M versus H

The next Ontario provincial government must decide by November what to do about the Supreme Court Of Canada’s earth-shattering M versus H decision.

“The court said you have six months to decide,” says Brenda Cossman, a family law specialist who teaches at the University of Toronto Law School. “All our premier has said is that he’ll abide by the decision. That would be a disaster for the government!”

The May 20 decision, an overwhelming eight to one ruling, states that one small chunk in Ontario legislation – the spousal support section of the Family Law Act – discriminates against same-sex lovers who have split up. The judges decided homos, too, should be on the hook for splitting cash, just as are heterosexuals.

But because the courts only pronounce on very specific issues, what’s affected is only this small part of the law, and only in Ontario.

Says Cossman: “After bending over backwards all through it, at the end of its decision, the court says its ruling may have implications on other [laws] and suggests that other governments may want to take a look at their definitions [of spouse].

“It tosses the ball back to the legislatures.”

If Ontario doesn’t act within six months, all common law couples, homo and hetero, will be dropped from the section – and only married folks will be covered. That would leave quite the mess.

“The government wants unmarried people to have spousal support obligations, so they can get them off welfare,” explains Cossman.

But just rewriting that one section of the law won’t work, either. Heterosexual couples can opt out, for example, by signing pre-nuptial contracts setting out financial obligation after a split up. Homos aren’t covered in that section… and won’t be unless there’s a complete overhaul.

Cossman says that it’s unlikely that angry partners who split up some time ago could sue retroactively, but the ruling’s not clear on that.

Ontarians go to the polls Thu, Jun 3. NDP leader Howard Hampton and Liberal leader Dalton McGuinty have both announced support for same-sex spousal rights.

Premier Mike Harris has said: “I’m not a fan of the notwithstanding clause at the best of times. We respect the Constitution of Canada.”