An edited version of this article first appeared in the October, 2002 issue of Canadian Lawyer. If you wish to reproduce this article, click here for copyright info.
Unmarried Gay Couples--Beware!
What a difference a few years can make. In July 2002, in Halpern v. Canada  O.J. No. 2714, three judges of Ontario’s Superior Court of Justice held that the common-law definition of marriage ("a union of one man and one woman") was unconstitutional because it discriminated against the equality rights of gays and lesbians. It violated their rights to marry partners within their own sex.
What many people didn’t realize was that this was not the first time the question had been addressed by an Ontario court. In March, 1993, in a case called Layland v. Ontario  O.J. No. 575 Justices Southey, Sirois and Greer were called upon to provide judicial review of the refusal of the Ottawa City Clerk’s Office to issue a marriage license to two men.
The 1993 court recognized, like the later court, that there was no statutory definition of marriage, and that the policy applied by the Clerk was based on the common-law definition of marriage.
However, when they got to the part about whether or not this was discriminatory against gays and lesbians, the 1993 court made an interesting point. The law did not prevent gays from marrying at all. Rather, it only prevented gays from marrying persons of the same sex. So if a gay male wanted to marry a female for some reason, he could go right ahead, just like a straight male.
Presumably the corollary would also apply, namely that if a heterosexual male applied for some unusual reason to marry another man, his application would likewise be turned down. Thus, held the court, there was no discrimination on the basis of sexual orientation. Both orientations were permitted to do exactly the same thing, namely marry someone of the opposite sex.
I had stumbled across the Layland case while researching an earlier article and knew that it was just sitting there waiting to be overruled. The reasoning was too cute by far not to tempt someone to come along and take a stab at it. Can you imagine the hue and cry there would have been if the Halpern court had followed the Layland precedent these nine years later?
Having said all that, just let me add that I personally don’t give a hoot if gays are permitted to marry. My position has always been that marriage should be a private contractual matter between the parties involved, and the state has no business making any laws about it at all. So I’d like to see the repeal of the Marriage Act, the Divorce Act and especially the various provincial laws that pigeon-hole people into financial relationships they have never agreed to.
While the court claims the withholding of the "married" label denies human dignity to gays, my own experience throughout 22 years in a common-law relationship is that I never felt my human dignity to have been violated because I lacked the label. I refer to my partner as my husband and he calls me his wife. I gather many gays have already been doing the same. And if they had wanted to have the same financial results from their relationship as if they’d been legally married, all they would have had to do was prepare a contract importing the provisions of their provincial property and support laws. One sentence would have done the job: "We hereby agree that upon the breakdown of our relationship, our rights to financial support and to an interest in property held by the other party shall be governed as if we had been married to each other on [date] under the laws of [province]."
The insistence by gay groups upon having the state bestow the title "married" seems to me to have little to do with dignifying or cementing the nature of the relationship between the gay couple. To me, it looks a lot more like the venting of pent-up belligerence against the heterosexual community. "Ve vill make you call us married vhether you like it or not."
Meanwhile, while gays have been spending their time fighting for the right to choose the marriage label, they seem to have ignored a much more worrisome case that might imminently rear up and bite them.
It’s the Attorney General of Nova Scotia v. Walsh case. I wrote about it on this page in August, 2000 when it was fresh out of the Nova Scotia Court of Appeal as Walsh v. Bona,  N.S.C.A. 53. Now it has been heard by the Supreme Court of Canada but judgement has been reserved. It’s the case in which an unmarried man who split up with his common-law wife after ten years was told he’d have to divide his property as if they had been married because to do otherwise would be to discriminate on the grounds of marital status.
How ironic—no sooner do gays acquire the right to choose to be married or not married than they may find themselves placed in the position where a state of virtual marriage-hood can be thrust upon them, retroactively, like it or not. Depending upon what the SCC says about Walsh, gays may find themselves regretting the energy they spent worrying about that little matter of the marriage label and wishing they had worked on writing up good, solid contracts that expressed their unique wishes regarding their personal finances.
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