Recent Legislative Amendments Dealing with Same Sex Partners

Transcription

1 Recent Legislative Amendments Dealing with Same Sex Partners (Current as of May 1, 2000) by: Pam MacEachern

2 -2- Since the Supreme Court of Canada s landmark decision in M. v. H., there has been a flurry of activity to address long outstanding legislative discrimination against persons in same sex relationships. New legislation has been enacted by the federal government, Ontario, British Columbia, and Quebec. This legislation moves towards a full recognition of same sex relationships on the same basis as common law opposite sex relationships. This paper briefly reviews the decision in M. v. H. and these recent legislative changes. 1. The Decision in M. v H. On May 20, 1999, the Supreme Court of Canada released its decision in M. v. H. This decision was the first time the Court declared legislation to be unconstitutional on the basis that it failed to treat same sex couples equally to common law opposite sex couples. Although the decision only dealt with the Family Law Act (Ontario), its reasoning brought into question the constitutionality of every legislative provision in Canada which included common law couples but excluded same sex couples 1. In M. v H., M. claimed support from her same sex partner. In doing so, she challenged the definition of "spouse" under Part III of the Family Law Act (Ontario) on the basis that it was unconstitutional because it excluded same sex couples. Under Part III, a spouse is defined to include a man and a woman who are married to each other, and a man and woman who are not married to each other and have cohabited continuously for a period of not less than three years, or are in a relationship of some permanence, if they are the natural or adoptive parents of a child. M. was successful both at the trial court level and before the Ontario Court of Appeal. The Ontario government, an intervener in the case, appealed the decision to the Supreme Court of Canada. On May 20, 1999, the Supreme Court of Canada released its decision, finding in an 8-1 majority that the definition of spouse under Part III denied M. equality before the law and that this denial was not justified as a reasonable limit on rights in a free and democratic society. 1 The decision in M. v. H. did not address the constitutionality of distinctions made between married couples and unmarried couples.

3 -3- In arriving at this decision, Cory J., for the majority, stated: "The societal significance of the benefit conferred by the statute cannot be overemphasized. The exclusion of same-sex partners from the benefits of s. 29 of the FLA promotes the view that M, and individuals in same-sex relationships generally, are less worthy of recognition and protection. It implies that they are judged to be incapable of forming intimate relationships of economic interdependence as compared to opposite sex couples, without regard to their actual circumstances. As the intervenor EGALE submitted, such exclusion perpetuates the disadvantages suffered by individuals in samesex relationships and contributes to the erasure of their existence." In remedy, the majority held that the lower court remedy of reading same sex spouses into the definition of common law spouse under the spousal support provisions of the Act (section 29) was not appropriate. The domestic contract provisions (Part IV) were not before the court and amending section 29 without allowing same sex couples to contract out of this support obligation was seen as fixing one wrong by creating another. Instead, the Court severed section 29 and declared that it alone was of no force or effect, and temporarily suspended this remedy for a period of six months, ending November 20, Legislative Response of the Ontario Government In response to the M. v. H. decision, on October 28, 1999, the Ontario government proclaimed the Amendments Because of the Supreme Court of Canada decision in M. v. H.. (Bill 5). This Act amended 67 Ontario statutes in response to the M. v. H. decision to provide same sex couples with the same benefits and responsibilities under the law as common law opposite sex couples. The government s approach to these amendments was to create a new category called same sex partners which would be eligible for the same benefits and responsibilities provided for opposite sex common law spouses. The definition of spouse was not changed and, in Ontario legislation, remains as a person of the opposite sex. The definition of same sex partner varies among the statutes, as does the definition of spouse. The definitions used for same sex partner generally use one of the following formats, with amendments as necessary:

4 -4- - either of two persons of the same sex who live together in a conjugal relationship outside of marriage. (eg. Children s Law Reform Act) - either of two persons of the same sex who have cohabitated, (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.(eg. Family Law Act, Succession Law Reform Act) The amendments to the Family Law Act came into effect on November 20, All other amendments came into effect on March 1, The Ontario government s approach has been criticized for creating a new, separate, category of same sex partners rather than simply amending the definition of spouse to remove the requirement that spouses be of the opposite sex. Critics argue that this approach harps back to the separate but equal approach to equality which has been soundly rejected by Supreme Court of Canada in its equality jurisprudence under section 15 of the Canadian Charter of Rights and Freedoms. They argue that the Ontario government s amendments perpetuate the discrimination against same sex couples by implying that they are less than spouses and not deserving of recognition as spouses or family. Critics point to the manner in which the Attorney General announced the amendments as clear evidence of this discriminatory intent. In announcing the legislation, Attorney General Jim Flaherty stated that the government s intent was to comply with the decision in M. v. H. while preserving the traditional values of the family by protecting the definition of spouse in Ontario law.'' M. applied to the Supreme Court for a re-hearing on the issue of whether the Ontario government s amendments comply with the decision in M. v. H.. This application was dismissed on May 20, a. List of Ontario Acts Amended by Bill 5 Acts which recognized common law opposite sex spouses which were amended to add recognition of same sex partners : Absentees Act Assessment Act Business Corporations Act

5 -5- Change of Name Act Charitable Institutions Act Child and Family Services Act (adoption) Children's Law Reform Act City of Toronto Act Commercial Tenancies Act Community Economic Development Act, 1993 Compensation for Victims of Crime Act Consumer Reporting Act Conveyancing and Law of Property Act Co-operative Corporations Act Coroners Act Corporations Act County of Simcoe Act, 1993 Courts of Justice Act Credit Unions and Caisse Populaire Act, 1994 Education Act Election Act Employment Standards Act Estates Act Execution Act Family Law Act Family Responsibility and Support Arrears Enforcement Act, 1996 Homes for the Aged and Rest Homes Act

6 -6- Human Rights Code Human Tissue Gift Act Independent Health Facilities Act Insurance Act Land Transfer Tax Act Legislative Assembly Act Loan and Trust Corporations Act Local Government Disclosure of Interest Act, 1994 Members Integrity Act Mental Hospitals Act Mortgages Act MPPs Pension Act, 1996 Municipal Act Municipal Conflict of Interest Act Municipal Elderly Residents Assistance Act Municipal Elections Act, 1996 Municipal Health Services Act Northern Services Boards Act Nursing Home Act Ontario Disability Support Program Act, 1997 Ontario Energy Board Act, 1998 Ontario Municipal Employee's Retirement System Act Ontario Works Act, 1997 Ontario Youth Employment Act

7 -7- Partnerships Act Pension Benefits Act Perpetuities Act Police Services Act Public Libraries Act Public Service Pensions Act Regional Municipality of Ottawa-Carleton Act Retail Sales Tax Act Securities Act Succession Law Reform Act Tenant Protection Act, 1997 Toronto Hospital Act, 1997 Toronto Island Residential Community Stewardship Act, 1993 Victims' Bill of Rights, 1995 Victims' Right to Proceeds of Crime, 1994 Workplace Safety and Insurance Act and the repealed Workers' Compensation Act The Income Tax Act (Ontario) was not amended as it incorporates the definition of "spouse" contained in the Income Tax Act (Canada). See schedule A for highlights from Bill 5 amendments.

8 -8-3. Legislative Response of the Federal Government On February 11, 2000, the federal government tabled the Modernization of Benefits and Obligations Act (Bill C-23). This Bill was passed by the House of Commons on April 11, It was passed by the Senate on June 14, It is expected to be proclaimed shortly. Bill C-23 is omnibus legislation intended to extend benefits and obligations to same sex common law couples on the same basis as opposite sex common law couples. The Act will amend 68 pieces of federal legislation including the Income Tax Act, the Canada Pension Plan Act, the Criminal Code and the Old Age Security Act. Under Bill C-23, same sex couples are included by being brought under the new term common law partners. This term encompasses people in common law relationships, both same sex and opposite sex, avoiding the Ontario approach which establishes a separate category for same sex partners. At the same time, the federal government has also avoided amending the definition of spouse to include same sex couples. Instead, spouse refers to married couples only, and the distinctions between married and unmarried couples have been maintained. In March of 2000, Bill C-23 was amended to include a provision clarifying that the amendments in Bill C-23 do not affect the meaning of the word marriage, which remains the lawful union of one man and one woman to the exclusion of all others. The legal impact of this provision is unclear, although the majority view is that it has no legal impact on the definition of marriage, which is currently a matter of federal common law. On April 6, 2000, the federal government introduced amendments dealing with immigration which include recognition of same sex partners (Bill C-31). Prior to Bill C-23, in September of 1999, the federal government passed legislation to extended survivor pension benefits to same-sex partners of federal public employees (Bill C-78). a. List of Federal Acts Amended by Bill C-23 Agricultural Marketing Programs Act Bank Act Bankruptcy and Insolvency Act Bills of Exchange Act Loi sur les programmes de commercialisation agricole Loi sur les banques Loi sur la faillite et l insolvabilitéé Loi sur les lettres de change

9 -9- Bridges Act Business Development Bank of Canada Act Canada Business Corporations Act Canada Cooperatives Act Canada Corporations Act Canada Elections Act Canada Mortgage and Housing Corporation Act Canada Pension Plan Canadian Forces Superannuation Act Canadian Peacekeeping Service Medal Act Canadian Wheat Board Act Carriage by Air Act, Schedule II Citizenship Act Civil Service Insurance Act Civilian War-related Benefits Act Cooperative Credit Associations Act Corporations Returns Act Corrections and Conditional Release Act Cree-Naskapi (of Quebec) Act Criminal Code Customs Act Defence Services Pension Continuation Act Loi sur les ponts Loi sur la banque de dééveloppement du Canada Loi canadienne sur les sociéétéés par actions Loi canadienne sur les coopéératives Loi sur les corporations canadiennes Loi éélectorale du Canada Loi sur la Sociéétéé d hypothèèques et de logement Réégime de pensions du Canada Loi sur la pension de retraite des Forces canadiennes Loi sur la méédaille canadienne du maintien de la paix Loi sur la Commission canadienne du bléé Loi sur le transport aéérien Loi sur la citoyennetéé Loi sur l assurance du service civil Loi sur les prestations de guerre pour les civils Loi sur les associations coopéératives de créédit Loi sur les dééclarations des personnes morales Loi sur le systèème correctionnel et la mise en libertéé sous condition Loi sur les Cris et les Naskapis du Quéébec Code criminel Loi sur les douanes Loi sur la continuation de la pension des services de dééfense

10 -10- Diplomatic Service (Special) Superannuation Act Employment Insurance Act Escheats Act Excise Tax Act Family Orders and Agreements Enforcement Assistance Act Firearms Act Foreign Missions and International Organizations Act Garnishment, Attachment and Pension Diversion Act Government Annuities Act Government Corporations Operation Act Government Employees Compensation Act Governor General s Act Income Tax Act Income Tax Application Rules Indian Act Insurance Companies Act Judges Act Lieutenant Governors Superannuation Act Members of Parliament Retiring Allowances Act Merchant Seamen Compensation Act Old Age Security Act Parliament of Canada Act Pension Act Loi sur la pension spééciale du service diplomatique Loi sur l assurance-emploi Loi sur les biens en dééshéérence Loi sur la taxe d accise Loi d aide àà l exéécution des ordonnances et des ententes familiales Loi sur les armes àà feu Loi sur les missions éétrangèères et les relations internationales Loi sur la saisie-arrêêt et la distraction de pensions Loi relative aux rentes sur l ÉÉtat Loi sur le fonctionnement des sociéétéés du secteur public Loi sur l indemnisation des agents de l ÉÉtat Loi sur le gouverneur géénééral Loi de l impôôt sur le revenu Rèègles concernant l application de l impôôt sur le revenu Loi sur les Indiens Loi sur les sociéétéés d assurances Loi sur les juges Loi sur la pension de retraite des lieutenants-gouverneurs Loi sur les allocations de retraite des parlementaires Loi sur l indemnisation des marins marchands Loi sur la séécuritéé de la vieillesse Loi sur le parlement du Canada Loi sur les pensions

11 -11- Pension Benefits Division Act Pension Benefits Standards Act 1985 Pension Fund Societies Act Public Pensions Reporting Act Public Service Employment Act Public Service Superannuation Act Returned Soldiers Insurance Act Royal Canadian Mounted Police Pension Continuation Act Royal Canadian Mounted Police Superannuation Act Special Import Measures Act Special Retirement Arrangements Act Supplementary Retirement Benefits Act Trade Unions Act Trust and Loan Companies Act Veterans Insurance Act Veterans Land Act Veterans Review and Appeal Board Act Visiting Forces Act War Veterans Allowance Act Loi sur le partage des prestations de retraite Loi de 1985 sur les normes de prestation de pension Loi sur les sociéétéés de caisse de retraite Loi sur les rapports relatifs aux pensions publiques Loi sur l emploi dans la fonction publique Loi sur la pension de la fonction publique Loi de l assurance de soldats de retour Loi sur la continuation des pensions de la Gendarmerie royale du Canada Loi sur la pension de retraite de la gendarmerie royale du Canada Loi sur les mesures spééciales d importation Loi sur les réégimes de retraite particuliers Loi sur les prestations de retraite suppléémentaires Loi sur les syndicats ouvriers Loi sur les sociéétéés de fiducie et de prêêt Loi sur l assurance des anciens combattants Loi sur les terres destinéées aux anciens combattants Loi sur le tribunal des anciens combattants (réévision et appel) Loi sur les forces éétrangèères préésentes au Canada Loi sur les allocations aux anciens combattants

12 -12- The spousal compellability provisions of the Evidence Act have not been extended. The federal government is currently considering whether to repeal these provisions in their entirety. See schedule B for highlights from Bill C-23 amendments. 4. Legislative Amendments in Other Provinces a. British Columbia In July of 1999, the British Columbia government introduced the Definition of Spouse Amendment Act. This Act was passed and received royal assent on July 15, The Act expanded the definition of spouse in a number of key pieces of provincial legislation dealing with wills, estates, inheritance and related laws. The definition of spouse was amended to include a person who has lived and cohabitated with another person, for a period of at least 2 years immediately before the other person s death, in a marriage like relationship, including a marriage like relationship between persons of the same gender. These amendments built upon previous B.C. legislation in the family law area which included same sex couples in the definition of spouse. Amendments to the Family Relations Act (British Columbia (custody, access, support) came into effect in Amendments to B.C. s adoption laws to allow same sex couples to adopt came into effect in Omnibus legislation to amend remaining B.C. statutes to include recognition of same sex couples is expected to be introduced in the near future. b. Quebec In June of 1999, Quebec passed omnibus legislation which amended 28 statutes and 11 regulations (Bill 32). The Bill amended all Acts and regulations that contained a definition of the concept of de facto spouse to allow de facto unions to be recognized without regard to the sex of the persons concerned. The effect of the Bill is to grant same sex couples the same benefits and obligations that are available to opposite sex common-law couples.

13 -13- Schedule A Highlights of Ontario Legislative Changes to Include Same-sex Partners Bill 5: Amendments Because of the Supreme Court of Canada decision in M. v. H., proclaimed October 28, Effective Date: Amendments to the Family Law Act came into effect on November 20, All other amendments came into effect on March 1, The following list contains highlights of the amendments which are most likely to be of interest to a family law practitioner. 5. Change of Name Act After the amendments, two persons of the opposite sex or same sex who are living in a conjugal relationship outside of marriage, and who file a joint declaration in the prescribed form, can now elect to change their surnames to that of one of the partners or to hyphenate or combine their surnames [Change of Name Act, s.3(6) and (7)]. Prior to the amendments, this was only available to married spouses.

14 6. Child and Family Services Act (CFSA) -14- The adoption provisions of the CFSA were amended to provide that any other individual that the court may allow, having regard to the best interests of the child [ s.146(4)(c)] may now apply to adopt a child under s The result is that an application for adoption may now be brought by an individual, jointly by two individuals who are spouses, or any other individual the court may allow. Note that s.146(2), dealing with family adoptions, was not amended by the legislation, so that the legislation still restricts step parent adoptions to those made by a spouse of the child s parent. Re K (1995), 23 O.R. (3d) 679 (Ont. Ct. Prov. Div), not appealed, held that the definition of spouse under this Part (s.136(1)) was unconstitutional and violated s.15(1) of the Charter. The definition of spouse, therefore, was read to include a same sex conjugal relationship. Re K would presumably continue to govern the section that deals with adoption by step parents. 7. Children s Law Reform Act (CLRA) No immediate amendments have come into effect to the CLRA. Bill 5 did amend previous amendments to the CLRA which have been proclaimed but are not yet in force (Part V, ss. 77 to 84). These amendments include a provision directing the court to consider the fact that a person has at any time committed violence against his or her spouse or child, against his or her child s parent or against another member of the person s household, in assessing a person s ability to act as a parent. Bill 5 amended these amendments (s.24(3)) to include violence committed against a same sex partner. In addition, Bill 5 includes a definition section under s.24 (3) (s.24(3.1)), which includes a definition of same sex partner and a definition of spouse. Same-sex partner is defined to mean either of two persons of the same sex who live together in a conjugal relationship outside marriage. Spouse is defined to mean a spouse under s. 1 of the Family Law Act, or either of two persons of the opposite sex who live together in a conjugal relationship outside marriage.

15 Compensation for Victims of Crime Act (Applications to Criminal Injuries Compensation Board (CICB)) This Act governs applications to the CICB. The definition of dependant was amended to include same sex partners. Same sex partner is defined to mean a person of the same sex who was living with the deceased victim in a conjugal relationship immediately before the death of the deceased victim [s.1]. As a result, same sex partners can now apply to the CICB for compensation in the event of their partner s death as a result of a crime. 9. Estates Act This Act now provides that where a person dies intestate or the executor named in the will refuses to prove the will, administration of the property of the deceased may be committed by the Ontario Court to a married spouse, or a person of the opposite sex or same sex with whom the deceased was living in a conjugal relationship outside marriage immediately before death, the next of kin of the deceased, or both, in the discretion of court. Where there are competing claims, the court will confer administration of the property to those it deems fit [s.29(a)]. 10. Family Law Act a. Support: The support provisions (Part III) have been amended to include a support obligation between same sex partners.

16 -16- The definition section (s.29) under Part III is amended to include a definition of same sex partner which mirrors the definition of spouse under the same part. The definition of spouse has not been changed. Same sex partner is defined to mean either of two persons of the same sex who have cohabitated, (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. The spousal support section (s.30) is also amended to provide that spouses and same sex partners have an obligation to provide support for himself or herself and the other spouse or same sex partner, in accordance with need, to the extent that he or she is capable of doing so. Minor amendments to reflect the inclusion of a same sex partner support obligation have also been made to other sections under Part III. These changes provide that support claims by same sex partners would be dealt with under the same legal provisions as support claims by spouses. b. Restraining Orders Section 46 of the FLA is amended to allow same sex partners to apply for a restraining order against their former same sex partner. c. Domestic Contracts Part IV is amended to allow two persons of the opposite sex or same sex to enter into Cohabitation Agreements (s.53(1)) and Separation Agreements (s.54). These

17 -17- contracts would now be subject to the validity and enforcement provisions of the FLA. d. Dependents Claims for Damages Part V is amended to allow same sex partners, as defined under Part III, to sue in tort as a dependent. 11. Land Transfer Tax Act Prior to being amended, land transfers between common law opposite sex spouses and married spouses were exempt from paying land transfer tax. This exemption came from a regulation, R.R.O. 1990, Reg. 696, that provided for inter-spousal transfers for natural love and affection, pursuant to the terms of a written separation agreement or by a Court Order or judgment. The regulation was amended by O. Reg. 117/00, which now provides a similar exemption for a same-sex partner or former same-sex partner. 12. Succession Law Reform Act The Dependent s Relief provisions (Part V) have been amended to include support claims by same sex partners of the deceased. The definition of dependant is amended to include a same sex partner of the deceased to whom the deceased was providing support or under a legal obligation to provide support immediately before his or her death [s.57]. A same sex partner is defined to mean either of two persons of the same sex who have cohabited continuously for a period of not less than three

18 -18- years or are living in a relationship of some permanence, if they are the natural or adoptive parents of a child [s. 57].