Support Ruling No Victory for Same-Sex
Poor old H.
She’s the forgotten woman of the gay rights movement. She lived with her lesbian partner M for 10
years before they split up. Then M sued
her for support under Ontario’s Family Law Act and won.
The judge re-wrote a portion of the law to
define same-sex couples as spouses.
Last week, the Court of Appeal confirmed the decision.
community was elated by these decisions.
I can’t understand why. Have
forgotten that there are two sides to this case—two lesbians, not just
whose rights have been determined? While they exalt over M’s obtaining
so-called advantages of the Family Law Act, why do they show no concern
suddenly being saddled with the burdens and obligations that the same
imposes? After all, H is a member of the
homosexual community too. What has she
done to make all her confreres turn against her in this dispute?
The court held that same-sex partners were
disadvantaged in being excluded from the Family Law Act.
I don’t see it that way. I
see them as having had an advantage. Unlike
heterosexuals, they were free to
bargain on terms of absolute equality to determine how their financial
resources would be allocated between the members of their household. There was no statute hanging over their heads
imposing a regime they did not desire.
If M and H had wanted an arrangement in which they
would be mutually obligated to provide financial support after
could have written up a contract. They could have explicitly
principles of the Family Law Act and its related case precedents into
agreement to ensure that they would be treated no differently from
In cases involving male-female partners, feminist
legal theorists justify wives’ support and property claims on the
righting some alleged historical wrong.
Women have been oppressed by men for centuries, they say. Men owe them.
In M. v. H., the plaintiff doesn’t even have this
fiction to fall back on. She’s not a
member of a group that was oppressed by the group her lover belongs to.
both belong to the same group: gay women.
Neither could possibly be considered historically
to the other.
the past 15 years,
the cases on equality rights under Section 15 of the Charter went off
track. On the face of it, the notion
that everyone should be equal before the law, and should have a “right
equal protection and equal benefit of the law”, regardless of physical
attributes or beliefs, seems perfectly just and proper.
But this presupposes that the law itself will
do nothing more than protect individuals’ rights. When
the law starts enacting privileges for
some at the expense of others and calling them rights, it’s time to
and reconsider what we’ve been doing.
The error in the M. v. H.
case lies in believing that the Family Law Act is a statute that grants or enforces individuals’ rights.
It doesn’t--it violates them. It
forces some people to hand over money,
against their will, to other people.
Imposing the Family Law Act on couples is not like
enforcing a contract. If there ever was
a deal between M and H, that deal must have involved some reciprocity. “You earn the income, dear, and I’ll cook
your meals, clean your house, and do your laundry.”
After the couple separates, however, and one
of them applies for support under the Act, the reciprocity disappears. The court may order H to continue paying
money to M, but it will never order M to continue cooking, cleaning and
laundering for H. Where is the
in letting one side out of a bargain while forcing the other side to
Gays who support the M. v. H. decision
demonstrate a shocking desire to give up their own freedom. But worse than that, they demonstrate a
desire to deprive others of their freedom—retroactively, to boot. Thanks to this decision, every gay couple in
Ontario who has cohabited for more than three years will suddenly be
a trap that didn’t exist when they made the decision to live together. They will not be able to contract out unless
both agree. If one partner balks, the
other will be trapped. Splitting up
won’t help—it will only trigger the very support claim that one of them
have liked to avoid.
It’s too bad nobody thought of bringing a
constitutional challenge against the Family Law Act from the other
before M sued H. A far more interesting
case would have been for some male who was ordered to pay support to
common-law partner to object on the grounds that the law discriminated
him on the basis of his sexual preference. “I am disadvantaged by being
straight,” he could have argued. “If I
had been gay, and my partner had been male, I would not now be burdened
this support order. “ I wonder—would the
gay community have supported such a man who wanted nothing more than to
treated equally with them?
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