Section 29
The law has been amended numerous times since its enactment and has been modified by court rulings, most notably in the case of M. v. H. by the Supreme Court of Canada on May 19, 1999. In that historic ruling, the court held that the equality provisions of Section Fifteen of the Canadian Charter of Rights and Freedoms require that the rights and benefits of common-law marriage be extended to same-sex couples as well as to different-sex couples.
In particular, the court struck down section 29 of the Act as being unconstitutional in its definition of spouse, which was restricted to heterosexual couples. The original 1990 wording of the section included this definition:
"spouse" means a spouse as defined in subsection 1 (1), and in addition includes either of a man and woman who are not married to each other and have cohabited . . . continuously for a period of not less than three years."
The person(s) may not be married to another person simultaneously or the subsequent spousal relationship is void or voidable. According to the Supreme Court's ruling,
"the nature of the interest protected by s. 29 of the FLA is fundamental. The exclusion of same-sex partners from the benefits of s. 29 promotes the view that M., and individuals in same-sex relationships generally, are less worthy of recognition and protection. It implies that they are judged to be incapable of forming intimate relationships of economic interdependence as compared to opposite-sex couples, without regard to their actual circumstances. Such exclusion perpetuates the disadvantages suffered by individuals in same‑sex relationships and contributes to the erasure of their existence.
According to one of the attorneys in the M. v. H. case, the ruling dealt "a body blow to discrimination" in Canada. Although the ruling applied specically only to the Ontario law, the constitutional principles declared by the court had far-reaching implications for all other provinces in their treatment of same-sex couples' rights.
Although the Court declared section 29 unconstitutional and thus unenforceable, the ruling was stayed for six months to give the province time to amend the law. Subsequently, the Legislative Assembly of Ontario revised the definition of "spouse" in section 29 to include "either of two persons who are not married to each other and have cohabited," thus applying equally to common-law partners of the same sex or different sexes. Federal criminal code law against polygamy prohibites family court recognition or sanctioning of any form of subsequent marriage(s), whilst one or both persons are married to another person.
Nevertheless, it is important to note that section 29 applies only to the provisions of Part III of the law, which deals with spousal support, child support, and child custody. This ruling did not affect the legal definition of marriage, and applies only to cohabiting partners in a common-law marriage, who have significantly fewer rights than married spouses in some areas, especially relating to division of property upon separation.
Read more about this topic: Ontario Family Law Act
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