Move out and it's over, unless married 0 common-law relationships defined by cohabitation.

Hodge v. Canada (Minister of Human Resources Development)




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Legal Canada - Move out and its over, unless married

October 31, 2004

Move out and it's over, unless married
Common-law relationships defined by cohabitation

Two years ago, we noted the Supreme Court of Canada's decision in Nova Scotia v. Walsh: only married couples have a right to a 50/50 split of property upon dissolving a marriage. The 2002 judgment illustrated how same-sex couples must have access to marriage in order to have equal access to such features. Last week, another judgment further illustrated the unique features of marriage, still denied to some couples because of government inaction.

The Supreme Court of Canada determined that Betty Hodge was not entitled to the survivor's pension of her former common-law husband because she had ended the relationship and left her partner before he died. The court released its decision on October 28 in Hodge v. Canada (Minister of Human Resources Development).

"Cohabitation is a constituent element of a common law relationship," the court's decision said. "This is to be contrasted with the situation of married spouses, whose legal relationship continues to exist and who still have legal obligations to each other despite a separation, and despite any subjective intention on their part to put a de facto end to the marriage."

The ruling adds further emphasis to the differences in the rights and obligations of married and common-law couples.

The definition of "spouse" was repealed effective July 31, 2000 by s. 42(1) of the Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, and the Canada Pension Plan was amended to, amongst other things, delete the reference to a person "of the opposite sex".

"Subject to whatever provision may be made in a statute" the court said, "a common law relationship ends when either party regards it as being at an end and, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one. The respondent may have had a measure of financial dependence at the date of death of her former common law partner but she no longer had any legal relationship. While the legislature may extend the responsibility of common law spouses beyond the point where the relationship would end at common law to deal with matters such as economic dependence, Parliament has not done so in the CPP [Canada Pension Plan]."

Parliament and provinces may draw distinctions in its legislation regarding rights and obligations for relationships, without violating the Charter of Rights and Freedoms (but those distinctions must equally apply to same-sex couples).

"Of late," the court said, "legislators and jurists throughout our country have recognized that distinguishing between cohabiting couples on the basis of whether they are legally married or not fails to accord with current social values or realities. The process of modernizing the statute books to reflect that social reality is well advanced. Nevertheless, the legislature is still free to target social programs to those who, as a matter of public policy, it wishes to benefit, provided such targeting is not done in a discriminatory manner."

If Betty Hodge had been married to her allegedly-abusive partner, and then left him, without divorcing, she would still have been eligible for a survivor's pension. While gay marriage has arrived in most of Canada, same-sex couples, past and present, have been denied the protections and benefits of marriage.

"Until such time as the issue of same-sex marriage has been resolved," the court said last Thursday, "it is possible that different considerations would apply to gay and lesbian relationships in respect of a survivor's pension because, at Surviving partners seek spousal pensions (George Hislop pictured)least in the past, the institution of a legal marriage has not been available to them."

A $400 million class action is making its way through the courts to claim survivor's pensions for people that were in same-sex relationships (another rights case where justice has been delayed by Justice Minister Irwin Cotler) . Thursday's decision from the Supreme Court of Canada is yet another indicator from the court that same-sex couples must have equal access to relationship recognition and its effects.

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