Forty YEARS. Conjugal RELATIONSHIP. NOT a SPOUSE?
While the Charter of Rights and Freedoms did not specifically provide protection of discrimination based on sexual orientation, because infringements could be brought before the courts, the 1990s saw a great deal of Charter challenges.
One landmark case of the 1990s was the 1995 case of Egan v. Canada. John Norris, James Egan’s partner for forty years was denied the spousal allowance under the Old Age Security Act because the definition of spouse did not allow for same-sex partners. The Supreme Court of Canada ruled that the definition of “spouse” in the Old Age Security Act was an infringement on the right to equal protection and equal benefit of the law, violating section 15 of the Canadian Charter of Rights and Freedoms, and was discriminatory based on the sexual orientation. As a result of the case, although it did not grant same-sex spousal recognition, the Supreme Court added sexual orientation as a prohibited grounds for discrimination under the Charter of Rights and Freedoms.
What’s in a Word?
From the Egan v. Canada case it was clear that the definitions which had been previously assumed in Canadian society were being challenged. Words like “spouse” and “marriage” had become contested terms because they masked the inequality that existed for same-sex couples.
Spouse: An Example
Marilyn Waring, a New Zealand feminist leader and social activist who has written extensively on, advocated for, and lectured on unpaid labour, also addressed the inequality in the definition of “spouse.” Waring provides an example of Canadian Embassy councillor, Stan Moore, who was unable to obtain the spousal relocation assistance for his partner Pierre to join him in Indonesia. He was, however, able to recoup the costs associated with moving his cat. Pierre was also not included in the list of families, not was he able to direct work orders so that home repairs would be carried out. Waring framed the importance in being recognized as a spouse in terms of dignity. The failure to recognize spousal relationships affected the dignity of same-sex couples who did not receive the same benefit of law.
Supreme Court of Canada: “The public recognition and acceptance of homosexuals as a couple may be of tremendous importance to them and to the society in which they live.” (Egan v. Canada, )
It wasn’t until 1999 that equality rights under the Charter also protected same-sex couples. It was the beginning of the end of discrimination against same-sex couples even though the ruling did not affect the legal definition of marriage, and applied only to partners in a common-law marriage. (See M. v. H. , 1999)