Date: Wed, 3 Aug 1994 19:04:13 -0400
From: ae913@freenet.carleton.ca (Timothy Ross Wilson)


Reproduced with the permission of the University of Toronto
Faculty of Law Review

University of Toronto Faculty of Law Review / Volume 52, Fall
1993, pp. 170-205.

Same-Sex Spousal Benefits and the
Evolving Conception of Family*

PETER RUSK

This paper explores the discrimination faced by same-sex couples
claiming spousal benefits and is divided into three parts: Part
I, which surveys the extent and origin of this discrimination;
Part II, which analyses the protection afforded by the Charter;
and Part III, which discusses tactical considerations relevant to
those seeking to redress this inequity. The author illustrates
how this denial of entitlement emanates as much from
discriminatory judicial reasoning as it does from discriminatory
legislation. It is also shown how this discrimination is
reflective of the entrenchment of male-heterosexual privilege in
our society and the idealization of the conventional family form.
Although arguments which focus on "dismantling" the "family"
are acknowledged as being integral in effecting long-term change,
it is argued that "sameness" or "inclusion" arguments are
necessary to effect an initial shift in the status quo conception
of family.

Cet article examine la discrimination a laquelle les couples du
meme sexe font face lorsqu'ils reclament les avantages sociaux
dont beneficient les couples heterosexuels. Ce texte est divise
en trois parties: la premiere partie se veut etre un survol de
l'etendu et des origines de cette discrimination; la deuxieme
partie analyse la protection qu'offre la Charte canadienne des
droits et libertes; et la troisieme partie examine les
considerations tactiques pertinentes pour ceux qui veulent
redresser ces injustices. L'auteur demontre que les difficultes
d'acces aux avantages sociaux pour les couples du meme sexe
provient autant de decisions juridiques discriminatoires que
proviennent, selon l'auteur, de lois discriminatoires. Cette
forme de discrimination reflete la repandu du privilege dont
beneficient les hommes heterosexuels dans notre societe et
l'idealisation de la famille conventionelle. Tandis que l'auteur
est d'accord avec ceux qui disent qu'il faut "demanteler" la
"famille" pour effectuer des changements a long terme, il propose
que les arguments qui s'appuient sur la "similarite" et
"l'inclusion" sont necessaire pour engendrer une transformation
initiale dans la conception que nous avons maintenant de la
famille.
______________________

* I wish to thank Janet Mosher, who thoughtfully encouraged
initial drafts of this paper, and the l.S.D. Tory Foundation,
whose suppon prompted subsequent revisions.
______________________

Introduction

In Canada, same-sex couples are discriminated against vis-a-vis
opposite-sex couples. Same-sex couples are denied benefits
available to opposite-sex couples and thus are discouraged from
forming functional families.1 This discrimination is perpetuated
not only by legislative exclusions but also by a judiciary that
often interprets legislation in a discriminatory manner. In order
to effectively redress this pervasive unfairness it is necessary
not only to clearly identify areas of discrimination but also to
recognize their entrenched male heterosexist roots. In addition,
it is necessary to address perhaps the more problematic issue of
how, once exposed, this discrimination can be remedied.2 The
underlying theme of this "how-to" debate concerns whether equity
can best be achieved by arguing for the inclusion of same-sex
couples in the "conventional family," and hence its benefits, or
whether it is preferable to opt for an approach that is more
active in deconstructing an institution many see as inherently
oppressive and exclusionary.3
___________________

1. The term "functional family" is meant to be an inclusive term
that refers to individuals who unite for purposes such as
childbearing, child rearing, emotional support, financial
support, and cohabitation. (The concept of a "functional family"
is discussed further in Part III.) ln contrast, the term
"conventional family" refers to a family unit in which there are
a man and a woman who typically are married and who typically
have children. According to this conventional stereotype, it is
usually the man who engages in paid employment and the woman who
performs unpaid house and child-rearing work. "Ideally" this
family is also white and middle-class. It is important to note
that the term "conventional family" is used instead of the more
common "traditional family" as a means of challenging the
presupposition that families have always conformed to what is now
the dominant family form. In fact, it is arguable that the
current dominant conception of family extends only as far back as
Judeo-Christianity itself. See D. Greenberg, The Construction
of Homosexuality (Chicago: University of Chicago Press, 1988).

2. The implicit assumption in this article is that
political/social change and legislative change happen
concurrently and reinforce one another. Changing social
conceptions of what constitutes an appropriate family spur
legislative change and vice versa In this respect, arguments
that advocate political/social change are interchangeable with
those that advocate legislative change.

3. The footnotes to this article should serve as an invitation to
the reader to explore further the issues discussed. This
article contributes to the existing scholarship by focusing its
discussion of discrimination on the following issues: (1) how
resistance to lesbian and gay liberation can be seen as an
attempt to safeguard a male-dominated, heterosexist social order;
(2) the way in which difference theory is used to perpetuate this
discrimination; (3) how judicial prejudice has undercut
protection afforded by the Canadian Charter of Rights and
Freedoms (see infra note 83); (4) strategies lesbian and gay
activists can employ when advocating for change; and (5) how this
debate contributes to the evolution of the concept of "family."
It should also be noted, at the outset, that all of the articles,
judgments, and texts referred to in this article reflect, at
least to some extent, the perspectives of the individual writers.
Although my perspective as a gay man is relevant to the
discussion offered in this article, it is by no means
determinative. As within any other group, there is wide
divergence within the lesbian and gay community as to how these
issues can best be resolved. This divergence will be highlighted
in Part III.
__________________

<I. Discrimination on the Basis of Sexual Orientation

The politics of sexual orientation have resulted in the
perpetuation of dichotomies that attribute certain
characteristics to same-sex couples and other, usually opposite,
characteristics to opposite-sex couples. The attributes
associated with opposite-sex couples are, for example, mutual
dependence, stability, nurturing, childbearing, child rearing,
and monogamy. The attributes associated with same-sex couples are
independence, instability, autonomy, the inability to bear or
properly raise children, and polygamy. Such dichotomous
characterizations serve to rationalize the exclusion of same-sex
couples from legislative schemes that accord benefits to
opposite-sex couples.

  In order for these characterizations to be "effective" in their
perpetuation of this disadvantage, it is necessary that the two
sets of attributes be viewed as opposite and mutually exclusive.4
As such, there is no room for the consideration of innovative
family forms. There is only good and bad, right and wrong. The
attributes associated with conventional families are valued;
those associated with same-sex couples are devalued. Conventional
families are cast as idealistic havens in a foreboding world,
while same-sex couples are cast as being devoid of those positive
"family" attributes, as being part of the "cold" world.

  It is clear that although conventional families are generally
idealized, especially as compared with same-sex families, they at
the same time serve as the site of much of the oppression faced
by women.5 Women are characterized as possessing attributes that
make them best suited to the private or family sphere, freeing
men to participate in the public or labour sphere. Since women's
work in the home is not valued, they are not paid, further
reinforcing their "dependence." Viewed in this manner, it becomes
clear that by threatening conventional families, the pursuit of
same-sex spousal equality threatens not only heterosexual
privilege, but male heterosexual privilege.

  The denial of same-sex benefits, and the related judicial
reasoning discussed below, should be understood and interpreted
in this light. The "protection" of male heterosexist power lies
at the root of the legislative and judicial discrimination faced
by same-sex couples. It accounts for what appear to be strained
attempts at effective judicial reasoning as well as the
rationalizations given by governments for the exclusion of
same-sex couples from benefit plans and human rights protection.
This discrimination is a product of ingrained and pervasive
oppression. Since the advent of Judeo-Christianity,
male-dominated heterosexuality, as a social structure,
_______________________  

4. J. Mosher, "The Harms of Dichotomy: Access to Welfare benefits
as a case in Point" (1991) 9 C.J.F.L. 97 at 99-116. 

5. Dichotomy can also be seen as a means by which the
disadvantage of women is perpetuated. According to Mosher, the
dichotomies associated with this disadvantage are:
public/private, labour market/family, independence/dependence.
The former, "male" attributes are valued by society while those
latter attributes which are associated with women are not. For a
discussion of dichotomy and its relation to the perpetuation of
the disadvantage of women, see Mosher, ibid.
_______________________

has been the unquestioned norm.6 And because it has become the
"norm," those who are "different" are marginalized.       

  Paradoxically, however, the threat that same-sex families pose
to the conventional family form is juxtaposed against the threat
that the conventional family form poses to same-sex couples.
Because it is the norm, the ideology of the conventional family
threatens to subsume the reality and uniqueness of same-sex
families. For example, faced with a prejudiced judiciary,
same-sex couples are often forced to employ "sameness" arguments
in order to secure benefits traditionally available to
opposite-sex couples. From another perspective, the legislative
and judicial favouritism accorded to opposite-sex couples,
combined with greater social approval of that which is "the
norm," makes it more attractive for many lesbians and gays to
adopt the norm and deny their sexuality. However, despite the
ability of same-sex couples to adopt most of the trappings of
opposite-sex coupledom, sexuality remains a difference.7

  Some lesbian and gay theorists argue that by seeking equal
status as "spouses," same-sex couples are implicitly perpetuating
prevailing modes of heterosexist thinking. Although this debate
is analysed in Part III, it is useful at this point to note that
the perspective taken in this article is that "the family" is an
evolving, and not static, institution. As a result of fighting
stereotypes and seeking inclusion, advocates of lesbian and gay
rights will fundamentally transform the social and legislative
conception of what constitutes an appropriate family unit. As it
becomes more pluralistic and inclusive, "the family" will become
a less oppressive institution.

  Part I constitutes the first segment of this analysis and
limits itself to a survey of the discrimination faced by same-sex
couples. It is important to emphasize that the differential
treatment described below amounts to discrimination, not merely
distinction.8 As McIntyre J. stated in Andrews v. Law Society of
British Columbia,
  
[D]iscrimination 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.9

___________________

6. Greenberg, supra note 1. It should be noted that Canada's
varied ethnic, racial, and cultural groups, each with their own
particular social institutions and norms, are all subjected to
an overarching Euro-centric/male heterosexist social structure,
particularly in governing institutions such as the judiciary, 
and are all subjected to the marginalization that results from
being labeled "different".
7. With respect to individual court cases, this difference can be
conclusive. see Andrews 2, infra note 12, and Egan (F.C.T.D.
and F.C.A.), infra note 46.
8. See Part II for a more complete discussion of how these
distinctions violate s. 15 of the Charter.
9. Andrews, infra note 86 at 18.

___________________________

As will be seen throughout this article, judges resort to
stereotypical assumptions about same-sex couples to conclude that
since they are unlike opposite-sex couples, it is defensible to
treat them differently. Yet without such things as spousal
pension benefits, statutory mechanisms of dispute resolution, and
family crisis leave, same-sex couples are denied the tools
available to opposite-sex couples that aid in the formation of
functional family units.

A. WHO CAN AND CANNOT MARRY

In Canada, the federal government has the jurisdiction to enact
laws regarding who can and cannot marry.10  These requirements,
known as essential validity marriage requirements, have never
been comprehensively defined by the federal government and,
consequently, there is no specific prohibition of same-sex
marriages.11 The common law nevertheless requires that
individuals be of the opposite sex.12

 When the invalidity of an essential requirement is established,
such marriages are declared void ab initio, never to have
occurred. This de facto prohibition against same-sex marriages is
a message to same-sex couples that these relationships are not
worthy of social legitimation.

 On a more practical level, the result of the inability to marry
is that same-sex partners are not automatically considered to be
"spouses," but rather are subjected to judicial and
administrative interpretations of what it means to be a "spouse."
Some of the legislation mentioned in the following sections
clearly stipulates that
 
_____________________ 
 
10. Constitution Act, 1982, being Schedule B to the Canada Act
1982 (U.K.), c. 11, s. 91(26).

11. B. Ryder, "Equality Rights and Sexual Orientation:
Confronting Heterosexual Family Privilege" (1990) 9 C.J.F.L. 39
at 52. Ryder's article offers a broad survey of the different
types of discrimination faced by same-sex couples.  Part I of
this paper, which also surveys this discrimination, complements
Ryder's research by highlighting recent legislative and judicial
developments and by focusing its analysis on issues such as those
listed in note 3, supra.

12. Corbett v. Corbett, [1970] 2 All E.R. 33 (P.D.A.); B. v. A.
(1991), 29 R.F.L. (3d) 258 (Ont. S.C.); Adams and Sullivan v.
Howerton ( 1980), 486 Fed. Supp. 1119 (U.S. Dist. Ct); Anderson
v. Luoma (1986), 50 R.F.L. (2d) 127 (B.C.S.C.); Re Andrews et al.
and Minister of Health for Ontario et al. (1988), 64 O.R. (2d)
258 (Ont. H.C.) [hereinafter Andrews 2]. In Layland v. Ontario
(Minister of Consumer and Commercial Relations) (17 March 1993,
Action No. 234/92, Ont. Div. Ct) [unreported], two men sought
judicial review of the refusal of the City Clerk's Office of
Ottawa to issue them a marriage certificate. Southey J. ruled
that, according to the common law, two people of the same sex
could not marry. In contrast, Greer J.'s dissent highlights the
evolving nature of the common law:

  One of the questions the Court was being asked to consider
was whether there was a common law prohibition against same-sex
marriages. The object of the common law is to solve difficulties
and adjust relations in social and commercial life. It must meet,
so far as it can, sets of fact abnormal as well as usual. It must
grow with the development of the nation. It must face and deal
with changing or novel circumstances. Unless it can do that it
fails in its function and declines in its dignity and value. An
expanding society demands an expanding common law.

  That the common law expands to meet social needs is not a new
concept. The above words were written by McCardie J. of the
King's Bench Division in a 1924 sale of goods case, Prager v.
Blatspiel, Stamp and Heacock, Ltd., [1924] 1 K.B. 566 at 570. The
common law does not remain static. Its very essence is that it is
able to grow to meet the expanding needs of society.

________________________

"spouses" must be two people of the opposite sex;13 however most
simply refers to "spouses," with no defining section.14 In the
former situation, there is a clear unwillingness to declare
opposite-sex provisions unconstitutional. When afforded the
discretion to determine what "spouse" means, judges tend to
define the term in a discriminatory way, referring to other
heterosexist legislative and dictionary definitions to support
their assertions.15 Much, if not most, of the inequitable
treatment described below would be immediately undercut if
same-sex couples were given the option to marry or, in other
words, the ability to become "spouses."16

B. IMMIGRATION

At present, the Immigration Act's stated purpose of
"facilitat[ing] the reunion in Canada of Canadian citizens and
permanent residents with their close relatives from abroad" is
limited to the reunification of married spouses, fiances and
fiancees, parents, grandparents, children, adopted children,
grandchildren, brothers and sisters, and nieces and nephews.17
Although individual gays and lesbians are no longer barred from
entering Canada,18 they are unable to sponsor lesbian and gay
partners for the purpose of immigrating to Canada.19 However,
applications for immigration can be approved on "humanitarian and
compassionate grounds."20

_________________

13. For example, the Family Law Act R.S.O. 1990, c. F.3, defines
"spouse" in ss 1(1) and 29 as "either of a man and woman who are
married to each other" and "either of a man and woman who are not
married to each other and have cohabited (a) continuously for a
period of not less than three years." It is interesting to note
that an opposite-sex requirement is superimposed on the marriage
requirement. Given the inability of same- sex couples to marry,
it is not clear why this added requirement is necessary.

14. For example, the regulations to the Health Insurance Act
(R.R.O. 1980, Reg. 452, s. 1(c)), which formed the basis of
the Andrews 2 case (supra note 12) define "dependant" as "the
spouse of an insured person," with no subsequent definition of
the word "spouse."

15. For example, in Andrews 2, supra note 12 at 261, McRae J.
states that "in approximately 79 statutes in Ontario where the
word 'spouse' is used it always refers to a person of the
opposite sex.... I have been referred to and have resorted to
a number of dictionaries among them Black's Law Dictionary, The
Oxford Dictionary, Jowitts Dictionary of English Law, the 
Random House Dictionary and others. All define spouse as an
opposite sex partner."

16. Whether or not this is an optimal course of action with
respect to the furtherance of the interests of same-sex
couples will be discussed in Part III.

17. Immigration Act, R.S.C. 1985, c. I-2, s. 3(c) and Immigration
Regulations, C.R.C. 1978, c. 940, ss 41(1) and 43(1),
respectively.

18. In his article "From Subversion to Liberation: Homosexuals
and the Immigration Act, 1952-1957" (1987) 2 C.J.L. & Soc. 1,
Philip Girard explains that lesbians and gays were originally
included in the category of persons prohibited from entering
Canada for security reasons (Cold War blackmail), largely as a
result of U.S. government lobbying. Girard states that although
this may have been a valid concern (although not necessarily a
valid justification) in the 1950s, increasing focus on the law's
discriminatory nature and stigmatizing effect ("homosexuals" were
grouped with prostitutes, beggars, pimps, and vagrants, for
example) resulted in its amendment in 1976.

19. Immigration Regulations supra note 17 at s. 41(1). In
response to recommendation #31 of the Report of the
Parliamentary Committee on Equality Rights, infra note 36, that
"section 3(f) of the 
______________________

C. SOCIAL ASSISTANCE

In this area of provincial legislation, same-sex couples are
actually at an advantage, but for unfortunate reasons. When an
individual's "need" for social assistance21 is tested, a welfare
caseworker will take into account whether there is a "spouse" on
whom the claimant can rely for support. If the claimant is a
woman, a male "spouse" is often assumed to be sharing his income
with her, irrespective of whether this is the actual situation.
Whether or not the man is a "spouse" and hence supporting the
claimant is often based on considerations as trivial as whether
the two are having sexual relations.22 The statutory scheme
reflects the presumption that opposite-sex relationships are
caring, supportive, and interdependent. As same-sex relationships
are presupposed to have none of these characteristics, support
between same-sex partners is deemed to exist less frequently.23

D. FAMILY EMERGENCIES

The ability of family members to help one another in crisis
situations is a crucial component in the development and
maintenance of family bonds. Opposite-sex

____________________
Immigration Act be amended to state, that . . . the Act, the
Immigration Regulations, and immigration guidelines contain
standards of admission that do not discriminate in a manner
prohibited by the Canadian Charter of Rights and Freedoms," then
Minister of Justice John Crosbie stated that the government
proposed to "amend subsection 3(f) to provide that standards of
admission should not discriminate in a manner prohibited by the
Charter." See Toward Equality, infra note 35 at 27. With regard
to whether sexual orientation is a prohibited ground of
discrimination under the Charter, see Part III, Section A. To
date, there has been no successful Charter challenge to the
government's exclusion of same-sex families from the Immigration
Act and no corresponding amendment.

20. In her article, "Defining 'Family' -- A Comment on the Family
Reunification Provisions in the Immigration Act" (1988) 3 J.L. &
Social Pol'y 104 at 110, D. McIntosh notes that, although an
application may be brought on "humanitarian and compassionate
grounds," the prospects of an immigration official admitting a
lesbian or gay partner into Canada on this basis is highly
unlikely given the fact that the prohibition against lesbian and
gay immigrants was removed from the Immigration Act only in 1976.
Nevertheless, at least one lawyer, Mary Joseph of Toronto, has
been successful in advancing the immigration claims of her
clients using this ground (M. Joseph, Address (The 29th Annual
Conference on Law and Contemporary Affairs: Challenging Public
and Private Boundaries, 5 February 1993, Toronto) [unpublished]).

21. Social assistance in Ontario is currently administered
through the Family Benefits Act, R.S.O. 1990, c. F.2 and the
General Welfare Assistance Act, R.S.O. 1990, c. G.6.

22. M. Leighton, "Handmaids' Tales: Family Benefits Assistance
and the Single-Mother-Led Family" (1987) 45 U.T. Fac. L. Rev. 324
at 327. Prior to 1986, attribution of income occurred whenever
two persons were "spouses," "spouse" being defined as two people
who "lived together as if they were husband and wife" (R.R.O.
1980, Reg. 318, s. 1). Amendments to this regulation, which
were passed in 1986 and 1987, narrowed this definition so as to
allow less administrative discretion when determining whether
individuals were spouses for the purposes of attribution (R.R.O.
1990, Reg. 366, s. 1). For example, s. 1(2) now directs that
"sexual factors shall not be investigated or considered."
Nevertheless, the new regulations still leave much room for the
use of stereotype when ascertaining whether or not income should
be attributed. For an analysis of how social assistance
legislation contributes to the perpetuation of the disadvantage
faced by women, see Mosher, supra note 4.

23. Ironically, a same-sex couple's assertion that they are
"spouses" would likely have the effect of reducing the
entitlement of the recipient spouse.
_______________________


couples benefit from statutes that confer rights and benefits
when such situations occur. Notable exceptions to this rule are
Ontario's Substitute Decisions Act, 199224 and Consent to
Treatment Act, 1992.25 Both Acts define "partners" as [persons
who] have lived together for at least one year and have a close
personal relationship that is of primary importance in both
persons' lives.26

  Nevertheless, if one partner should die, the surviving
same-sex partner could not collect benefits pursuant to the
Workers' Compensation Act27 or the Compensation for Victims of
Crime Act.28 It is even questionable whether a same-sex partner
is entitled to leave from work to attend the funeral of his or
her lover. The Supreme Court of Canada recently ruled that Brian
Mossop was not entitled to funeral leave to attend the funeral of
his partner's father on the grounds that his partner, and hence
his partner's father, were not "immediate family members" as
provided for in the governing collective agreement.29 The case
arose out of a challenge brought by Mossop that this denial
violated the provision of the Canadian Human Rights Act [CHRA]
that prohibits discrimination on the basis of family status.30
Mossop's appeal to the Supreme Court of Canada was denied on the
grounds that discrimination on the basis of family status cannot
be interpreted to include discrimination against same-sex couples
since at the time of the inclusion of the family status ground in
1983, Parliament specifically decided not to include sexual
orientation as a prohibited ground of discrimination.31

  It is important to note that Mossop narrowed the scope of the
appeal by not raising any Charter32 issues and in particular by
not referring to the Birch decision, which read sexual
orientation into the CHRA.33 The appeal was confined to whether
same-sex couples constituted a family under the CHRA and thus
whether there
   
_____________________   
24. S.O. 1992, c. 30 (formerly "Bill 108").

25. S.O. 1992, c. 31 (formerly "Bill 109").

26. Section 1(2) of both Acts. It is interesting to note that the
definition of "partner" is in addition to a somewhat standard
definition of "spouse":      
. . . a person of the opposite sex, (a) to whom the person is
married, or (b) with whom the person is living in a conjugal
relationship outside of marriage, if the two persons,
(i) have cohabited for at least one year,
(ii) are together the parents of a child, or
(iii) have together entered into a cohabitation agreement under
section 53 of the Family Law Act. It is arguably easier to
satisfy the definition of "spouse." See Part III, Section B.

27. R.S.O. 1990, c. W.11, s. 35.

28. R.S.O. 1990, c. C.24, s. 1.

29. Attorney General (Canada) v. Mossop, [1993] 1 S.C.R. 554 at
555.

30. R.S.C. 1985, c. H-6, s. 3(1).

31. Lamer C.J.C. in Mossop, supra note 29 at 580, referring to
S.C. 1983, c. 143, s. 2.

32. Canadian Charter of Rights and Freedoms, infra note 83.

33. Supra note 31 at 579. See also infra note 73 and accompanying
text.
____________________________

was discrimination on the basis of family status.34 Given that
the Court failed to read a human rights document in a broad and
purposive manner, it is unlikely that the Court would be any
more flexible in interpreting other types of statutes when
determining whether same-sex partners are "spouses" or whether
they constitute a "family."

E. INCOME TAX ACT

The Income Tax Act [ITA] contains provisions that accord benefits
based on spousal status.35 Despite early reluctance,36 the
federal government has recently amended the ITA to specifically
define the term "spouse" to include common law, opposite-sex
couples.37 Same-sex couples cannot benefit from provisions such
as those relating to spousal tax credits;38 inter-spousal
transfers of unused pension, education, and disability credits;39
and registered retirement savings plans.40 It is interesting to
note how these "transfers" benefit one-income families,41
promoting the stereotypically conventional family in which there
is one (male) breadwinner.

F. PENSIONS

Statutory pension schemes in Canada account for the existence of
opposite-sex marriages or partnerships only.42 For example, the
term "spouse" in the Public Service Pension Act is defined as

either of a man or a woman who,
 (a) are married to each other, or

_____________________
34. Ibid.

35. See B. Arnold & T. Edgar, eds., Materials on Canadian Income
Tax, 9th ed. (Toronto: De Boo, 1990) at 42-44; Income Tax Act,
R.S.C. 1952, c. 148, as amended.

36. In the federal government's response to the report of the
Committee on Equality Rights, which recommended the extension of
all Income Tax Act spousal benefits to common law couples (Report
of the Parliamentary Committee on Equality Rights: Equality for
All (Ottawa: Queen's Printer, 1986) at 35), John Crosbie, then
Minister of Justice, asserted that because such a provision could
not be administered with a high degree of accuracy, it would be
subject to abuse (Department of Justice, Toward Equality (Ottawa:
Minister of Supply and Services, 1986) at 15).  Similar arguments
are used for excluding same-sex couples.

37. Section 252(4) of the Income Tax Act adds the following to
the Act's definition of the term "spouse:" "In this Act, (a)
words referring to spouse at any time of a taxpayer include the
person of the opposite sex who cohabits at that time with the
taxpayer in a conjugal relationship and (i) has so cohabited with
the taxpayer throughout a 12-month period ending before that
time, or (ii) is a parent of a child of whom the taxpayer is a
parent...." [emphasis added].

38. Income Tax Act, supra note 35 at s. 118(1)(a).

39. Income Tax Act, supra note 35 at s. 118.8.

40. Income Tax Act, supra note 35 at s. 146(1)(a)(ii).

41. Arnold & Edgar, supra note 35 at 42.

42. See, for example, the Pension Benefits Act, R.S.O. 1990, c.
P.8, s. 1; the Public Service Pension Act, S.O. 1989, c. 73,
Schedule 1, s. 1; the Medical Services Act, R.S.B.C. 1979, c.
255, s. 2.01; and the Old Age Security Act, R.S.C. 1985, c. O-9,
s. 2.
____________________


(b) are not married to each other and are living together in a
conjugal relationship (i) continuously for a period of not
less than three years or (ii) in a relationship of some
permanence, if they are the natural or adoptive parents, as
defined in the Family Law Act, 1986, of a child.43

This statute was recently successfully challenged44 as being in
violation of the Ontario Human Rights Code provision protecting
against discrimination based on sexual orientation.45
 A recent Charter challenge of similar pension provisions was
not, however, as successful. James Egan and John Nesbit failed in
their s. 15 Charter challenge of the Old Age Security Act, which
also excludes same-sex couples.46 The Old Age Security Act
defines "spouse" as
 
a person of the opposite sex who is living with that person,
having lived with that person for at least one year, if the two
persons have publicly represented themselves as husband and
wife.47

The trial judge, in denying their suit, used the logic that since
Egan and Nesbit did not fall into the category of "spouses," they
were not entitled to the same treatment as other (married and
common law) spouses.48 This ruling was affirmed at the Federal
Court of Appeal for similar reasons.49

G. CUSTODY

In Ontario, child custody disputes are resolved according to what
would be "in the best interests of the child."50 The Children's
Law Reform Act instructs judges to use, among others, the
following criteria in evaluating the custody ruling that would be
in the best interest of the child: the permanence and stability
of the family unit in which it is proposed that the child will
live; the relationship between the child and the person claiming
custody; current and proposed living arrangements; and any past
conduct relevant to the proposed custodian's ability to act as a
parent.51

______________________
43. Public Service Pension Act, ibid.
44. Leshner v. Ontario (No. 2) (1992), 16 C.H.R.R. D/184 (Ont.
Bd. Inq.). 
45. R.S.O. 1990, c. H.l9,s. 5.
46. Egan v. Canada (1992), 87 D.L.R. (4th) 320 (F.C.T.D.)
[hereinafter Egan (F.C.T.D.)]; aff'd Egan v. Canada (1993), 103
D.L.R. (4th) 336 (F.C.A.) [hereinafter Egan (F.C.A.)].
47. Old Age Security Act, supra note 42 at s. 2.
48. Egan (F.C.T.D.), supra note 46 at 332-333. The problematic
nature of the "similarly situated" test as an indicator of
discrimination will be discussed in Part III, Section B. On 14
October 1993, Egan and Nesbit received leave to appeal to the
Supreme Court of Canada.
49. Egan (F.C.A.), supra note 46.
50. Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 19(a).
51. Ibid s. 24.
________________________

The Divorce Act, which applies to custody disputes that arise out
of divorce, states similar criteria.52

  These "best interest" criteria are problematic for same-sex
parents for two principal reasons. First, judges may be unwilling
to consider a same-sex partnership as a "stable family unit,"
adhering to the dichotomous conception that same-sex
relationships are fleeting and unstable whereas opposite-sex
relationships are stable and nurturing. And, as Katherine Arnup
notes, because same-sex couples often have to stay secretive
about their relationships, it is more difficult to offer
conclusive evidence as to the permanence of such relationships.53

  Second, judicial discretion determines the extent to which
homosexual conduct is considered to affect a parent's ability to
parent. Although some judges pay lip service to the fact that
being gay or lesbian is not a relevant consideration in
determining child custody, many decisions indicate that sexual
orientation is often considered to be a negative factor. For
example, in Bezaire v. Bezaire, Arnup J. states that "(i)n my
view homosexuality . . . is not in itself a ground for refusing
custody" but then qualifies this by stating that
  
It would be wrong to lay down any general rule as to the weight
to be given to the evidence of homosexuality on the part of one
of the parents. As I have said, in each case it is an aspect
which the trial judge, upon hearing the evidence, must consider
but from the aspect of the effect or likely effect upon the
welfare of the children.54

In this case, Arnup J. was deferring to a trial judge who had
stated that

[I]t will be a condition of the custody order that no other
person shall reside with Mrs. Bezaire without the approval of the
court . . . I have indicated that I am attempting to improve the
situation and that includes negativing any open, declared and
avowed lesbian or homosexual relationship.55

  Like the trial judge in Bezaire, most judges are relatively
straightforward about the inferences they draw from the finding
that a parent is gay or lesbian. In Bernhardt v. Bernhardt,
Hamilton J., in awarding custody to the father, stated that
"[t]he child clearly wishes to stay with her mother, but the
mother appears committed to a lesbian relationship, is unemployed
and is given to heavy drinking, violence and
  
_______________________-
52. Divorce Act, S.C. 1986, c. 4, s. 16.

53. "'Mothers Just Like Others:' Lesbians, Divorce and Child
Custody in Canada" (1989) 3 C.J.W.L. 18 at 26.

54. (1980), 20 R.F.L. (2d) 358 at 365 and 366 (Ont. C.A.)

55. McMahon J., quoted in Bezaire, ibid. at 361. At the original
custody hearing, Mrs. Bezaire was granted custody. Several months
later this decision was varied due, in part, to the breach of
this condition.
________________________

profanity"56 (emphasis added). In K. v. K., Rowe J. states that
"Mrs. K.'s homosexuality is, in my opinion, no more of a bar to
her obtaining custody than is the fact of Mr K.'s drug use."57
The inappropriateness of these comparisons aside, being lesbian
or gay was determined in K. v. K. to be a lesser impediment than
drug use, although the judge was satisfied that Mrs K.'s lesbian
relationship "will be discreet and will not be flaunted to the
children or to the community at large."55

  Paradoxically, the amount of judicial discretion afforded to
judges to determine what is in the best interest of children has
been unfavourable for lesbian and gay parents and, in turn, not
in the best interests of the children. This discretion permits
Courts to adhere to dichotomous views of relationships:
opposite-sex relationships are nurturing and provide for good
role models, same-sex relationships are destructive and provide
for bad role models.
  
H. DIVISION OF PROPERTY

Under the Family Law Act of Ontario,59 only two people who are
married can benefit from the division of property regime found in
that Act. This regime seeks to ensure the equal sharing of the
wealth that accrued to the couple during the marriage. Its stated
purpose is to foster marriage as an equal partnership, with the
presumption that equal contributions are made by the spouses
throughout the marriage.60 But whereas opposite-sex couples have
control over the extent to which the regime applies to them, by
making marriage contracts or by not marrying, same-sex couples
can rely only on the doctrine of constructive trust.61 For
example, in Anderson v. Luoma, the B.C. Supreme Court divided a
lesbian couple's property according to this doctrine to reflect
the partners' relative economic contributions to the
relationship.62

______________________
56. (1979), 10 R.F.L. (2d) 32 at 41 (Man. Q.B.). It is
interesting to note that most of the judgment focuses on the
inappropriateness of the mother's behavior. In this respect, note
Hamilton J.'s comment, also at 41: "On balance, I am more 
concerned with the harmful effect of the mother's way of life on
the child than I am with respect to some of the uncertainties
with respect to the care and attention the father can provide." A
similar double standard seems to exist with respect to
post-divorce or post-separation relationships. As Ryder notes,
supra note 11 at 59, the reluctance of courts to grant custody to
parents in a same-sex relationship is in sharp contrast with the
courts' increased willingness to grant custody to the parent who
is involved in an opposite-sex relationship, irrespective of
whether they are married. Compare Ryder's assessment of this
situation with that of J. Atkinson, Modern Child Custody
Practice, Vol. 1 (New York: Kluwer Law Book, 1986) at 290, who
contends that courts treat homosexual parents similarly to the
manner in which they treat heterosexual parents engaged in non-
marital relationships.

57. (1975), 23 R.F.L. 58 at 64 (Alta. Prov. Ct).

58. Ibid.

59. Supra note 13.

60. Preamble to the Family Law Act, ibid.

61. This doctrine is discussed in Pettkus v. Becker (1980), 19
R.F.L. (2d) 165 (S.C.C.) and Sorochan v. Sorochan (1986), 29
D.L.R. (4th) 1 (S.C.C.).

62. (1986), 50 R.F.L. (2d) 127 (B.C.S.C.).

I. SPOUSAL SUPPORT

On marriage breakdown, both married and common law couples
benefit from the Family Law Act provisions for spousal support.63
Support orders are calculated by the courts in light of the
objectives enumerated in the Act.64 Recent rulings have aimed to
compensate spouses for the loss of income-earning potential that
is causally connected to the marriage.65 Opposite-sex couples
have a choice of regime: they can accept the support scheme of
the FLA or make a domestic contract to modify it in any
way.66 Same-sex couples can only make domestic contracts.
Although a feasible alternative for the contractually
sophisticated, domestic contracts are nevertheless inferior to
support orders in that they are often drafted when the
circumstances relating to the relationship breakdown are not
known.

J. INTESTACY

Same-sex couples are equally disadvantaged compared with opposite
couples if the partnership ends with death. If the deceased
same-sex partner does not have a will, then the surviving partner
will not receive any of the deceased's assets, aside from a
possible constructive trust claim on the deceased's estate.67 In
contrast, the surviving spouse of a marriage can elect to receive
his or her entitlement to property under the deceased's will, if
a will exists, or as per the division of property regime in the
Family Law Act.68 Dependant's relief is also available only to
dependants of marriages and common law relationships.69

K. HUMAN RIGHTS CODES

Sexual orientation is not a prohibited ground of discrimination
in the human rights codes of six Canadian jurisdictions:
Newfoundland, Prince Edward Island, Saskatchewan, Alberta,
British Columbia, and the Northwest Territories. Unlike the
Charter, which protects against discrimination on grounds
enumerated in s. 15 or upon analogous grounds,70 the protection
afforded by these human rights codes is

____________________
63. Family Law Act, supra note 13 at ss 29 and 33. 
64. Ibid s. 33(8).

65. Moge v. Moge (1993), 43 R.F.L. (3d) 345 (S.C.C.); Karlovec v.
Karlovec (1986), 50 R.F.L. (2d) 259 (Ont. Div. Ct.); Heinemann v.
Heinemann (1989), 20 R.F.L. (3d) 236 (N.S.S.C.A.D.); Linton v.
Linton (1990) 30 R F.L. (3d) 1 (Ont. C.A.).

66. Family Law Act, supra note 13 at ss 52 and 53.

67. Succession Law Reform Act, R.S.O. 1990, c. S.26, ss 1 and
44-49. Also see notes 61-62, supra and accompanying text.

68. Succession Law Reform Act, ibid.; Family Law Act, supra note
13 at s. 6. 

69. Ibid. ss 57-58.

70. See Charter discussion, Part III.
____________________________

limited to those grounds of discrimination that are enumerated.
In these jurisdictions, private acts of discrimination71 on the
basis of sexual orientation are legally acceptable, and only when
the discriminating body can be considered to be "government" will
the Charter afford some protection.72

  The constitutionality of human rights codes that do not conform
to the Charter was addressed by the Ontario Court of Appeal
decision in Birch.73 The Court ruled not only that sexual
orientation was a prohibited ground of discrimination under the
Charter, but also that the CHRA itself was unconstitutional for
excluding sexual orientation as a prohibited ground. As a remedy,
it "read in" sexual orientation to the CHRA.74 The federal
government did not appeal the decision, and introduced
legislation to amend the CHRA to conform to the Birch decision.75

  It is interesting to note that most academic literature
concentrates almost exclusively on the Charter as the means by
which the inequities faced by same-sex couples can best be
redressed.76 This emphasis can be explained by several
observations. First, as has been noted, human rights code
protection against discrimination on the basis of sexual
orientation exists only in seven jurisdictions77 and is limited
to enumerated activities alone. Second, in contrast to court
actions, human rights complainants lose control over their
complaints once they are submitted. The Ontario Human Rights
Commission, for example, takes over the investigation of the
complaint and renders a decision as to whether or not the
complaint can proceed to the hearing stage. The Commission's
decision, subject to one "reconsideration," is final.78 Third,
the Charter is a document of more powerful symbolic and
jurisprudential importance and is hence a more effective way of
challenging the status quo and redressing the inequities faced by
same-sex couples. Lastly, and perhaps most significant, human
rights codes are not as efficient in practice as they were
designed to be. Several years may pass before a claim is
  
__________________________
71. "Private acts of discrimination" refers to situations of
discrimination in which there is little or no governmental
involvement.

72. As clarified by the Supreme Court of Canada in R.W.D.S.U. v.
Dolphin Delivery Ltd. [1986] 2 S.C.R. 573, the Charter protects
only against acts of government or of individuals or institutions
with a sufficient nexus to government. The Charter offers no
protection against private acts of discrimination.

73. Haig and Birch v. Canada (1992), 9 O.R. (3d) 495 (C.A.).

74. Ibid. at 508.

75. Bill C-108, An Act to Amend the Canadian Human Rights Act and
other Acts in Consequence Thereof, 3d Sess., 34th Parl., 1992.
Due to a recent change in government, the status of this Bill,
which had received only first reading, is unclear. In any event,
not only is the amendment largely unnecessary given the Birch
decision, ibid., but it is also undercut by an inconsistent
provision that would define marriage (for the purposes of the
Canadian Human Rights Act) in solely heterosexual terms (as of
publication).

76. P. Girard, "Sexual Orientation as a Human Rights Issue in
Canada, 1969-1985" (1986) 10 Dalhousie L.J. 267; D. Herman, "Are
We Family?: Lesbian Rights and Women's Liberation" (1990) 28
Osgoode Hall L.J. 789; C. Petersen & M. Eaton, "Comments: Andrews
v. Ontario" (1987-1988) 2 C.J.W.L. 416; and Ryder, supra note 11.

77. Ontario, Nova Scotia, Yukon, Quebec, New Brunswick, Manitoba,
Canada (federal).

78. Ontario Human Rights Code, R.S.O. 1990, c. H.l9, ss 34 and
37.  
__________________________

resolved; some cases have stretched out over five years.79 The
Ontario Government is currently investigating ways in which to
overhaul the Ontario Human Rights Commission.80

L. SUMMARY

It is interesting to note that the above examples of legislative
discrimination against same-sex couples are a result of
underinclusive legislation. The existence of this legislation,
coupled with judicial prejudice when it is being interpreted in
the courts, undermines the ability of same-sex couples to form
functional families. First, same-sex couples are not afforded the
financial benefits that are made available to opposite-sex
couples. Second, although same-sex couples are free to make
contracts which mimic the effects of legislation such as the
Family Law Act, such an alternative is practically available only
to those who are relatively wealthy and legally sophisticated.
Last, and possibly most significant, the discretion accorded to
courts by virtue of unclear or imprecise legislation is almost
always used to the detriment of lesbian and gay claimants,
particularly in the area of child custody. Courts continue to
perpetuate dichotomies that typify same-sex couples as being
unstable, unsupportive, polygamous, and unable to bear or
properly raise children. Opposite-sex couples are conversely
characterized as virtuous and therefore, implicitly, more
deserving of state benefits and favourable court judgments.

 Although gays and lesbians are, theoretically, free to form
relationships that have many of the indicia of functional
families,81 the state, by making one family form financially and
socially preferable,82 and the judiciary, by rendering homophobic
judgments, indirectly discourage their creation. This
discouragement should be viewed as a reaction to the threat that
same-sex couples pose to a male heterosexual-dominated society.
The following sections will discuss, in greater detail, the
nature of this threat and the strategies that can be employed to
counter this discrimination most effectively.
 
II. The Charter

Placed against this discrimination is a relatively progressive
Charter of Rights and Freedoms.83 As Bruce Ryder describes it,
there is a compassion/no-condonation dichotomy operating within
Canadian society. He characterizes the exclusion of 

________________________
79. For a discussion of the shortcomings of the Ontario Human
Rights Commission see M. Cornish et al., Achieving Equality: A
Report on Human Rights Reform (Toronto: Ministry of Citizenship,
1992) at 17-28.

80. Ibid.

81. See note 1, supra.

82. Heterosexual marriage can be considered as more socially
preferable in that it is the form of relationship that is
sanctioned by the state and most of its citizens.

83. Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B of the Canada Act, 1982
(U.K.), 1982, c. 11. 
_________________________


same-sex benefits from legislation and the hesitancy of judges
and legislatures to change these laws as reflecting the desire
not to condone, or at least not to be seen as condoning, what is
to many an abhorrent and sinful lifestyle. On the other hand, he
notes a highly compassionate streak in Canadian society, as
reflected by the Charter, several human rights codes, and opinion
polls, which abhors any type of discrimination.84

  Despite this "compassion," the remedial route offered by the
Charter has been compromised by the courts. Although obtaining
Charter protection against discrimination on the basis of sexual
orientation should be relatively straightforward, as will be
illustrated, courts often undercut this protection by adhering to
narrow and outdated judicial reasoning that relies on stereotype
in denying same-sex couples full protection. These types of
reasoning will be discussed not only in order to illustrate
homophobic interpretations of the Charter but also in order to
uncover the tactics that block successful same-sex spousal
Charter litigation. Such tactics include the revival of the
discarded similarly-situated test and the use of unconvincing s.
1 justifications which reveal the homophobic attitudes of the
respective judges.

  These strained attempts to deny same-sex couples equality
attest to the fact that same-sex couples are seen as a threat to
the established order and the privilege that flows from it. This
established order involves a hierarchy of social relations in
which men are the dominant sex, heterosexuality the accepted
sexual orientation, and conventional families the idealized form
of familial arrangement. The ability of same-sex couples to form
functional families is stymied by reasoning that is designed to
protect this privilege. And because this privilege has existed
for so long, it has become the "norm" and is accepted as the
"truth."85
   
   
A. THE SECTION 15 TEST


Section 15 of the Charter guarantees that

Every individual is equal before and under the law and has the
right to equal benefit and equal protection 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.

______________________
84. A 1985 Gallup poll found that 70 percent of Canadians were in
favour of making discrimination on the basis of sexual
orientation illegal (Ryder, supra note 11 at 43). However, it is
important to note that the origin of much of this compassion can
he found in attitudes that characterize homosexuality as a type
of "perversion" or "sickness" which requires "charity and
treatment." See Ryder, supra note 11 at 67.

85. The following Charter discussion should not be construed as
an assertion that the state necessarily has the duty to support
family units at all. This issue is raised in Part III. Rather, it
argues that the state has an obligation to treat all functional
family units in a manner consistent with s. 15.
_________________________

The test for determining whether a s. 15 violation has taken
place is found in Andrews v. Law Society of British Columbia:86


A complainant under s. 15 must show not only that he or she is
not receiving equal treatment before and under the law or that
the law has a differential impact on him or her in the protection
or benefit accorded by law but, in addition, must show that the
impact of the law is discriminatory.87 [emphasis added]


Whether or not sexual orientation can be considered an analogous
ground of discrimination to those listed in s. 15 is considered
as part of the second branch of the test.88

  The purpose of the four equality rights in s. 15, as expressed
by McIntyre J. in Andrews, is to ensure that "a law . . . should
not because of irrelevant personal differences have a more
burdensome or less beneficial impact on one than another."89 In
particular, "equal benefit of the law" has been defined as
referring to the stipulation that individuals must benefit
equally from the existence of government programs.90 It would not
be difficult for same-sex couples who were subject to the
discrimination noted previously to argue successfully that they
were not being accorded "equal benefit of the law." Same-sex
couples are clearly treated differently from opposite-sex couples
under these laws.

  What must be shown in the second branch of the test is that
these distinctions constitute "discrimination." To establish
this, it must be shown that (a) the different treatment results
in disadvantage and (b) the complainant is a member of an
enumerated, analogous, or "protected" group.91 According to
McIntyre J.,
   
   
[D]iscrimination 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.92 [emphasis added]

______________________________
86. (1989), 56 D.L.R. (4th) 1 (s.c.c.) [hereinafter Andrews].

87. Ibid. at 23.

88. Knodel v. British Columbia (Medical Services Commission)
(1991), 58 B.C.L.R. (2d) 356 at 382-383 (B.C.S.C.).

89. Andrews, supra note 86 at 11.

90. Schachter v. Canada, [l992] 2 S.C.R. 679 at 721-722.

91. Whether or not sexual orientation is a protected ground of
discrimination under the Charter has yet to be specifically
pronounced by the Supreme Court of Canada. although there have
been lower court rulings. For example, in Birch, supra note 73,
the Ontario Court of Appeal ruled that it is an included ground.
Charter issues were not raised in the Supreme Court of Canada in
Mossop, supra note 29.

92. Andrews, supra note 86 at 18. As noted previously, defenders
of the status quo would assert that the differences in treatment
discussed in this article amount to mere distinction, not
discrimination. The similarly-situated test, which is discussed
in the following section, is also used to deny same-sex couples
Charter protection.
_________________________


  Denying same-sex spousal benefits clearly has the result of
hindering the formation of functional same-sex families, both in
terms of the economic disadvantage caused by the laws mentioned
above and also in terms of the stereotypical assumptions that
these laws reinforce regarding such things as a lesbian or gay
person's ability to be a parent, a lesbian or gay person's
ability to be caring, and a lesbian or gay person's ability to
have a meaningful, committed relationship. This legislative
discrimination, coupled with judicial prejudice, dissuades
same-sex couples from forming these types of relationships and
hence hinders the ability of lesbians and gays to participate
fully in Canadian society.93

  Determining whether or not sexual orientation is to be included
as an analogous form of discrimination under s. 15 involves the
consideration of various factors, factors that are best
encompassed by McIntyre J.'s statement that s. 15 is designed to
protect "discrete and insular minorities."94 In Turpin, Wilson J.
noted the indicia of "stereotyping, historical disadvantage [and]
vulnerability to political and social prejudice,"95 adding that
   
   
[T]his categorization is not an end in itself but merely one of
the analytical tools which are of assistance in determining
whether an interest advanced by a particular claimant is the kind
of interest s. 15 of the Charter is designed to protect. It is a
means of ensuring that equality rights are given the same broad,
purposive interpretation accorded to other Charter rights.96


  Historically, prejudice and social stigmatization has resulted
in lesbians and gays leading lives removed from the mainstream.
And, as was discussed previously, not only have legislative
enactments resulted in the perpetuation of lesbian and gay
insularity, but court judgments as well have served to perpetuate
stereotypical assumptions about lesbians and gays. In addition,
even the more homophobic judgments contain admissions that
lesbians and gays do constitute a distinct group.97
   
________________________________-
93. According to Mclntyre J., ibid. at 15, "the purpose of s. 15
is to ensure equality in the formulation and application of the
law. The promotion of equality entails the promotion of a society
in which all are secure in the knowledge that they are recognized
at law as human beings equally deserving of concern, respect, 
and consideration."

94. Ibid. at 24.

95. R. v. Turpin, [1989] 1 S.C.R. 1296 at 1333.

96. Ibid. referring to Hunter v. Southam Inc., [1984] 2 S.C.R.
145, and R. v. Big M Drug Mart Ltd., [l985] 1 S.C.R. 295.

97. In Andrews 2, supra note 12 at 263, McRae J. states that
"[h]omosexual couples living together in a domestic situation
therefore can be identified as a distinct class." But McRae J.
then goes on to use the discredited similarly situated test (see
Part II, Section B) to justify his conclusion that s. 15
discrimination has not occurred in this case: "Homosexual couples
are not similarly situated to heterosexual couples. Heterosexual
couples procreate and raise children . . . [T]he applicants are
being treated in exactly the same manner as all of the other
unmarried (whether in the legal or 'common-law' sense) people in
the province. Heterosexual couples of the same sex, brothers and
brothers, sisters and sisters, brothers and sisters cousins,
parents and adult children and any combination of them may be
living together under similar circumstances to the applicants but
would in each case pay OHIP premiums as 'single persons.'" With
regard to s. 1, McRae J. states at 265 that "[t]he legislative
objective of establishing and maintaining traditional families is
one of substantial importance." [emphasis added] This support of
traditional families was gratuitous in light of the fact that no
s. 15 violation was found.
___________________________

Finally, it is important to note that sexual orientation often is
conceded by counsel for the government as being an analogous
ground of discrimination.95 These concessions are consistent with
government policy statements.99


B. THE "SIMILARLY-SITUATED" PROBLEM


A problematic aspect of same-sex Charter litigation is that
courts have tended to revive the "similarly-situated"
discrimination test that seemed to have been discredited
conclusively by McIntyre J. in Andrews.100  An emphasis on this
analysis is therefore necessary in any s. 15 discussion regarding
sexual orientation. As McIntyre J. stated in Andrews, "[A] bad
law will not be saved merely because it operates equally upon
those to whom it has application."101 In criticizing the decision
in Bliss v. A.C. Canada,102 where Bliss' claim that she was
discriminated against because she was pregnant was dismissed
because all pregnant people, the class formed by the legislation,
were treated equally, McIntyre J. stated that "[t]his case, of
course, was decided before the advent of the Charter."103 He also
adopted the following criticism of the similarly-situated test:


[T]he test accepts an idea of equality which is almost
mechanical, with no scope for considering the reason for the
distinction. In consequence, subtleties are found to justify a
finding of dissimilarity which reduce the test to a
categorization game. Moreover, the test is not helpful. After
all, most laws are enacted for the specific purpose of offering a
benefit or imposing a burden on some persons and not others.104

___________________________
98. See Veysey v. Correctional Services of Canada (1990), 109
N.R. 300 at 304 (F.C.A.); Knodel, supra note 88 at 371.

99. See Equality for All, supra note 36 at 29. In Toward
Equality, supra note 36 at 13, then Minister of Justice John
Crosbie stated that the "Department of Justice is of the view
that the courts will find that sexual orientation is encompassed
by the guarantees in section 15 of the Charter. The government
will take whatever measures are necessary to ensure that sexual
orientation is a prohibited ground of discrimination in relation
to all areas of federal jurisdiction." More recently, then
Minister of Justice Kim Campbell stated that "the government's
commitment in 1986 with respect to sexual orientation was to do
whatever is required. The government has taken the position that
it (sexual orientation) is covered by section 15 of the Charter."
See Ryder, supra note 11 at 76.

100. The test is, in essence, that as long as individuals within
a certain category are treated equally, there is no
discrimination. The test does not call for the comparison of the
treatment of individuals who are situated in different
categories. It ensures only that individuals who are similarly
situated are treated similarly.

101. Andrews, supra note 86 at 12.

102. (1978), 92 D.L.R. (3d) 417 (S.C.C.)

103. Andrews, supra note 86 at 13.

104. Mahe v. The Queen in Right of Alberta (1987), 42 D.L.R.
(4th) 514 at 546 (Alta. C.A.) in Andrews, ibid.
__________________________-

Moreover, McIntyre J. noted that

[T]he test cannot be accepted as a fixed rule or formula for the
resolution of equality questions arising under the Charter.
Consideration must be given to the content of the law, to its
purpose, and its impact upon those to whom it applies, and also
upon those whom it excludes from its application. The issues
which will arise from case to case are such that it would be
wrong to attempt to confine these considerations within such a
fixed and limited formula.105 


An effective s. 15 test must look beyond individual legislatively
created categories and analyse how individuals are treated across
categories. The "larger context" must be examined."*

  In the Egan trial, although Martin J. specifically denies using
a similarly situated test, this is exactly what he does:
   
Parliament has chosen to address the needs of persons of the
opposite sex who live together in a conjugal state, either
statutory or common law, as husband and wife . . . [The same-sex]
relationship is a different one than a spousal relationship and .
. . the parties to such [a] relationship cannot expect to share
the benefits accorded to those in spousal relationships, not
because of their sexual orientation, but because their
relationship is not a spousal one.l07 [emphasis added]

Martin J. deferred to the categorization made by Parliament and
was satisfied that individuals within that category were being
treated equally. In addition, Martin J.'s rationalization that
the case should be dismissed because of the plaintiff's lack of
spousal status is misleading. He ignored the reality that the
only reason their relationship was not a spousal one was their
sexual orientation. Martin J. also ignored jurisprudence that
confirms that an enumerated or analogous group does not have to
be specifically mentioned in a statute in order for there to be a
finding of discrimination on that ground. In Brooks v. Canada
Safeway Ltd.,108 although the impugned group insurance plan
discriminated on the basis of pregnancy, the Supreme Court found
discrimination on the basis of sex since only women could become
pregnant.109 In Knodel, Rowles J. held that there was
discrimination based on sexual orientation specifically because
the legislative definition of "spouse" did not include same-sex
partners." 

  At the Federal Court of Appeal, Robertson J. also supported
Parliament's categorization:
______________________________
   
105. Andrews, ibid. 

106. Wilson J. in Turpin, supra note 95 at 1331, affirming
McIntyre J.'s rejection of the similarly-situated test in
Andrews, supra note 86. 

107. Egan (F.C.T.D.), supra note 46 at 332-333. 

108. [1989] 1 S.C.R. 1219.

109. Ibid. at 1241-1242

110. Supra note 88 at 387.
___________________________

Before us is a case in which a benefit has been conferred on a
narrow class of persons who can be readily identified and who are
in financial need because of a pattern of financial
interdependency, characteristic of heterosexual couples, and
which cannot in any reasonable way be deemed relevant to same-sex
couples or, for that matter, other non-spousal relationships.111

It is clear that Robertson J.'s reasoning rests on his adherence
to the dichotomous view that opposite-sex relationships are
characterized by interdependence while same-sex relationships are
characterized by independence. Moreover, it is unclear how
opposite-sex couples, aside from those who have marriage
certificates, are any more "identifiable" than same-sex
couples.112

  In Andrews 2, lesbian partners sought a declaration that the
exclusion of same-sex couples from the definition of "spouse" in
the Health Insurance Act violated their right to equality under
s. 15.113 The trial judge, McRae J., dismissed this claim on the
grounds that since the applicants were not similarly situated to
married couples, they were not entitled to the benefits accorded
to married couples.114 Further, McRae J. noted that there was no
discrimination, because the applicants were treated similarly to
other excluded "couples" who may be living together, such as
common law couples.115 The exclusion of two groups, as opposed to
just one, is not a justification for s. 15 infringement. In
addition, whereas common law partners can marry, same-sex couples
cannot. This judgment was specifically criticized by the British
Columbia Supreme Court in Knodel, with Rowles J. noting that the
similarly-situated test was rejected by the Supreme Court of
Canada in Andrews.116 

  It is also interesting to note that despite government
commitments to ensure that sexual orientation is a prohibited
ground of discrimination in all areas of federal jurisdiction,117
lawyers from the Department of Justice continue to argue their
cases using reasoning similar to that noted above. In Knodel,
counsel for the Crown argued that the definition of spouse "does
not make a distinction based upon sexual orientation but is
simply a distinction between 'spouses' and 'non- spouses.'"118
Similarly, the factum submitted by the Department of Justice in
Veysey argued that "the respondent was denied his visit, not
because of his sexual orientation, but because the person he
nominated for the proposed visit was not his spouse...."119
   
________________________   
111. Egan (F.C.A.), supra note 46 at 400.
112. Provisions of the Old Age Security Act apply to non-married,
opposite-sex spouses, as defined in s. 2 of that Act, supra note
42.

113. Supra note 12.

114. Ibid. at 263.

115. Ibid.

116. Knodel, supra note 88 at 379.

117. see statements made by Kim Campbell and John Crosbie, supra
note 99. 

118. Knodel, supra, note 88 at 372.

119. Factum submined by the Crown in Veysey, supra note 98, in C.
Petersen, Lesbian and Gay Legal Issues--Course Materials, Vol. II
(Faculty of Law, University of Ottawa, Fall 1991) [unpublished]
at 159.
______________________________-

Such arguments clearly put into question the Department of
Justice's commitment to eliminating discrimination based on
sexual orientation.

  These arguments and judicial reasoning indicate that judges and
possibly Crown lawyers simply cannot conceive of same-sex couples
as being able to form relationships that are loving, emotionally
and financially supportive, and/or that include children. There
is a rigid adherence to dichotomous perceptions that opposite-sex
couples possess all of these characteristics and same-sex couples
possess none of them. It is because of this mutual exclusivity
that same-sex couples are often put in the position of arguing
sameness as a justification for entitlement. The implicit message
is that same-sex couples are worthy of state benefits and
recognition only if they are like opposite-sex couples. But, as
Andrews 2 illustrates, this pursuit is most often in vain.
Despite the similarity of the claimants' lesbian relationship to
that of the conventional family,120 their sexual orientation
proved determinative.
   
C. REMEDY REQUESTED

Another potentially problematic area of Charter jurisprudence is
whether or not courts will award a remedy that imposes a
financial burden on governments. Although courts have
traditionally been hesitant to usurp federal spending powers,
there are indications that a court may do so when a Charter right
has been violated. Notable among cases in which a financial
burden is placed on governments is Re Singh and the Minister of
Employment and Immigration, where the Supreme Court of Canada
declared the principles of the Charter to be above all but the
most extreme cost considerations.121 Although the Supreme Court
has since retreated from that relatively bold stance, it has
recently upheld the ability of courts to make rulings, pursuant
to s. 24(1) of the Charter, that impose financial burdens on
governments.122 Section 24(1) states:

Anyone whose rights or freedoms, as guaranteed by this Charter,
have been infringed or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances.

  Because the denial of spousal benefits is usually the result of
a wrongful exclusion, the necessary remedy would be either
"reading in" a provision which would make the statute consistent
with the Charter or declaring the legislation invalid, with the
possibility of suspending this declaration pending acceptable
amendments
   
_______________________________
120. In the words of McRae J., "Karen Andrews . . . lives with .
. . Mary Trenholm in a homosexual relationship and has done so
for about nine years. The applicants own a home as joint tenants,
have assets in a joint bank account and have named each other as
beneficiary in their wills. Ms Trenholm is divorced and has two
children . . . one of them lives with the applicants." (Andrews
2, supra note 12 at 260). 

121. (1985), 17 D.L.R. (4th) 422. At 470, Wilson J. stated that
the government must demonstrate that the cost would be so 
prohibitive as to constitute a justification within the meaning
of s. 1." 

122. Schachter, supra note 90.
_________________---


by a legislature. In Schachter, the Supreme Court enunciated the
following principles: First, it must be decided whether reading
in, declaring the legislation invalid, or declaring part of the
legislation invalid interferes least with the original scheme and
purpose of the legislation in question.123 Second, reading in
must not impose a "substantial" financial burden on the
legislature.124 Third, a suspended declaration of invalidity will
be made whenever it is not feasible to read in a provision,
according to the above criteria, and whenever an immediate
declaration of invalidity would have overly harsh repercussions
on the general public or would be inconsistent with the overall
purpose of the Charter.125

  With regard to the requirement that the legislative objective
remain intact, it is possible for a court to find that extending
spousal benefits to same-sex couples is contrary to Parliament's
intention of promoting conventional families. However, because a
declaration of invalidity would likely have an even greater
impact on those families that the legislature is seeking to
promote, this seems unlikely. For example, not having old age
pension benefits at all arguably harms such families more than
would extending the benefit to same-sex couples. A likely
alternative, however, is a court declaring the legislation
invalid, but temporarily suspending the invalidity pending a
legislative resolution of the matter. A court will likely opt for
this alternative if it does not want to be responsible for
altering laws which perpetuate male heterosexual privilege.

  The ruling in Schachter makes the third possibility, reading in
the inclusion of same-sex couples, the least problematic. Courts
can impose a financial burden on governments as long as the group
sought to be included is proportionately small relative to the
group already included.126 In the case of Schachter, the Supreme
Court refused to extend benefits that were already available to
adoptive parents to natural parents, noting that this latter
group "likely vastly outnumbers" the former group.127 Lamer C.J.
contrasted this to the situation in Tetrault-Gadoury v.
Canada,128 where it was decided that benefits which had
previously been restricted to those under the age of 65 should be
extended to those over the age of 65.129 Same-sex couples,
relative to opposite-sex couples, are a similarly "small,
discrete group."130 In fact,
   
____________________________   
123. Ibid. at 705-715.

124. Ibid. at 709-710. Imposing a financial burden on government
is acceptable if the group to be included is proportionately
small relative to the group already receiving the benefit. See
notes 126-131, infra and accompanying text.

125. Ibid. at 715-717. For example, Lamer C.J. states, at
701-702, that "the nullification of benefits to single mothers
does not sit well with the overall purpose of s. 15.... In cases
of this kind, reading in allows the Court to act in a manner more
consistent with the basic purposes of the Charter."

126. Ibid. at 711-712.

127. Ibid. at 723.

128. [1991] 2 S.C.R. 22.

129. Schachter, supra note 90 at 723.

130. Ibid. The most common estimate of lesbians and gays as a
percentage of the total population, is 10 percent. See A.C.
Kinsey, Sexual Behavior in the Human Male (Philadelphia: W.B.
Saunders, 1948) at 636-659. The likely percentage of these
individuals who would claim spousal benefits is relatively small
given general social disapproval and stigmatization of such
relationships.
____________________________

the Ontario Court of Appeal in Birch stated that lesbians and
gays do constitute a small enough group, relative to
heterosexuals, to warrant the "reading in" option.131

D. SECTION 1

Section 1 allows for much judicial discretion in deciding whether
there has been a justifiable limitation on the enjoyment of
Charter rights. Hence, it is likely to be the most problematic
aspect of same-sex spousal litigation. According to the Oakes
test, the government has the onus of proving that a Charter right
has been limited for "pressing and substantial" reasons that are
consistent with the promotion of a "free and democratic society"
and that the means chosen are proportional to the ends sought.132

  It is most likely that governments will justify a s. 15
infringement in the name of promoting "traditional families."
This assertion involves many related issues: Why does the state
want to foster this particular family form? Is it procreation? Is
it capitalism? Is it Christianity? Is it male heterosexual
privilege? Crown counsel often admits that the government has
chosen to benefit conventional family units.133 In Andrews 2,
McRae J. stated that the promotion of traditional families is a
valid governmental objective for s. 1.134 It is important to
expose the bias underlying this assertion in order to discredit
it as a valid s. 1 objective.135

  One of the primary stated purposes of the promotion of
conventional families is to encourage procreation, despite the
fact that the capacity to procreate has never been a necessary
requirement to marry.136 In fact, at common law, lack of
consummation is no longer even a ground for voiding a
marriage.137 Same-sex couples
  
___________________________  
131. Birch, supra note 73 at 507.

132. The particulars of the test are as follows: 
1) Is the legislative objective sufficiently "pressing and
substantial" to justify the limitation of a Charter right? 
2) Are the means proportional to the ends sought? That is: 
a) Are the means rationally connected to the ends sought? 
b) Do the means chosen impair the right in question as little as
possible? 
c) Are the effects of the means chosen proportional to the end
sought?
R. v. Oakes (1986), 26 D.L.R. (4th) 200.

133. Veysey factum, supra note 119; Knodel, supra note 88 at 372;
Egan (F.C.T.D.), supra note 46 at 332.

134. Andrews 2, supra note 12 at 265. McRae J. rationalizes the
validity of this objective on the grounds that the opposite-sex
criterion makes the administration of this scheme economically
and administratively convenient. As Eaton and Petersen note in
their article (supra note 76 at 420), this consideration belongs
more appropriately in the second, proportionality, branch of the
Oakes test.

135. To be valid, any government objective must be consistent
with the inherent purposes of the Charter, which are "respect for
the inherent dignity of the human person, commitment to social
justice and equality, accommodation of a wide variety of beliefs,
respect for cultural and group identity, and faith in social and
political institutions which enhance the participation of
individuals and groups in society." (Dickson C.J.C. in Oakes,
supra note 132, at 225).

136. Ryder, supra note 11 at 84.

137. Norman v. Norman (1979), 9 R.F.L. (2d) 345 (Ont. Unif. Fam.
Ct.); Asser v. Peermohamed (1984), 40 R.F.L. (2d) 299 (Ont.
H.C.).
___________________________


are actually being held to the higher standard of having to be
able to procreate, McRae J. stating in Andrews that "[h]omosexual
couples are not similarly situated to opposite-sex couples.
Heterosexual couples procreate and raise children."l38 McRae J.'s
adherence to dichotomous characterizations of same-sex couples
ignores the reality that not only can same-sex couples "raise
children" but that new reproductive technologies-do provide for
alternative ways to procreate aside from vaginal intercourse.

  Another common s. 1 justification is administrative
convenience.139 With regard to extending Income Tax Act
definitions of "spouse" to include common law spouses, then
Attorney General John Crosbie stated that "the impediment to
extending equal treatment to common law spouses is that Revenue
Canada would be unable to administer a definition of common law
spouse with a high degree of accuracy."l40 Despite this
uncertainty, the federal government has recently passed
legislation that extends spousal provisions in the Income Tax Act
to common law spouses. In fact, of the Acts discussed in this
paper, only the Family Law Act, Succession Law Reform Act, and
Immigration Act continue to contain provisions that exclude
common law couples.141

  In Andrews 2, McRae J. argued that it would be administratively
impracticable to extend to same-sex couples benefits that were
already available to common law, opposite-sex couples:
  
In order to make the scheme under the Act administratively and
economically practicable, there needs to be an objective
interpretation imposed that will necessarily exclude some
persons. Simplicity and administrative convenience are legitimate
concerns....142

McRae J. did not explain how it is easier to verify the status of
a common law relationship than that of a same-sex relationship.
This distinction is arbitrary.

E. SUMMARY

The Charter does afford lesbian and gay litigants protection
against discrimination on the basis of sexual orientation.
However, this protection is undercut markedly by legal reasoning
that is informed by homophobic bias. The effect of this limited
protection is that in addition to being unprotected against
private acts of discrimination in most jurisdictions in
Canada,l43 lesbian and gay litigants often are unable

__________________________
138. Andrews 2, supra note 12 at 263. In Andrews 2, the inability
to procreate was used to deny s. 15 protection and, hence, the
benefit in question.

139. Ryder, supra note 11 at 82 and Eaton and Petersen, supra
note 76 at 420.

140. Toward Equality, supra note 36 at 15

141. The Immigration Act provisions do, however, apply to fiances
and fiancees. See Part I, Section B. 

142. Andrews 2, supra note 12 at 265.

143. See Part I, Section K, supra.
________________________


to use the Charter to challenge successfully government
legislation, such as that mentioned in Part I, that discriminates
on the basis of sexual orientation.

  The pervasiveness of homophobic judgments attests to the
political powerlessness of lesbians and gays and serves as an
indication that same-sex spouses represent a serious threat to
the established patriarchal social order, at the pinnacle of
which are heterosexual men and conventional families. Mary Eaton
and Cynthia Petersen, in their critique of the Andrews 2
"traditional family" s. 1 justification, characterized the
patriarchal heterosexist agenda as follows:
  
First, the political economy of the family is such that, as a
general rule, home-centred labour is performed by women without
cash payment. This bolsters the economy as a whole and frees up
male labour for use in the public sphere. Second, by performing
the functions of child birthing and care, women contribute
substantially to the economy by reproducing human capital. Third,
the power structure of the nuclear family perpetuates patriarchal
domination on a microscopic scale.144

This agenda has become so much the norm that its tenets,
heterosexism and sexism, are rarely even questioned by the
judiciary. Same-sex couples are, by reflex, attributed
characteristics that most often bear no relationship to reality,
characteristics that invariably cast these relationships as being
either inferior to opposite-sex relationships or simply
non-existent.

III. Strategies for Change

In order to be accorded equitable treatment, same-sex couples
face the challenge of arguing that same-sex relationships are, in
fact, legitimate.l45 This can be done in one of two general ways:
either maintain that same-sex relationships are "like"
opposite-sex relationships, that they possess the qualities
traditionally associated with conventional families; or maintain
that same-sex relationships are in fact unique, that they are not
"like" opposite-sex relationships but nevertheless should be
accorded equitable treatment. These two approaches are, on their
face, mutually exclusive. One approach argues for inclusion in
the sphere of "family," the other seeks to deconstruct or
possibly completely destroy an institution that is argued to be
inherently exclusionary and discriminatory. This Part will
explore this debate and will suggest that not only can these two
approaches be seen as complementary, but that this dilemma can be
bypassed somewhat by using "functional" definitions of the word
"spouse."


______________________
144. "Andrews v. Ontario", supra note 76 at 420-421. 

145. This challenge of arguing legitimacy applies equally to gays
and lesbians who advocate for the right to marry and to lesbians
and gays who argue that they conform to legislative definitions
of the word spouse.
_____________________


A. TOWARD A NEW IDEOLOGY OF THE FAMILY

In order to secure the spousal benefits that are available to
opposite-sex couples, many same-sex couples assert that same-sex
relationships have the same characteristics as those associated
with opposite-sex couples. Presumably, many litigants feel that
the most effective way to gain the sympathy of a heterosexual
society and heterosexual judiciary is to mimic those attributes
that our society values. This may be so in the short term, when
an individual litigant is before a heterosexist judge. However,
such an approach may do less, in the long term, to dismantle the
ideology of the conventional family which is responsible for much
of the oppression faced by lesbians and gays and other
individuals who are not predisposed to conforming to that meld.

  Didi Herman criticizes the fact that almost all same-sex
spousal litigation is following this "sameness" route, referring
to the Andrews 2 factum as a case in point:
  
[Karen Andrews and Mary Trenholm] regard themselves and hold
themselves out to the community as each other's spouse and intend
to continue to live together as each other's spouse. Andrews and
Trenholm are each other's sole domestic and sexual partners, own
their own home as joint tenants, have their assets in a joint
bank account and have named each other as beneficiary under their
wills.146

This strategy of arguing "sameness" can be considered to be
patently assimilationist. The existence and experience of lesbian
and gay and other alternative family forms is marginalized due to
the fact that the only way of obtaining "family" assistance is to
conform to the dominant conception of what constitutes a family.
Those attributes associated with conventional families,
attributes that are reflected in the Andrews 2 factum, bear
repeating: mutual dependence, stability, nurturing,
child-bearing, child-rearing, and monogamy.147

  Despite these concerns, it is submitted that such an approach
is a productive first step. By being included under the rubric of
"family," same-sex couples will ultimately transform its
underlying tenets; although same-sex couples can argue that
same-sex relationships are in many ways "the same," the sexual
configuration of same-sex relationships will nevertheless
challenge the status quo sufficiently to shift its conception as
to what constitutes a "conventional family." Only once these
underlying tenets are shifted will it become more feasible for
same-sex couples to argue that, despite differences that may
exist, same-sex couples must nevertheless be accorded equitable
treatment.148 In fact, such arguments are essential in effecting
  
______________________________  
146. Karen Andrews'(Andrews 2, supra note 12) Factum to the
Supreme Court of Ontario, in D. Herman, supra note 76 at 795. 

147. Ibid. see also, supra notes 5-6 and accompanying text. 

148. As noted in Part II, Section B, at the core of the
similarly-situated test is the principle that individuals must be
treated equally only if they are "the same."
______________________________


a further shift in the status quo conception of what constitutes
an appropriate family unit.149

  Some lesbian and gay and feminist theorists argue for a regime
that distributes benefits solely on the basis of individual need
and entitlement, asserting that the state has no role supporting
any sort of family unit. For example, Carol Smart argues that
 
A primary goal must be to jettison the privileged status of the
heterosexual married couple, but not in order to create a
different hierarchy of unmarried households. The aim is not to
extend the legal and social definition of marriage to cover
cohabitees or even homosexual couples, it is to abandon the
status of marriage altogether and to devise a system of rights,
duties, or obligations which are not dependent on any form of
coupledom or marriage or quasi-marriage.150

The implicit assertion in this argument is that any family-
centred regime that is sanctioned by the state will necessarily
be oppressive.

  Although this approach ultimately would put an end to much of
the discrimination faced by same-sex partners, it is possible, if
not likely, that the withdrawal of state support for family units
will result in the decline of the formation of families and hence
jeopardize the many positive functions currently performed by
families in our society. Families are a primary vehicle through
which religions, languages, and cultures are passed on from
generation to generation. This is especially so if the religion,
culture, or language in question is shared by a relatively small
portion of the population.151 Familial ties are necessary insofar
as they provide some privatization of interpersonal
relationships, some sphere within which individuals can make
intimate decisions regarding such things as morality and
religion.152

  Families also serve to protect individuals from more direct or
imminent forms of oppression, such as racism and homophobia. In
this respect, families again serve
  
__________________________  
149. It is not contended that these arguments are useful only as
a "second step." Rather, it is contended that they are more
useful as a second step. Because the status quo is so entrenched,
it will initially be more adverse to arguments that are more
extreme. However, it is acknowledged that both types of argument,
insofar as they challenge the status quo conception of what
constitutes an appropriate family form, are productive at any
stage of the debate. 

150. C. Smart, The Ties That Bind: Law, Marriage and the 
Reproduction of Patriarchal Relations (London: Routledge & Kegan
Paul, 1984) at 146, in Herman, supra note 76 at 797. For a
discussion of the way in which family-related laws in Canada
continue to reflect the "heterosexually identified, two-parent,
middle class, propertied, largely secular, 'nuclear' family"
(Duclos, infra) see Mosher, supra note 4 at 107; N. Duclos, "Some
Complicating Thoughts on Same-Sex Marriage" (1991) 1 L. &
Sexuality 31 at 33; M. Eichler, Families in Canada Today, Recent
Changes and Their Policy Consequences, 2d ed. (Toronto: Gage,
1988).

151. It is not being asserted that family is the sole means by 
which languages, religions, and cultures are maintained. It is
contended only that it is the primary way. Other groupings of
people also can serve these ends, for example through schools,
clubs, religious institutions, and community centres.

152. Although it can be argued that there is danger in
maintaining the privatization of such matters, it is arguable
whether it is any safer for the state, or general public, to
advocate one particular set of "truths."
_______________________


a more important function for minority groups. Harriet Michel
notes that "family" units were crucial to the survival of black
Americans, particularly during the time of slavery:

Because slavery often denied us the right to live with our
biological kin, our definition of family became any group of
individuals who collectively come together in order to provide
economic and emotional support to the members of the group.l53

Similarly, a "same-sex family"l54 is a lesbian or gay person's
primary refuge in an ideologically heterosexist world. 

  Accordingly, the ideology of the family must be deconstructed
only insofar as it includes stereotypes concerning such issues as
sexuality, gender, dependence, procreation, and monogamy. It is
not an institution that needs to be abandoned completely. This
partial deconstruction of the conventional family can be achieved
by statutorily defining families according to "functional"
indicia such as economic and emotional support. Same-sex couples
would no longer have to argue that same-sex relationships conform
to heterosexist stereotypes in order to qualify for benefits but
rather will be able to point to fixed, written criteria that can
be evaluated more objectively.155 In addition, questionable
functional criteria that are written can be more easily
challenged as being discriminatory, particularly if they are seen
to be heterosexually-biased.

  This functional approach can also be used when the statute in
question does not define its use of the word "spouse" or
"family." In Braschi v. Stahl, a case dealing with eviction, the
New York Court of Appeals ruled a same-sex couple to be the legal
equivalent of a family.156 The Court interpreted the term
"family" in the statute in question as referring not only to the
conventional family form but to a plurality of family forms,
noting that the "reality of family life" necessitated a broad
interpretation of the word. The Court ruled that
  
[T]he term family . . . should not be rigidly restricted to those
people who have formalized their relationship by obtaining, for
instance, a marriage certificate or an adoption order. The
intended protection against sudden eviction should not rest on
fictitious legal distinctions or genetic history . . . (but
rather on) . . . the exclusivity and longevity of the
relationship, the level of emotional and financial
commitment....l57

_______________________
153. H. Michel, "The Case for the Black Family" (1987) 4 Harv.
Blackletter J. 21 at 21.

154. "Same-sex family" refers to any family unit in which there
are two individuals of the same sex who do or do not have
children.

155. See notes 4, 5, and 146-149, supra and accompanying text. It
is arguable that once the notion of family is deconstructed to
exclude such preconceptions, it should no longer be considered to
be "family." Although the changes that are proposed, particularly
in Section B of this Part, do constitute a marked departure from
the conventional notion of family, it is submitted that the
resulting, more pluralistic unit can still be referred to as
"family."

156. Braschi v. Stahl Associates Company (1989), 74 N.Y. (2d)
201. (N.Y.C.A.) 

157. Ibid. at 211-212.
_________________________


The Court did not, unlike courts in most cases involving lesbian
and gay plaintiffs, defer to heterosexist stereotype, to
dictionary definitions of "family," or to heterosexist
definitions of "family" found in other statutes.158

  This general approach is also evidenced somewhat in Knodel.
Although Rowles J. did not go so far as to list new indicia of
what constitutes a family, she did accept the following expert
evidence that the plaintiff same-sex couple did constitute a
"familial unit" for the purpose of the legislation in question.
  
[T]he term "family" does not have one definition for all purposes
in Canada. As families evolve in our pluralistic society, the
language by which families are described evolves. Dr. Eichler
uses the term "familial relationship" to characterize the many
kinds of relationships that exist outside of the traditional and
legally married family.159

It is unclear whether other Canadian courts will follow Rowles
J.'s relatively progressive approach as to what constitutes a
family. It is nevertheless desirable that, when advocating for
change, a pluralistic conception of family be employed as a means
of trying to effect a shift in what our society views as a
"proper" family unit.

B. A NEW DEFINITION OF "SPOUSE"

A more pluralistic definition of "spouse" should be the
cornerstone of any legislative reform in which families are
deemed to be the most appropriate unit of appraisal. As discussed
above, the adoption of such a definition will be crucial in
extending equitable treatment to partners who choose not to
marry. The following is an example of such a definition:

"Partner" refers to individuals who mutually intend to be
partners. Indicia of this intention MAY include, BUT ARE NOT
RESTRICTED TO, the following: 
- a marriage certificate 
- cohabitation and any related arrangements 
- sharing of financial resources 
- emotional commitment 
- length of relationship 
- co-parenting agreements 
- self-identification as partners.160

_________________________
158. For example, in Andrews 2, supra note 12, McRae J. referred
to dictionary definitions of the word "spouse."

159. Knodel, supra note 88 at 364, referring to M. Eichler, supra
note 150.

160. In her submission to the Standing Committee on
Administration of Justice, Cynthia Petersen proposes a somewhat
similar definition of "partner." (Ontario, Legislative Assembly,
Standing Committee on Administration of Justice in Official
Report of Debates (Hansard) (19 February 1992) at J-1969). 
_________________________

  Such a definition has the advantage of emphasizing that
partnership and family formation do not necessarily assume the
format of the conventional family. It focuses on the intent of
the parties to have a partnership rather than rigid and
artificial requirements such as the securing of a marriage
licence or cohabitation for three years.161 The word "partner"
has been used instead of the word "spouse" to signify this new
conception of what constitutes a family. In addition, as will be
discussed below, this definition should be made context-specific
to satisfy the particularities of different legislative schemes.

  Although it is arguable that the above criteria reflect
conventional family norms, it is necessary to provide courts with
indicia as to what constitutes a partnership given that it is a
relatively new legislative concept. Without any criteria, courts
are more likely to equate "an intention to be partners" with "an
intention to be spouses" and make use of stereotypes associated
with what it means to be a "spouse" and "family" when deciding
whether two individuals are partners. In addition, the inclusion
of the possibility of polygamous partnerships and the clearly
optional nature of these criteria would serve as a clear
indication of legislative intent to depart from conventional
conceptions of "spouse" and "family."162

  An interesting example of a legislative attempt to accommodate
alternative family forms can be found in Ontario's Consent to
Treatment Act,163 which allows for a "spouse or partner" to give
consent to medical treatment on behalf of an individual who is
deemed to be incapable of doing so.164 The definitions of
"spouse" and "partners" in s. 1 of the Act are as follows:
  
  
"[S]pouse" means a person of the opposite sex 
(a) to whom the person is married, or 
(b) with whom the person is living in a conjugal relationship
outside marriage if the two persons, 
(i) have cohabited for at least one year, 
(ii) are together the parents of a child, OR   
(iii) have together entered into a cohabitation agreement under
section 53 of the Family Law Act . . .

Two persons are partners for the purpose of this Act if they have
lived together for at least one year and have a close personal
relationship that others recognize is of primary importance in
both persons' lives.

____________________
161. Family Law Act, supra note 13 at ss 1(1) and 29.

162. It is interesting to note that the Family Law Act, ibid. (s.
1(2)) already recognizes polygamous marriages, but only if the
polygamous marriage was "celebrated in a jurisdiction whose
system of law recognizes it as valid."

163. Supra note 25. The Substitute Decisions Act, supra note 24,
has an identical definition. See PartI1, Section D. 

164. Ibid. at s. 17. 
_______________________


  Although this definition is progressive in that it acknowledges
other family forms, it is problematic in two general respects.165
First, same-sex couples and opposite-sex couples are not treated
equally in that same-sex couples cannot be deemed to be partners
by co-parenting a child or by entering into a cohabitation
agreement. Second, same-sex couples are put to a higher standard
in that same-sex relationships must be "recognized by others."
This criteria is especially unreasonable for same-sex couples
who, due to homophobia, are not only less likely to have their
relationship "recognized by others" but are also less likely to
cohabit.166

  The above definitions are not intended to be examples of what
are proper or improper definitions of partners in all cases.
Depending on the legislation, it will be necessary to alter this
conception of partnership in order to secure equitable
application of the particular legislative scheme. For example, in
order to be subject to the division of property provisions in
most family law legislation, two individuals must be married.167
It is possible that the legislature may wish to preserve this
"opting in" system, in which case the recognition of a
partnership could be subject to registration by the parties.168
In the area of social welfare legislation, a system of individual
entitlement would alleviate much of the disadvantage faced by
women in need of social assistance.'69 In the area of taxation,
it may be more equitable to apply some definition of partnership
that reflects the actual economies realized by cohabitation
and/or the joining of financial resources. Hence, the definition
might emphasize financial interdependence and sharing more than
emotional commitment, for example.
  
C. MARRIAGE OR AREA-BY-AREA CHANGES?

The question regarding same-sex marriages is posed usually from
the dominant heterosexist perspective: "Should homosexuals be
allowed to enter a legal marriage?" Although it is unjust to deny
lesbians and gays the right to marry, simply answering "yes" to
the above question implicitly accepts that the dominant
heterosexist perspective about social organization is the only
perspective.170 As Nitya Duclos suggests, it is more empowering,
and in fact more productive, to pose the question

____________________________
165. For a discussion of the problematic nature of these
definitions, see Cynthia Petersen's submission to the Standing
Committee on Administration of Justice, supra note 160 at J-1967
to J-1971.

166. In this latter respect, Cynthia Petersen notes that not only
are same-sex couples usually granted custody on the stipulation
that they live apart, but same-sex couples are also unable to
sponsor a partner for immigration purposes. C. Petersen, "Brief
Submitted to the Standing Committee on Administration of Justice:
Bills 108 and 109" 19 February 1992 [unpublished] at 6.

167. R. Melton, "Legal Rights of Unmarried Heterosexual and
Homosexual Couples and Evolving Definitions of 'Family' " (1990)
29 J.F.L. 497. With regard to the Ontario Family Law Act, supra
note 13, the s. 1 definition of spouse, which applies to the
"Family Property" Part, is "either of a man and woman who (a) are
married to each other...."

168. Such a provision would not be necessary if same-sex couples
were able to "opt in" by marrying. See Part I, Section A.

169. See Mosher, supra note 4 at 131, and PartI, Section C.

170. Duclos, supra note 150 at 42. 
_____________________________

from the perspective of lesbians and gays. According to Duclos,
the question should be


Will lesbians and gay men or some of them benefit from legal
recognition and regulation of their relationships through the
marriage system?

Duclos continues by explaining that this phraseology puts
lesbians and gay men front and center as people with whom and for
whom we are concerned. It specifies that legal recognition is one
form of recognition and that the issue involves the regulation of
those relationships by law. It expressly removes from
consideration any doubt that lesbians and gay men have
relationships--something the earlier question left open. And it
asserts that marriage is a system of legal and social rules, not
elemental but socially constructed and open to change.171

  Because marriage does involve a multiplicity of rights,
obligations, and legal consequences spanning such various areas
of law as social welfare, taxation, and family law, it may be
preferable to determine what type of reform would be most
advantageous to same-sex couples in each particular area of
legislation.172 Although most of the legislation mentioned in the
first part of this article is disadvantageous to same-sex
couples, there are areas where most same-sex couples are likely
better off. For example, same-sex couples "benefit" from not
being considered a viable socio-economic unit in that no income
is deemed to be shared by them for income tax purposes or, most
often, for the purposes of the "spouse in the house" rule in the
administration of social assistance.173 An area-by-area approach
would also allow for the re-evaluation of the tenets of the
specific legislation in question, possibly benefiting other
disenfranchised groups who are being treated inequitably by its
scheme. For example, the increasing recognition of same-sex
relationships may prompt a re-evaluation of the "spouse in the
house" rule, which is particularly disadvantageous to women.174

  Despite the beneficial aspects of area-by-area reform, the
option of marriage should still be available to same-sex couples
if it remains available to opposite-sex couples.175 Most
opposition to this prospect centres around the conception that
entry or advocating entry into a heterosexual-dominated
institution will prompt conformation with its norms. Examples of
this are Karen Andrews arguing "sameness" in
  
__________________________  
171. Ibid.

172. Ibid. at 52-54 for a general list of the benefits and
burdens attributable to marriage.

173. See Part I, Sections C and E.

174. In particular regards to welfare distribution, it would be
preferable to abandon the notion of family, whatever its
definition, for entitlement based on individual need (Mosher,
supra note 4 at 131).

175. See M. Dunlap, "The Lesbian and Gay Marriage Debate: A
Microcosm of Our Hopes and Troubles in the Nineties" (1991) 1 L.
& Sexuality 63 for an overview of the same-sex marriage debate.
____________________


order to get a spousal benefit, and lesbian and gay advocates
arguing for the right to marry on the grounds that their family
units conform to criteria similar to those of opposite-sex family
units.

  Although these concerns have merit, there are countervailing
benefits that may result from same-sex couples obtaining the
right to marry. First, it is arguable that securing a marriage
licence may in fact decrease the need for same-sex couples to
employ sameness arguments to secure the rights available to
opposite-sex couples. A marriage certificate will automatically
entitle a same-sex couple to various benefits, possibly
restricting "sameness" arguments to areas where judicial
discretion, and hence possibly prejudice, remain, for example in
the realm of child custody disputes.176 Without the option of
obtaining a marriage certificate, gays and lesbians would be more
subject to judicial discretion as to what constitutes a "family"
or what constitutes a "spouse" and hence more likely to employ
sameness arguments. In addition, it must be realized that not
marrying is in no way an inoculation against conformity. For
example, both lesbian couples in Andrews 2 and Anderson v. Luoma,
aside from their sexual orientation, already conformed to what
can be considered the "norm."177

  Second, advocating the right to marry can serve as the catalyst
that forces society to reevaluate the heterosexist bias not only
of marriage but of most other social institutions as well.
Although marriage is often characterized as a static,
heterosexist, male-dominated institution, it can also be seen as
an evolving institution that adapts to changes in social norms,
an institution capable of accommodating same-sex couples.'78 The
sanctioning of same-sex relationships by the state would imply a
high degree of social legitimation of these relationships.
Although this might be thought inherently repugnant and
unnecessary by many lesbian and gay theorists, such legitimation
can be quite effective in dismantling judicial, legislative, and
social prejudice and the characterization of same-sex
relationships as being inferior to opposite-sex relationships.
  
D. SUMMARY

Initially, same-sex couples will most easily achieve equal
treatment by employing sameness arguments. Despite the
assimilationist nature of these arguments, the concept of the
traditional family nevertheless will shift simply by virtue of
same-sex couples arguing for equality and being included within
the concept of family. Once this begins to occur, lesbian and gay
advocates will be able to argue more productively for equal
treatment without ignoring, or perhaps concealing, the ways in
which lesbian and gay relationships are unique.

______________________________
176. Even so, it is likely that judges would view a marriage
certificate as some sort of official sanctioning of the
relationship by the state, prompting them to downplay any
personal disapproval they may have regarding the nature of the
relationship.

177. Andrews 2, supra note 12 and Anderson v. Luoma, supra note
12.

178. For a brief discussion of the evolution of the institution
of marriage, see Eichler, supra note 150 at 344 to 349.
________________________________-


  It is acknowledged that it is impossible to embrace reforms
that satisfy all cultural particularities and ideological
perspectives. The above suggestions are intended to serve as a
middle ground between those who advocate sameness and those, on
the other extreme, who advocate the dismantling of the concept of
family. Sameness arguments are valuable in that they argue for
inclusion in an institution that can be seen as evolving and
capable of fundamental change. Those who argue for the
dismantling of "the family" contribute to the debate by
accelerating the critical evaluation, and hence reform, of an
institution that is inherently exclusionary and discriminatory.
It is hoped that this debate will help bring about legal reforms
which recognize same-sex marriages and which adopt more
pluralistic definitions of "spouse" that would apply to couples
who choose not to marry.
  
Conclusion

The scope of the discrimination faced by same-sex couples attests
to the firm entrenchment of male-heterosexist privilege in our
society. This privilege accounts for the existence of laws that
benefit the conventional family form. The threat to this
privilege accounts for many badly written, discriminatory
judgments that incorporate outdated legal reasoning, as well as
for the almost resolute unwillingness of governments to amend
heterosexist legislation. Homophobic judgments and legislation
serve to perpetuate dichotomies that ascribe certain "inferior"
characteristics to same-sex couples and other relatively
"superior" characteristics to opposite-sex couples.

  The conclusions that flow from same-sex couples being "bad" are
numerous. Same-sex couples are denied financial assistance in the
areas of health care, pensions, workers' compensation, and income
tax. Same-sex couples cannot take advantage of state planning
schemes respecting property division, intestacy, and spousal
support. Same-sex families often cannot even form or function due
to the inability to obtain leave from work, sponsor a partner for
immigration purposes, or obtain the unrestricted custody of
children. In most Canadian jurisdictions, same-sex couples are
not protected against any private acts of discrimination. In
those jurisdictions where there is protection, it is usually
restricted to discrimination relating to the provision of
services, accommodation, and employment. Because same-sex couples
are labeled "bad," they are denied tools available to
opposite-sex couples that aid in the formation of viable family
units.

  It is most likely that this inequity will be redressed through
Charter litigation. Despite the prevalence of homophobic
judgments and unsatisfactory legal reasoning, the majority of
recent legal reforms in this area have emanated from court
challenges. Yet, to the extent that representation on the
judiciary continues to represent male heterosexual privilege,
same-sex spousal claimants will continue to encounter impediments
such as "similarly-situated" arguments and dictionary-definition
justifications.

  Because of this intransigence, those advocating for change must
be clear regarding different strategies that have been proposed
as a means of furthering lesbian and gay rights. Possibly the
most prominent debate has revolved around the issue of whether
same-sex couples should argue for inclusion in the conventional
notion of family and hence transform it from within, or whether
same-sex couples should aim to dismantle this inherently
heterosexist institution from without. As was suggested in Part
III, one approach does not necessarily preclude the other.
Although sameness or inclusion arguments would be more productive
in effecting an initial shift in the status quo conception of
family, both approaches contribute to the deconstruction of the
oppressive tenets of the conventional family and to the
acceptance of a more universal conception of family.

  Ultimately, pluralistic definitions of family will be not only
recognized statutorily, but also accepted intimately by most
Canadians, including the judiciary. Although the discrimination
discussed in this article is pervasive, several prominent lesbian
and gay rights cases in the past decade indicate a possible shift
away from this legacy of entrenched homophobia. It is to be hoped
that this trend will continue and evolve to the point where
lesbian and gay families are able to participate fully in
Canadian society.

--

Timothy Ross Wilson                       
ae913@freenet.carleton.ca
71172.1213@CompuServe.COM
Ottawa, Canada