Are We Spouses Yet?
Bill 5 – An Act to Amend Certain Statutes as a Result of the Supreme Court of Canada’s Decision in M v H
What difference has it made to same sex relationship recognition in Ontario?
In October 1999, the Ontario government passed bill 5, An Act To Amend Certain Statutes as a Result of the Supreme Court of Canada’s Decision in M v H.
M v H was a same-sex spousal case launched in 1992, when one woman sued another for support after the break-up of their relationship. The case worked its way up to the supreme court of Canada, which found that the Ontario Family Law Act, in not covering same-sex relationships, contravened the equality rights promised to all in the Canadian Charter of Rights and Freedoms. In their final judgement, May 1999, the supreme court gave the Ontario government six months to amend the act.
Ontario’s conservative government, anxious that heterosexuals would be offended if lesbians, gays, and bisexuals could think of themselves as spouses, created a separate category called “same-sex partners.” In an omnibus bill, they did however include same-sex partners in most of the provisions affecting heterosexual common-law spouses.
It means that same-sex couples in Ontario have roughly the same status – rights and responsibilities – as heterosexual common-law couples in Ontario.
You have to be living with your partner to be entitled to most of these rights, and the relationship has to be 1-3 years old (depending on which provision you’re looking at).
So, if you are living in a same-sex relationship, you can:
- get spousal benefits from your employer
- have your same-sex partner qualify for benefits under life, automobile, and accident and sickness insurance policies
- have your same-sex partner qualify for pension benefits and benefits under the Workplace Safety and Insurance Act
- have a same-sex relationship recognized by health services, nursing homes, and homes for the aged.
- enter into a cohabitation agreement or a separation agreement permitting you and your same-sex partner to opt out of the spousal support obligations in the Family Law Act
- apply for support on breakup of the relationship
- apply for division of property on breakup of the relationship
- lose your welfare or disability cheque because you are assessed as part of a couple rather than as an individual
- find your welfare income is reduced, if you are both on welfare, because you are assessed as part of a couple rather than as separate individuals
- sort of adopt a child together:
- step-parent adoption is ok
- adopting as a couple, you would be in the same position as any two unrelated people seeking to adopt together (which they can); you would not be treated as a couple/family unit as a heterosexual couple would
- assume your property will go to your lover on your death; you must make a will; automatic inheritance is only for the married.
What about marriage?
Marriage is principally covered under federal laws, not provincial ones, so the situation is unchanged. Same-sex partners can get married in a church, have holy unions, commitment ceremonies, etc – this is not illegal and never was. But neither the federal nor the provincial government will yet recognize your relationship as existing in law.
What about income tax and old age pensions?
These are covered by federal legislation. Recently, parliament amended over 50 federal laws, including the Income Tax Act and the legislation governing federal old age pensions, to recognize same-sex couples on the same basis as common-law heterosexual couples.
Who is left out?
Anyone is left out of these provisions whose relationship does not fit into the mould prescribed by the government. For example, if you do not live in the same house or apartment as your spouse, you cannot go on their health benefits plan.
If you have a more extended family structure (many of us do, and many different cultures do), you cannot have it recognized. A person with more than one significant other, for instance. Or a child with more than two parents (for example, where a heterosexual marriage has broken up and one partner (or both) has a same-sex partner also.
Where can I go for legal advice?
In Toronto, check The Pink Pages , or ads in Xtra!, Siren, Fab for lawyers. Go to a lawyer with experience in the field.
Contact the Foundation for Equal Families at (416) 975-0024.
Outside Toronto, check GayCanada. Go to a lawyer with experience in the field.
Where can I read up on all this?
CLGRO has several publications you can view online:
- The Spousal Collection, changes in spousal rights 1989 – present, a 100-page document with Canadian and global news updates.
- CLGRO’s 1992 brief, Happy Families: the recognition of same-sex spousal relationships, which details the Ontario laws that needed changing
- CLGRO’s 1991 legal guide to relationships recognition, On Our Own Terms, documented how to protect your relationship prior to bill 5, still useful for information on the bits that haven’t changed, such as wills etc.
Pamphlet prepared by CLGRO, November 1999