statute cannot be
overemphasized. The exclusion of same-sex partners from the benefits of s. 29 of the
FLA 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 their actual circumstances. As the intervenor EGALE
submitted, such exclusion perpetuates the disadvantages suffered by individuals in samesex relationships and contributes to the erasure of their existence."
In remedy, the majority held that the lower court remedy of reading same sex spouses
into the definition of common law spouse under the spousal support provisions of the Act
(section 29) was not appropriate. The domestic contract provisions (Part IV) were not before the
court and amending section 29 without allowing same sex couples to contract out of this support
obligation was seen as fixing one wrong by creating another. Instead, the Court severed section
29 and declared that it alone was of no force or effect, and temporarily suspended this remedy
for a period of six months, ending November 20, 1999.
2.
Legislative Response of the Ontario Government
In response to the M. v. H. decision, on October 28, 1999, the Ontario government
proclaimed the “Amendments Because of the Supreme Court of Canada decision in M. v. H..”
(Bill 5). This Act amended 67 Ontario statutes in response to the M. v. H. decision to provide
same sex couples with the same benefits and responsibilities under the law as common law
opposite sex couples.
The government’s approach to these amendments was to create a new category called
“same sex partners”which would be eligible for the same benefits and responsibilities provided
for opposite sex common law “spouses”. The definition of “spouse” was not changed and, in
Ontario legislation, remains as a person of the opposite sex. The definition of “same sex partner”
varies among the statutes, as does the definition of “spouse”. The definitions used for “same sex
partner” generally use one of the following formats, with amendments as necessary:
-4- either of two persons of the same sex who live together in a conjugal relationship
outside of marriage. (eg. Children’s Law Reform Act)
- either of two persons of the same sex who have cohabitated, (a) continuously for a
period of not less than three years, or (b) in a relationship of some permanence, if they
are the natural or adoptive parents of a child.(eg. Family Law Act, Succession Law
Reform Act)
The amendments to the Family Law Act came into effect on November 20, 1999. All
other amendments came into effect on March 1, 2000.
The Ontario government’s approach has been criticized for creating a new, separate,
category of “same sex partners” rather than simply amending the definition of “spouse” to
remove the requirement that spouses be of the opposite sex. Critics argue that this approach
harps back to the “separate but equal” approach to equality which has been soundly rejected by
Supreme Court of Canada in its equality jurisprudence under section 15 of the Canadian Charter
of Rights and Freedoms. They argue that the Ontario government’s amendments perpetuate the
discrimination against same sex couples by implying that they are “less than” spouses and not
deserving of recognition as spouses or family. Critics point to the manner in which the Attorney
General announced the amendments as clear evidence of this discriminatory intent. In
announcing the legislation, Attorney General Jim Flaherty stated that the government’s intent
was to comply with the decision in M. v. H. “ while preserving the traditional values of the
family by protecting the definition of spouse in Ontario law.''
M. applied to the Supreme Court for a re-hearing on the issue of whether the Ontario
government’s amendments comply with the decision in M. v. H.. This application was dismissed
on May 20, 2000.
a.
List of Ontario Acts Amended by Bill 5
Acts which recognized common law opposite sex spouses which were amended to add
recognition of “same sex partners”:
Absentees Act
Assessment Act
Business Corporations Act
-5Change of Name Act
Charitable Institutions Act
Child and Family Services Act (adoption)
Children's Law Reform Act
City of Toronto Act
Commercial Tenancies Act
Community Economic Development Act, 1993
Compensation for Victims of Crime Act
Consumer Reporting Act
Conveyancing and Law of Property Act
Co-operative Corporations Act
Coroners Act
Corporations Act
County of Simcoe Act, 1993
Courts of Justice Act
Credit Unions and Caisse Populaire Act, 1994
Education Act
Election Act
Employment Standards Act
Estates Act
Execution Act
Family Law Act
Family Responsibility and Support Arrears Enforcement Act, 1996
Homes for the Aged and Rest Homes Act
-6Human Rights Code
Human Tissue Gift Act
Independent Health Facilities Act
Insurance Act
Land Transfer Tax Act
Legislative Assembly Act
Loan and Trust Corporations Act
Local Government Disclosure of Interest Act, 1994
Members’’ Integrity Act
Mental Hospitals Act
Mortgages Act
MPPs Pension Act, 1996
Municipal Act
Municipal Conflict of Interest Act
Municipal Elderly Residents’’ Assistance Act
Municipal Elections Act, 1996
Municipal Health Services Act
Northern Services Boards Act
Nursing Home Act
Ontario Disability Support Program Act, 1997
Ontario Energy Board Act, 1998
Ontario Municipal Employee's Retirement System Act
Ontario Works Act, 1997
Ontario Youth Employment Act
-7Partnerships Act
Pension Benefits Act
Perpetuities Act
Police Services Act
Public Libraries Act
Public Service Pensions Act
Regional Municipality of Ottawa-Carleton Act
Retail Sales Tax Act
Securities Act
Succession Law Reform Act
Tenant Protection Act, 1997
Toronto Hospital Act, 1997
Toronto Island Residential Community Stewardship Act, 1993
Victims' Bill of Rights, 1995
Victims' Right to Proceeds of Crime, 1994
Workplace Safety and Insurance Act and the repealed Workers'
Compensation Act
The Income Tax Act (Ontario) was not amended as it incorporates the definition of "spouse"
contained in the Income Tax Act (Canada).
See schedule “A” for highlights from Bill 5 amendments.
-83.
Legislative Response of the Federal Government
On February 11, 2000, the federal government tabled the “Modernization of Benefits and
Obligations Act” (Bill C-23). This Bill was passed by the House of Commons on April 11, 2000.
It was passed by the Senate on June 14, 2000. It is expected to be proclaimed shortly.
Bill C-23 is omnibus legislation intended to extend benefits and obligations to same sex
common law couples on the same basis as opposite sex common law couples. The Act will
amend 68 pieces of federal legislation including the Income Tax Act, the Canada Pension Plan
Act, the Criminal Code and the Old Age Security Act.
Under Bill C-23, same sex couples are included by being brought under the new term
“common law partners”. This term encompasses people in common law relationships, both same
sex and opposite sex, avoiding the Ontario approach which establishes a separate category for
“same sex partners”. At the same time, the federal government has also avoided amending the
definition of “spouse” to include same sex couples. Instead, “spouse” refers to married couples
only, and the distinctions between married and unmarried couples have been maintained.
In March of 2000, Bill C-23 was amended to include a provision clarifying that the
amendments in Bill C-23 do not affect the meaning of the word “marriage”, which remains “the
lawful union of one man and one woman to the exclusion of all others”. The legal impact of this
provision is unclear, although the majority view is that it has no legal impact on the definition of
marriage, which is currently a matter of federal common law.
On April 6, 2000, the federal government introduced amendments dealing with
immigration which include recognition of same sex partners (Bill C-31).
Prior to Bill C-23, in September of 1999, the federal government passed legislation to
extended survivor pension benefits to same-sex partners of federal public employees (Bill C-78).
a.
List of Federal Acts Amended by Bill C-23
Agricultural Marketing Programs Act
Loi sur les programmes de
commercialisation agricole
Bank Act
Loi sur les banques
Bankruptcy and Insolvency Act
Loi sur la faillite et l’’insolvabilitéé
Bills of Exchange Act
Loi sur les lettres de change
-9Bridges Act
Loi sur les ponts
Business Development Bank of Canada
Act
Loi sur la banque de dééveloppement du
Canada
Canada Business Corporations Act
Loi canadienne sur les sociéétéés par
actions
Canada Cooperatives Act
Loi canadienne sur les coopéératives
Canada Corporations Act
Loi sur les corporations canadiennes
Canada Elections Act
Loi éélectorale du Canada
Canada Mortgage and Housing
Corporation Act
Loi sur la Sociéétéé d’’hypothèèques et
de logement
Canada Pension Plan
Réégime de pensions du Canada
Canadian Forces Superannuation Act
Loi sur la pension de retraite des Forces
canadiennes
Canadian Peacekeeping Service Medal
Act
Loi sur la méédaille canadienne du
maintien de la paix
Canadian Wheat Board Act
Loi sur la Commission canadienne du
bléé
Carriage by Air Act, Schedule II
Loi sur le transport aéérien
Citizenship Act
Loi sur la citoyennetéé
Civil Service Insurance Act
Loi sur l’’assurance du service civil
Civilian War-related Benefits Act
Loi sur les prestations de guerre pour les
civils
Cooperative Credit Associations Act
Loi sur les associations coopéératives de
créédit
Corporations Returns Act
Loi sur les dééclarations des personnes
morales
Corrections and Conditional Release Act
Loi sur le systèème correctionnel et la
mise en libertéé sous condition
Cree-Naskapi (of Quebec) Act
Loi sur les Cris et les Naskapis du
Quéébec
Criminal Code
Code criminel
Customs Act
Loi sur les douanes
Defence Services Pension Continuation
Act
Loi sur la continuation de la pension des
services de dééfense
-10Diplomatic Service (Special)
Superannuation Act
Loi sur la pension spééciale du service
diplomatique
Employment Insurance Act
Loi sur l’’assurance-emploi
Escheats Act
Loi sur les biens en dééshéérence
Excise Tax Act
Loi sur la taxe d’’accise
Family Orders and Agreements
Enforcement Assistance Act
Loi d’’aide àà l’’exéécution des
ordonnances et des ententes familiales
Firearms Act
Loi sur les armes àà feu
Foreign Missions and International
Organizations Act
Loi sur les missions éétrangèères et les
relations internationales
Garnishment, Attachment and Pension
Diversion Act
Loi sur la saisie-arrêêt et la distraction de
pensions
Government Annuities Act
Loi relative aux rentes sur l’’ÉÉtat
Government Corporations Operation Act
Loi sur le fonctionnement des sociéétéés
du secteur public
Government Employees Compensation
Act
Loi sur l’’indemnisation des agents de
l’’ÉÉtat
Governor General’’s Act
Loi sur le gouverneur géénééral
Income Tax Act
Loi de l’’impôôt sur le revenu
Income Tax Application Rules
Rèègles concernant l’’application de
l’’impôôt sur le revenu
Indian Act
Loi sur les Indiens
Insurance Companies Act
Loi sur les sociéétéés d’’assurances
Judges Act
Loi sur les juges
Lieutenant Governors Superannuation
Act
Loi sur la pension de retraite des
lieutenants-gouverneurs
Members of Parliament Retiring
Allowances Act
Loi sur les allocations de retraite des
parlementaires
Merchant Seamen Compensation Act
Loi sur l’’indemnisation des marins
marchands
Old Age Security Act
Loi sur la séécuritéé de la vieillesse
Parliament of Canada Act
Loi sur le parlement du Canada
Pension Act
Loi sur les pensions
-11Pension Benefits Division Act
Loi sur le partage des prestations de
retraite
Pension Benefits Standards Act 1985
Loi de 1985 sur les normes de prestation
de pension
Pension Fund Societies Act
Loi sur les sociéétéés de caisse de
retraite
Public Pensions Reporting Act
Loi sur les rapports relatifs aux pensions
publiques
Public Service Employment Act
Loi sur l’’emploi dans la fonction publique
Public Service Superannuation Act
Loi sur la pension de la fonction publique
Returned Soldiers Insurance Act
Loi de l’’assurance de soldats de retour
Royal Canadian Mounted Police Pension
Continuation Act
Loi sur la continuation des pensions de la
Gendarmerie royale du Canada
Royal Canadian Mounted Police
Superannuation Act
Loi sur la pension de retraite de la
gendarmerie royale du Canada
Special Import Measures Act
Loi sur les mesures spééciales
d’’importation
Special Retirement Arrangements Act
Loi sur les réégimes de retraite
particuliers
Supplementary Retirement Benefits Act
Loi sur les prestations de retraite
suppléémentaires
Trade Unions Act
Loi sur les syndicats ouvriers
Trust and Loan Companies Act
Loi sur les sociéétéés de fiducie et de
prêêt
Veterans Insurance Act
Loi sur l’’assurance des anciens
combattants
Veterans’’ Land Act
Loi sur les terres destinéées aux anciens
combattants
Veterans Review and Appeal Board Act
Loi sur le tribunal des anciens
combattants (réévision et appel)
Visiting Forces Act
Loi sur les forces éétrangèères
préésentes au Canada
War Veterans Allowance Act
Loi sur les allocations aux anciens
combattants
-12-
The spousal compellability provisions of the Evidence Act have not been extended. The federal
government is currently considering whether to repeal these provisions in their entirety.
See schedule “B” for highlights from Bill C-23 amendments.
4.
Legislative Amendments in Other Provinces
a.
British Columbia
In July of 1999, the British Columbia government introduced the “Definition of Spouse
Amendment Act”. This Act was passed and received royal assent on July 15, 1999. The Act
expanded the definition of “spouse” in a number of key pieces of provincial legislation dealing with
wills, estates, inheritance and related laws. The definition of “spouse” was amended to include “a
person who has lived and cohabitated with another person, for a period of at least 2 years
immediately before the other person’s death, in a marriage like relationship, including a marriage
like relationship between persons of the same gender.”
These amendments built upon previous B.C. legislation in the family law area which
included same sex couples in the definition of “spouse”. Amendments to the Family Relations Act
(British Columbia” (custody, access, support) came into effect in 1997. Amendments to B.C.’s
adoption laws to allow same sex couples to adopt came into effect in 1996.
Omnibus legislation to amend remaining B.C. statutes to include recognition of same sex
couples is expected to be introduced in the near future.
b.
Quebec
In June of 1999, Quebec passed omnibus legislation which amended 28 statutes and 11
regulations (Bill 32). The Bill amended all Acts and regulations that contained a definition of the
concept of “de facto spouse” to allow “de facto unions” to be recognized without regard to the sex
of the persons concerned. The effect of the Bill is to grant same sex couples the same benefits and
obligations that are available to opposite sex common-law couples.
-13-
Schedule “A”
Highlights of Ontario Legislative Changes to Include Same-sex Partners
Bill 5: Amendments Because of the Supreme Court of Canada decision in M. v. H., proclaimed
October 28, 1999.
Effective Date: Amendments to the Family Law Act came into effect on November 20, 1999. All
other amendments came into effect on March 1, 2000.
The following list contains highlights of the amendments which are most likely to be of interest to
a family law practitioner.
5.
Change of Name Act
After the amendments, two persons of the opposite sex or same sex who are living in a conjugal
relationship outside of marriage, and who file a joint declaration in the prescribed form, can now
elect to change their surnames to that of one of the partners or to hyphenate or combine their
surnames [Change of Name Act, s.3(6) and (7)]. Prior to the amendments, this was only available
to married spouses.
-146.
Child and Family Services Act (CFSA)
The adoption provisions of the CFSA were amended to provide that “any other individual that the
court may allow, having regard to the best interests of the child” [ s.146(4)(c)] may now apply to
adopt a child under s. 146. The result is that an application for adoption may now be brought by an
individual, jointly by two individuals who are spouses, or “any other individual the court may
allow”.
Note that s.146(2), dealing with family adoptions, was not amended by the legislation, so that the
legislation still restricts step parent adoptions to those made by a spouse of the child’s parent. Re
K (1995), 23 O.R. (3d) 679 (Ont. Ct. Prov. Div), not appealed, held that the definition of spouse
under this Part (s.136(1)) was unconstitutional and violated s.15(1) of the Charter. The definition
of spouse, therefore, was read to include a same sex conjugal relationship. Re K would presumably
continue to govern the section that deals with adoption by step parents.
7.
Children’s Law Reform Act (CLRA)
No immediate amendments have come into effect to the CLRA. Bill 5 did amend previous
amendments to the CLRA which have been proclaimed but are not yet in force (Part V, ss. 77 to 84).
These amendments include a provision directing the court to consider the fact that a person has at
any time committed violence against his or her spouse or child, against his or her child’s parent or
against another member of the person’s household, in assessing a person’s ability to act as a parent.
Bill 5 amended these amendments (s.24(3)) to include violence committed against a same sex
partner. In addition, Bill 5 includes a definition section under s.24 (3) (s.24(3.1)), which includes
a definition of same sex partner and a definition of spouse. “Same-sex partner” is defined to mean
either of two persons of the same sex who live together in a conjugal relationship outside marriage.
“Spouse” is defined to mean a spouse under s. 1 of the Family Law Act, or either of two persons of
the opposite sex who live together in a conjugal relationship outside marriage.
-15-
8.
Compensation for Victims of Crime Act (Applications to Criminal Injuries Compensation
Board (CICB))
This Act governs applications to the CICB. The definition of dependant was amended to include
same sex partners. “Same sex partner” is defined to mean a person of the same sex who was living
with the deceased victim in a conjugal relationship immediately before the death of the deceased
victim [s.1]. As a result, same sex partners can now apply to the CICB for compensation in the
event of their partner’s death as a result of a crime.
9.
Estates Act
This Act now provides that where a person dies intestate or the executor named in the will refuses
to prove the will, administration of the property of the deceased may be committed by the Ontario
Court to a married spouse, or a person of the opposite sex or same sex with whom the deceased was
living in a conjugal relationship outside marriage immediately before death, the next of kin of the
deceased, or both, in the discretion of court. Where there are competing claims, the court will confer
administration of the property to those it deems fit [s.29(a)].
10.
Family Law Act
a.
Support:
The support provisions (Part III) have been amended to include a support obligation
between same sex partners.
-16The definition section (s.29) under Part III is amended to include a definition of
“same sex partner” which mirrors the definition of “spouse” under the same part. The
definition of “spouse” has not been changed. “Same sex partner” is defined to mean
either of two persons of the same sex who have cohabitated, (a) continuously for a
period of not less than three years, or (b) in a relationship of some permanence, if
they are the natural or adoptive parents of a child.
The spousal support section (s.30) is also amended to provide that spouses and same
sex partners have an obligation to provide support for himself or herself and the
other spouse or same sex partner, in accordance with need, to the extent that he or
she is capable of doing so.
Minor amendments to reflect the inclusion of a same sex partner support obligation
have also been made to other sections under Part III. These changes provide that
support claims by same sex partners would be dealt with under the same legal
provisions as support claims by spouses.
b.
Restraining Orders
Section 46 of the FLA is amended to allow same sex partners to apply for a
restraining order against their former same sex partner.
c.
Domestic Contracts
Part IV is amended to allow “two persons of the opposite sex or same sex” to enter
into Cohabitation Agreements (s.53(1)) and Separation Agreements (s.54). These
-17contracts would now be subject to the validity and enforcement provisions of the
FLA.
d.
Dependents’ Claims for Damages
Part V is amended to allow same sex partners, as defined under Part III, to sue in tort
as a dependent.
11.
Land Transfer Tax Act
Prior to being amended, land transfers between common law opposite sex spouses and married
spouses were exempt from paying land transfer tax. This exemption came from a regulation, R.R.O.
1990, Reg. 696, that provided for inter-spousal transfers for natural love and affection, pursuant to
the terms of a written separation agreement or by a Court Order or judgment. The regulation was
amended by O. Reg. 117/00, which now provides a similar exemption for a same-sex partner or
former same-sex partner.
12.
Succession Law Reform Act
The Dependent’s Relief provisions (Part V) have been amended to include support claims by same
sex partners of the deceased. The definition of dependant is amended to include a same sex partner
of the deceased to whom the deceased was providing support or under a legal obligation to provide
support immediately before his or her death [s.57]. A same sex partner is defined to mean either of
two persons of the same sex who have cohabited continuously for a period of not less than three
-18years or are living in a relationship of some permanence, if they are the natural or adoptive parents
of a child [s. 57].