M. v. H. [1999] 2 S.C.R. 3, is a decision of the Supreme Court of Canada. The case was heard by a full court of nine judges. The written decision of the majority was delivered by Cory and Iacobucci JJ. with Major and Bastarache JJ. writing concurring opinions, Gonthier J. dissenting. The Attorney General of Ontario had been given leave to appeal although the motions judge and the Ontario Court of Appeal had ruled in favour of the individual parties. Eight national organizations were granted status as interveners.

The case considered the wording of Section 29 of the Ontario Family Law Act and whether it was in conflict with the Canadian Charter of Rights and Freedoms.

At the time the case went to court, Section 29 provided:

Section 1(1) said in part:

M and H were women who had lived together in a same-sex relationship for ten years and had their own business. After their separation, one commenced a court action seeking the partition or sale of their home and an order of support under the Family Law Act. The portion of the definition of "spouse" that I have underlined, seemed to bar the application.

The Supreme Court found that Section 29 of the Family Law Act of Ontario was unconstitutional as it infringed Section 15(1) of Schedule B, Part I of the Constitution Act, 1982, entitled "Canadian Charter of Rights and Freedoms" which provides:

"Everyone is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

The Court held that the definition of "spouse" in Section 29 of the Ontario Family Law Act violated the provisions of Section 15(1) and was discriminatory. It discriminated against same-sex partners by conferring certain rights, similar to those of married couples, upon unmarried opposite-sex couples, while denying the same rights to unmarried same-sex couples. Section 29 was declared to be of no force and effect.

Some of the Court's findings were:

"The proper approach to analyzing a claim of discrimination under s. 15(1) of the Charter, as set out in Law, requires the court to make the following broad inquiries. First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristic? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage.

The central question of this appeal is whether the differential treatment imposed by the impugned legislation on an enumerated or analogous ground is discriminatory within the meaning of s. 15(1). This inquiry is to be undertaken in a purposive and contextual manner, focussing on whether the differential treatment imposes a burden upon or withholds a benefit from the claimant in a manner that reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect to perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration.

…The exclusion of same-sex partners from the benefits of s. 29 promotes the view that M and H and individuals in same-sex relationships generally, are less worthy of recognition and protection. It implies that they are judged to be incapable of forming intimate relationships of economic interdependence as compared to opposite-sex couples, without regard to their actual circumstances. Such exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence.

…It is thus apparent that the legislation has drawn a formal distinction between the claimant and others, on the basis of a personal characteristic, namely sexual orientation. Sexual orientation has already been determined to be an analogous ground to those enumerated in s. 15(1) of the Charter. "

The Supreme Court also found that the discrimination in Section 29 was not saved by Section 1 of the Charter, which provides:

"The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

Some of the comments of the court on that Section were:

"The first stage of the justification test under s. 1 of the Charter, as outlined in Oakes, asks whether the legislation limiting a Charter right furthers a pressing and substantial objective. Where a law violates the Charter owing to under inclusion, this stage is properly concerned with the object of the legislation as a whole, the impugned provisions of the Act, and the omission itself. The purpose of the FLA (Parts I to IV) is to provide for the equitable resolution of economic disputes that arise when intimate relationships between individuals who have been financially interdependent break down.

… Providing for the equitable resolution of economic disputes when intimate relationships between financially interdependent individuals break down, and alleviating the burden on the public purse to provide for dependent spouses, are pressing and substantial objectives. These objectives promote both social justice and the dignity of individuals, which are values that underlie a free and democratic society."

On the point of sexual orientation being an analogous ground to those listed in Section 15, the Supreme Court, in Egan v. Canada [1995] 2 S.C.R. 513, confirmed that sexual orientation falls within the ambit of Section 15 protection as being analogous to the enumerated grounds.

La Forest J. said at page 528:

"I have no difficulty accepting the appellants' contention that whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs, and so falls within the ambit of s. 15 protection as being analogous to the enumerated grounds."

At page 530 he quoted from comments made by McIntyre J. in Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143, at p. 165:

"In other words, the admittedly unattainable ideal [of equality] should be that a law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less burdensome impact on one than another. "

He also referred to what McIntyre J. said at p. 174:

"I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society."

M. v. H. is also of interest in Manitoba as it adopts the description of a "conjugal relationship" that appeared in an earlier case. That term is used in Manitoba's Bill 41 and should be taken as having the following meaning. At page 59 of his reasons, Cory J. comments:

"Molodowich v. Penttinen (1980) 17 R.F.L. (2d) 376 (Ont. Dist.Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same-sex couples, there is agreement that same-sex couples share many other "conjugal" characteristics. In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is "conjugal".

Certainly an opposite-sex couple may, after many years together, be considered to be in a conjugal relationship although they have neither children nor sexual relations. Obviously the weight to be accorded the various elements or factors to be considered in determining whether an opposite-sex couple is in a conjugal relationship will vary widely and almost infinitely. The same must hold true for same-sex couples. Courts have wisely determined that the approach to determining whether a relationship is conjugal must be flexible. This must be so, for the relationships of all couples will vary widely. In these circumstances, the Court of Appeal correctly concluded that there is nothing to suggest that same-sex couples do not meet the legal definition of "conjugal"."

It is also important, when considering Manitoba legislative changes, to recognize how limited the Supreme Court decision in M. v. H. actually was. Cory J., at paragraph 52 of his reasons said:

"These observations on the structure of the FLA serve to emphasize that this appeal has nothing to do with marriage per se. Much of the FLA is devoted solely to regulating the relationship that exists between married persons, or persons who intend to be married. They alone are guaranteed certain property rights that are not extended to any unmarried persons. In some specific instances - such as Part III dealing with support obligations - the legislature has seen fit to extend the rights and obligations that arise under the FLA beyond married persons to include certain unmarried persons as well."

At paragraph 55 he said:

"It is thus apparent that in this appeal there is no need to consider whether same-sex couples can marry, or whether same-sex couples must, for all purposes, be treated in the same manner as unmarried opposite-sex couples. The only determination that must be made is whether, in extending the spousal support obligations set out in Part III of the FLA to include unmarried men or women in certain opposite-sex relationships, the legislature infringed the equality rights of men or women in similar same-sex relationships, and if so, whether that infringement may be saved by sec 1 of the Charter."

Although M. v. H. deals with support obligations, and not adoption, and is carefully limited in its scope, it is safe to conclude that the principles that it articulates would be applied in a similar manner to any and all statutory provisions, no matter what the subject matter of the statute might be. Similar distinctions would, I do not hesitate to say, be found to be contrary to the Canadian Charter of Rights and Freedoms if they discriminate on the basis of sex or sexual orientation.

A recent case has gone farther than M. v. H. and has considered the validity of legislation that differentiates between the rights of married and same-sex couples to adopt a child.

S.C.M. and N.J.C., 2001 NSSF 24, is an oral decision of Madam Justice Gass of the Supreme Court of Nova Scotia, Family Division. She found that the adoption provisions of Nova Scotia's The Children and Family Services Act, which prohibit the adoption of children by same-sex couples, was discriminatory and contrary to the Charter. The Act contained a number of limitations. The judge severed the offending portions and read-in additional wordings to enable same-sex partners to adopt. She read-in the words 'common-law partners' and other wordings to make the statute apply and awarded the applicants an order of adoption. In effect, she concluded that same-sex couples have the same right to adopt children as do married couples.

Two women had lived in a conjugal relationship since 1987 and went through a ceremony of commitment in 1991. One of them had two children with an anonymous sperm donor and in October 2000 the partners jointly applied to adopt them. The Minister of Community Services and the Attorney General of Nova Scotia initially contested the application but within a month of when the trial was due to commence, they advised the applicants and the court that they were no longer opposing the application, although they were not consenting to an Order of Adoption. In other words, they were leaving the decision up to the court.

That turn of events was significant as the judge, although she found that the failure to include same-sex partners in the Statute was discriminatory under Section 15 of The Charter, did not deal with the Section 1 issue, holding that:

"Once it has been established that the impugned legislation infringes the Charter, the onus then shifts to the party seeking to uphold the legislation, to prove that such infringement is demonstrably justified in a free and democratic society.

Because the government is not opposing the application, it has not justified the discrimination."

Most of the evidence dealt with the needs of children and the ability of the applicants to parent. The judge decided that "there is no justification for depriving these children of the right to be part of a legally recognized family relationship because of their parents' sexual orientation."

The learned judge found that the legislation offended Section 15(1) and made the following comments:

"Only married couples can jointly apply to adopt. Thus persons such as the Applicants are unable to adopt children conceived by their partners and born into the relationship. While the law applies to all non-married couples, whether heterosexual or of the same sex, there is a clear distinction in that gay and lesbian couples are not legally permitted to marry. Thus the legislative requirement that only married person may jointly adopt, results in discrimination, not just on the basis of marital status but also of sexual orientation (p. 7).

It is clear that while one parent is the biological parent, the other is, in all respects, the spouse of that parent and the psychological parent to these two children. Thus I conclude that the law prohibiting them from jointly adopting their children violates their rights and freedoms under s. 15(1) of the Charter (p. 8.)

There is no prohibition against a single gay or lesbian person adopting a child. There can be no justification under the Act for prohibiting a same-sex couple who meet all the criteria (except for their marital status) from doing so as well (p.10).

In view of the implied consent of the government, and the onus the judge applied, it appears to me that the judge gave insufficient attention to the fact that the case went farther than M. v. H. and dealt with a comparison between the rights of married people and same-sex couples, while the Supreme Court of Canada only compared same-sex and opposite-sex couples.

If there had been argument supporting the validity of the legislation on both the Section 15 issue and on the implications of Section 1 of the Charter, the result might have been different. If the Ministers of the Crown had participated and raised these issues, the court might have concluded that the legislature was entitled to make the distinction it did.

I do not raise this decision for the purpose of criticizing it, but to advise the Government of Manitoba that is not binding on it, and that I advise against accepting it as established authority. If the Supreme Court of Canada eventually considers a similar issue, its decision would be binding on the courts in Manitoba and should be followed by the legislature.

While the case may be an indication of judicial interpretation yet to come, it is impossible to conclude at this time that common-law couples, whether opposite-sex or same-sex, have to be afforded the same rights as married people.

We were told that there are broader challenges starting to work their way through the courts, but as there have been no fully argued and binding decisions on point, I am unable to comment on what the judges hearing those cases might decide. All I can say at the moment is that same-sex and opposite-sex couples must be treated alike.

Quite apart from Charter cases dealing with legislation, there is a considerable amount of judicial writing on the appropriateness of gay and lesbian people caring for, raising and adopting children. The following cases indicate the manner in which some judges are receiving and adopting expert evidence that indicates that same-sex partners can provide and have been providing good homes for children.

These cases are not binding in Manitoba either but they do indicate a trend that is developing in reported cases and should be kept in mind by the Government of Manitoba when considering extending adoption and other rights to same-sex partners and to all children. It can reasonably be anticipated that similar cases and similar evidence will be presented to the courts in Manitoba.

A(Re) (1999) 2 R.F.L. (5^th) 358, is a decision of November 26, 1999 in which Martin J. of the Alberta Court of Queen's Bench, while granting an order of adoption of two natural children to the applicant's same-sex partner, commented on the importance of adoption to children. The judge said, at page 8 of the decision:

"It is also important to remember that adoption provides significant benefits to a child as adoptive children have legal rights which are not available to children who are not formally adopted. Examples of rights which arise by virtue of a legally recognized parent/child relationship may be found in the Intestate Succession and the Fatal Accidents Act (both cited). It is reasonable and just that children of same-sex couples have the same legal rights associated with private adoptions as have children of heterosexual couples. There is also a significant emotional benefit to both the child and the adoptive parent in having legal recognition of their relationship, and that too should be available to a child of a same sex couple."

The judge also relied on "the results of extensive scientific research relating to same-sex couples and the experience of children raised by them" given in evidence by a Dr. Froberg:

"Children raised in lesbian-headed families do not suffer systematically on factors such as gender identity, gender role behaviour, sexual orientation, intellectual ability, psychological or social functioning from those raised in two-parent or single-parent heterosexual families and typically do not experience high levels of stigmatism due to having two mothers.

The child development literature has concluded that, rather than any one particular family structure, what children require to develop in a healthy fashion is a stable, empathic, consistent, nurturing relationship with at least one care-giving adult in which the child and adult(s) become attached to one another.

Lesbian women are no less committed to the role of mother nor any less able to function effectively in this role than are heterosexual women and often strive to create strong families which do not differ systematically from heterosexual families on any of the factors noted above.

Lesbian families tend to score highly on the factors which lead to high relationship satisfaction, e.g., egalitarian values, equal sharing of household duties, and often find that their stress is buffered by social support networks which they make a conscious effort to cultivate.

The literature pertaining to the best interests of the child has noted how comforting and security-enhancing it is for children to feel a part of a "forever family" and that their belonging to a particular nuclear and extended family unit is legally recognized, supported and will be protected under conditions of adversity such as death, disability or dissolution of the relationship."

The court also relied on a report from Dr. Jon Amundson, a clinical psychologist and a recognized expert in child and family psychology, which said:

"The psychological research generally does not support any scientific basis for discrimination against homosexuals with regard to fitness to parent. The fitness and suitability of gay and lesbian parents or foster parents needs to be considered on a case by case basis, as it is for heterosexual parents."

The Supreme Court of Canada case of Chartier v. Chartier [1999] 1 S.C.R. 242, when dealing with the concept of in loco parentis, makes some interesting comments on adoption and the needs of children. Bastarache J., speaking for the Court, shared the view of Bealieu J. in Siddall v. Siddall (1994) 11 R.F.L. (4^th) 325 at page 23, part of which states:

"In too many of these situations the ultimate result is that the child is a mere object used to accommodate a person's selfish and personal interests as long as the relationship is satisfying and gratifying. As soon as things sour and become less comfortable, the person can leave, abandoning both the parent and the child, without any legal repercussions…. It is important to encourage the type of relationship that includes commitment, not superficial generosity. If relationships are more difficult for a person to extricate him or herself from then, perhaps, more children will be spared the trauma of rejection, bruised self image and loss of financial support to which they have become accustomed."

Bastarache J. states later:

"Some concerns may also be raised with regard to the relevance of adoption proceedings where obligations regarding all "children of the marriage" are identical under the Divorce Act and The Family Maintenance Act. I recall that Mr. Chartier did not finalize his plans to adopt Jessica. The simple answer to that is that legal adoption will nevertheless have a significant impact in other areas of the law, most notably trusts and wills; it retains its importance…

Once it is determined that a child is "a child of the marriage" within the meaning of the Divorce Act, he or she must be treated as if born to the marriage. As the Quebec Court of Appeal held in Droit de la famille - 1369, [1991] R.J.Q. 2822 (Que. C.A. at p. 2827)

[Translation] "Once the status of a child of the marriage is recognized, the Act does not allow the distinction to be made between a biological father and someone who stands in the place of one."

The law is now quite clear. Opposite-sex common-law couples and same-sex common-law couples must be treated the same way. Neither can legislatively receive a benefit the other does not receive.

Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. - Final Report Part I) Adoption - Case Law
Part I) Consultations	Part I) Advice and Recommendations
Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. Volume 1 Volume 2 (proposed Statute Amendments) Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. Final Report