the Supreme Court decision in M v H places an onus on any government that would seek to deny rights to same sex
partners who enter an RDP to justify this form of inequality. Further, once rights are conferred, the state will understandably
be reluctant to confer rights without obligations of consequences, for example in regard to welfare (in)eligibility and tax
status.
A number of European jurisdictions with RDP’s limit rights and responsibilities in regard to children for partners in this type
of relationship, and there would no doubt be some political support in Canada for some restrictions, for example in regard to
adoption. However, there are strong arguments that differences in treatment of same sex couples in regard to children could
not be constitutionally justified. The weight of research clearly indicates that same sex partners and homosexuals are as good
parents as heterosexuals.(22)
In some jurisdictions, the RDP is limited to “conjugal” or “marriage-like” relationships, or even to same sex relationships.
Although there are some definitional issues about terms like “conjugal” (is it possible to maintain separate residences?), there
is a significant body of Canadian jurisprudence that adopts a multifactoral test to determine whether a relationship is
“conjugal.”(23) There must be a significant amount of shared living,(24) and a high level of social and emotional commitment; a
sexual relationship is very common aspect of a conjugal relationship. Some degree of shared living expenses and a degree of
economic interdependence is an aspect of a conjugal relationship, though the nature of this varies greatly.
To date, the primary motivation for considering the enactment of RDP legislation in Canada (and other countries) has been
providing recognition for same sex relationships, but there is some interest in defining the RDP to permit registration of
non-conjugal domestic relationships. At least some countries that have RDP’s, such as the Netherlands, do not restrict the
RDP to same sex “conjugal” partners. There are practical, privacy and equity arguments that favour not limiting the right to
enter an RDP to those in same sex or heterosexual “conjugal relationships.” Further, the concept of the RDP may be more
likely to gain legislative support if it is not limited to those in same sex conjugal relationships. Indeed it may be argued that the
only (and certainly the main) reason that politicians have for expanding the concept of the RDP to include non-conjugal
domestic partners is to allow recognition of same sex relationships without directly recognizing them.
If there is to be some societal and legal recognition to those who chose to enter a “domestic partnership” and undertake
mutual “spouse- like” obligations, why should individuals be denied this benefit because they do not have a particular kind of
emotional commitment or do not have a sexual relationship? If individuals are prepared to undertake the “spouse-like” legal
commitments of an RDP, they should be able to do so. As with other types of family obligations, there should assurances
that this is a bona fide domestic relationship,(25) entered into with the assumption of all rights and obligations of that status
(subject to contracts between the parties) and a genuine sharing of lives.
In practice the potential economic and legal obligations of the RDP, as well as the social and emotional implications of the
RDP, are likely to greatly restrict its use in non-conjugal relationships. However, there may be situations, especially involving
seeking access to employment-related benefits for a domestic partner, where those in non-conjugal relationships (such as an
adult child and a parent) will want to enter into this status. Canada has an increasingly broad, pluralistic and functional
approach to the definition of “the family,”(26) and if two adults wish to assume this legal status by entering an RDP, with its
rights and obligations, it seems difficult to justify denying them this opportunity.
While those in a non-conjugal RDP should not be precluded from having rights and responsibilities in regard to children,
such as adoption, the nature of the relationship is a legitimate “best interests” factor to take into account in deciding about
whether such a couple should be permitted have a relationship with that child.(27)
If RDP legislation is enacted, questions will arise about whether it should be possible to have more than one domestic
partner at a time, either as a result of a communal living arrangement, a polygamous relationship or some forms of serial
relationships. Indeed, at least implicitly these issues will have to be addressed when the courts or legislatures deal with
allowing same sex partners to marry. Why should the state privilege domestic relationships with only two adults?
At least in its initial legislative form, practical and social considerations suggest that a person should only be able to have one
“legal partner” or “spouse” at a time (i.e. in only one RDP or marriage at a time, with only one other person ). As at present,
the law will have to struggle with situations where there is a claim by a “formal spouse” and an “ascription spouse,” but these
situations should not be encouraged by allowing multiple “formal” spouses.
While there are already some claims for legal recognition of polygamy or “group marriage,” given that “spousal status”
imposes potential costs on third parties, especially employers, it seems fair (at least at this time) to limit each individual to one
“formal lawful partner” at a time. Further, there are concerns about the welfare of children and the position of women in
polygamous and group marriages, though there does not seem to have been much research into these relationships,
particularly in regard to their effects on children. If we move towards the new social and legal regime of the RDP, an initial
limitation to one partner at a time seems appropriate, though there might be some evolution in the future.
Contract:
While at one time contracts between same sex partners to regulate their relationship would have been regarded as contrary
to public policy,(28) there is no doubt that now these contracts are now as legally enforceable as contracts between
heterosexual partners. In the absence of an adequate statutory regime, in the last few years contracts have been especially
important for same sex partners.
For any domestic contract, it is at least desirable (and arguably necessary to ensure legal validity) for the partners to disclose
assets and liabilities, and to have independent legal advise to ensure that the parties each understand the agreement and to
prevent exploitation. There is typically less inequality between same sex partners than in heterosexual relationships and less
potential for exploitation.(29) The law should however, ensure that courts retain a jurisdiction to override an unconscionable
(or “unfair” to use the British Columbia term) domestic contract between same sex partners, especially one that might affect
the interests of children.
In Canada (especially the common law provinces) heterosexual partners rarely make domestic contracts like cohabitation
agreements or marriage contracts. For many couples this type of domestic contract seems unromantic and expensive. There
may also be an intuitive understanding that is difficult to make a contract at the beginning of a long and evolving relationship
that will deal fairly with the myriad life circumstances that may arise.
There has been less reluctance for same sex partners than for heterosexual partners to enter into domestic contracts. This
has, at least in part, reflected the absence of a statutory framework for same sex partners and the need for them to have
contracts to have clarity about their respective rights and obligations. But even now, it seems that only a minority of same sex
partners enter into domestic contracts to help legally structure their relationships. If the relatively inexpensive and simple
alternatives of marriage or some form of Registered Domestic Partnership were available to same sex partners, it seems
likely that use of agreements would decline among same sex partners, though contracts will always remain important for
some same sex and heterosexual couples, especially those who want to “opt out” of any statutory regime.
The fact that the main focus of such an agreement is the relationship between the parties also limits their utility. There are
many legal issues related to third parties and the state that cannot be affected by a domestic contract. While legislation to
regulate domestic contracts between same sex partners is desirable (and undoubtedly required by the Charter in those
jurisdictions that regulate such contracts between heterosexual partners(30)), regulation of contracts cannot provide a
complete statutory response to the challenges posed by M v. H.
Ascription: Courts and Legislatures Imposing Spousal Status
Canadian legislatures and courts have recognized that in certain circumstances there is a need for ascription to “spousal
status” for those who have not “formalized” their conjugal relationships. “Conjugal” relationships, for certain purposes, are
deemed to have the “spousal status,” even though the parties have not formalized the relationship by entering into marriage.
The first steps towards ascription for heterosexual partners in Canada were taken in the 1970’s, while for same sex partners
such recognition only began in the 1990’s.
If RDP legislation is enacted, ascription should apply for those who cohabit in a conjugal relationship but do not enter a
RDP. However, in my view, ascription should not fully equate formal and informal conjugal relationships, provided that
those in an informal relationship had the legal option of formalizing their relationship. Further, ascription should not be
extended to non-conjugal situations in which adults reside together, even if it is a relationship where there is significant
economic interdependence.
For those in non-registered heterosexual conjugal relationships, there are strong arguments for significant but not necessarily
complete ascription of spousal status after a significant period of cohabitation (say three years) or there is a child of the
relationship. For heterosexual conjugal couples, Canadian courts have rejected the argument that since there was a “choice”
not to marry (or contract), there should be no rights or obligations. There is too much potential for one party (usually the
wealthier or more powerful partner i.e. often the man) to want the benefits of the relationship, and then if it ends, to want to
deny any responsibility for dependencies that may have arisen. Accordingly the courts and legislatures have ascribed status,
for example for a range of purposes of spousal support(31) and dependent’s relief.
Ascription for informal conjugal relationships should be approached on an issue-by-issue basis, preferably by the legislature,
but if necessary by the courts using the Charter. Factors favouring ascription for specific issues include: protection of the
interests of children; protection of vulnerability or dependence; compensation for contribution; protection the public purse or
other public interests; and protection of third parties . Taylor v Rossu and M . v H. demonstrate that the courts will be
reluctant to allow individuals in same or opposite sex conjugal relationships to use a choice based argument to claim
exemption from individual obligations towards one another that may arise. Further, as demonstrated by the response to
heterosexual cohabitants, Canadian legislatures are also likely to be reluctant to allow couples to chose not to formalize their
relationships to avoid public obligations, such as in regard to welfare eligibility and income tax status.(32)
Prof. Holland argues in favour of total ascription to “spousal status” as a “default position” i.e subject to the right to contract
out for certain private purposes.(33) There is, however, a strong argument that for some issues there should be legal
significance attached to the fact that parties in a conjugal relationship have chosen not to formalize their relationship or enter
into a contract. To take an important example, at present in Canada heterosexual partners who chose not to marry do not
get a presumptive property share on separation, but must prove contribution to claim property rights or compensation. The
Supreme Court decision in M .v H. appears to accept that for the purposes of property rights, this may be a constitutionally
permissible distinction (or at least the decision does not require ascription for property purposes.)(34)
Especially in provinces like Ontario, where there is a complex property regime with relatively little
Bibliography
. 1Professor, Faculty of Law, Queen’s University. This is a revised version of a paper presented at the Domestic
Partnerships Conference, Queen’s University, October 22, 1999. The preparation of this paper was assisted with a grant
from the Social Sciences and Humanities Research Council of Canada.
2. 2[1999] S.C.J. 23
3. 3Anne McIlroy, “Most in poll want gay marriages legalized: 53% support idea despite MP’s vote to uphold status quo”
Toronto Globe & Mail, June 10, 1999, p. A1.
4. 4Canada, House of Commons, Hansard (Tuesday June 8, 1999) Number 240, at 1020-2255.
5. 5It is, however, clear that a significant number in the gay and lesbian communities want the “full equality” of marriage, with
all its social, psychological and legal implications. See e.g. Netherlands Ministry of Justice, Scientific research and
Documentation Centre, Registered Partnerships In the Netherlands: A Quick Scan (1999) (p.22) reporting that 62% of
same sex couples entering a RDP would like to convert to marriage if that becomes possible; RDP in the Netherlands does
not confer rights in regard to children.
6. 6[1999] S.C.J. 23, at para 134
7. 7Layland v. Ontario (1993), 14 O.R. (3d) 658 (Div. Ct.) is an example of an unsuccessful claim for the right to “marry.”
The arguments, of course, have to be revisited in light of the Supreme Court in M v H.
8. 8At para 73
9. 9See M. Buist, “Case Comment: M. v H.” (1999), 46 R.F.L. (4th) 331 by a prominent lesbian lawyer who argues that
this decision supports claims for all the “benefits” of marriage, but stops short of predicting or advocating that gays and
lesbians in the future will be able to “marry.’
10. 10Hyde v Hyde & Woodmansee (1866), L.R. 1 P & D. 130, per Lord Penzance. See also Black’s Law Dictionary
(4th)(1968):”the union of a man and woman for life for the discharge of those duties legally incumbent on those whose
association is founded on a distinction of sex”; and Barnet v Barnet, [1934] O.R. 347
11. 11 The courts recognized that with elderly couples, the inability (or unwillingness) to consummate the marriage did not
invalidate the marriage, if neither party had a desire for sexual relations: Norman v Norman(1979), 9 R.F.L. (2d) 345 (Ont.
U.F.C.). An inability to consummate the marriage rendered the marriage voidable, not void. Some cases have held that there
has to an ability to have “natural” heterosexual intercourse to have a valid marriage; Ashley v Ashley, [1970] 2 All E.R. 33
(P.D. & Admin. Div); B. v A. (1990), 29 R.F.L. (3d) 258 (Ont.), and accompanying critical commentary by D. Majury.
More recently at least some courts have accepted that a transsexual who had a male to female operation could legally
consummate the marriage and have a valid marriage. See e.g T (M.) v T.(J.), 355 A. 2d 204 (N.J.).
12. 12Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46.
13. 13Some definitions of “marriage” suggest that marriages were intended to be indissoluble, such as “the legal union of a
man and a woman for life.” Re Marriage Legislation in Canada (1912), 6 D.L.R. 588 at 739 (S.C.C.) per Idington J.
However, even in 1867 it was recognized that a marriage could be dissolved, as the federal government had jurisdiction
over “marriage and divorce.” It was the fact that the spouses were making a commitment for life that was significant.
14. 14This provincial legislation governs solemnization of marriage; see e.g Marriage Act, R.S.O. 1990, c M.3, s. 24.
15. 15Presumably any such reforms will continue to require that same sex partners are not within the prohibited degrees ( eg
not brothers), are of age and not in another valid marriage.
16. 16The provinces would continue to have responsibility for the form of registration and celebration. While the government
cannot discriminate against same sex couples, under the Charter of Rights guarantees of freedom of religion, neither level of
government could force any religious organization or official to celebrate a same sex marriage (or indeed any other marriage
that was contrary to the faith).
17. 17I argue that the federal Parliament should enact legislation to fully recognize same sex marriage (perhaps in all but
name), but this legislation would have limited effect outside Canada. No law that is enacted in Canada can assure that a
same sex the relationship will be legally recognized in other countries. There may, for example, be restrictions on the extent
to which same sex partners could jointly adopt children from certain foreign countries that require that children who are their
nationals only be adopted by (heterosexual) married couples. I do not think that Canadian marriage legislation needs to (or
should) mention these restrictions, though education around these issues will be important for same sex partners.
One area of constitutionally justifiable distinction that might also justify a distinctive name is in regard to residency
requirements for same sex partners. At present, there are no residency requirements for marriage in Canada, but there are
legitimate concerns about creating conflicts of laws and comity problems that might justify requiring at least one party to a
formal same sex partnership being resident in Canada. Residency requirements would seem to be a matter of provincial
jurisdiction as an aspect of “solemnization of marriage” as opposed to a federal issue of “capacity.”
18. 18See Ontario Law Reform Commission, Report on the Rights and Responsibilities of Cohabitants Under the
Family Law Act (1993) and British Columbia Law Institute, Report on the Recognition of Spousal and Family Status
(1998) (on line www.bcli.org). The Law Commission of Canada is studying this issue