In determining whether the Adoption Act would survive a Charter challenge, there is a two stage inquiry. Firstly, it must be determined whether the impugned legislation breaches the equality rights set out in section 15(1) of the Charter.

Section 15(1) of the Charter provides:

Every individual 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 upon race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The person who challenges the legislation has the onus of proving the breach of s. 15(1). If this breach is proven, then the onus switches to the government to prove, pursuant to section 1 of the Charter, that the impugned legislation should be saved.

Section 1 of the Charter 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.

I will examine firstly whether the provisions of the Adoption Act which exclude homosexuals from the right to apply to adopt a child offend section 15(1) of the Charter and, if I conclude that they do so offend section 15(1), then I will examine whether they can nonetheless be saved by the provisions of section 1 of the Charter.

The essential requirements of a s. 15(1) analysis are satisfied by two inquiries:

1. whether there is a distinction which results in the denial of equal benefit of the law; and
2. whether the denial constitutes discrimination on the basis of an enumerated or analogous ground.

Although s. 15(1) does not specifically include sexual orientation as a ground of discrimination, it is well-settled law that sexual orientation is included under s. 15(1) of the Charter as an "analogous" ground. In the recent Supreme Court of Canada case of M. v H, a lesbian woman who had been in a same-sex relationship successfully argued that her inability to access the benefit of a legislative spousal support scheme post-separation (which opposite-sex common-law couples could access), was a breach of her equality rights. As stated by the Court:

This differential treatment is on the basis of a personal characteristic, namely sexual orientation, that, in previous jurisprudence, has been found to be analogous to those characteristics specifically enumerated in s. 15(1). ⁽¹⁵⁾

With respect to the first inquiry, it is clear that the Adoption Act does draw a distinction which results in the denial of equal benefit of the law. It does this by specifically according rights to individual members of unmarried cohabiting opposite-sex couples, which by omission it fails to accord to individual members of cohabiting same-sex couples.

Firstly, the Adoption Act allows a man and a woman to apply jointly to adopt a child where the relationship has a degree of permanence and is conjugal. Since gay and lesbian individuals are capable of being involved in conjugal relationships of some permanence, the distinction of relevance is between persons in an opposite-sex, conjugal relationship of some permanence and persons in a same-sex, conjugal relationship of some permanence. Therefore the legislation draws a formal distinction between persons on the basis of a personal characteristic, namely, sexual orientation.

Further, the Adoption Act allows a person to apply to adopt a child who is the biological or adopted child of their opposite-sex partner, or who is a member of the extended family of their opposite-sex partner, in circumstances where the applicant has been parenting that child for a defined period of time. Since gay and lesbian individuals are capable of being involved in cohabitation relationships where they are parenting children, the distinction is between step-parents who are homosexual and those who are heterosexual. Again, the legislation draws a formal distinction between persons on the basis of a personal characteristic, namely sexual orientation.

With respect to the second inquiry, it is the opinion of the writer that this denial of equal benefits constitutes discrimination on the basis of an analogous ground, namely, sexual orientation. In reaching this conclusion I am aware of the requirement, as stated by the Supreme Court most recently in M. v. H., that the inquiry is to be undertaken in a purposive and contextual manner. The focus must be on whether the differential treatment withholds a benefit in a manner that reflects the stereotypical application of personal or group characteristics or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy.

The Adoption Act creates a distinction which withholds a benefit from gay and lesbian individuals, namely the right to apply to adopt children. The legislation reflects a stereotypical application of presumed characteristics and fails to take into account the applicants' actual situation. Being in a same-sex relationship does not mean that it is impermanent or non-conjugal. The legislation implies that same-sex couples are incapable of forming intimate relationships of some permanence as compared to opposite-sex couples. Further, possessing a homosexual sexual orientation does not mean that the person lacks parenting skills. The legislation implies that homosexuals are incapable of providing the necessary love and support to adequately parent children, as compared to heterosexual persons, without regard to their actual living circumstances or personal characteristics.

Furthermore, gays and lesbians have been the subject of discrimination in our society. As stated by the Supreme Court in M v. H:.

Sexual orientation is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs . . . [and] gays, lesbians, and bisexuals, whether as individuals or couples, form an identifiable minority who have suffered and continue to suffer serious social, political and economic disadvantage ⁽¹⁶⁾

Therefore, in my opinion a court would unquestionably find that the sections of the Adoption Act which deny homosexual persons the same rights to apply to adopt as heterosexual persons infringe s. 15(1) of the Charter.

A court would then necessarily move to the second stage of a Charter inquiry, namely, a consideration of whether the infringement is justified under s. 1 of the Charter. At this stage the onus shifts to the government to justify the legislation and prove that it is indeed a reasonable limit pursuant to s. 1 of the Charter.

In determining whether an infringement is justified one must ascertain the objectives of the legislation and whether the exclusion of same-sex couples from certain aspects of the adoption regime furthers those objectives. The purpose of the Adoption Act is to "provide for new and permanent family ties through adoption giving paramount consideration in every respect to the child's best interests" ⁽¹⁷⁾. In my opinion, those objectives are not furthered by the exclusion of same-sex couples from full participation in the adoption regime. If anything, these goals are undermined by this exclusion.

Indeed, there is no rational connection between this goal and a prohibition against adoption by homosexual persons in certain circumstances. The Adoption Act has a process which provides for many safeguards to ensure that proposed adoptive parents will be able to meet the physical, psychological, emotional, and intellectual needs of the child that they propose to adopt. To the extent that a homosexual parent may be able to meet these needs, it is in a child's best interests that the parent be permitted to apply to adopt.

Finally, and most importantly, there is no absolute prohibition in the Adoption Act against adoption by gays and lesbians who can and do apply to adopt as individuals. In this context it is inconceivable that the government would be able to demonstrate that prohibiting joint adoption by homosexual couples is reasonable under section 1, while at the same time not prohibiting individual adoption by gays and lesbians. The effect of the legislation is that homosexuals are only prohibited from adopting in circumstances which would deny a child the right to two legal parents to care for them and support them. This is not in the best interests of children.

There are four reported cases which have been decided in Canadian courts which have considered the issue of adoption rights by homosexual persons. The first of these is the case of K (re) from Ontario which was decided in 1995 ⁽¹⁸⁾. In that case four lesbian couples made a series of joint applications for step-parent adoptions. At that time under section 136(1) of the Ontario Act only a spouse could apply in Ontario to adopt the biological child of their partner. Spouse was defined in the Act to mean persons of the opposite-sex. The Court found the definition of spouse to be unconstitutional. The court reasoned that the right to adopt is a benefit of the law and that the denial of this right is based upon sexual orientation which is an analogous ground of discrimination under the Charter. The Ontario Act at that time permitted individual applications for adoption by homosexuals while denying joint applications by homosexuals in conjugal relationships. The court concluded, "I cannot imagine a more blatant example of discrimination" ⁽¹⁹⁾. The court noted that the overall goal of the legislation was to promote the best interests of children within the family which was not served by an absolute prohibition against adoption by homosexual couples. The court concluded that the infringement of s. 15(1) was not justified under s. 1 of the Charter and "read in" to the definition of spouse appropriate wording to make it applicable to same-sex common-law couples.

In the case of C.E.G. (No. 1) (Re) ⁽²⁰⁾ an Ontario court considered the same issue 3 months later. Again a lesbian applicant wished to adopt the child of her partner and challenged the definition of spouse in the Ontario Family Services Act. In allowing the application and modifying the definition of spouse to include same-sex couples the court relied upon and adopted the reasons in K (Re).

In 1996, Alberta's legislation was challenged by 2 lesbian woman in the case of A (Re) ⁽²¹⁾. Again they wished to adopt the biological children of their partners. The court was initially asked to determine whether the definition of spouse in the Alberta Act was meant to include same-sex couples and, if not, whether that violated the Charter. The Attorney General initially opposed the applications but subsequently withdrew the opposition when the government announced that it intended to amend the Child Welfare Act. The amendment replaced the term "spouse" with "step-parent" in order to permit, inter alia, adoptions between same-sex couples. Using the standard rules of statutory interpretation, the court concluded that the legislature intended to permit same-sex adoptions by replacing "spouse" with "step-parent". The court found it unnecessary to consider the Charter issue but did consider in some detail, and in a positive way, the ability of homosexuals to parent.

An instructive part of this case is that the court ordered the government to pay the solicitor and client costs of the applicants, even though it had ultimately withdrawn its opposition. It was reported that these costs amounted to some $300,000.00.

Finally in June, 2001 the Nova Scotia Supreme Court considered the issue of same-sex adoption rights in the case of Nova Scotia (Birth Registration No. 1999-02-004200) (Re) ⁽²²⁾. Again it involved an application by two lesbian women, one of whom sought to adopt the child of her partner but was prevented from doing so under the Nova Scotia Child and Family Services Act. That Act only permitted married couples to apply jointly to adopt. The Court concluded that the law violated s. 15(1) of the Charter. The court found that it was not saved by section 1 as the government, who did not defend the legislation, had not discharged its onus to prove that it was a reasonable limit. The women were permitted to proceed with the adoption.

None of these court cases would be binding upon a Manitoba court. However, in my opinion a Manitoba court would necessarily be drawn to the same conclusion in relation to our Adoption Act, using the same reasoning as these other Canadian courts. Therefore, it is my opinion that a court would declare the existing provisions of the Adoption Act unconstitutional to the extent that they exclude homosexual persons from the right to apply to adopt children on the same basis as heterosexual persons.

The only option open to the government should it wish to preserve the existing sections of the Adoption Act would be to use the notwithstanding clause in section 33 of the Charter. This clause states that the legislature may expressly declare in an Act of the legislature that a provision of an Act of the legislature shall operate notwithstanding s.15(1) of the Charter. The declaration would be in effect for a maximum of 5 years at which point it would have to be re-enacted. This is a provision which would be extremely controversial and would, in the opinion of the writer, require a far more pressing need than the preservation of the impugned provisions in our Adoption Act. The use of this provision is not recommended for consideration.

Footnotes

15. M. v. H. [1999] 2 S.C.R. 3 (S.C.C.) at paragraph 2.
16. M v. H [1999] 2 S.C.R. 3 (S.C.C.) at paragraph 64.
17. The Adoption Act, S..M. 1997, c. 47 - Chap. A2, section 2.
18. K (Re) (1995), 23 O. R. (3d) 679 (Ont. Prov. Div).
19. Ibid, at page 19.
20. C.E.G. (No. 1) (Re) [1995] O.J. No. 4072 (Ont. Gen. Div.).
21. A (Re) [1999] A.J. No. 1349 (Alta. Q.B.).
22. Nova Scotia (Birth Registration No. 1999-02-004200) (Re) [2001] N.S.J. No. 261 (N.S.S.C. Fam. Div) decided June 28, 2001.

Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. - Volume 1 The Impact of the Charter of Rights
III b) Submissions and Consultations	III d) Legislative Approaches in Other Jurisdictions
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