Mr. Speaker, the hon. member has moved that the government should take the measures necessary for legal recognition of same sex spouses.
By "legal recognition of same sex spouses" I am unclear whether he means same sex partners should be able to register, as I understand they can do on Denmark, or that benefits currently given to married and common law spouses should be extended to same sex partners.
Neither option is viable to my mind given the current state of the law. Perhaps it would have been a better motion had it been made in a provincial legislature rather than here in the House of Commons.
The federal government has very limited jurisdiction in the area of 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.
Until fairly recently historical 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 common law or judge made law. They actually are created by statute law; not one statute at that but by a large number of statutes at both 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 laws that recognize common law spouses are 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 the division of property, support obligations between former spouses and any children, and yet 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 quite different concept from that of common law spouses. Common law marriage existed only in the early settlement days of Canada when a minister or a priest was often difficult to find. Although there is some speculation that the concept may still exist in common law in Canada, it would apply only in opposite an sex context. Therefore if the provincial family law is the main source of legal obligations between spouses, then 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 in 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 thereafter, starting primarily with family law and then slowly 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 reorganize common law spouses have just come about in the last year or two, after the majority of provincial family law statutes recognized the status. It is only recently that the majority of the Supreme Court of Canada stated in the Miron decision that in the circumstances of this case it was discriminatory to treat unmarried couples differently from married couples.
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, government pension plans, income tax and so on.
The concern is that if we were to extend these benefits to same sex partners at the federal level first, before the provincial family law extends any legal obligations, this 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 on 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 the obligations before we should extend benefits under federal jurisdiction.
How would we accomplish what the hon. member is asking for? How would we take the measures necessary for the legal recognition of same spouses, even were we to agree that 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 achieve living 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 law 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 that the law deems their relationship to be akin to marriage after a certain time has passed. Many still feel that 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 those same sex couples who do wish to be open about their relationships?
For a numbers of reasons, the motion is premature and not feasible for the federal government to adopt without the full co-operation of the provincial legislatures.