Is the Supreme Court of Canada’s recent M vs. H ruling about same-sex benefits, judicial activism, the definition of “spouse,” or the imprudence of granting marriage benefits to common-law couples?

The answer is all of the above and more, according to pro-family critics across the country, who appear to be divided as to how to resolve the situation created by the ruling.

M vs. H was about an Ontario lesbian who wanted to collect alimony from her former same-sex partner after the demise of a 10-year relationship. The conflict was later resolved out of court, but the judicial process had already been set in motion. The province’s Progressive Conservative government appealed the case to the Supreme Court of Canada in 1995, after two lower courts ruled that provincial law should be changed to allow same-sex partners to collect support when their relationships end.

The high court finally issued its 8-1 ruling (only Justice Charles Gonthier dissented) on May 20, declaring Section 29 of the Family Law Act to be unconstitutional. Ontario had six months to amend the law – or to invoke the “notwithstanding clause” of the Charter of Rights and Freedoms – before Section 29 became invalid.

Some family advocates want the Ontario government to invoke the notwithstanding clause so that the province can ignore the ruling. The Canada Family Action Coalition has launched a province-wide petition campaign to do so. Others want the ruling to take effect, because if Section 29 were to become invalid, Ontario would no longer recognize common-law marriages.

Section 29 of the FLA grants benefits to common-law relationships, essentially treating common-law partners as married couples. What the court did was to equate same-sex relationships not with married couples, but with common-law relationships. Since a previous provincial government had granted marriage benefits to a group of non-married people, it essentially opened the door to other groups being added to the list in the future. The Supreme Court ruled that the sex of the partners involved could not be used as a factor in deciding which unmarried couples should receive the benefits.

Most religious Canadians have long been opposed to treating common-law partners on an equal plane with married couples, and the mounting data which reveals the stark differences in quality of life for children of married couples compared to those of common-law partners is expected to generate growing opposition even from non-religious people.

ro-family critics expect the provincial Tories to see acquiescence to the homosexualist agenda as the way of least resistance unless pro-family Ontarians raise a vocal outcry comparable to that which comes from the “gay” lobby. Which campaign is likely to win greatest support – one advocating the use of the notwithstanding clause, or one recommending that the government allow the current law to disappear – is open for debate.

Calls to invoke the notwithstanding seem optimistic at best, and some pro-family people worry about killing common-law benefits too suddenly, because of its potential ramifications for vulnerable people.

Some would like to see the provincial government resist the decision because it smacks of judicial activism. Gwen Landolt, a lawyer and vice-president of the pro-family women’s organization REAL Women, said that “ideology and politics, not law” was behind the decision. Both the National Post and the Ottawa Citizen agreed.

Reform MP Ken Epp, speaking in the House of Commons on May 28, accused the Liberals of “abdicating their responsibility” by not reining in the court and freely debating the matter in the Commons.

“Canadians are sick and tired of judge-made law (and) of this vapid, cowardly Liberal government,” he added.