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THE CONTROVERSY OVER COUPLES

Like many other countries, Canada is currently facing considerable controversy over the issue of how to recognize different types of intimate adult relationships.  The debate primarily revolves around intimate relationships that fall outside of our current definition of marriage, namely common-law relationships and same-sex relationships.

In the 1970s Canadian legislatures began to grant "spousal" rights to opposite-sex common-law partners.  Further, Canadian courts, despite there being no government written laws, began to recognize that common-law partners may have property claims as one person should not be unjustly enriched by another's contributions.  In 1995, the Supreme Court of Canada, in a case called Miron v. Trudel held that failure to grant certain "spousal" rights to common-law partners violates the Charter (specifically s. 15 of the Charter which requires that all persons be treated equally in the eyes of the law).

In 2002, a case called Nova Scotia v. Walsh noted that married persons have government written property laws and opposite-sex common-law partners do not; however, the Court held that this denial of government written property laws for common-law partners is not discriminatory. The Court in the Walsh case desired to give "marriage" a unique and privileged status.  Further, the Court recognized that people who choose to live together may have different intentions and levels of commitment than people who choose to marry and therefore different legal regimes should govern these 2 groups.  These cases have added to the controversy over the definition of marriage and other intimate relationships.

In the 1990s an even greater controversy has commenced that centers on the recognition of same-sex relationships.  In 1999, the Supreme Court of Canada ruled in a case called M. v. H. that the failure to give same-sex partners the same rights as opposite-sex common-law partners violates the Charter.  Further, Courts of Appeal in both Ontario and British Columbia have agreed that laws denying same-sex partners the right to marry violates human dignity, represents a failure to respect the rights of a "discrete and insular minority", and are in breach of the Charter.  What these cases mean is that same-sex marriages are now legal in 2 provinces.  In June, 2003, the Federal Government, in response to these cases and the overall controversy, sent this issue as a Reference case to the Supreme Court of Canada to obtain the Court's opinion.  The Federal Government desires to know whether it is constitutionally permissible to recognize same-sex marriage and whether the Charter requires the recognition of same-sex marriage.  This Reference case is to be heard by the Supreme Court of Canada in October of 2004 and a decision on this issue is expected in the spring of 2005.  If the Supreme Court of Canada finds that denial of marriage rights to same-sex partners violates the Charter it would mean that Canada could be the 3rd country in the world to allow same-sex marriages.

The writer is not certain of what the outcome will be but is certain that there will continue to be on-going controversy over couples for some time to come.

By Stacey M. Johnson
March 17, 2004