## Facts

- Two women, M. and H., were in a same-sex conjugal relationship beginning in 1982 and cohabited in a home owned by H.
- They agreed to share living expenses and household responsibilities and jointly pursued economic activities, including an advertising business and later jointly held properties.
- After a downturn in the business and increased debt, H. took outside employment and secured a mortgage on her home to cover expenses for both partners.
- The relationship deteriorated, and M. left the home in 1992.
- M. sought, among other relief, spousal support under Ontario’s *Family Law Act* (FLA).
- Section 29 of the FLA extended spousal support obligations to certain unmarried “man and woman” cohabitants, thereby excluding same-sex couples.
- M. challenged s. 29 as unconstitutional under the equality guarantee of the *Canadian Charter of Rights and Freedoms*.

## Issues

1. Whether s. 29 of the FLA, by granting spousal support rights to unmarried opposite-sex couples but not same-sex couples, infringes Charter s. 15(1) equality rights.
2. If there is an infringement, whether it is justified under Charter s. 1 as a reasonable limit.
3. What remedy is appropriate for any unconstitutional exclusion in s. 29.

## Decision

- The Supreme Court held that s. 29 violates Charter s. 15(1) by discriminating on the basis of sexual orientation.
- The Court held the violation was not justified under Charter s. 1.
- The Court declared s. 29 to be of no force or effect, with the declaration suspended for six months to permit legislative action.
- The Attorney General’s appeal and M.’s cross-appeal were dismissed, subject to the Court’s modification of the remedy.

## Legal Principles

- Sexual orientation is an analogous ground under Charter s. 15(1), and laws that exclude same-sex couples from statutory benefits may constitute discrimination.
- A statutory distinction that denies a benefit or imposes a burden in a manner that perpetuates historical disadvantage and signals lesser social worth can violate equality rights.
- Where a law’s purpose is to protect economically vulnerable partners on relationship breakdown, excluding same-sex partners from that protection is inconsistent with the law’s protective objective and fails proportionality under Charter s. 1.
- Remedies for unconstitutional underinclusion may include a declaration of invalidity, and courts may suspend the effect of invalidity to allow the legislature to design a coherent response within the broader statutory scheme.

## Conclusion

The Court invalidated Ontario’s exclusion of same-sex cohabitants from a spousal-support regime available to opposite-sex common-law couples, finding discrimination under Charter equality rights and suspending the declaration of invalidity to permit legislative correction.


M. v. H., [1999] 2 S.C.R. 3 (Can. 1999)