Ontario Family Law Act
Encyclopedia
The Family Law Act is a statute passed by the Legislative Assembly of Ontario
in 1990, regulating the rights of spouses and dependants in regard to property, support, inheritance, prenuptial agreements, separation agreements, and other matters of family law
. In 1999, this statute was the subject of a watershed ruling in M. v. H.
by the Supreme Court of Canada
that established the equality of spousal rights for same-sex couples under Canadian law.
The law covers the following subjects relating to marriage
and common-law marriage
in the province of Ontario
:
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:
According to the Supreme Court's ruling,
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.
Legislative Assembly of Ontario
The Legislative Assembly of Ontario , is the legislature of the Canadian province of Ontario, and is the second largest provincial legislature of Canada...
in 1990, regulating the rights of spouses and dependants in regard to property, support, inheritance, prenuptial agreements, separation agreements, and other matters of family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
. In 1999, this statute was the subject of a watershed ruling in M. v. H.
M. v. H.
M. v. H. [1999] 2 S.C.R. 3, is a landmark decision of the Supreme Court of Canada on the rights of same-sex couples to equal treatment under the Constitution of Canada....
by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
that established the equality of spousal rights for same-sex couples under Canadian law.
Content
According to the Preamble, the purpose of the law is "to encourage and strengthen the role of the family; . . . to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; . . . to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children."The law covers the following subjects relating to marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
and common-law marriage
Common-law marriage
Common-law marriage, sometimes called sui juris marriage, informal marriage or marriage by habit and repute, is a form of interpersonal status that is legally recognized in limited jurisdictions as a marriage even though no legally recognized marriage ceremony is performed or civil marriage...
in the province of Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
:
- Part I--Family Property
- Part II--Matrimonial Home
- Part III--Support Obligations
- Part IV--Domestic Contracts
- Part V--Dependants' Claim for Damages
- Part VI--Amendments to the Common Law
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.M. v. H.
M. v. H. [1999] 2 S.C.R. 3, is a landmark decision of the Supreme Court of Canada on the rights of same-sex couples to equal treatment under the Constitution of Canada....
by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
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
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
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) [i.e., "either of two persons who are married to each other"], 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
Legislative Assembly of Ontario
The Legislative Assembly of Ontario , is the legislature of the Canadian province of Ontario, and is the second largest provincial legislature of Canada...
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
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
, and applies only to cohabiting partners in a common-law marriage
Common-law marriage
Common-law marriage, sometimes called sui juris marriage, informal marriage or marriage by habit and repute, is a form of interpersonal status that is legally recognized in limited jurisdictions as a marriage even though no legally recognized marriage ceremony is performed or civil marriage...
, who have significantly fewer rights than married spouses in some areas, especially relating to division of property upon separation.
External links
- "A spouse is a spouse, regardless of gender," article from The Globe and Mail, 21 May 1999, reprinted at the website of Press for Change
- "Supreme Court ruling redefines family," article from CBC News Online, 20 May 1999, reprinted at the website of Press for Change
- "Gay couples win rights," article from The Globe and Mail, 21 May 1999, reprinted at the website of Press for Change
- "Vive le Québec gai," article (in English) from The Globe and Mail, 22 May 1999, reprinted at the website of Press for Change