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The New Canadian Equality:  A First Look
"Spouse," immigration, initial reactions & concerns, and items not covered
ONLINE:  SATURDAY FEBRUARY 12, 10:08 PM EST (GMT-5).

Ed.'s note:  Throughout these reports it should be remembered that these are proposed changes.  The Bill has to pass the Parliamentary process (3 readings, debates, Senate approval, etc.) before becoming law (an "Act").  EGALE has issued an Action Alert urging all Canadians to write their MP in support of the Bill.  A stamp is not required for letter mail and a list of MP addresses (including some e-mails and a way to find your MP's name by your postal code) is available from Parliament's site.  Opponents will certainly be writing theirs and given sufficient opposition, the Bill could fail and none of these changes would occur.

THE reasons for the introduction of the omnibus equality bill are clear:  the Supreme Court ruled in the spring of 1999 with M vs. H that same sex couples must be given the same benefits and obligations of their opposite sex counterparts.  But what exactly this would mean in practice - how far any changes might go and the exact nature of the changes - was not prescribed by the Court, as typical.  With Bill C-23, introduced yesterday, we are able to see exactly what the federal government will attempt to change in order to comply with the ruling.

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The Motivation

Although the Supreme Court's decision would have to be considered the fundamental reason, the government yesterday failed to allude to the lawsuit filed against them about 1 year ago by the rights group Foundation for Equal Families.  The suit alleged discrimination against gay couples in almost the same number of laws the government has decided it wants to amend.

In the words of Justice Minister Anne McLellan:  "What the government has done today is introduce legislation dealing with the modernization of both benefits and obligations that is based on a strong commitment to tolerance and fairness."

What the court has called for is to ensure equal treatment between unmarried relationships of the same and opposite sex, and that is what we're doing, and in accordance with the values of an overwhelming number of Canadians.
- Justice Minister Anne McLellan
 
In a nutshell and in lay language, what the government actually did was comb through all federal laws and identify places in the text where the wording of the law forced it to apply only to opposite sex common-law spouses.  Because of this wording, the law could not be applied to gay couples nor could they seek justice based on it.  The law itself had to be changed, and this is both what the Supreme Court ordered and the lawsuit mentioned above set as a goal.

Trouble ensued, however, with the word "spouse."  It is considered to have legal ramifications and to flow from the word marriage, which is entrenched as an institution in law itself.

So they decided to substitute the word "partner," which apparently has no legal strings attached to it, in order to have all those laws not be limited to straight couples when referring to common-law relationships.  The bill includes many instances of "or common-law partner" being added immediately following "spouse."

On Marriage

But why not go further and simply change "spouse" and "marriage" themselves?  Minister McLellan provided an answer to precisely this question:  "We don't need to change it.  The definition of marriage is absolutely clear.  It is a relationship between 1 man and 1 woman, to the exclusion of all others.  'Spouse' refers to the institution of marriage."

When asked why she didn't want some people to be able to marry, Minister McLellan responded:  "The definition of marriage relates to a fundamental and long standing religious and historical significance.  And we have made it very plain - as have the courts - that marriage is an institution of unique characteristics.  What the court has called for is to ensure equal treatment between unmarried relationships of the same and opposite sex, and that is what we're doing, and in accordance with the values of an overwhelming number of Canadians."

On Immigration

The omnibus equality bill proposes some changes to the laws in this area but the actual immigration decisions tend to be governed by the regulations.  (These are additional laws which are not written in the Acts and which can be changed relatively easily by the cabinet.  Setting up some laws this way gives the government the flexibility to operate effectively, since changing an Act is a long and drawn out process.)  The reason immigration was left out of the omnibus equality bill was because changes to immigration laws are pending, and because the definition of "common-law partner" includes cohabiting.  Obviously, lovers across countries would be excluded anyway.  The national rights group Equality for Gays and Lesbians Everywhere (EGALE) has stated that it prefers to see immigration issues addressed in separate legislation and urges Canadians to press their Members of Parliament to have the government commit to an actual timetable for the promised changes to immigration laws.

On Families & Adoption

There are quite a few things that [still] need to be done, particularly provincially.
 
- Nicole Laviolette of the U of O Faculty of Law
 
The government of Canada will recognize same sex common-law partners where it can.  This, of course, includes income tax and the use of tax credits for children as they may apply.  (More on this will be coming from gayottawanow.com's Omnibus Bill Expert Panel.)  Instances where the protection of children, for example, as part of the responsibility of common-law partners, is part of federal law were also modified to reflect the full spectrum of adult relationships where children may be involved.

But because family law is under provincial jurisdiction, areas such as adoption fall to the provinces.  This was the issue in the Alberta Court of Appeals case in 1999 where a lesbian woman was granted the right to adopt her partner's child.

Nicole Laviolette of the University of Ottawa Faculty of Law explained:  "There are quite a few things that [still] need to be done, particularly provincially.  There are still distinctions between the categories [such as in Ontario - their compliance in October 1999 to the same Supreme Court ruling set up a third category for gay couples] and then there are provinces who have yet to even look at distinctions."

Quebec and British Columbia have already moved on the ruling and to various extents.  But the bottom line is that the equality bill generally does not change those areas of law under provincial jurisdiction.

Reactions

The Reform party social affairs critic declared he had 2 problems with the bill, but refused to state whether he or his party would vote in favour of it even if those concerns led to changes.

His first issue was that the bill should put the definition of marriage into legislation.  He said "[The Reform Party] wants to make it clear to the courts that we don't want that touched, don't want that changed.  Same as spouse."

His second issue with the bill was that in order to receive benefits couples must be involved in a relationship of physical intimacy.  In the opinion of Reform, the government of Canada has no place in the private lives of its citizens.  Furthermore, the Reform Party disagrees with the bill excluding people that would otherwise be qualified (to receive benefits) because they're not involved in a physical relationship.

The Reform Party social affairs critic was asked point blank:  "Isn't the bottom line that you don't want to extend benefits to gay couples?"  He stated:  "No.  We're saying if you're going to do it, why are we leaving out a bunch of people?"

This issue of relationships of dependency not being covered (referred to by the Reform Party above) was also raised by some Liberal back benchers who have decided they oppose the bill.  Justice Minister Ann McLellan responded to this criticism by declaring that such relationships are entirely different.  She cited a hypothetical example where an adult child supports an elderly parent and then leaves the household to get married.  Should the adult child then be liable to continue supporting the elderly parent?

Minister McLellan explained that conjugality and dependency as a basis for a relationship are two very different things and will be sending the dependency issue to a committee.  She said "it's a tough question to address" and that Canadians would have to be consulted on this as well as the provinces and territories, and that's why relationships of dependency per se were not included in the bill.

The idea of pride, the idea of legitimacy, to be able to look at your son and daughter and be able to talk about us being a family, being equal ... that those words they're saying about us aren't right and the government of Canada doesn't agree with them ... that effects everyone, literally everyone.
- Bob Gallagher of Found. for Equal Families
 
John Fisher, Executive Director of EGALE, also commented on the Liberal back benchers criticism:  "[The bill] corresponds with the government's position.  If there are additional classes of relationships that should be considered by Canada's laws these will be considered.  Canada has chosen to address ones with immediate policy needs.  There are laws right now discriminating against gays and lesbians contrary to the constitution of Canada and the government is acting proactively and responsibly to bring its laws into conformity with the Charter of Rights."

Mr. Fisher further characterized the Liberal back benchers tactic as hypocritical.  "It's a reluctance to see same sex couples recognized," he said.  "If they're sincere they'll recognize that this bill is a strong step in the right direction."

On a lighter note on the topic of opposition was the reporting style on Friday of some francophone members of the media.  They snapped "So, what's wrong with that?" after enduring lengthy diatribes from opponents which described what the bill would do to Canadian society.  Often responding to the question with a "deer in the headlights" look, some of the opponents were unable to recover from having their 5-minute statements dismissed with a few simple words.

Both EGALE and the Foundation for Equal Families commented on the bill having a symbolic significance in addition to a legal one.  Said Mr. Fisher:  "The overwhelming message I get from our Community is that people want equal treatment.  This is first and foremost about human dignity and equality and respect."

Mr. Gallagher of the Foundation added:  "I want to underscore that this is effecting every lesbian and gay [woman and man].  The idea of pride, the idea of legitimacy, to be able to look at your son and daughter and be able to talk about us being a family, being equal ... that those words they're saying about us aren't right and the government of Canada doesn't agree with them ... that effects everyone, literally everyone."