“The government, by dint of legislative fiat, could declare that a man and his dog were ‘spouses,’ but no power on earth could ever make it fact.”
Nova Scotia’s Tory government has amended its Family Maintenance Act, which will now be called the Maintenance and Custody Act, to define a common-law partner as any person who has lived with another person, regardless of gender, in a “conjugal relationship” for at least three years. Same-sex common law couples who decide to separate will also be eligible/liable for alimony.
The changes, made in early November, are in response to two court decisions. In 1999, the Supreme Court of Canada (SCC) ruled in the M vs. H case that the traditional, opposite-sex definition of “spouse” in Ontario’s Family Law Act was unconstitutional because it discriminated on the basis of sexual orientation. The Nova Scotia Court of Appeal ruled in Walsh vs. Bona that the Matrimonial Property Act – which defined a spouse as a married individual – discriminated against common-law spouses, thus contravening the Charter.
Christians and others who object to the encroaching social and legal “normalization” of homosexual relationships find themselves virtually without representation in the political arena. In Nova Scotia, for instance, all three parties in the legislature embraced the M vs. H ruling.
It should be carefully noted that Section 15.1 of the Charter of Rights, which guarantees that “every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination,” does not include sexual orientation among the prohibited grounds of discrimination such as race, religion, and gender. “Sexual orientation” was subsequently and arbitrarily “read into” the Charter by leftist social activist judges.
“The federal Liberals are exposed as liars – again,” commented Christian Heritage Party of Canada leader Ron Gray, citing a five-year-old letter from then Justice Minister Allan Rock, promising that passage of Bills C-33 and C-41 would never mean spousal benefits for homosexual couples.
Gray notes, “In 1981, the Commons subcommittee which drafted the Charter debated for two days whether to include ‘sexual orientation’ in Section 15. The elected representatives of the Canadian people decided overwhelmingly that sexual orientation should not be included as a protected category.
“Now these nine unelected judges,” says Gray, “…have arbitrarily overruled the elected Members of Parliament and the Constitution.”
Proponents of homosexual “inclusion” argue it is simply a matter of justice and equality. Homosexual couples can have “loving, committed relationships,” they insist. Why should these relationships not be recognized as equal to heterosexual unions?
Charles Gonthier, the lone dissenting SCC justice in M vs. H, noted: “…the state is not barred from recognizing that some relationships fulfill different social roles and have specific needs, and responding to this reality with positive measures to address those differences.
“I believe that the stance adopted by the majority today will have far-reaching effects beyond the present appeal,” Gonthier wrote. “[T]he recognition that social values change and evolve does not alter the reality that certain biological and social realities endure… The Charter requires the Court to subject our social institutions to a critical eye, but it does not mandate that we should sweep them away. Legislative distinctions based on an accurate appreciation of biological and social realities may not amount to discrimination, where the legislation corresponds to the characteristics in a manner that respects the claimant’s human dignity.”
He cited retired SCC Justice Gerard Laforest that an opposite-sex couple is the social unit that uniquely has the capacity to procreate children and generally cares for their upbringing. As such, it warrants support by Parliament to meet its needs. “This is the only unit in society that expends resources to care for children on a routine and sustained basis…. [T]his is the unit in society that fundamentally anchors other social relationships and other aspects of society,” Gonthier contended.
Justice Gonthier, a devout Catholic, a father of sons, and husband of a Montreal gynecologist, also touched on an issue that stands as a shameful reminder of the consequences when, in Edmund Burke’s words, “good men [and women] do nothing.”
“The spousal support obligation is unquestionably a core feature of the institution of marriage itself,” Gonthier wrote. “True, that obligation has been extended to unmarried cohabiting opposite-sex couples by legislative action. Yet that should not obscure the fact that the extension was carefully tailored for a specific purpose, and that the nature of the obligation was established in the marriage context before it was ever extended to unmarried cohabiting opposite-sex couples.”
This touches on the mistaken rationalization that, since common-law couples often have kids, one cannot judge the level of commitment in these relationships. Common law relationships are typically less nurturing than wedded ones. Upwards of 60 per cent of domestic violence occurs in common-law “marriages.” Since such relationships account for just over 14 per cent of adult pairings in Canada, a common-law partner is more than nine times more likely to suffer abuse than a married person. Similarly, the most common physical abuser of a child is his or her parent’s common-law partner.
In retrospect, those who steadfastly oppose spousal rights for gays may have themselves partly to blame for having let governments extend “spousal” benefits to persons in heterosexual common-law relationships with barely a whisper of protest. Thus, when the homosexual “spousal” rights issue began bulldozing its way through the courts, the dissenting argument was already seriously weakened. This lack of vigilance came home to roost in the majority SCC ruling and its legislative fallout.
Now our society is confronted with the effect of having recognized “spousal” relationships that are intrinsically incapable of producing children. Homosexuals may have children by former marriages, artificial insemination, or other unorthodox arrangements, and some jurisdictions even permit gay adoption. Where the record of heterosexual but non-traditional domesticity has been disastrous, one can hardly commend encouragement or support of even more radical departures from traditional norms.