M. v H. [1999] 2 S.C.R. 3 1) Reference Details Jurisdiction: Supreme Court of Canada Date of Decision: 20 May 1999 Status: Concluded Full Link to Case: http://scc.lexum.umontreal.ca/en/1999/1999rcs2-3/1999rcs2-3.html 2) Facts The appellant, the Attorney General, appealed against a decision of the Court of Appeal of Ontario which upheld a decision that s. 29 of the Family Law Act 1990 (the Family Law Act) infringed the equality rights provision in s. 15(1) of the Canadian Charter of Rights and Freedoms (the Charter) and that the violation could not be justified by s. 1 of the Charter. The Court further upheld the lower court’s declaration that the words “man and woman” were to be read out of the definition of “spouse” in s. 29 of the Act and replaced with the words “two persons”. The decision arose following the breakdown of a same-sex relationship between two women, financially interdependent, H and M. Following the end of their relationship, M had sought financial relief including support pursuant to the Family Law Act and had challenged the validity of the definition of “spouse” in s. 29 of the Act which included married persons or cohabiting couples of the opposite sex. Section 1(1) of the Act defined “cohabit” as “to live together in a conjugal relationship, whether within or outside marriage”. 3) The Law • Sections 1 (rights and freedoms in Canada) of the Canadian Charter of Rights and Freedoms and 15 (equality rights) of the Canadian Charter of Rights and Freedoms; • Section 29 of the Family Law Act 1990. 4) Decision The Majority The majority by nine to one dismissed the appeal, holding that the Family Law Act drew a formal distinction between M and others on the basis of the personal characteristic of sexual orientation and that distinction discriminated against same-sex partners. The breach of s. 15 of the Charter could not be justified under s. 1 of the Charter. The pressing and substantial objective of the Family Law Act was to provide for the equitable resolution of economic disputes when relationships between financially interdependent individuals broke down and alleviating the burden on the public purse to provide for dependent spouses. Those objectives promoted social justice and individual dignity. Exclusion of same-sex couples from the Act failed the minimal impairment test as the other remedies available did not provide an adequate alternative to spousal support under the Act. Further, the exclusion of same-sex couples from the legislation did not promote any legislative goals. 1 Dissenting (Gonthier J.) Gonthier J. held that, applying the appropriate test as set out in Law v Canada , s. 29 of the Family Law Act did not infringe s. 15(1) of the Charter. The Family Law Act was an exception to the general rule that the law imposed no obligation of support between persons. The Family Law Act provisions regarding mandatory support only applied to married couples and opposite sex couples so as to recognise the social function which only applied to opposite sex couples as a fundamental unit in society and addressed the dependence of women on men biologically and economically. The Act was discriminatory but designed to protect women who were often disadvantaged in opposite sex relationships. The Act’s preamble stated its purpose was to strengthen the role of the family and recognise marriage as a form of partnership. The support obligations were extended to cohabiting opposite sex couples in recognition that the female was the mother and main caregiver to children and so dependent and relied upon the expectation of ongoing support having given up employment prospects. Although long-term same-sex relationships may exhibit many of the features of long- term opposite sex relationships, the same dynamic of dependence did not exist. 2 .