LTERNATIVES FOR EXTENDING SPOUSAL STATUS IN CANADA








Charter litigation and the advocacy of gays and lesbians is forcing Canadian lawmakers to deal with issues related to the
regulation and support of domestic relationships, and in particular to consider how to extend legal recognition to same sex
relationships. A legislative response would be preferable in terms of consistency, fairness and expense. There is a substantial
financial and psychological burden placed on those who make individual Charter based claims, and, as recognized by the
Supreme Court of Canada in M v. H,(2) the courts are not well structured as institutions for developing coherent legal
regimes to deal with the myriad of issues that arise.

The regulation and support of same sex relationships, and other domestic relationships, requires some combination of
marriage, contract, and ascription. There may also be a role for the enactment of registered domestic partnership (RDP)
legislation. This paper identifies and comments on some issues that lawmakers will need to address as they consider
alternatives and respond to the challenge posed by M v H to extend the concept of "spouse."

Until now, most legislators in Canada have displayed a marked reluctance to legally recognize same sex relationships, and
the responsibility for providing legal recognition to these relationships largely has fallen to the courts. Like others who have
written in this area, I hope for a legislative response, but fear that politicians may be reluctant to deal with potentially
contentious issues relating to the nature of the family. One may hope that if scholars, policy analysts, practitioners and
concerned citizens can help clarify and illuminate some of the issues that arise, and can explain the value of a legislative
response, politicians may be more likely to accept the challenge of providing for a fair and coherent legislative response for
the definition of "familial relationships." Advocates for gays and lesbians have powerful equity and social policy based claims
to have laws that allow same sex partners to enter into a status with all the rights and obligations of other spouses. There
may also be utility in enacting legislation to allow a "near married" status that couples may chose to acquire, such as the
registered domestic partnership; however, due to the constitutional division of powers in Canada, there will be considerable
complexity in enacting a coherent "near married" RDP scheme in this country. There is also a role for domestic contracts
between same sex and other domestic partners, though there are real limitations on contracts as a "solution" for the issues
faced by those in domestic relationships. There is a range of situations in which the law should treat those in who have lived
in conjugal domestic relationships for a certain period as "spouses," even though they have taken no steps to formalize their
relationship (by marriage, or registration if that is available.). This process of "deeming"individuals to be spouses is referred
to as "ascription." There are important reasons for having ascription, even though it "imposes" spouse-like rights and
obligations upon those who have not chosen (or been permitted) to recognized acquire spousal status. However, if those
who live in conjugal relationships (including same sex partners) have the option of formalizing their relationships, there are
justification for having some distinctions between those who have chosen to formalized their relationships and those who live
together and acquire rights and obligations only by "ascription."

Same Sex Marriage & Registered Partnerships: A Peculiarly Canadian Problem

There are strong equity and social policy based arguments in favour of giving same sex partners the same right as other
Canadians have to marry. Recent public opinion poles suggest that a majority of Canadians would support such action,(3)
though our politicians have been very reluctant to act. Shortly after the Supreme Court decision in M v H, the House of
Commons, by a vote of 216 to 55, supported a resolution affirming that "marriage is and should remain the union of one man
and one woman to the exclusion of all others, and that Parliament will take all necessary steps ... to preserve this definition in
Canada."(4) While some opponents of legal recognition of same sex relationships are homophobic, some of the opposition
has psychological, social, political and religious roots. And some in the gay and lesbian communities reject "marriage," with
its heterosexual and gendered connotations, as a desired legal alternative.(5) In the near future, if same sex partners are to
gain the right to "marry" it seems most likely that they will have to look to the courts to