Landmark victory for gays and lesbians needs legislative action for true equality.

• Author: Ross, June

On May 20, 1999, the Supreme Court of Canada handed down its judgment in M. vs. H., a decision immediately reported as a landmark victory for gays and lesbians. But it is a victory in principle, not practice: the ruling has not as yet taken effect. If and when it does, it will not create the necessary legal changes to make same-sex partners and families equal in any meaningful sense. Inherent and self-imposed limitations on judicial authority give rise to real restraints on judicial activism, and mean legislative action is essential if there is to be significant progress toward equality.

There are inherent limitations because the issue arose out of a private dispute. The relationship between M. and H. broke down. M. was left without resources or income and sought support from H. The ability to bring such a claim under the Ontario Family Law Act was restricted to heterosexual couples. M. argued the restriction was unconstitutional. After she had succeeded before the Ontario courts, and before the Supreme Court of Canada appeal, M. came to a settlement with H. The appeal nonetheless continued. While the case had become moot as between the original parties, the constitutionality of the Family Law Act remained a live dispute.

The case that continued against the Family Law Act was still, however, limited to the issue raised between M. and H. The case was thus not only limited to one statute, but to particular provisions within it. The Family Law Act contains more than one set of rights and obligations, and more than one definition of spouse. The primary definition of spouse under the act includes only persons who are actually married. This definition applies to all parts of the act. The expanded definition of spouse includes opposite-sex couples who have cohabited for at least three years, or for some lesser period if they have a child. The expanded definition applies to some, but not all, rights and obligations under the act.

The Supreme Court made it clear it was dealing only with the issue of spousal support, and only with the omission from the expanded definition of same-sex spouses. As Doug Elliott said (one of the counsel in the case), the act could be likened to a train with a first-class carriage for married couples and a second-class carriage for common law opposite-sex couples. Same-sex couples were not even on the train. The effect of the court's ruling was same-sex couples could not be excluded from second class.

While it concluded...