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Ontario 'Separate but Equal' Category Stands:  Supreme Court

THE third category of intimate relationships established by Ontario last October for same sex couples has been allowed to stand.

The Supreme Court of Canada declined yesterday to hear arguments that in creating a 'separate but equal' category for gay and lesbian relationships the government of Ontario 'erred' in complying with the high court's 1999 ruling.  That landmark decision, the 'M v. H' case, declared that the definition of 'spouse' in Ontario's Family Law Act violated the constitution's Charter of Rights and Freedoms.

How do you give something and take it away at the same time?
The justices provided no reason for choosing to not look at the issue, as is usually the case.

Rights activists received the announcement with suyrprise.

"I'm surprised that the Supreme Court so quickly and summarily dismissed this application for rehearing, [but] that doesn't mean there's anything negative [in the decision]," Doug Elliott of the Foundation for Equal Families, a party to the case, told  "It may have been dismissed for purely technical reasons ... [Ontario's] Bill 5 may still be a bad law," he continued.

"We'll just have to wait for a new case to challenge it," the lawyer stated.

In amending its laws to grant the benefits and obligations of common law couples to same sex ones, Ontario set up a separate or third category for them, effectively distinguishing gay and lesbian couples from their straight common law counterparts.  Such a method or category was dismissed by the federal government in drafting its compliance to the ruling - Bill C-23, which is presently moving through Parliament.

The provinces of British Columbia and Quebec have also responded to the ruling by changing their laws in order to recognize same sex couples with respect to benefits and obligations.

The Supreme Court did not rule that same sex couples have the right to actually marry.

The M v. H case began in the mid-nineties when 'M' sued 'H' for financial support after their 12-year relationship ended.  Nothing within Ontario's Family Law Act provided for such with same sex relationships, and a provincial judge in 1996 declared sections of the Act to be unconstitutional in awarding 'M' her claim.

An appeal by 'H' was lost.  The government of Ontario at that point, being forced to comply with the trial judge's ruling and amend the Family Law Act, requested an appeal to the Supreme Court of Canada.  The request was granted and compliance deferred.  Upon hearing arguments the high court upheld the decision in the spring of 1999 and when ruling gave the government of Ontario 6-months in which to comply.

The counsel for 'M' declined to comment on yesterday's decision.