Everybody sat up and took notice when the Supreme Court of Canada said in the M v. H case that gay and lesbian couples have the same right to spousal support as heterosexual common-law couples.  However, an April decision of the Nova Scotia Court of Appeal has implications that are even more far-reaching for family law, yet it is getting little attention.

In Walsh v. Bona, 2000 NSCA 53, the court held that Nova Scotia’s Matrimonial Property Act, which grants a division of assets to legally married spouses but not to common-law couples, violates the equality rights guarantee in subsection 15(1) of the Charter of Rights and Freedoms.  

Ontario’s Family Law Act makes the same distinction between married and unmarried couples.  It has been obvious to me for years that it would be only a matter of time before some family law practitioner who wanted his or her 15 minutes of fame would take a run at this.

Still, it’s hard to believe that the N.S. Court of Appeal swallowed this argument as readily as it did.  The logic has two major flaws. 

First, subsection 15(1) is designed to protect people from discriminatory laws where the grounds of discrimination are irrelevant personal characteristics—a laudable goal.  However, marital status is not analogous to the grounds of discrimination enumerated in 15(1).  Those grounds--race, national or ethnic origin, colour, religion, age and sex—are all characteristics over which people have virtually no control.  With the occasional exception of religion, people are simply born into these characteristics.  

Marital status, however, is something people always choose.  It’s within their own control.  In the Walsh case, the couple cohabited for 10 years and had two kids.  They could have gotten married, but they chose not to.  It certainly wasn’t the law that discriminated against Ms. Walsh.  It gave her exactly the same opportunity to board the gravy train as every other Nova Scotia woman who ever managed to get a ring on her finger.

Unfortunately, the Supreme Court of Canada had already muddied the waters on this issue with some amazingly fatuous reasoning in a case called Miron v. Trudel [1995] 2 S.C.R. 418.  There, a common-law spouse was awarded benefits under his partner’s automobile insurance policy, even though the Insurance Act of Ontario defined "spouse" to include only legally married people.   But the couple in Miron were unanimous in wanting to be treated as if they were married.  Ms. Walsh and Mr. Bona  were not.  The couple in Miron were fighting a third party.   Walsh and Bona were fighting each other.  These are important differences, yet the Court of Appeal didn’t even consider them in pronouncing that Miron had settled the issue.

The second flaw in the court’s reasoning is in thinking its ruling will actually resolve anything.  With a great show of respect for the constitutional division of powers, it humbly declined to redefine "spouse", deferring that task to the Nova Scotia legislature instead.  

However, a moment’s thought would have made the justices realize that no matter where the legislature decides to draw the line, there will always be a group of people who will wind up on the outside screaming "Discrimination!"   If the requirements are three years of cohabitation, then couples who separate after two years, 364 days or less will be discriminated against on the basis of "spousal status".   They will be able to make exactly the same arguments that Ms. Walsh made.

How many times will the disgruntled disqualified be able to recycle this complaint through the courts before judges realize that every conceivable dividing line is entirely arbitrary and equally "discriminatory" except the one that was already in place—namely, the line between those who knowingly and willingly entered into a property-sharing legal regime and those who didn’t?

The decision is also problematic because of its retroactive impact.  There are countless cohabiting individuals across the country who consulted lawyers about how their assets would be affected before they entered into their unmarried living arrangements.  I’ve been consulted many times myself.  Upon learning that they would not be bound by the same rules as married people, they decided to proceed with their plans.   Had they known that some day they would be treated just as if they’d gotten married, they might well have acted differently:  written up a cohabitation agreement or perhaps not even begun cohabiting.  Now they’re trapped.  For many, it will be too late to take measures to avoid having an unwanted legal status foisted upon them. 

In criminal law, we charge an accused under the law as it existed at the time of his alleged offence, not at the time the charge is laid.  The same principle should apply in family law.  When the relationship ends, the rules that should apply are those that were in effect when the couple chose to establish it.  As provincial legislatures rewrite their laws in the wake of this decision, they should include a grandfathering provision for those who made their choices and organized their affairs when the law was different.

It’s high time family law began treating people like responsible, intelligent adults, not like ping-pong balls.