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How do you give something and take it away at the same time?
By Ted Mann

How do you give something and take it away at the same time?  It seems that our provincial government has done exactly that.

In the recent Court decision M. v. H., the Supreme Court of Canada found unconstitutional a section of the Family Law Act which defined spouses, for purposes of the awarding of support, as having to be (amongst other qualifications) of the opposite sex.  The provincial government was given six months by the Supreme Court to replace the definition of spouse under the Family Law Act to be inclusive of same sex couples.

Our provincial politicians have been playing around with this hot potato for about six months, trying to figure out what to do.  They finally introduced Bill C. 5 in the legislature last month, narrowly coming within the six month deadline, but giving little time for review and debate.   In that legislation, the government, instead of creating one definition of spouse inclusive of both opposite sex and same sex couples, decided to create two separate definitions, one for opposite sex couples and one for same sex couples.   While this seems to be on the surface compliant with the Supreme Court decision, a closer look leaves this in question.

The Family Law Act spousal support definition was found unconstitutional for discriminating against same sex couples by not including them.  Creating two separate definitions continues to perpetuate that discrimination.  There is no other reason or explanation as to why the government, rather than amend the one definition to remove the qualification "of the opposite sex," chose to include an entirely separate definition.  The risk is that the separate definition for same sex couples could later be amended, or in fact deleted, in the Family Law Act or in other pieces of provincial legislation where it appears, in efforts to diminish rights recognized by the Supreme Court.

It is my understanding that the plaintiff's lawyer in the M. v. H. decision has gone back to the Supreme Court to challenge this amendment.  It is hoped that the Supreme Court will find the provincial government to have erred in implementing the spirit of the Court's decision, and find this amendment to be unconstitutional.