M.+v.+H.

· The approach to analyzing a claim of discrimination under s.15(1) is set out in //Law// and involves three inquiries: 1. Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one of more personal characteristics? If so, there is differential treatment for the purpose of s.15(1). 2. Was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? 3. Does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s.15(1) of the //Charter// in remedying such ills as prejudice, stereotyping, and historical disadvantage? · The //FLA// does draw a formal distinction by specifically according rights to individual members of unmarried cohabiting opposite-sex couples, which by omission it fails to accord to individual members of cohabiting same-sex couples · s.29 allows either a man or woman to apply for support, recognizing the financial dependence that can arise in intimate relationships · The obligation to provide spousal support was extended to include relationships between a man and a woman that have a specific degree of permanence and are conjugal. Gay and lesbian couples are capable of having relationships that fit within those specifications · Sexual orientation is already established as an analogous ground to those enumerated in s. 15(1). · The central question is whether the differential treatment imposed by s. 29 of the //FLA// is discriminatory within the meaning of s. 15(1) o Does the differential treatment impose a burden upon or withhold a benefit from the claimant that reflects stereotypical application of presumed group or personal characteristics, or which perpetuates the view that the individual is less capable or worthy of recognition or value as a human being · S. 29 withholds a benefit from M. The benefit being the protection offered by the spousal support provisions of the //FLA// of the economic interests of individuals in intimate relationships. · The denial of this benefit violates s. 15(1). There is a pre-existing disadvantage and vulnerability of same-sex couples, which is exacerbated by the impugned legislation. · The nature of the interest protected by s.29 is a fundamental one. · The exclusion of same-sex couples from the definition of “spouse” promotes the view that individuals in same-sex relationships are less worthy of recognition and protection and implies that they are incapable of forming intimate relationships of economic interdependence Section 1 of //Charter//: · First step of //Oakes// test is to determine whether legislation has pressing an substantial objective o The purpose of the //FLA// (parts I to IV) is to provide for the equitable resolution of economic disputes that arise when intimate relationships between individuals who have been economically interdependent break down. Another objective is to alleviate the public from supporting vulnerable individuals when their former partner is capable of doing so. These objectives are pressing and substantial · However, there is no rational connection between the objective and the chosen means · The majority does not accept that Part III of the //FLA// was designed to address the systemic sexual inequality associated with opposite-sex relationships; however, even if it was, excluding same-sex couples from the regime does not further the objective of assisting heterosexual women · Although there is evidence that same-sex couples do not experience the same economic inequalities which affect opposite-sex relationships, this does not explain why the right to apply for support is limited to opposite-sex couples · The //FLA// is not concerned with the protection of children; however, even if this objective were accepted, it would be underinclusive since same-sex couples also raise children · The inclusion of same-sex couples in the definition in s. 29 of the //FLA// would better achieve the objectives of the legislation · The second step of the Oakes test, the minimal impairment stage, is not satisfied o The alternative remedies available to same-sex couples are less flexible and more onerous (unjust enrichment, law of contract) o No other group is disadvantaged by including same-sex couples in the definition of s.29 so there is no balancing of claims or interests that needs to take place · Final branch of Oakes test, deleterious effects, also not met o The impugned provisions actually undermine the objectives of the legislation so it cannot be argued that the deleterious effects of the legislation is outweighed by its salutary effects // Conclusion // : s. 29 is declared of no force and effect. This declaration of invalidity is suspended for six months. · Agrees with the conclusion of the majority · “The statute’s categorical exclusion of an individual whose situation falls squarely within its mandate, and who might be entitled to its benefits and protection, denies that person the equal concern and respect to which every Canadian is entitled, and constitutes discrimination.” · The exclusion in question undermines the purpose of the legislation to alleviate the burden placed on the public by having to support needy individuals, therefore, there is no rational connection between the objective of the legislation and the exclusion of same-sex couples. · Agrees with conclusion of majority · The exclusion of same-sex couples suggests that their union is less worthy of recognition or protection, therefore, there is a denial of equality within the meaning of s. 15(1) · In applying the Oakes test, Bastarache finds that the primary purpose of the legislation was to address the subordinated position of women in non-marital relationships – this objective, however, does not explain the pressing need to exclude all other family relationships from the regime · Although same-sex couples do not generally share the imbalance in power that is characteristic of opposite-sex couples, their inclusion from the regime would not cause any particular difficulty · In applying the //Law// test, Gonthier finds that s. 29 does not violate s. 15(1) of the //Charter// · The differentiation in s.29 between same-sex and opposite-sex couples is not discriminatory · The purpose of s. 29 of the //FLA// was to recognize the unique social role specific to opposite-sex couples and to address the dynamic unique to men and women in opposite-sex relationships · Based on this purpose, the distinction drawn in s.29 does not discriminate because it does not involve the stereotypical application of presumed group or personal characteristics and it does not otherwise have the effect of perpetuating or promoting the view that individuals in same-sex relationships are less deserving of concern, respect, and consideration · S. 29’s distinction corresponds with an accurate account of the actual needs, capacity and circumstances of opposite-sex couples as compared to others, including same-sex couples · The same dynamic of dependence in heterosexual relationships is not present in same-sex relationships · The state is not barred from recognizing the specific needs of certain relationships and responding to this reality with positive measures to address those differences · The claimant’s group is relatively advantaged in relation to the subject matter of the legislation. Individuals in same-sex relationships do not carry the same burden of fulfilling the social role that those in opposite-sex relationships do ·  Considering the contextual factors described above, s. 29 does not violate the human dignity of the claimant
 * Facts: ** M and H were two women who lived together in a same-sex relationship for approximately 10 years. When the relationship broke down, M applied for partition and sale of the house, claimed support pursuant to the //FLA// and served notice of a constitutional question challenging the validity of the definition of “spouse” in s.29 of the //FLA//. “Spouse” was defined as a person who is actually married and also either a man and a woman who are not married to each other and have cohabited … continuously for a period of not less than three years.”
 * Judicial History: ** The motions judge held that the definition of “spouse” in s.29 violated s.15(1) of the //Charter// and that it is not justified under s.1. She held that the words “man and woman” should be changed to “two persons”. H appealed the decision and was joined by the Attorney General of Ontario. The Court of Appeal upheld the decision, but suspended the declaration of invalidity for one year. Neither M nor H appealed this decision, however, the Attorney General was given leave to appeal to the Supreme Court on the condition that M’s costs would be paid no matter what the outcome.
 * Held (Gonthier J. dissenting): ** The appeal is dismissed. The declaration of invalidity was changed to a suspension of only six months.
 * // Per //**** Lamer C.J., L-Heureux-Dube, Cory, McLachlin, Iacobucci and Binnie JJ.: **
 * // Per //**** Major J.: **
 * // Per //**** Bastarache J.: **
 * // Per //**** Gonthier J. (dissenting): **