Keith Mack
M v H [1999] 2 S.C.R. 3 is a landmark decision of the Supreme Court of Canada on the rights of cohabiting same-sex couples to equal treatment under the law. The case concerned the meaning of the term spouse under the Family Law Act and whether it extended to same-sex couples. The court found that the definition of spouse in section 29 of Ontario's Family Law Act, which extended spousal support rights to unmarried cohabiting opposite-sex couples but not same-sex couples, was discriminatory and thus unconstitutional. This case is significant as it deals with Canada's analysis of constitutional equal protection challenges compared to American law, and it sets a precedent for equal treatment of same-sex common-law couples and opposite-sex common-law couples under Canadian law.
| Characteristics | Values |
|---|---|
| Case | M v H |
| Year | 1999 |
| Court | Supreme Court of Canada |
| Petitioner | Joanne Mitchell ("M") |
| Respondent | Lorraine McFarland ("H") |
| Subject | Rights of cohabiting same-sex couples to equal treatment under the law |
| Decision | Definition of "spouse" in Ontario's Family Law Act was discriminatory and unconstitutional |
| Impact | Legislative Assembly of Ontario amended the law to include all common-law spouses |
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What You'll Learn
- M v H (1999) – a Canadian Supreme Court ruling on equal treatment for same-sex couples
- Ontario's Family Law Act – spousal support rights for cohabiting opposite-sex but not same-sex couples
- Common-law marriage – cohabiting partners have fewer rights than married spouses, especially regarding property division
- Constitutional equal protection – the case compared Canada's analysis to that of American law
- Equality rights – the exclusion of same-sex couples from common-law spouse definition violated equality rights
M v H (1999) – a Canadian Supreme Court ruling on equal treatment for same-sex couples
M v H (1999) is a landmark ruling by the Supreme Court of Canada on the rights of cohabiting same-sex couples to equal treatment under the law. The case was an appeal of a claim originally brought by a lesbian couple, Joanne Mitchell ("M") and Lorraine McFarland ("H"), whose lawyers' initials were used in the case. The couple had been in a lengthy relationship from 1982 to 1992 and sought spousal support after their separation.
At the time, the Ontario Family Law Act (FLA) excluded same-sex couples from the definition of "spouse", limiting it to “a man and a woman". This restricted their right to apply for spousal support, as the definition only recognised married couples and unmarried cohabiting opposite-sex couples who had lived together for at least three years. The Supreme Court ruled that this exclusion was discriminatory and unconstitutional, violating the equality provisions of section 15 of the Canadian Charter of Rights and Freedoms.
As a result, the court struck down section 29 of the FLA, which defined a spouse as "a man and a woman", and gave the government of Ontario six months to amend the definition to include all common-law spouses, regardless of sexual orientation. This ruling set a precedent for relationship recognition for same-sex spouses across Canada and led to significant legislative changes.
The M v H decision had a profound impact on family law in Canada, with 58 federal statutes and 68 Ontario statutes amended to include same-sex couples as spouses, mirroring the rights and obligations of heterosexual couples. It also influenced international jurisdictions, with judges from England, Israel, Ireland, France, Spain, New Zealand, Australia, and the United States citing the case in their decisions relating to same-sex spousal rights. The ruling was a pivotal moment in the fight for LGBTQ+ equality in Canada, paving the way for equal marriage and other advancements in the years that followed.
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Ontario's Family Law Act – spousal support rights for cohabiting opposite-sex but not same-sex couples
In Ontario, a common-law relationship refers to two persons who are not legally married but have cohabited in an intimate, conjugal partnership. To make a claim for spousal support, common-law couples must prove that they have been in a conjugal relationship for at least three years or have had a child together.
The Family Law Act (FLA) is a statute passed by the Legislature of Ontario in 1986, regulating the rights of spouses and dependants in matters of property, support, inheritance, prenuptial agreements, separation agreements, and other aspects of family law.
In 1999, the Supreme Court of Canada made a landmark ruling in M. v. H. that established the equality of spousal rights for same-sex couples under Canadian law. The case concerned the meaning of "spouse" under the Family Law Act and whether it extended to same-sex couples. M and H were a lesbian couple who lived together from 1982 to 1992. After their relationship ended, M applied for spousal support under Ontario's Family Law Act. She challenged the definition of "spouse" under the FLA, which applied only to married couples and opposite-sex couples who had lived together for three or more years.
The Supreme Court found that the definition of a spouse in section 29 of the FLA, which extended spousal support rights to unmarried cohabiting opposite-sex couples but not same-sex couples, was discriminatory and thus unconstitutional under section 15 of the Canadian Charter of Rights and Freedoms. The court struck down section 29, and the Legislative Assembly of Ontario subsequently amended it to include all common-law spouses, regardless of sexual orientation. This ruling had far-reaching implications for the treatment of same-sex couples' rights across all provinces.
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Common-law marriage – cohabiting partners have fewer rights than married spouses, especially regarding property division
Cohabiting partners, or those in a common-law marriage, have fewer rights than married spouses, especially regarding property division. The term "common-law marriage" is often used to refer to couples living together without a legal marriage ceremony, and the rights of these couples vary depending on the jurisdiction.
In some countries like Ireland, common-law marriages are not legally recognized, but legislation like the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 provides some rights to unmarried cohabitants. In Canada, the Supreme Court has ruled that common-law same-sex couples are entitled to equal treatment under the law, striking down discriminatory provisions in Ontario's Family Law Act.
Cohabiting couples generally have fewer legal rights and obligations compared to married couples, especially in matters of inheritance and property division. For example, if a cohabiting partner dies without a will, the surviving partner has no automatic right to their estate, and they may have to pay inheritance tax on any inheritance received. On the other hand, when a married partner dies, the surviving spouse will inherit under the will or, in the absence of a will, receive all or part of the estate.
Property ownership can be complicated for cohabiting couples. Generally, property owned before cohabitation remains with the original owner, and items bought are typically owned by the purchaser. In marriage, however, savings and property are often considered joint assets and divided equally in court disputes.
Cohabiting couples can protect their rights and interests by creating a legal agreement, such as a cohabitation contract, which can outline how assets and property will be handled during and after the relationship. Additionally, some jurisdictions offer a Redress scheme for cohabiting couples, providing similar court orders to married couples in cases of separation or divorce, but these often require a lengthy period of cohabitation and financial dependency.
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Constitutional equal protection – the case compared Canada's analysis to that of American law
In Canada, the Constitution is the supreme law, and all other laws must be consistent with the rules set out in it. The Canadian Charter of Rights and Freedoms is part of the Constitution. The Charter guarantees that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination, especially based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. This is similar to the Fifth and Fourteenth Amendments of the US Constitution, which are also about equal protection under the law.
Section 15(1) of the Charter is meant to promote equality and protect Canadians from laws and government actions that discriminate against them based on enumerated grounds such as sex, race, age, or disabilities. The Supreme Court of Canada has also interpreted section 15(1) to include protection from discrimination based on analogous grounds such as sexual orientation, marital status, and citizenship status. This interpretation of section 15(1) to include analogous grounds is a form of substantive equality, which requires attention to the full context of the case and its impact on the claimants and their group.
In the case of M v H (1999), the Supreme Court of Canada ruled that the definition of "spouse" in Ontario's Family Law Act, which excluded same-sex couples from common-law spouse status, was discriminatory and unconstitutional under section 15 of the Charter. This ruling was based on the interpretation of section 15(1) as guaranteeing substantive equality and protecting against discrimination based on analogous grounds such as sexual orientation. The court found that excluding same-sex partners from the definition of "spouse" perpetuated the disadvantages suffered by individuals in same-sex relationships and contributed to their erasure.
In comparison, the US Constitution's equal protection clause, found in the Fourteenth Amendment, states that no state shall "deny to any person within its jurisdiction the equal protection of the laws". This clause has been interpreted by the US Supreme Court to mean that all people are entitled to be treated alike under like circumstances and conditions, both in the privileges conferred and liabilities imposed by law. This interpretation is similar to the former standard for equality in Canada, known as "formal equality", which focused on providing like-treatment for like-individuals. However, this standard was rejected by the Canadian Supreme Court after the Charter became part of the Constitution.
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Equality rights – the exclusion of same-sex couples from common-law spouse definition violated equality rights
The exclusion of same-sex couples from the common-law spouse definition has been a contentious issue, with human rights and civil rights organizations advocating for marriage equality. This debate has resulted in legal challenges and policy changes in various countries and states.
In the United States, the Defense of Marriage Act (DOMA), which defined marriage as a union between one man and one woman, was challenged in federal courts. In 2013, the Supreme Court of the United States struck down Section 3 of DOMA, ruling that it violated the Fifth Amendment, leading to federal recognition of same-sex marriage. This was followed by a series of federal policy changes that extended benefits to same-sex married couples, including military and immigration benefits.
At the state level, there have been varying approaches to marriage equality. In California, the National Center for Lesbian Rights successfully challenged the state's marriage laws, leading to a ruling by the California Supreme Court in 2008 that access to marriage was a fundamental right under the state constitution. Similarly, in Connecticut and Iowa, the state Supreme Courts held that denying marriage rights to same-sex couples violated equality and liberty provisions in their respective state constitutions. In contrast, some states, such as Arkansas, have upheld traditional definitions of marriage, leading to legal challenges at the federal level.
Internationally, several countries have recognized marriage equality and granted equal marriage rights to same-sex couples. The Netherlands became the first country to do so in 2001, followed by Canada in 2005. Other countries, including Taiwan, Switzerland, Chile, and Cuba, have also legalized same-sex marriage through legislative or judicial decisions. However, the process for obtaining a marriage license for same-sex couples can vary across localities, even within the same country, as seen in Mexico.
The movement towards marriage equality has been supported by prominent figures in the civil rights movement and organizations such as the NAACP. Legal challenges have argued that excluding same-sex couples from marriage is a form of discrimination that violates constitutionally protected rights. These arguments have gained momentum, leading to a growing number of countries and states recognizing marriage equality and extending equal rights to same-sex couples.
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Frequently asked questions
M v H is a landmark decision of the Supreme Court of Canada on the rights of cohabiting same-sex couples to equal treatment under the law. The court found that the definition of a spouse in section 29 of Ontario's Family Law Act, which extended spousal support rights to unmarried cohabiting opposite-sex couples but not same-sex couples, was discriminatory and therefore unconstitutional.
The ruling found that it was constitutionally imperative under the Canadian Charter for laws to provide equal treatment of same-sex common-law couples and opposite-sex common-law couples. The Legislative Assembly of Ontario subsequently amended section 29 to include all common-law spouses, regardless of sexual orientation.
The M v H case dealt a body blow to discrimination in Canada, according to R. Douglas Elliott, one of the lawyers in the case. It set a precedent for comparing Canada's analysis of constitutional equal protection challenges to such analysis under American law.
