Different partnerships.

• Author: Dickson, Gary

The year 2002 is a good time to reflect on the impact of the equality guarantee in the Canadian Charter of Rights and Freedoms. We have had 20 eventful years of experience with the Charter. The equality provision has had a profound influence on laws dealing with the different kinds of arrangements in which Canadians choose to live.

A significant number of citizens now live with partners in non-married situations. Same-sex partners may choose to form a mutually supportive relationship. It may be two adult sisters or even a couple of long-term friends who pool resources and incomes as part of stable co-living arrangement. Most Alberta laws however have been constructed around the concept of a traditional marriage between a man and a woman. A wife or husband have available to them a range of remedies when their relationship is fractured. They have the right to ask a court for relief if a deceased spouse has failed to make adequate provision for them. They have additional rights and opportunities.

Since the early 1990s a number of people living in non-married relationships have gone to court challenging different laws that failed to provide them with equal access to those same remedies available to spouses. To that end they have used Section 15(1) of the Charter. It provides as follows:

"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

In any given case, the court must consider whether the challenged law offends that Charter provision. If it concludes that the law in question violates Section 15(1) the court must then consider whether the law can be justified as a reasonable limit in a free and democratic society. If the court finds that the law cannot be justified, the provincial government is put in the position of either amending the flawed law or invoking the notwithstanding clause in Section 32 of the Charter.

In 1995 the Supreme Court held that an Alberta law that discriminated against persons in a common law relationship did not satisfy the equality provision in the Charter. In response, the Alberta government amended its Domestic Relations Act to allow persons in a common-law relationship to go to court to apply for a support order.

In 1999, the Supreme Court of Canada held that the denial of access...