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The Ontario Government's Bill 5, A Response to the Supreme Court


Criticism of the effects of Ontario's Bill 5 and the means used to pass it.


C. Gwendolyn Landolt

 Author Notes

National Vice President, REAL Women of Canada

 Essay - 1/15/2000

On October 25, 1999, Ontario Attorney-General Jim Flaherty introduced a bill in response to the M v. H decision made last May by the Supreme Court of Canada in connection with the rights of homosexual/lesbian couples. Under this bill, 67 Ontario statutes were amended, giving extensive rights to homosexual/lesbian couples. The government piously claimed that since these amendments did not refer to same-sex couples as "spouses," it had preserved the traditional family. That is a complete misrepresentation.

In fact, the Supreme Court of Canada, in its M v. H decision, required only that the Ontario government amend S.29 of the Ontario Family Law Act (FLA) to provide homosexual/lesbian couples the same benefits given to common-law couples under that section.

In its response to M v. H, the Ontario government could have chosen at least four positive alternatives that would have satisfied the court and preserved traditional marriage. The government, however, chose a fifth alternative, which will result in damage to the fabric of our society by undermining the traditional family.

The Choices

The choices available to the Ontario government in response to M v. H were as follows:

  1. Notwithstanding Clause

    The Ontario government could have invoked the notwithstanding clause (S.33) of the Charter of Rights to overrule the Supreme Court decision in M v. H

  2. Take No Action

    According to the Supreme Court of Canada in M v. H, S.29 of the Family Law Act was to cease to have force and effect at the end of 6 months (November 20, 1999) which would mean that, at that time, the benefits granted to common-law couples under that section would automatically cease. Consequently, the rationale of the majority in M v. H, that extending benefits to common-law couples, but not to same-sex couples, was discriminatory, would also cease. That is, the discrimination identified in M v. H could have been eliminated without any intervention by the Ontario government at all.

  3. Establish A Separate Statute

    The government could have established a separate statute such as a “Beneficiaries Act," under which the sexual aspect of a relationship would be irrelevant (the sexual act in itself is an inadequate basis on which to award benefits.) Such an act would provide that all individuals (whether siblings, mother/son/daughter, or even two friends), who resided together for an extended period of time and who were economically interdependent, could register their relationship and be entitled to receive benefits upon separation or death. (This choice, however, does have a disadvantage in that it would necessitate a bureaucracy to administer it.)

  4. Application to Court by Beneficiaries

    To avoid the problem of increasing the bureaucracy, the Ontario government could have simply passed legislation permitting economically interdependent couples residing together, whether family or friends, etc., to apply to the court to obtain benefits upon separation or death.

Instead of choosing any of the above positive solutions, however, the Ontario government took advantage of the Supreme Court decision in M v. H to choose the worst possible alternative, namely, to impose a revolution in the province, contradicting our traditional values and principles. That is, the Ontario government, under the pretense of following M v. H, took the opportunity to amend 67 Ontario Statutes to give special rights to homosexual/ lesbian couples. This bill, incidentally, accomplishes exactly what the former NDP government in Ontario tried to achieve in June, 1994, when its bill was defeated by a vote of 68 to 59. In short, what the legislature rejected in 1994 has come full circle, thanks to the Supreme Court of Canada and the Ontario government.

Bill Fast-Tracked to Passage

The Ontario government, supported by the opposition parties, and aware of the huge controversy created by the NDP bill in 1994, passed this bill with alarming speed.

The bill was tabled for first reading on the afternoon of Monday, October 25th by the Attorney General. At that time, he gave no explanation for the bill, which was unusual, as it is customary when bills are tabled to accompany them with a detailed explanation of their meaning and purpose.

One purpose of first reading of a bill is to obtain permission to have the bill printed. Yet no copies of the bill were made available to the public until late in the morning of Wednesday, October 27, just hours before the second and third (final) readings of this bill. This provided virtually no time for the public to read through the 49-page bill to determine which statutes had been amended and the implications of each amendment at the time of the vote. And since the bill was passed by a voice vote only, no one knows which MPPs were present, or how they voted on it.

In summary, the bill was thrust on the public without debate or committee hearings - that is, without the public's knowledge or consent - a massive betrayal.

Green Light for Federal Government

The bill amounts to a complete revolution in that it is now known that one of the provisions in the bill included an amendment to the Child and Family Services Act, which now permits a homosexual or lesbian to adopt children. This is a highly controversial and sensitive issue, yet it has become law in Ontario without the general public's knowledge or consent.

This massive restructuring of society by the Ontario government means that the federal government has now been given a green light to amend federal statutes to provide similar benefits to homosexual couples at the federal level. Similarly, all other provinces in Canada will undoubtedly follow suit, claiming as did Ontario, that they had "no choice" because of the Supreme Court of Canada decision in M v. H. This is an utter misrepresentation of the truth.

Trouble in Canada

This betrayal of Canadian values and principles can be directly traced to the Supreme Court of Canada, which, without any evidence to support its conclusions, without proper legal reasoning to explain its conclusions, and without any responsibility to the democratic process, has run roughshod over the law and the democratic process, ignoring the rights of the citizens to participate in public debate on a highly controversial matter.

This should not be interpreted as meaning that the Ontario legislature was a hapless pawn in the Courts' arrogant hands. The Ontario legislature should and could have defended its right to govern according to democratic principles. However, it chose otherwise, happy to bring about a revolution to Ontario without the messy business of holding a public debate and listening to the views of the public. It's a sad time for Ontario and for all Canadians.

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