Martha McCarthy is a family lawyer in Toronto
In this prime season for lists and memes of “bests” of the past decade, I have another anniversary for your consideration: It has been 20 years since the Supreme Court of Canada decided M v. H.
When I was a first-year lawyer, a woman walked into my office and told me the story of her 11-year relationship that had ended when she returned home to find the locks changed and her clothes in green garbage bags on the back porch. To say that I was a rookie and a fool at the time would be a kind understatement. Although I told her with confidence that she had no standing in the family law court system to even make a claim as a spouse, neither of us could have predicted that her case would change the course of legal history.
When the Supreme Court ruled in 1999 that excluding M and others similar to her from the definition of common-law spouse violated the Charter of Rights and Freedoms, the landscape changed dramatically: 58 federal statutes were amended to include same-sex couples as spouses everywhere that heterosexual couples had rights and obligations; 68 Ontario statutes got the same overhaul; and similar numbers of amendments were made at provincial levels across the country.
Many incremental changes and achievements in the ensuing years were built on the base of dignity and equality that M v. H mandated and the compelling language written by Justices Peter Cory and Frank Iacobucci for the majority.
Overnight, family-law courthouses included gays and lesbians and their families. Gays and lesbians had access to judges to consider issues arising from relationship breakdowns. Same-sex couples were parents with rights and obligations. Several important parenting cases followed M v. H, including allowing for adoptions by three parents and birth registration of two mothers or two fathers. Legislative reform swept across the country.
And, despite how frequently we had denied the possibility, M v. H set the table for equal marriage. Just four years later, I stood in a Toronto courthouse and handed over the wedding rings to two of my clients in the first gay marriage in Canada.
M v. H also had significant international influence. Within a few weeks of the trial decision, a judge from England cold-called me at my desk asking for source material; that judge later wrote the first decision in Britain recognizing the spousal status of a gay man who wished to inherit a residential tenancy. Courts in Israel, Ireland, France, Spain, New Zealand, Australia and several U.S. states relied on the case when adopting a more functional vision of spouse and family. Much of the worldwide movement in favour of equal marriage was built on the foundation of those decisions.
Our first marriage decision, Halpern v. Canada – itself based on the principles of M v. H – was the first court judgment in the world calling for full and equal marriage for same-sex couples. The first U.S. decision in favour of equal marriage, Goodridge v. Department of Public Health out of Massachusetts, relied on the Ontario Court of Appeal when granting an immediate remedy of civil marriage for all couples. And, when the U.S. Supreme Court decided the first of two cases that opened up equal marriage in America, the couple at the centre of the decision relied on their Canadian marriage as the basis for their claims.
The world has changed in so many positive ways as a result of M v. H. We should be very proud of the power of our Charter and its ability to change the realities of individual lives. Our country has consistently led the way on the international stage in favour of full and meaningful equality for LGBTQ people.
We should also remember, at a time when family law has so many critics, that all of this progress came from the family justice system. At the same time, in our current world of apparently revived sexism, racism and xenophobia, complacency is real and risky. It doesn’t hurt to be reminded of the critical significance of the rule of law in a constitutional democracy and the ways that all of our lives have been enriched by those principles.
As we embark on a new decade, let’s think about all of the positive change we have witnessed and achieved in the twenty years since M v. H. I propose a toast to M, and to all of the other courageous plaintiffs, pro bono lawyers and judges who made it possible. M v. H had wings. Big ones.