BarTalk April 1999
Volume 11, Number 2

by Madisun Browne

The Coalition for Equal Families has brought an action in the General Division of Ontario Court alleging that fifty-eight federal statutes confer benefits and protections of law in a discriminatory manner, contravening the Charter of Rights and Freedoms. The Coalition for Equal Families coalesced in 1994 when the Ontario government proposed to amend 60 provincial statutes to confer spousal benefits on lesbian and gay families.

The Coalition predicates its current case squarely on section 15 of the Charter, Egan and Nesbit v. Canada (1994 ) (S.C.C.), Rosenberg et al v. Canada (1998) (Ont.C.A.) and Vriend v. Alberta (1998) (S.C.C.).

The statutes under scrutiny in this case confer a wide variety of spousal benefits. Many confer financial benefits on married couples, e.g. Pension Act, Broadcasting Act, Judges Act, Public Service Superannuation Act, Canada Pension Plan Act, War Veterans Allowance Act, Old Age Security Act, Canadian Forces Superannuation Act. Other statutes create indirect financial benefit to married couples. For example, under the Employment Insurance Act, ss. 29, 30, S.C., 1996, a person can leave work voluntarily to care for a spouse or to relocate if the spouse’s job requires it and still be eligible for benefits. But a lesbian or gay person would not be eligible in the parallel situation. More than a decade ago, courts recognized that pensions were valuable assets acquired during a marriage and deserved to be divided between the parties to a divorce. Similarly, when one partner in a same sex relationship dies, the denial of survivor benefits to the other denies that person of a substantial jointly acquired asset. These laws have a disproportionate impact on many lesbians who, as women, have lower earnings and fewer employment benefits than men, generally speaking.

Some laws confer a legal right, or eligibility. The Canada Evidence Act governs the compellability of spouses in criminal proceedings. In this case, by excluding lesbian and gay spouses from this statute, all communications between same sex partners are compellable with the penalty of contempt awaiting those who might assert that such communications ought to be private. Under the Immigration Act and Regulations, members of a family (who are citizens, permanent residents or landed immigrants in Canada) can sponsor other members of their family to immigrate. But these laws also explicitly deny the right to same sex couples, who must apply in the “independent” category as though they had no relationship to a Canadian. In 1994, Canadian immigration issued a directive that immigration officers should exercise discretion and grant permanent residence to non-Canadian same sex partners of Canadians. But no immigration materials or information disclosing this procedure is available to lesbians and gays. In a further example, the Bankruptcy and Insolvency Act has procedural safeguards to review non-arm’s length transactions and settlements made in contemplation of marriage; rules prohibit spouses who are creditors from voting at meetings of creditors. But a variety of bizarre and serious injustices can occur when same sex couples vote as creditors and have transactions reviewed as though they were at arm’s length, when in fact they are not at arm’s length. Lesbian gay couples, and more generally, the public, are better protected when same sex spouses are given the dozens of protections and responsibilities that married couples have.

The governments in Canada have allowed their fear of public backlash to outweigh the constitutional imperative of the Charter. Since they are reluctant to confer the vast range of spousal benefits and protections on lesbian and gay couples, these communities and supporters will continue to litigate until Canadian laws reflect the equality “before and under the law” and “equal protection and equal benefit of the law” the Charter promises to all.

Ms. Browne practices with the firm of Dahl findlay Connors in Vancouver.

This article was published in the April 1999 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.