Mr. Speaker, I want to touch on a few of the points raised in the debate this afternoon: first, the question of the meaning of the word conjugal in the legislation; second, the amendment to include the meaning of marriage in the interpretive clause; and third, comments made by members across the way, in particular one to the effect that only married couples, not even common law opposite sex couples, should receive benefits under this legislation.
With respect to the definition of conjugal, I would like to read from a brief presented by the Canadian Bar Association to the committee. At page 6 of the brief it reads:
Concerns have been expressed on two fronts with respect to the use of the word “conjugal”. First, there is a concern that benefits are being based solely on sexual activity. We note, however, that this terminology is not new in the law. Most legislation currently defines heterosexual common-law spouses in terms of whether there is a “conjugal” relationship. We would also suggest that a “conjugal” relationship has been defined by the courts to include more than just sexual activity. Second, some have questioned why benefits are not being granted to those cohabiting in non-sexual, familial relationships. However, this Bill is principally intended to remedy the government's failure to extend rights and obligations to gay and lesbian couples living in conjugal relationships when it extended such rights and obligations to heterosexual couples living in similar relationships.
Governments may wish to discuss extending rights and benefits to non-sexual relationships, but that is an entirely different question. The CBA has no position on whether benefits should be extended in this manner. However, it does believe that this Bill should pass now, with consideration being given to extended family relationships after thorough consultations on the public policy implications.
That is exactly what is happening. The minister has referred the question of extending benefits to persons who are in positions of dependency to committee. The government intends to pursue that matter as suggested in the brief of the Canadian Bar Association, after holding consultations on the full public policy implications.
Much has been made about the definition of conjugal, but as the brief from the Canadian Bar Association sets out, this has been used in the heterosexual context for quite some time and is a system that has been functioning without any undue hardship, so it is difficult to understand why it should be such an issue in the context of Bill C-23.
The second point I wish to speak to deals with the government's amendment to include in the interpretive clause the meaning of marriage.
I understand that some members opposite have made reference to a legal opinion obtained from Mr. David M. Brown, who is a partner in Stikeman Elliott's civil litigation department in Toronto, who practises commercial and corporate litigation and administrative law. In that opinion Mr. Brown indicated that if parliament, by introducing this amendment, was trying to make marriage, as a matter of federal law, the lawful union of one man and one woman to the exclusion of all others, this amendment would not do that. I submit that was never the intent of the amendment.
At the outset, in tabling the bill, the Minister of Justice made it quite clear that Bill C-23 would have no impact and no effect upon marriage. That was the government's position and that remains the government's position. This amendment has been added for greater clarity in the interpretation clause because the issue was raised by the opposition, by others and by witnesses at committee who felt that Bill C-23 would somehow affect marriage.
Bill C-23 would not affect marriage, and that was not its intent. Bill C-23 also would not affect the five principles of the Canada Health Act. However, there is no amendment in the interpretation clause to say that Bill C-23 would not affect the five principles of the Canada Health Act because no one at committee, in the House or elsewhere has alleged that it would. An amendment is being inserted by the government in the interpretive clause of Bill C-23 to the effect that it would not affect marriage because of the allegations made by some that it would.
It is obvious that the common law case law has provided the meaning of marriage. That case law remains in place, so the state of the law has not changed. It never was the intention of the government in introducing Bill C-23 to change it.
The third point I wish to raise deals with comments made by members opposite that federal laws should only recognize married couples, as they would support committed relationships that would be the best to raise children. In other words, common law couples of the opposite sex with children should not receive these benefits. The obvious difficulty with that proposition is that by extending benefits to married couples only would effectively reintroduce the concept of illegitimacy which Bill C-23 removes from our law.
The Government of Canada continues to emphasize the importance of families and the importance of supporting families, most recently in the last Speech from the Throne. The government wishes to aid all families with children—married couples, common law couples and lone parents—so that the children will not be discriminated against. That is what we should bear in mind, the well-being of the children.
To suggest that children who are being raised by lone parents or by common law parents be ignored and that benefits be given to married couples only risks disadvantaging some children. This would be as if the government were reintroducing the notion of illegitimacy, recognizing only legitimate children.
The second point would be that if obligations in Bill C-23 and other federal statutes were limited only to married couples, this might open the government to accusations that the law actually discriminates against married couples. In fact the Income Tax Act was amended to include common law opposite sex couples, not because common law couples asked for that change but because married couples complained that they were paying more taxes than their common law equivalents.
One example would be that it would make sense for the government to continue to apply the Bankruptcy and Insolvency Act to married couples only, as is currently the case. The effect of Bill C-23 would be that the provisions of the Bankruptcy and Insolvency Act would apply to all couples, common law opposite sex couples and common law same sex couples, in addition to married couples.
At the present time any transfers of property just before someone files for bankruptcy are reviewed to see if they were intended to defraud creditors where someone was married, but not where they were in a common law relationship. Bill C-23 would have the effect of bringing equity to all of those relationships.
It is important to bear in mind that indeed the purpose of Bill C-23 is to apply equity to all relationships, whether they are same sex common law, opposite sex common law or married couples.