1. Smart, Carol & Brophy, Julia, “Locating Law: A Discussion of the Place of Law in Feminist Politics” in Brophy, Julia & Smart, Carol, eds., Women-in-Law: Explorations of Law, Family and Sexuality (London: Routledge & Kegan Paul, 1985) 1 at 1.Google Scholar

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3. Rosenberg v. Canada (A.G.), (1995), 25 O.R. (3d) 612 (Ont. Ct. Gen. Div.) at 589 per Abella, J.A.

4. Campbell, Ruth, “Sentence of Death by Burning for Women” (1984) 5:1Journal of Legal History 44CrossRefGoogle Scholar; Gavigan, Shelley A. M., “Petit Treason in Eighteenth Century England: Women's Inequality Before the Law” (1989–1990) CJWL 3:2335Google Scholar [hereinafter “Petit Treason”].

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9. Re K. (1995), 23 O.R. (3d) 679 (Ont. Ct. Prov. Div.) [hereinafter Re K. ].

10. M. v. H. [1999] S.C.J. No. 23, affd (1997), 25 R.F.L.(4th) 116; 31 O.R.(3d) 417 (Ont. C.A.), affd (1996), 27 O.R. (3d) 593 (Ont. Ct. Gen. Div.) The decision of the Supreme Court of Canada in this case was released on the day that final revisions to this paper were being done. It has not been possible to address the Supreme Court's judgment in this article, other than to note that the decisions of the lower courts were upheld, and the discriminatory restriction to the definition of “spouse” in the Ontario Family Law Act, R.S.O. 1990, s. 29, was struck down.

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18. “The Theory of the State,” Ibid. at 170.

19. Ibid. at 174.

20. “Law and Class,” supra note 12; Democracy and the Rule of Law, supra note 12.

21. Democracy and the Rule of Law, ibid. at 141.

22. See also Pashukanis, supra note 12; Thompson, supra note 15.

23. Democracy and the Rule of Law, supra note 12 at 142 [emphasis in original].

24. Ibid. at 144.

25. Ibid. at 145.

26. Ibid.

27. McBarnet, Doreen, “Law and Capital: The Role of Legal Form and Legal Actors” (1984) 12:3International Journal of the Sociology of Law 231 at 233Google Scholar [emphasis in original] [hereinafter “Law and Capital”].

28. Cain, Maureen, “The Symbol Traders” in Cain, Maureen & Harrington, Christine B., eds., Lawyers in a Post-Modern World: Translation and Transgression. (New York: New York University Press, 1994) 15Google Scholar; McBarnet, Doreen, “Legal Form and Legal Mystification: An Analytical Postscript on the Scottish Criminal Justice Act, the Royal Commission on Criminal Procedure and the Politics of Law and Order” (1982) 10:4International Journal of the Sociology of Law 409Google Scholar; “Law and Capital,” ibid.

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31. The insight that law and the state are not the centre of a centrifugal universe is, for different reasons, shared by at least one member of the judiciary. See O'Driscoll J., infra note 33.

32. See also Explorations in Law and Society, supra note 11 at 224.

33. In 1996, two pieces of litigation were undertaken in Ontario on behalf of social assistance recipients challenging in one case the newly elected Conservative government's decision by order in council to change the welfare regulations by reducing social assistance benefits by 22% (Masse v. Ontario (Ministry of Community and Social Services) (1996 ), 134 D.L.R. (4th) 20 (Ont. Ct. Gen., Div. Ct.). The second case, discussed infra, challenged the amended definition of spouse in the welfare regulations: Falkiner v. Ontario (Attorney General) (1996), 94 O.A.C. 109 (Ont. Ct. Gen., Div. Ct.). The applicants lost in both cases. In Masse, Mr. Justice O'Driscoll observed:

In this case, the applicants complain of poverty and government inaction in so far as the amount of GWAA and FBA payments are “not enough”. However, in the absence of the reduced social assistance payments, the applicants would face an even greater burden brought about by the cost of rent and food, non-governmental activity (at 41) [emphasis added].

And, at 46–47, O'Driscoll J. concluded his judicial contribution to the welfare recipients' case:

The applicants will appreciate that the court has no jurisdiction or desire to second-guess policy/political decisions. … The matter cannot be summed up any better than was done by the United States Supreme Court in Dandridge v. Williams … at p. 1162–63: “The intractable economic, social and even philosophical problems presented by public welfare assistance programs are not the business of the court.”

34. Children's Law Reform Act, R.S.O. 1990, C. C. 12, s.l(4).

35. Change of Name Act, R.S.O. 1990, C. C.7, s.3(l).

36. Vital Statistics Act, R.S.O. 1990, C. V.4, s. 10(3).

37. Explorations in Law and Society, supra note 11 at 225 [emphasis added].

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42. “Beyond Morgentaler,” supra note 12.

43. “Law and Capital,” supra note 27 at 231.

44. Ibid. at 237–38.

45. E.g. Leshner v. Ontario (A.G.). [1992] Board of Inquiry (O.H.R.C); Moge v. Moge, [1993] S.C.R. (S.C.C); Re K (1995), 23 O.R. (3d) 679 (Ont. Ct. Prov. Div.); M. v. H., supra note 10; Kane v. Ontario (Attorney General), [1997] O.J. No. 3979; Rosenberg, supra note 3.

46. E.g. Egan v. Canada, [1995] 2 S.C.R. 513 (S.C.C).

47. Eg. Andrews v. O.H.I.P.(1988), 49 D.L.R.(4th) 584 (Ont. H.C.); Canada (A.C.) v. Mossop, [1993] 1 S.C.R. 554 (S.C.C); Thibaudeau v. Canada (MNR), [1995] 2 S.C.R. 627 (S.C.C); Board of Governors of the University of Saskatchewan, University of Saskatchewan, Kirkpatrick and Stinson v. Saskatchewan Human Rights Commission, [1976] 3. W.W. R. 385 (Sask. Q.B.) [hereinafter University of Saskatchewan].

48. Ursel, Susan, “Bill 167 and Full Human Rights” in Arnup, Katherine, ed., Lesbian Parenting: Living with Pride and Prejudice (Charlottetown: Gynergy, 1995) 341.Google Scholar

49. Re K, supra note 9.

50. See e.g. Masse, supra note 33; Falkiner v. Ontario (Attorney General) (1996), 94. O.A.C. 109 (Ont. Ct. Gen. Div., Div. Ct.).

51. R.S.O. 1970, C. 128. Under this legislation, only deserted wives could seek maintenance from their husbands. A deserted wife was defined in s. 2 (2) as one who was living separate and apart from her husband due to his uncondoned adultery, cruelty, or refusal or neglect without sufficient cause to provide her with the necessaries of life. Section 2 (4) provides that no maintenance order was to be made in favour of a wife who had committed adultery. See also Saskatchewan's Deserted Wives' and Children's Maintenance Act, R.S.S. 1978, c. D-26, ss 2 (2) and s. 11 (1) for similar definitions and conditions.

52. R.S.O. 1990, c. F.8.

53. Struthers, James, The Limits of Affluence: Welfare in Ontario: 1920–1970 (Toronto: University of Toronto, 1994)Google Scholar; Little, Margaret, “Manhunts and Bingo Blabs: The Moral Regulation of Ontario Single Mothers” (1994) 19:2Canadian Journal of Sociology 233CrossRefGoogle Scholar [hereinafter “Manhunts and Bingo Blabs”]; Little, Margaret Jane Hillyard, ‘No Car, No Radio, No Liquor Permit’: The Moral Regulation of Single Mother in Ontario, 1920–1997 (Toronto: University of Toronto Press, 1998).Google Scholar

54. In Ontario, for instance, Parts I (Family Property) and II (Matrimonial Home) of the Family Law Act R.S.O. 1990, C. F.3, s. 1(1) operate with a definition of spouse as “either of a man and woman who, (a) are married to each other.”

55. LaForest J. in Egan, supra note 46 at para. 21.

56. Per Finlayson J.A. in M. v. H., supra note 10 at 433.

57. See Gonthier J. in Miron v. Trudel, [1995] 2 S.C.R. 418 (S.C.C.).

58. LaForest J. in Egan, supra note 46 at para. 25.

59. Supra note 54, s. 29.

60. E.g. Miron, supra note 57; Taylor v. Rossu, [1996] A.J. No. 918 (Alta. Q.B.).

61. Rossu v. Taylor [1998] A.J. No. 648 (Alta.C.A.), reversing in part, affirming in part Taylor v. Rossu, ibid.

62. Taylor v. Rossu, ibid.

63. Mr. Rossu appealed to the Alberta Court of Appeal, and his appeal was allowed in part (but the extension of the definition of spouse to common law spouses for the purpose of spousal support was upheld). Rossu v. Taylor, supra note 61.

64. Gavigan, Shelley A. M., “Paradise Lost, Paradox Revisited: The Implications of Feminist, Lesbian and Gay Engagement to Law” (1993) 31:3Osgoode Hall L.J. 589 at 615.Google Scholar See Family Allowances Act, R.S.C. 1985, C. F-l, s. 2(1); Immigration Act, R.S.C. 1985, C. 1–2, s. 2(1); Workers' Compensation Act, R.S.O. 1990, C. W.l 1, s. 1(1); Criminal Injury Compensation Act, R.S.B.C. 1979, C. 83, s. 1(1); Workers' Compensation Act, R.S.B.C. 1979, C. 437, s. 1; and B.C. Reg. 479/76, s. 2(18).

65. R.S.C. 1985, C. 0–9, s. 2 as amended by R.S.C. 1985, C. 34 (1st Supp.), s. 1(1).

66. There is a one year residency, public representation by the contributor of the spousal relationship, and opposite sex requirement in Public Service Superannuation Act, R.S.C. 1985, C. P-36, s. 25(4) as amended by S.C., 1992, C. 46, s. 13; Canadian Forces Superannuation Act, R.S.C. 1985, C. C-17, s. 29 (1) as amended by S.C. 1992, C. 46, s.43. But in the War Veterans Allowance Act R.S.C. 1985, C. W-5, s. 2(3) and The Pension Benefits Division Act S.C. 1992, C. 46, s. 107 (Sched. II), there is no public representation requirement, only one year residency as spouses and an opposite sex requirement.

67. The requirement of cohabitation in order to reach the ‘threshold’ of a common law relationship was fatal to the efforts of a gay man to be found to be the spouse of his same sex partner of 20 years who had died intestate (and hence entitled to the estate, or at least to an order for support as a dependent spouse): see Obringer v. Kennedy Estate, [1996] O.J. No. 3181. The evidence was that John Obringer and David Kennedy had an intimate relationship extending over 20 years, including sexual relations, holidays together, eating and meal preparation together, and in the later stages of Kennedy's illness, it appears that Obringer had been his caregiver. Their relationship was described as one of “closeness” and “exclusivity.” The men had never lived together in the same city: for the entirety of their relationship, Obringer lived and worked in Buffalo, New York; Kennedy had lived and worked in Toronto, Ontario. Obringer came to Toronto “almost every weekend,” and Kennedy frequently visited him in Buffalo. Obringer explained that “they could not live together because their employment tied them down” (para. 19). And, as gay men, they could not marry each other. It is not clear what the citizenship or permanent resident status of either men was, but here again, their sexual orientation (historically) would have precluded any form of sponsorship under Canada's immigration legislation. In the end, Obringer was held not even to have met the threshold of “spouse” (leaving aside the issue of sexual orientation), and the equality argument about the arguably discriminatory requirement of cohabitation (in the face of structural impossibility) was not made. Mr. Kennedy's only “heir at law” prevailed: the daughter of his first cousin stood to receive the entirety of his $575,000.00 estate. For a discussion of this issue in the context of homeless couples, see “Paradise Lost,” supra note 64 at 615–16.

68. M. v. H., supra note 10.

69. Buist, supra note 8; Monk v. Sjoberg [1996] S.J. No. 411 (Sask.Q.B.).

70. Re K, supra note 9; Re C.(E.G.) No. 1 and No. 2, Re, [995] O.J. No. 4072 & 4073 (Ont. Ct. Gen. Div.)

71. Egon, supra note 46 per Sopinka J.

72. Ibid. per Iacobucci J.

73. Rosenberg, supra note 3.

74. Cf Layland v. Ontario (Minister of Consumer & Commercial Relations (1993), 14 O.R. 3d 658; [1993] O.J. No. 575 (Ont. Ct. Gen. Div, Div. Ct.) where two gay men applied for a marriage license (unsuccessfully) in an attempt to challenge the heterosexual requirement of the Ontario Marriage Act, R.S.O., 1990, C. M.3.

75. Gavigan, Shelley A. M., “Feminism, Family Law and Familial Ideology: A Perilous Menage à Trois” in Luxton, Meg, ed., Feminism and Families: Critical Policies and Changing Practices (Halifax: Fernwood, 1997) 98Google Scholar [hereinafter “Feminism, Family Law”].

76. E.g. Leshner, supra note 45. Many of the early sexual orientation human rights cases were generated from the workplace and involved the struggles of gay workers to work in their chosen field. See e.g. University of Saskatchewan, supra note 47, where the late gay activist Doug Wilson (a teacher) was told by his employer that he would not be allowed to go into public schools and supervise practice teaching because he was gay (and had attempted to promote a “Gay Academic Association” at the University of Saskatchewan). The University obtained an order for prohibition to prevent the Human Rights Commission from investigating his complaint.

77. See e.g. Andrews, supra note 47; Mossop, supra note 47; Rosenberg, supra note 3; Dwyer v. Toronto (Metropolitan), [1996] O.H.R.I.B.D. No. 33. (Board of Inquiry).

78. Andrews, ibid.; Rosenberg, ibid.; Dwyer, ibid.

79. Andrews, supra note 47 at 364.

80. “Feminism, Family Law,” supra note 75 at 118.

81. “Manhunt and Bingo Blabs,” supra note 53; ‘No Cars, No Radio’, supra note 53; “Paradise Lost,” supra note 64.

82. Until recently, in Ontario, this term referred to the Family Benefits Act, supra note 52, the legislation that governed social assistance for single parents and their children and permanently unemployable persons.

83. S.O. 1997, C. 25, Schedule A.

84. Fodden, Simon, “The Family and Welfare Assistance Legislation in Canada” in da Costa, D. Mendes, ed., Studies in Canadian Family Law, vol. 2 (Toronto: Butterworths, 1972) 757.Google Scholar

85. ‘No Cars, No Radio’, supra note 53.

86. Re Willis v. Ministry of Community and Social Services (1983), 40 O.R. (2d) 287 (Ont. Div. Ct.) at 293.

87. Re Burton (1985) 52 O.R. (2d) 211 (Ont. Div. Ct.) at 223 [emphasis added].

88. Re Pitts (1985), 53 D.L.R. (3d) 512 (Ont. Div. Ct.) per Reid J. at 314.

89. Falkiner, supra note 50 at 131.

90. Supra note 52.

91. Family Benefits Act Regulations. R.R.O. 1990, Regulation 318, s. 1(1)(d)(iv), as am. by O.Reg. 589/87, s. 1(1).

92. Ibid.

93. R. v. Jantunen, [1994] O.J. No. 889 (Ont. Ct. Gen Div.) at para. 17 [hereinafter Jantunen].

94. Molodowich v. Pentinnen (1980), 17 R.F.L (2d) 376 (Ont. Dist. Ct.).

95. Jantunen, supra note 93 at para. 52.

96. Ellsworth, Randall, “Squandering Our Inheritance: Re-Forming the Canadian Welfare State in the 1990s” (1997) 12 J.L. & Soc. Pol'y 259 at 272–73.Google Scholar

97. O.Reg. 410/95.

98. Supra note 54.

99. Factum of the Applicants, Falkiner, supra note 50 at paras. 40–42.

100. Ibid. at 139–;40.

101. These figures, set out in the factum of Applicants, in fact were derived from affidavit evidence filed by the Ministry (the Respondents). I am grateful to Judith Keene, research lawyer, Clinic Resource Office, Ontario Legal Aid Plan, for providing me with this information, as well as a copy of the Factum of the Applicants.

102. Ms Falkiner, and her fellow litigants then appealed to the Social Assistance Review Board. Their case was argued in April 1997. In the late summer of 1998, the decision of the SARB was finally released. The S.A.R.B. accepted the arguments of the welfare mothers, and struck down the definition. This decision, predictably, has been appealed by the government, and is scheduled to be heard in September 1999. I am grateful to Ian Morrison, Executive Director, Clinic Resource Office, Ontario Legal Aid Plan, for sharing this information with me.

103. Falkiner, supra note 50 per Rosenberg J. (dissenting) at 138, para. 65.

104. Ibid. at para. 67.

105. Ibid. at 138–39, para. 168. In this passage, Rosenberg J. drew directly from the Factum of the Applicants in Falkiner, ibid. at 16, para. 32. In turn, the Applicants' counsel had relied in this paragraph upon affidavit evidence filed by Professor Margaret Hillyard Little of Queen's University, Kingston, Ontario, a leading expert on welfare mothers. See “Manhunts and Bingo Blabs,” supra note 53; ‘No Car, No Radio’, supra note 53.

106. Ibid.

107. Falkiner, supra note 50 per Rosenberg J. dissenting, at 135.

108. In 1980, an Ontario judge attempted to delineate “seven descriptive components involved, to varying degrees and combinations, in the complex group of human inter-relationships broadly described by the words ‘cohabitation’ and ‘consortium’: 1. Shelter (e.g., Did the parties live under the same roof; What were the sleeping arrangements); 2. Sexual and Personal Behaviour (e.g., Did the parties have sexual relations? If not, why not? Did they maintain an attitude of fidelity to each other? What were their feelings toward each other?, etc.); 3. Services: What was the conduct of the parties in relation to meal preparation, washing and mending, shopping, housework, and so on? 4. Social (e.g., what was their relationship within the community and extended family?) 5. Societal: How were they received in the community? 6. Support (economic) (e.g., What were the financial arrangements between the parties, etc?) 7. Children: What was the attitude and conduct of the parties concerning children? For the complete list of questions posed under each component, see Molodowich, supra note 95.

109. General Regulation Social Welfare Act New Brunswick, Reg. 82–227, s. 2 made under The Social Welfare Act, 1973, c. S–11.

110. Guaranteed Available Income For Need Regulations, B.C. Regulation 479/76, s. 2, as amended by B.C. Regulation 487/77, made pursuant to the Guaranteed Available Income For Need Act, R.S.B.C. 1979, c. 158.

111. Joanne Boulding, paper submitted in partial fulfilment of the requirements of Osgoode Hall Law School's Intensive Programme in Poverty at Parkdale Community Legal Services, Fall 1987 (on file at Parkdale Community Legal Services) [unpublished].

112. “The Theory of the State,” supra note 12 at 172.

113. Rosenberg, supra note 3 at para. 12; See also Kane, supra note 45 at para. 5.

114. The Constitution Act, 1982, R.S.C. 1985, Appendix II, No. 44, Schedule B, Part I, s. 15.

115. “Law and Capital,” supra note 27 at 231.

116. Supra note 10.

117. Supra note 54 at s. 29.

118. M. V. H., supra note 10 at 425, per Finlayson J.A., dissenting.

119. Ibid. at 421–22.

120. Ursel, supra note 48.

121. Re K, supra note 9.

122. At p. 684 of his judgment, the trial judge in Re K., ibid., noted that all the children had known only the respective applicants as their parents for their entire lives; each applicant had clearly demonstrated “a settled intention to treat the children involved as children of her family” (Family Law Act, supra note 54 at s. 1), and in one case, the couple had obtained a court order for joint custody.

123. R.S.O. 1990, c. C.11 [emphasis added].

124. Ibid.

125. Section 136(1) of the Child and Family Services Act provides that, for the purposes of adoption, “spouse” has the same meaning as in Parts I and II of the Human Rights Code, R.S.O. 1990, c. H. 19.

126. Ibid., s. 10.

127. Re K, supra note 9 at 682.

128. Ibid. at 683–84, per Nevins J.

129. Molodowich, supra note 94.

130. Jantunen, supra note 93.

131. One of the litigants from Re K spoke as a panellist on “Lesbian Families” at the Mothers and Daughters Conference, sponsored by the York Institute for Feminist Research, York University, 19–21 September 1997. She said that she and her partner thought long and hard about commencing this litigation, but in the end they felt they had to do it for their children, who were old enough to follow the public debate surrounding Bill 167, and who could not understand why their family was regarded as not a good home to adopt children.

132. Supra note 9 at 708.

133. In the province of British Columbia, The Adoption Act, S.B.C. 1995. 48, s. 29 allows for “one adult or two adults jointly” to apply to the court to adopt a child.

134. Smart & Brophy, supra note 1 at 1.

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