A crucial case known as Nesbit and Egan and the Attorney General of Canada, will be argued before the Supreme Court of Canada in October. It will define the legal meaning of spouse and family in Canada.
The case involves homosexual lovers who claim they have lived together as spouses for 40 years, and are demanding benefits under the 1975 amendment to the Old Age Security Act. )This allows a person between 60 and 65 to receive pension benefits provided the spouse is over 65 and collects the old age pension).
Homosexual groups, including EGALE (Equality for Gays and Lesbians Everywhere), have already obtained the right to intervene in their support.
This case started several years ago at the Human Rights Commission level, and has been wending its way through the courts, only now reaching the Supreme Court of Canada.
(Most of Nesbit and Egan’s costs to date have been paid by our tax money, through the federal Human Rights Commission and the federal Court Challenges Program – until it dried up).
This case is about definitions. Both Statistics Canada and the Department of National Revenue (which administers the Old Age Security Act) use spouse and family in the traditional sense of a heterosexual family in which spouses are of the opposite sex.
Eagan and Nesbit argue that this violates the “equality rights” section of the Charter by creating a discriminatory distinction between heterosexual and homosexual couples based on sexual orientation.
If the Court agrees, the National Revenue definition will fall, taking with it the definitions used in the Income Tax Act and Statistics Canada, and having a major impact on Canadian life.
The Court decision will be the final authoritative word for federal and provincial legislators. As one lawyer puts it, “If the Revenue Canada definition goes, then all Canada will go. That will be the end of the road.”
The case will be argued by Crown lawyers, under the direction of federal Attorney General Allan Rock. It is hard to believe he will be determined to win this case, since he has said he is considering conferring family benefits on homosexual partners.
His lawyers may decide to make it easy for the Court to decide in favour of homosexual family benefits, by failing to present key arguments, and/or conceding major points to the other side.
The past record of the nine-member Court suggests there is no reason to be complacent about the conclusions they will reach. In past decisions, four have indicated their acceptance of expanded homosexual rights.
Because of the serious implications of this case, a major interfaith coalition has formed to seek interventor status. At the time of printing, it includes Focus on the Family, The Evangelical Christian Fellowship, the Ontario Council of Sikhs, the Canadian Conference of Catholic Bishops, and the Islamic Society of North America, a Hindu association and two Jewish groups.
Since these groups speak following the major parties in the case, they have opportunities to counter opposition arguments, to address any weaknesses in earlier presentations, and to provide key arguments which the Crown may have failed to put forward.
As usual, court cases are expensive. This intervention will be in the 5-digit range.
“But if we are not there to speak as pro-family people, it will be the end of the game,” said one lawyer who is donating her work on this case.