This case concerned the meaning of “spouse” under the Family Law Act, and whether it extended to same-sex couples.  

LEAF intervened before the Supreme Court of Canada. 

Facts 

M and H are women who lived in a same-sex relationship from 1982 to 1992. After their relationship ended, M applied for spousal support under Ontario’s Family Law Act (the FLA). She challenged the definition of “spouse” under the FLA, which applied only to married couples and opposite-sex couples who had lived together for three or more years. The trial judge held that the definition violated s. 15 of the Charter, and was not saved under s. 1. The Court of Appeal upheld the decision. The Supreme Court of Canada granted leave to appeal to the Attorney General for Ontario, as neither M nor H appealed the Court of Appeal’s decision. 

Arguments 

LEAF argued that the definition of spouse under the FLA violated s. 15. The definition created a distinction between same-sex and opposite-sex couples and family units. It restricted their right to apply for spousal support based on outdated definitions which idealized heterosexual relationships and family structures. The distinction sent a message that lesbians and the broader LGBTQ2S+ community were not entitled to equal recognition, protection, and respect under the law. The government should amend the provisions to incorporate lesbian couples in a way that allowed them to define their relationship on their own terms. 

Outcome 

A majority of the Supreme Court of Canada held that the definition violated s. 15 and could not be saved under s. 1. The exclusion of same-sex couples promoted the view that they were less worthy of recognition and protection, and contributed to erasing their existence. As a result, the majority gave the government of Ontario six months to amend the definition.  

The government of Ontario amended the FLA to include both same- and opposite-sex common law couples. 

LEAF is grateful to Carol Allen, counsel in this case, as well as Carole Brown, Ottawa agent for LEAF. 

Download the factum here.

Read the Supreme Court of Canada’s decision here

Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].