Family Law Keyed to Weisberg

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M. v. H

Bloomberg Law

Citation. 2 S.C.R. 3

Brief Fact Summary. M. brought suit after dissolution of her same-sex relationship with H. for partition of property and support. She also challenged a Canadian Act that provided for marital support in some instances for opposite-sex nonmarrital couples but did not provide the same support for same-sex couples.

Synopsis of Rule of Law. The Act violated the Canadian Charter because it violated Canada’s equivalent to the Equal Protection Clause of the United States Constitution.

Facts. M. and H. were women living together in a same-sex relationship that continued for at least 5 years. They occupied a home that H. owned and paid the upkeep for, but the parties agreed to share living expenses and household responsibilities equally. In 1982, M. and H. started their own advertising business, which enjoyed immediate success. H.’s contribution to the company was greater than M.’s, because M. had no previous experience in advertising and eventually devoted more of her time to domestic tasks. The parties continued to be equal shareholders in the company. The two bought properties together, eventually resulting in the construction of a country home. A downturn in the advertising business created increased debt, and H. took an outside job and placed a mortgage on her home. M. unsuccessfully tried to find employment. M. and H.’s relationship deteriorated, and H. presented M. with a draft agreement to settle their affairs. On the same day M. took some of her pe
rsonal belongings and left the common home. H. changed he locks on the house. The parties did not divide the personal property or household contents. M. encountered serious financial problems, and in 1992 sought an order for partition and sale of the house, a share of the business, and a claim for support under the Family Law Act (FLA). She also challenged the constitutionality of Section 29 of the Act. H.’s motion for summary judgment was dismissed.

Issue. Does the extension of the right to seek spousal support to members of unmarried opposite-sex couples infringe on Section:15(1) of the Charter (Canada’s equivalent to the Equal Protection Clause of the United States Constitution) by failing to provide the same rights to members of same-sex couples?

Held. Because the exclusion of such people perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence, the challenged section of the Act violates the Charter.
The FLA draws a distinction by granting rights to individual members of unmarried cohabiting opposite-sex couples which it fails to grant individual members of same-sex couples who are living together. The Act is intended to allow persons who become financially dependant in the course of a lengthy intimate relationship some relief from financial hardship upon the dissolution of the relationship.

Spousal support is available to opposite-sex members of unmarried couples who have had a minimum three year cohabitation and parenthood so long as the relationship is conjugal in nature. Same-sex couples are capable of meeting these same requirements. It is clear that this results in differential treatment.

The challenge to the Act meets the contextual requirements of previous precedent because there is a significant pre-existing disadvantage and vulnerability to the suffering group, and theses circumstances are exacerbated by the impugned legislation. There is a correspondence between the ground on which the claim is based and the actual need, capacity, or circumstances of the claimant or others. The impugned legislation has an ameliorative purpose or effect for a group historically disadvantaged in the context of the legislation. Finally, the nature of the interest affected by the impugned legislation is fundamental. Based on this analysis, the challenged portion of the Act violates the Charter.

Discussion. This case is useful in comparing Canada’s analysis of constitutional equal protection challenges to such analysis under American law.