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Same – Sex Family Law in Ontario

Historically same-sex marriage was criminalized by the penal law.  When the Canadian Charter of Rights and Freedom came into existence in 1982 this gave movement and authority to the challenge for discrimination by same-sex couples. However, it was not until 1986 that it became decriminalized. 

In 1999, the decision of M v. H (1999), 171 D.L.R. (4th) 577 (S.C.C.) was released.  In this case, the court decided that same-sex couples have a right to apply for Spousal Support under Part III of the Family Law Act (FLA).  Another pivotal decision came out in Ontario in 2003, Halpern v. Toronto (City), 225 D.L.R. (4th) 529, where the court ordered a declaration of invalidity regarding the definition of Marriage.  The Court of Appeal held that same-sex couples' constitutional rights were infringed and that the common law definition of marriage should be invalid in so far as it referred to “one man and one woman”.   The court decided that the new definition should state “the voluntary union for the life of two persons to the exclusion of all others,” thereby, encompassing same-sex couples.   The Court of Appeal’s decision in Halpern was not appealed and instead parliament created draft legislation to allow same-sex couples the right to marry.  The draft bill was referred to the Supreme Court of Canada who refused to answer same and sent it back to parliament for a vote.  The same-sex legislation was passed by parliament and remains in force and effect today.

The current definition of the marriage in the FLA applies to both same-sex and heterosexual couples.  The definition of the spouse is as follows: “spouse” means either of two persons who (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of the person relying on this clause to assert any right.  Similarly, under s.2 (1) of the Divorce Act the definition of spouse means “either of two persons who are married to each other.”  Thus, today same-sex couples and heterosexual couples have equal rights in Family Law.