The Supreme Court of Canada has struck down an Ontario law which allows opposite sex couples the right to sue each other for spousal support, but denies that right to same sex couples.

M. v. H. involved a lesbian couple who lived together in Toronto for five years. When they split-up, M. had no money. She sued H for spousal support.

Section 29 of the Family Law Act allows only heterosexual couples to sue each other. M. said that section 29 should be struck down, because it violated section 15 of the Charter of Rights. Section 15 says that the law must treat everyone equally. The Ontario government was involved in the case, as it was an Ontario lawwhich was in question. When the case first started, Bob Rae was still the premier. During the part of the case when the NDP was in power, the government actually agreed with M and said that its own law should be struck down. When Mike Hams was elected premier in 1995, the government changed its position, and argued in favour of the law which did not allow same-sex couples to sue each other for support The Supreme Court agreed with M and disagreed with the Province of Ontario.

The law treated same-sex couples unequally. The Court said that the human dignity of same sex couples was violated by the inability to sue for support.

Under the Charter of Rights , the Supreme Court has the power to "strike down" any law which is inconsistent with the Charter. The Supreme Court gave the Ontario government six months to rectify thelaw, failing which it will be struck down. This decision will have a wide impact. First, gays and lesbians all over Canada will probably end up having the right to sue each other for support. The Ontario law is similar to the laws of the oilier provinces of Canada, and it is obvious that those laws are no more valid than was the Ontario law. The decision will probably have impact outside of the narrow issue of spousal support. There are many provincial and federal laws which make a distinction between same-sex and opposite sex relationships. If lhe logic of M. v. H. is allied to these laws, they probably also will be found unconstitutional. Some examples of these other laws are:

• laws regulating entitlement to benefits out of deceased estate;
• laws as to who can make medical decisions for people who are incapable of doing so themselves;
• laws as to who can receive employment benefits;

To the critics of the Supreme Court, this is just another example of the Court meddling in moral and political issues. In particular, critics point out that M. and H. actually settled their case before it got to the Supreme Court. The Supreme Court agreed to hear the case as it involved an important issue of law, even though there was no actual dispute between the partics. The Court was making an exception to a long established principle lhat courts will hear only actual disputes between parties and will not rule on hypothetical questions. This the critics argue, is evidence of the Court's eagerness to make political decisions.

back to articles menu