Bill 5, 1999, (An Act to amend certain statutes because of the Supreme Court of Canada decision in M. v. H.) was passed on October 27, 1999. As the Bill’s title suggests this was not part of the government’s agenda. It was strictly a response to the Court’s ruling that section 29 of the Family Law Act was unconstitutional because it discriminated against gays and lesbians. Nonetheless Bill 5 is a landmark bill that extends homosexual rights and provides legal recognition of homosexual relationships or "same-sex partnerships". The complete Bill is 57 pages long and amends 67 existing statutes. And it has major ramifications for the traditional family and people of faith who view homosexual activity to be morally wrong.
According to the Attorney General, Bill 5 creates a new legal relationship called a same-sex partnership and it provides same-sex partners with all the rights and obligations common-law spouses have. While the Attorney General assured voters that the definition of spouse remained unchanged the only legal difference between a same-sex partner and a common-law spouse is the name. The Attorney General also explained that "certain unique rights and responsibilities that relate to marriage are not affected by this bill." However, all he mentions in his speech introducing the Bill were the rules dividing up family property upon divorce and the right to inherit when the deceased husband or wife did not have a will.
In other words, Bill 5 allows two gays or lesbians to enter into a legally recognized relationship that, other than in name, is identical to a common-law relationship between two people of the opposite sex. Since common-law couples are for the most part treated in the same manner as married couples there are now few legal distinctions made in Ontario legislation between same-sex partners and married couples. And the distinctions that remain are of small significance.
What Bill 5 Does
Although Bill 5 is sweeping in its mandate, its intent is quite simple. Each section of Bill 5 can be categorized in one of three ways. It creates a legal relationship for homosexual couples called "same-sex partnerships," it provides rights to individuals in a same-sex partnership, or it requires obligations of individuals in a same-sex partnership.
The following looks at each of these categories and describes what it may mean for traditional family values. Portions of Bill 5 that are of particular concern are examined in more detail. A summary of how each statute is amended can be found in the Appendix.
Creation of Same-sex Partnerships
As mentioned earlier, Bill 5 creates a new legal relationship called a "same-sex partnership" that, as the name implies, consists of two same-sex partners. So what is a "same-sex partner"? The definition added to the Human Rights Code (see subsection 28 (1) of Bill 5) is as follows:
“same-sex partner” means the person with whom a person of the same sex is living in a conjugal relationship outside of marriage
In the Family Law Act (see subsection 25 (2) of Bill 5) the definition is a little more restrictive:
"same-sex partner" means either of two persons of the same sex who have cohabited, (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the natural or adoptive parents of the child.
It should be noted that in the Family Law Act "‘cohabit’ means to live together in a conjugal relationship, whether within or outside marriage." So the common thread in all the definitions of "same-sex partners" is that it must be a conjugal relationship. The recognition of same-sex partnerships is based primarily on the sexual activity between two homosexuals. This concerns people who hold traditional family values and particularly those who view the sexual activities of homosexuals to be morally wrong. The Merriam-Webster Dictionary defines conjugal rights as, "the sexual rights or privileges implied by and involved in the marriage relationship [or] the right of sexual intercourse between husband and wife." Bill 5 gives homosexual couples marriage-like status based on their sexual orientation. It is important to note that many Canadians of a variety of faiths and philosophical backgrounds view homosexual activity to be morally wrong. It is a very short step from granting marriage-like status to homosexual couples to allowing homosexual marriages.
New Rights for Same-sex Partners
Although same-sex partners are not given all the rights provided to married spouses, Bill 5 does provide them with many rights they previously did not have. In fact, 41 of the 67 statutes amended extend new rights to individuals in a homosexual relationship. While there are a number of different types of rights extended, there are six types that are of particular concern.
Benefits paid by taxpayers: All provincial or local government departments, councils, boards, agencies etc. that provide benefits to the spouse of an employee (including provincial court judges and MPPs) must also provide the same benefits to the same-sex partner of an employee. These could include survivor pensions, health plans, dental plans, insurance plans and other benefits. Each of these would, at the very least, include a portion contributed by the taxpayers. As a result, many taxpaying Ontarions, who find homosexual activities morally objectionable, are forced to support such a lifestyle and promote same-sex partnerships through their taxes.
- Benefits a private person is forced to provide: The pension benefits, along with health, medical and dental insurance plans and any other benefits that a private employer provides to the spouse of an employee must be extended in the same manner to the same-sex partner of an employee. A private individual or organization is required to treat a same-sex partner employee in the exact same way it treats a married employee. There is no consideration of the employer’s convictions of faith or moral values. The employer must support a relationship based on homosexual activity, if he/she wishes to provide benefits to married couples.
- Marriage-like status: Same-sex partners are permitted to obtain certificates and formalize agreements that are very similar to marriage. For example, under the Change of Name Act, an individual is now able to change his/her last name to that of his/her same-sex partner. Changes to the Courts of Justice Act mean domestic matters relating to a same-sex partnership are dealt with in Family Court. Same-sex partners are also able to enter into a cohabitation agreement that outlines the rules of property division upon dissolution of the partnership, much like a prenuptial agreement. And a separation agreement is very similar to an out of court divorce settlement. While no one would deny individuals the ability to enter into contractual agreements, formalizing such agreements in the Family Law Act gives them marriage-like status.
- Adoption: Any individual, including homosexuals, may adopt a child if the courts decide it is in the best interest of the child. (However, it is unlikely that under normal circumstances any court would decide otherwise, since it could be argued that to do so would be in violation of the Human Rights Code). A growing body of research clearly indicates that children are generally better off when raised by both a father and a mother. Homosexual adoptions preclude a child from having both a mother and a father. Yet under the Child and Family Services Act same-sex partnerships are seen as being equal in status to married couples.
- Conjugal visits: All types of nursing homes, rest homes, homes for the aged, etc. would have to provide an opportunity for a resident to meet in private with his/her same-sex partner. If both are residents of the home, they must be allowed to share a room if a suitable one is available. This could lead to homosexual conjugal visits even if the community, charitable group or private organization operating the home finds such activity offensive. If a non-profit religious organization that opposes homosexual activity operates a home for the aged, they may be required to permit conjugal visits for a resident and his/her same-sex partner.
- Human rights: Same-sex partner status is now a protected category within the Human Rights Code. A legal homosexual relationship based on sexual activity is now protected in the province’s human rights legislation. Some may argue this is not much different than the existing protection against discrimination based on sexual orientation, but there is an important difference. Protection based on sexual orientation deals with one individual. It does not require another individual to publicly support or even recognize homosexual activity. It requires the provision of services, accommodations and employment opportunities to gays and lesbians in the same manner they are provided to heterosexuals. However, protection based on same-sex partner status forces private citizens to publicly recognize and support a sexual relationship between two homosexuals. In other words, the actual homosexual activity is now protected in legislation. Organizations that have a bona fide reason for discriminating on this ground may still do so. Churches and explicitly religious organizations may be exempted by having codes of conduct or other specific behahviour requirements. However, people of faith who own, operate or manage organizations based on values and principles of their faith will likely have to comply.
New Responsibilities for Same-sex Partners
While Bill 5 does extend a number of rights it also does require a number of obligations and responsibilities from individuals in a same-sex partnership. Twenty-eight of the 67 amended statutes introduce new obligations and responsibilities for individuals in a same-sex partnership. Most of these fall in to two categories: The support and maintenance of a dependent same-sex partner, and the expansion of conflict of interest and insider trading rules to include the relationships that result from a same-sex partnership.
- Support & Maintenance: An individual is legally responsible for the maintenance of his/her same-sex partner or former same-sex partner. For example, an individual whose same-sex partner is financially dependent on him/her may be required to make maintenance payments if the relationship is ended. An individual may also be liable for fines, overpayments or other amounts owed to the provincial government by his/her same-sex partner. An individual may have a lien placed on his/her property (not personal residence) while his/her same-sex partner is receiving government assistance. An individual may be jointly liable for some debts incurred by his/her same-sex partner and owed to another party.
- Conflict of Interest Rules: Changes were made to include the interests of a same-sex partner and his/her relatives when applying the conflict of interest and insider trading rules that directors, senior officials and controlling shareholders of various businesses and organizations must follow. An individual whose same-sex partner is a director or senior official of a publicly traded company under the Securities Act may not buy or sell shares in the company based on information not publicly available. A similar expansion was made to the disclosure and conflict of interest rules that local and provincial politicians must follow. An individual may be prevented from running for school board if his/her same-sex partner is an employee of the school board. An MPP must disclose any pecuniary interests his/her same-sex partner has and exclude him/herself from debate and voting if legislative business creates a conflict of interest.
While the Ontario government has attempted to balance rights with responsibilities, the current approach has created an opportunity to access rights while still avoiding some of the new responsibilities and obligations. By defining a same-sex partner based on sexual activity (conjugal) the government has made it extremely difficult to reliably determine if such a partnership exists. The government must rely almost solely on self-reporting. As a result same-sex partnerships will likely be revealed when attempting to access rights, but the incentives to do so for obligations and responsibilities will be limited. Granted, in some cases where there is an obligation for support of a dependent same-sex partner there are incentives for at least one same-sex partner to reveal the partnership. However, in cases on conflict of interest and disclosure there is no incentive to reveal the relationship as a same-sex partnership. Since there is no requirement to reveal a same-sex partnership, it is conceivable that it will not be revealed while obligations would be required, but will be revealed when rights are sought.
Although the issue may have been foisted upon the Ontario government, Bill 5 goes a long way in establishing the rights of homosexuals and providing their relationships legal recognition. There is now a very thin line between a homosexual relationship and marriage. Same-sex partners and their partnerships are now recognized in law right alongside marriage. As their legal right, same-sex partners may now expect benefits supplied by taxpayers and private citizens. While new obligations are required of same-sex partners, the definition of the partnership based on homosexual sex activities and self-reporting ensures that incentives to reveal the relationship are much higher when rights are at issue. In the laws of Ontario, marriage still has its name, but Bill 5 has certainly diminished it.
Don't miss the interesting Appendix.