Sweeping federal benefits bill grants full common-law status to homosexual couples

By Tim Bloedow
The Interim

By the time you are reading this article, the Liberal government’s same-sex benefits bill may well have already passed through the House of Commons, if not the Senate, and into law. As of this writing, the federal government appears to be expediting the bill through the House. The Prime Minister is also reported as having decided not to allow a free vote on the highly contentious piece of legislation.

On February 11, the Liberal government introduced a government bill that would effectively redefine marriage to include same-sex partnerships of one-year or more. This is the accusation of pro-family critics across the country, although Justice Minister Anne McLellan and her colleagues deny it. The bill passed second reading February 21.

The Chrétien government introduced Bill C-23, the Modernizing Benefits and Obligations Bill, in the second week of February. It will amend 68 pieces of legislation, affecting 20 different government departments. A justice bill, it is co-sponsored by the finance department (Paul Martin), human resources development (Jane Stewart), citizenship and immigration (Elinor Caplan), and treasury board (Lucienne Robillard).

The changes will affect Canadian laws on income tax, bankruptcy protection, and pension benefits, as well as the Criminal Code, to name a few areas. Most of the amendments involve changes in terminology, such as replacing “spouse” with “survivor” and introducing the term “common-law partner” (defined as a person cohabiting with another person of either sex in a “conjugal relationship” for a year). In a limited number of cases obligations are also extended to same-sex partners, such as being liable to have their wages garnisheed upon a court order to pay “spousal” or child support.

Pro-family and religious groups across the country seem to be pulling out all the stops in response to the bill. Not since 1996, when the Liberal government introduced Bill C-33, which put “sexual orientation” into the Canadian Human Rights Act, have they mobilized to this extent. They are urging people to act immediately, and contact their Members of Parliament to indicate their opposition to the bill.

Technically speaking, the bill does not change the definition of marriage, but pro-family critics argue that it guts the uniqueness of the marriage relationship in Canadian law and public policy and is likely the final step prior to an actual change in terminology.

Focus on the Family has been particularly blunt in responding to the bill. “It’s a sham,” says president Darrel Reid about assurances that it preserves the legal definitions of “spouse” and “marriage.” “There is not one significant benefit that families now receive which will not be available to same-sex couples …. If this bill is passed, it would strip the institution of marriage of any special status in federal law.”

“When you assign all the rights and benefits of marriage to these non-marital relationships, you are enshrining marriage equivalency to them regardless of what you call it,” says Canada Family Action Coalition (CFAC) president Roy Beyer. The Evangelical Fellowship of Canada (EFC) was also quick to attack the bill, expressing “grave concerns that the unique status of marriage is being watered down.”

Pro-family Liberal backbencher Tom Wappel has the same concerns about his own government. In May 1999, speaking in the House of Commons to Bill C-78, which extended survivor pension benefits to same-sex couples, he said, “[A]s a lawyer I know that lawyers do not use language indiscriminately. They use language very carefully …. My view is that [clause 75] was drafted very carefully and very insidiously by the justice department to continue its objective – that is, its drive eventually down the road to force Canadians to accept same-sex marriages.”

Reform MP and family critic Eric Lowther says that, in terms of survivor benefits under the Canada Pension Plan, the bill appears actually to give preference to common-law relationships over marriages.

In a press release, the EFC concurs, stating that “The bill reduces the cohabitation period before rights, benefits and obligations apply. As it stands now, couples must live together three years or have a child of the relationship. The child aspect has been dropped and the cohabitation period is reduced to one year.”

“This can have drastic consequences,” explains Dr. Janet Epp Buckingham, general legal counsel for the EFC. “Certain survivor benefits go to a common-law partner even if the person was married. Imagine if a married couple with children splits up and one spouse moves in with someone else. The new partner will be entitled to benefits that are denied to the still-married spouse.”

It appears to be a strategy among homosexual activists to play down their long-term goals when they are on the verge of receiving new benefits. Focus notes that Douglas Elliott, lawyer for the homosexual lobby group, Foundation for Equal Families, “advised his clients and their supporters last May not to get involved in debating whether they really wanted the right to marry, at least for now.”

Long-term goals

“As to the symbolic importance of marriage,” Mr. Elliott wrote, “I know that it is important to some and despised by others inside and outside our community. As we have done to date, I believe it is best to tackle that issue in future, after we have made progress on the elimination of the hundreds of laws that can be fixed right now.”

Pro-family forces are trying to draw the attention of Canadians to the gay lobby’s true goals. Mr. Lowther noted during a Canada AM (CTV) interview that homosexual New Democrat MP, Svend Robinson, “has been very vocal that his cause célèbre is to have homosexual marriage enshrined in Canada.” CFAC notes that the leading homosexual lobby group, EGALE (Equality for Gays and Lesbians Everywhere), has “already stated that they will push for the legal sanction of marriages between homosexuals.” Focus notes that “[a]fter the Ontario legislature passed Bill 5 in response to M vs. H, M’s lawyer, Mary McCarthy, immediately challenged the law. She stated that creating a separate category for same-sex couples merely “reinforces discrimination against lesbians and gay men.” (M vs. H is the recent Supreme Court of Canada decision which declared that the opposite-sex definition of “spouse” in Ontario’s family law legislation was unconstitutional.

These developments are forcing pro-family groups to pointedly challenge the legitimacy of common-law relationships, an issue which has largely remained on the back-burner for many years. Pro-family groups are realizing that, once Canadians accepted a certain equivalency between marriage and common-law relationships, the country lost a coherent reason for resisting homosexual partnerships. Christian Heritage Party leader Ron Gray says, “the [current] problem goes back to the federal government’s earlier recognition of unmarried heterosexual couples as equivalent to married. They’re not.”

Focus president Darrel Reid points out that “a mountain of statistical data shows conclusively that stable, two-parent families are the ideal and safest environment in which to raise children.” Rory Leishman, a columnist in the London Free Press, noted in a recent article that “sixty per cent of America’s rapists, 72 per cent of adolescent murders, and 70 per cent of long-term prison inmates come from fatherless homes.” He called Bill C-23 “the most wrongheaded and pernicious piece of social legislation ever introduced into the Parliament of Canada.”

REAL Women of Canada vice-president Gwen Landolt pointed to the recklessness of requiring only one year of living together to qualify for marriage-type benefits. “A large percentage of homosexual relationships, unlike traditional heterosexual family arrangements, involve a high degree of promiscuity,” she says. “Bill C-23 requires only a one-year period of co-habitation prior to receiving benefits and thereby eliminates the necessity for a permanent commitment and stability before benefits are distributed.”

Landolt joined others in condemning the disregard the bill shows for the unique and sacrificial commitment married couples make by bearing and nurturing “the next generation.” And CFAC’s Brian Rushfeldt says, “when we abandon the notion that marriage exists for the sake of children, the children will be the ones to suffer.”

Who is running Canada?

One of the main concerns raised by Eric Lowther is the matter of who is running Canada. Justice Minister Anne McLellan raised the hackles of Canadians who are fed up with judicial activism by stating clearly that the bill comes as a response to recent court decisions. Justice department officials pointed specifically to the M vs. H decision and the 1995 Miron vs. Trudel case, in which the court said the Charter of Rights and Freedoms requires equal treatment of married couples and opposite-sex common-law couples with insurance benefits.

Having criticized the Liberal government for following a court-driven agenda, Mr. Lowther goes on to argue that even in this approach the feds are using deception or demonstrating gross incompetence. The M vs. H case was about private support payments, he says, not public policy. On the other hand, the Supreme Court of Canada’s decision in the 1995 Egan case, which does apply to publicly funded benefits (under the Old Age Security Act), confirmed that the government is not constitutionally obligated to extend benefits to same-sex couples. “The Liberals are using muddy logic and are selectively adhering to Supreme Court decisions,” Mr. Lowther says.

Focus president Darrel Reid pushes the point further. “All the decisions where the Supreme Court ruled in favour of extending benefits to same-sex couples have been to extend individual financial obligations,” he says. “The court has not signaled that [public] benefits given to traditional heterosexual couples are in violation of the Charter.”

Dissent in Liberal caucus

Despite such passionate opposition to Bill C-23, the federal Liberals seem intent on passing it into law as soon as possible. The opposition extends right into the Liberal caucus. The Prime Minister, however, has indicated that his agenda on this issue is more important than the consciences of his colleagues, by announcing that he will not allow a free vote on the bill. Nevertheless, a number of Liberal backbenchers can be expected to vote against the government as they have done on similar past initiatives.

MPs Paul Steckle, Rose-Marie Ur, and Charles Hubbard have already stated publicly that they will vote against the bill as it stands. Other Liberals who voted against Bill C-78 last year include Tom Wappel, Dan McTeague, and Murray Calder. Pat O’Brien, Raymond Bonin, and Clifford Lincoln abstained from the vote on C-78.

John McKay, a Christian Toronto-area Liberal MP, has been pushing for a bill that would extend benefits based on dependency, not sexual intimacy, a compromise that he and other Liberals have indicated they would consider. He told the House of Commons that he cannot support the bill as it stands.

Such dissension in government ranks, however, it is not expected to be enough to defeat the bill in view of the support it has from the Bloc Québécois and the NDP, and some Progressive Conservative MPs. (Five Tories voted against it on second reading: Elsie Wayne, Norm Doyle, Gilles Bernier, Greg Thompson, and John Herron.)

Whether or not the bill passes, however, it has provided concerned Canadians from coast to coast the opportunity to publicly affirm the importance of marriage as it is historically understood. The debate has also reinforced the view among many that the controversy represents an attack on Christianity – most of the vocal advocates of marriage in Canada are Christian.

The Evangelical Fellowship of Canada has perhaps said it most clearly in their recent press release: “The EFC maintains that marriage is a covenant between a man and a woman. We base our understanding of the value of heterosexual marriage on the Bible …. The uniting of man and woman is unique, being described in the Bible as becoming ‘one flesh.'”

THE HOMOSEXUAL LOBBY’S LONG MARCH THROUGH CANADIAN LAW – PROVINCIALBritish Columbia

1992 – Human rights act prohibits discrimination on the basis of “sexual orientation”

Employee benefits are available to same-sex partners of government employees

Nov 1996 – Adoption by same-sex couples is allowed

1998 – Custody, maintenance and spousal support provisions are extended to same-sex couples

1999 – Bills 51 and 52 effectively re-define “spouse” to include same-sex couples across the board

Alberta

1998 – Human rights act prohibits discrimination on the basis of “sexual orientation.” It was read into Alberta’s human rights act by the Supreme Court of Canada’s Vriend decision.

1999 – Adoption by same-sex couples is allowed by virtue of a court decision in a lesbian adoption case. The provincial government originally planned to intervene in the case against the adoption, but later decided to abandon the case.

Saskatchewan

1993 – Human rights act prohibits discrimination on the basis of “sexual orientation”

Employee benefits are available to same-sex partners of government employees

Manitoba

1987 – Human rights act prohibits discrimination on the basis of “sexual orientation”

1997 – Employee benefits are made available to same-sex partners of government employees after a human rights tribunal affirmed the 1995 Manitoba Court of Appeal’s Vogel decision.

Ontario

1986 – Human rights act prohibits discrimination on the basis of “sexual orientation”

Employee benefits are available to same-sex partners of government employees

Medical decisions can be made on behalf of a same-sex partner who is incapacitated

Adoption by same-sex couples is allowed (as long as the homosexual applies for adoption as an individual). In 1995, a court ruling that went unchallenged by the Harris government granted homosexuals the right to adopt their partners’ Sex children. In 1999, Bill 5 enables same-sex partners to apply for adoption as a couple.

1999 – Omnibus legislation (Bill 5) amended 67 provincial statutes, elevating same-sex partnerships to common-law status. Changes include granting child and spousal support provisions to same-sex couples. The bill was introduced ostensibly in response to the Supreme Court of Canada’s M vs. H decision.

Québec

1977 – Human rights act prohibits discrimination on the basis of “sexual orientation”

1996 – Bill 133 eliminates sexual orientation “discrimination” in some areas including insurance and pension plans

1999 – Omnibus legislation (Bill 32) amended 39 provincial laws and regulations, changing the definition of “spouse” to elevate same-sex partnerships to common-law status. Changes treat same-sex partners as common-law couples unions for such purposes as taxes, automobile insurance, pension benefits, public sector retirement plans, and social assistance.

New Brunswick

1992 – Human rights act prohibits discrimination on the basis of “sexual orientation”

Employee benefits are available to same-sex partners of government employees

Nova Scotia

1991 – Human rights act prohibits discrimination on the basis of “sexual orientation”

Employee benefits are available to same-sex partners of government employees

Prince Edward Island

1998 – Human rights act prohibits discrimination on the basis of “sexual orientation”

Newfoundland

1997 – Human rights act prohibits discrimination on the basis of “sexual orientation”

May 14, 1969 – Sodomy decriminalized.

1992 – The prohibition against homosexuals serving in the military was removed as the result of a court challenge in Douglas vs. Canada.

1995 – The Criminal Code was amended (Bill C-41) to provide increased penalties for crimes deemed to have been motivated by hatred on certain grounds, including “sexual orientation.”

1996 – The Canadian Human Rights Act was amended (Bill C-33) to prohibit discrimination based on “sexual orientation.”

1996 – The government makes many employee benefits available to same-sex partners of federal employees, in response to a human rights tribunal decision in the case of Moore and Akerstrom vs. Canada.

1998 – In its Rosenberg ruling, the Ontario Court of Appeal decreed that the Income Tax Act must accommodate a same-sex definition of “spouse” to permit the registration of pension plans which extend equal pension benefits to those in same-sex relationships. The federal government did not appeal the decision, and it became law.

May 20, 1999 – The Supreme Court of Canada, in its M vs. H ruling, declared unconstitutional the opposite-sex definition of “spouse” in Ontario’s Family Law Act. Technically the ruling applies only to Ontario, but it has national implications.