Controversy Over Couples in Canada: The Evolution of Marriage and Other Adult Interdependent Relationships

Abstract

The issue of how to recognize different types of intimate adult relationships remains a source of controversy in Canada. In this paper, the author surveys the evolution of the current debate surrounding four types of intimate adult relationships that fall outside the traditional definition of marriage: common-law marriage, same-sex partnerships, polygamy, and non-conjugal interdependent relationships. The author begins by examining how Canadian legislatures began in the 1970s to grant spousal rights for a variety of purposes to opposite-sex partners who cohabited in conjugal relationships, and the courts began to recognize property claims using the constructive trust. In Miron v. Trudel (1995), the Supreme Court of Canada held that the failure to grant certain spousal rights to a common-law partner violates the Charter of Rights and Freedoms. However, the Court held in Nova Scotia (Attorney General) v. Walsh (2002) that it is not discriminatory to deny opposite-sex partners statutory marital property rights, since they have chosen not to marry. While Walsh appears inconsistent with Miron and is unfair to women, it reflects a desire to give marriage a unique and privileged status, and to recognize that a different legal regime may govern those who choose to live together without marrying.The greatest controversy now concerns the recognition of same-sex relationships. The Supreme Court of Canada ruled in M. v. H. (1999) that the failure to give same-sex partners the same rights as opposite-sex unmarried partners violates the Charter. Two appellate courts have recently held that to deny same-sex partners the right to marry violates their human dignity and is therefore unconstitutional. The federal government has formulated a Draft Bill that would give same-sex couples the right to marry, and has made a reference to the Supreme Court asking, among other questions, whether the Bill is consistent with the Charter. The author argues that to deny same-sex partners the right to marry violates the Charter. While judicial activism in this area has been criticized, the denial of marriage rights to same-sex couples would represent a failure to respect the rights of a discrete and insular minority. Courts have now made same-sex marriage legal in two provinces, and it seems inevitable that it will soon be recognized everywhere in Canada.Opponents claim that this trend could lead to the legal recognition of polygamous relationships, but the author rejects this argument. As for non-conjugal relationships, the Law Commission of Canada (2001) recommended legal recognition of a range of such relationships. The author argues that there are contexts in which this is appropriate, but that conjugality should remain a central legal concept for determining rights and obligations.