Madam Speaker, the hon. member moved that the government should take the measures necessary for the legal recognition of same sex spouses.
By legal recognition of same sex spouses I am unclear as to whether the hon. member means same sex partners should be able to register, as I understand they can in Denmark, or that benefits currently given to married and common law spouses should be extended to same sex partners.
Neither option is viable, given the current state of the law. Perhaps it would be a better motion had it been made in a provincial legislature rather than in the House of Commons.
The federal government has very limited jurisdiction in this area of the legal recognition of personal relationships. The Constitution divides jurisdiction in the area of family law between the provincial legislatures and the federal Parliament. The jurisdiction for marriage is divided with the provinces being responsible for the solemnization of marriage, including licensing requirements, and the federal government being responsible for the legal capacity to marry. However, as the definition of marriage clearly makes it an opposite sex concept, this constitutional power is irrelevant for the current discussion.
The Constitution also gives Parliament the power over divorce, although the province retains the power to administer the application of the Divorce Act, including division of property and support obligations. However, as marriage is irrelevant here, I am assuming the divorce power is as well, as divorce cannot apply without marriage, although I understand that
Denmark requires same sex couples who have registered to go through the divorce legislation to deregister.
Perhaps the only relevant example I can think of is the treatment of common law spouses under provincial family law. This is a personal relationship widely recognized by law, even though it is not specifically mentioned by the Constitution, unlike marriage.
Until fairly recently historically common law spouses were not recognized by our law. The term is a misnomer in any event, as common law spouses do not actually exist in the common law or judge made law. They actually are created by statute law, not by one statute but by a very large number of statutes at both the federal and provincial levels.
In other words, unless a particular statute specifically provides that a reference to spouse will include common law relationships, they are not included for the purpose of the benefit in issue. The major statute law that recognizes common law spouses is the provincial family law statutes.
These statutes create the major legal obligations imposed on common law spouses should the relationship break down. They deal with division of property, support obligations between the former spouses and for any children. Even here the provincial law is not consistent across the country. Common law spouses are subject to different legal obligations under different provincial family law statutes across the provinces. They are not even recognized in two provinces including Quebec, the province of residence of the hon. member proposing this measure.
Common law marriage is a different concept from that of common law spouses. Common law marriage existed only in the early settlement days of Canada where a minister or a priest was often difficult to find. Although there is some speculation that the concept may still exist in the common law in Canada it would only apply in an opposite sex context.
Therefore, if provincial family law is the main source of legal obligations between spouses, it would seem more appropriate that any legal recognition of same sex partners would come first under provincial family law. As I understand it, this was primarily the way which common law relationships first gained legal recognition.
As a result of several high profile cases before the Supreme Court of Canada the courts recognized through the doctrines of unjust enrichment and constructive trust the contribution of a woman who had lived for a long period of time with a man as married, even though they had not married.
Legislative changes followed shortly thereafter, starting primarily with provincial family law and then slowly moving into the benefits field.
This legal recognition is recent in Canadian law. The changes to the Income Tax Act to recognize common law spouses have come about in the last year or two after the majority of provincial family law statutes recognized the status. The question of whether common law spouses must be treated in the same way as married spouses in some or all circumstances is still before the Supreme Court of Canada. The Miron case was argued last fall and a decision is pending.
The only references in federal law to personal relationships either follow blood or marriage relationships, which are relatively easy to prove, or copy provincial family law definitions of common law relationships. At the federal level spouses are mostly included in legislation for the purposes of employment benefits, the government pension plans and income tax.
The concern is that if we were to extend these benefits to same sex partners at the federal level first before provincial family law extends any legal obligations it could create a situation of unfairness. Spouses, both married and common law, are currently subject to a package of legal rights and responsibilities created by a combination of federal and provincial laws.
It is because spouses are subject to legal obligations such as support obligations upon the breakdown of the relationship that they are also eligible for benefits such as survivor benefits under pension plans. It is for the provinces to extend first the obligations before we should extend benefits under federal jurisdiction.
How would we accomplish what the hon. member is asking? How would we take the measures necessary for the legal recognition of same sex spouses, even were we to agree this should be done? It is clear from the history of the recognition of common law relationships that this was not accomplished by passing a statute called the common law spouses act. Nor was this legal recognition even accomplished by the government at any level.
The fact of social change was first acknowledged by the courts in looking at unfairness and unjust enrichment between two partners who had not married. The courts felt strongly that individuals who were living together as if married and so were getting all of the advantages of being married, such as working together to afford a better lifestyle than either would have been able to live alone, should not be able to avoid taking on the obligations of married persons simply by choosing not to marry. Particularly in a situation such as that represented in the first few high profile cases, the common life wife needed the protection of the law.
However, this is a controversial enough subject with regard to opposite sex common law couples. Many common law couples continue to disagree and feel frustrated the law deems their relationship to be akin to marriage after a certain time has
passed. Many still feel their choice not to marry should be respected by the law.
How much more of a problem will this be with same sex couples who may not be public about their relationships? Conversely, is it fair to recognize only those same sex couples who do wish to be open about their relationships? For a number of reasons this motion is premature and not feasible for the federal government to adopt without the full co-operation of the provincial legislatures.