Originally published in TEACH Magazine, Equal Love, Equal Rights: 25th Anniversary of the Modernization of Benefits and Obligations Act Special Issue, 2026
By Carolyn Gruske
Equality seems like an easy concept, especially in Canada, with its Charter of Rights and Freedoms. Achieving equality, however, and enshrining it in both the law of the land and the general societal consensus hasn’t always been a foregone—or even welcomed—conclusion. It has often taken court cases and considerable efforts by determined individual litigants and dedicated legal professionals to bring issues of inequality to the fore.
That was certainly the situation 25 years ago, before same-sex couples across the country finally gained the same rights and protections as their heterosexual counterparts under the Modernization of Benefits and Obligations Act.
In Canada, homosexuality had been decriminalized since 1969. And by 1982 the Charter was enacted (including its notable Section 15, which prohibits “discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability”)—yet at the turn of the century, same-sex committed partnerships still weren’t recognized under the law.
Even if they lived together and shared a life, same-sex couples were seen as little more than roommates. They didn’t qualify for spousal benefits under pension or insurance plans, and couldn’t file for tax deductions created for married or common-law couples. In the case of a break-up, there was no legal way to split up joint assets under provincial family law provisions.
It was that final scenario, the dissolution of a same-sex relationship, that eventually led to the Modernization of Benefits and Obligations Act, following a case known as M. v. H. after the anonymized names of the parties involved.
M. v. H.
Today, Martha McCarthy is the founding partner of the law firm McCarthy Hansen & Company, but in 1992, she was at the beginning of her career, having just completed her first full year as a lawyer at a major Toronto firm. Still with a lot to learn, she was completely unaware of what the future had in store when she booked a meeting with a client looking to obtain spousal support payments after a breakup.
McCarthy recalls the case—a referral through a family connection—where the client avoided using gendered language during a lengthy consultation. The client’s consistent use of neutral terms like “this person” and “my partner” stood out, as it appeared to be a deliberate effort to withhold the nature of the relationship. Only at the very end did she clarify that it was a same-sex relationship—something McCarthy had already deduced well before the reveal.
The woman, M., told McCarthy that she lived in her partner H.’s house. The two of them owned a business together where H. was the face of the company, while M. worked in the back office.
“When they broke up,” says McCarthy, “the other woman put my client’s clothes in garbage bags on the back porch… and kicked her out of the house. At the end of my meeting with her, I said: ‘Family law doesn’t know who you are.’”
The family law court in Ontario did not want to touch a case involving two women, causing serious hurdles in McCarthy’s efforts to file a lawsuit, but she eventually got the case on the docket with a trial scheduled in the Ontario Court (General Division) before Justice Gloria Epstein. Having only been recently appointed to the bench, Justice Epstein was very much a new and untested judge.
The Family Law Act
By the time the case was finally heard in 1996, there had been a political flip in Ontario. The province voted the New Democratic Party out of office and elected a Progressive Conservative (PC) government instead. This meant that the government, through the attorney-general’s office, would be intervening in the case—a legal term meaning they formally entered proceedings to support H.’s side.
This wasn’t an action the government needed to take. It could have stayed out of the case completely, but the PCs knew that the expansion of rights for same-sex couples—let alone even the slightest nod towards gay marriage—was something that its voters expected the newly elected government to fight against.
Despite the government’s intervention and a very experienced and successful lawyer representing H., McCarthy’s client prevailed, with Justice Epstein ruling in her favour. Among a number of legal arguments made during the trial, questions were raised under Section 15 regarding the constitutionality of Ontario’s Family Law Act not recognizing same-sex couples in the same way it did unwed common-law couples.
“The intellectual trick of the case was that we did not say unmarried same-sex couples (who didn’t have the right to marry at the time) should be treated the same as married people in family law,” says McCarthy. “In Ontario, we already had a two-tiered family law system in which married people divided assets and had support obligations they could come to the court and ask for. Unmarried people had spousal support rights and obligations only.”
As she explains, “The argument was: ‘Treat us like them. You know, those people that are living in sin that you guys think shouldn’t get a whole loaf. Just give us the same as them.’ And that is how we won the case. Because every time anybody asked, ‘Isn’t this about gay marriage?’, we would say, ‘Absolutely not. This case has nothing to do with marriage. This case is about unmarried people, who in Ontario have had very robust rights and obligations since the ’70s.’”
This approach made perfect sense to Justice Epstein, who is now retired from the bench and is working as a mediator and educator. She admits that because the argument was “so logical,” she didn’t fully grasp the significance of the case when it was first put in front of her.
“I wasn’t exactly experienced in constitutional law, and nor was I particularly experienced as a judge. I was experienced as a human being, and… it didn’t make any sense to me that people would be treated differently in terms of their access to certain rights under the Charter because of their sexual orientation. That was the perspective from which I approached the case,” Justice Epstein says.
“That’s not to say that I’d made up my mind in advance,” she adds. “I was prepared to listen to rational, logical, and supportable legal arguments. But from the perspective of what was fair and right, it didn’t make sense to treat people differently based on their sexual orientation. And when you realize the number of laws that were affected by this differential treatment, it was extraordinary.”
Unfortunately for Justice Epstein, not everybody felt the same way. She recalls being “castigated” by newspaper columnists and writers, but that wasn’t the worst of the reactions. “I had death threats and stupidity like that. Some people got really upset about it,” Epstein says.
Nevertheless, when it came to those who really mattered—judges presiding over higher courts—her ruling and reasoning earned a much better reception. Upon hearing the case, the Court of Appeal for Ontario agreed with Justice Epstein’s interpretation of the law in a two-to-one ruling. From there, the case made its way to the Supreme Court of Canada.
By that point, M.’s side had picked up allies who also argued before the court in support of M.’s position. One of them was LEAF, the Women’s Legal Education and Action Fund. The organization’s lawyer, Carol Allen, recalls the intimidating prospect of appearing before the highest court in Canada during this landmark trial.
“It was very daunting, [but] it was an incredible experience to be there just as counsel—never mind to be part of such a case that was going to, at the time, be precedent setting,” Allen notes. “Certainly, as a lesbian arguing this, I had a very personal interest in getting it right and being successful.”
It took a while for the Supreme Court to hear the case and then issue a final verdict, but in 1999, by an eight-to-one ruling, the court reaffirmed and upheld Justice Epstein’s original decision. As a remedy, the court also issued a notice that the Ontario government had six months to revise the Family Law Act to treat all common-law spouses the same, whether they were same-sex spouses or heterosexual spouses.
Justice Epstein calls the Supreme Court’s ruling “very reassuring” and describes the impact of the decision: “It changed hundreds and hundreds of laws—whether it was divorce laws or support laws or death benefits, you name it—to the benefit of this country. And not just within this country, but also how [our] laws [have been] regarded by other countries since then.”
The Modernization of Benefits and Obligations Act
With its hand forced by the court, the Ontario government passed a piece of omnibus legislation that affected 67 separate statutes in order to address the issues called out by the Supreme Court of Canada. However, the government made its opposition to the law clear. Bill 5 (as it was known before being adopted by the legislature) was titled the Amendments Because of the Supreme Court of Canada Decision in M. v. H. Act, 1999.
These changes in Ontario were the first of many more to come. Other provincial governments in Canada realized they needed to update their laws as well, or they’d also be running afoul of the Supreme Court.
While the Ontario government intervened on M. v. H., the federal government did not. The Honourable Anne McLellan was the federal minister of justice and attorney general when the case was working its way through the court system. According to her, the attitudes towards same sex couples were shifting, and the government recognized this.
“By 2000, what we would describe as the gay and lesbian movement was certainly becoming more politically active, and it had been for some time. The courts, under the Charter of Rights and Freedoms, were becoming more active as well, in terms of taking seriously the commitments in Section 15 to equality under the law,” McLellan explains. “There was a lot happening at the time and pressure was growing on governments at all levels, but especially the Government of Canada to at least establish equality between common-law couples of both the opposite and same sex.”
To address that disparity in rights, McLellan introduced Bill C-23, the Modernization of Benefits and Obligations Act. The changes in the Act extended benefits and obligations to same-sex common law couples and updated 68 federal statutes, including the Income Tax Act, the Canada Pension Plan, and the Old Age Security Act.
Prime Minister Jean Chrétien was a proponent of Bill C-23, and McLellan says that she can’t recall any pushback by members of the cabinet. But that doesn’t mean all the Liberal members of parliament were completely behind it.
“We actually had to deal with opposition within our caucus,” McLellan notes. “The Minister of Finance—Paul Martin—myself, and the minister of human resources held a special meeting of the Liberal caucus. I remember one evening talking people through the Modernization of Benefits Act, what it did and didn’t do.”
While the Act did pass in the House of Commons by a vote of 174 to 72, there were Liberals who voted against it.
Marriage
Throughout the M. v. H. case and the creation of the Modernization of Benefits and Obligations Act (and other similar provincial legislation), one stance was made very clear: same-sex marriage was not part of the discussion—only common-law same-sex relations were being discussed. And while that was technically true, it wasn’t the full truth.
As McLellan recalls, there were politicians who were upset that the new law didn’t take marriage into account. She specifically names Liberal Bill Graham and the NDP’s Svend Robinson (the first openly gay Member of Parliament). And while McLellan was sympathetic, it was a step she said the government couldn’t take in part because society didn’t seem ready to accept that change.
“In politics, if you’re the government, quite honestly, sometimes you take what you can get. What we could get in the year 2000 was an extension of benefits to same-sex common-law couples,” McLellan says. “Had we pushed for a redefinition of marriage at that time, we would not have been able to pass this legislation through the House. I am quite convinced that we would have lost this bill in our own caucus.”
In McCarthy’s mind, marriage was always on the table as part of a bigger, wider plan. It was just something that couldn’t be talked about too early.
The case that finally earned gay marriage acceptance in the courts (and by extension, Canadian governments) was Halpern v. Canada in 2003. It was set in motion when the City of Toronto failed to issue marriage licences to seven gay and lesbian couples who wanted to wed. At the same time, the city also failed to recognize two same-sex marriages performed by a Christian church.
McCarthy and her legal partner represented the applicant couples.
“Halpern is the first court decision in the world calling for equal marriage for same sex couples,” she says. “At the time that the Court of Appeal released Halpern in 2003, there were two other jurisdictions that were already doing same-sex marriages, but they did it voluntarily by legislative amendment: Denmark and Sweden. Canada was third, but the Ontario Court of Appeal decision is the first in the world to require it as a constitutional imperative and to write that marriage is a fundamental right and freedom.”
After that, McCarthy says, decisions dealing with same-sex marriage in the United States wound up quoting the Canadian judgment. “And Americans never quote Canadian cases,” she adds.
Even today, other countries are looking at Canada’s approach to same-sex rights. Justice Epstein, for example, travelled to Ukraine to teach a course about same-sex benefits in light of the Russian invasion. She explained that since Ukraine doesn’t currently recognize same-sex partnerships, partners of soldiers killed in battle are unable to claim survivor benefits.
Other Cases
Just because same-sex couples were able to claim benefits and eventually get married, that didn’t mean all the legal issues were dealt with. There were still battles left to fight. But although some of the fights were long and hard and took years to accomplish, eventually they prevailed.
The Modernization of Benefits and Obligations Act, for example, had a cut-off point baked into it for members of same-sex couples to claim survivor benefits under the Canada Pension Plan. The 2004 case of Hislop v. Canada challenged that limitation and won surviving spouses the right to claim those long-lost benefits.
Other court battles led to the names of both same-sex parents being listed on birth certificates, the opportunity for multiple-parent adoption, and eventually the creation of Ontario’s All Families Are Equal Act, which “recognizes the legal status of all parents, whether they are LGBTQ2+ or straight, and whether their children were conceived with or without assistance.”
“Every single one of those [decisions] comes from M. v. H.,” says McCarthy, “and M. v. H. is built on the steps of ten other cases. We all stand on the shoulders of freedom fighters who came before us.”
The Fearlessness of Youth
Despite how far we’ve come, there are still contributions to be made by people entering the legal profession today. For example, McLellan points out that while there have been strides made in solidifying transgender rights, there is still work to be done in that area. The same with Indigenous rights. And there is nothing stopping young lawyers from taking up these tasks.
In fact, being young and fearless might actually be an advantage, explains McCarthy. “I’m 59 years old, and sometimes I say, if you brought me the gay marriage case today, I would tell you it would be hard to win,” she admits. But back then, she was “just determined to win. I was young and blindly driven,” McCarthy adds. “Take no prisoners.”
Epstein also believes there are plenty of opportunities for young people to really make a mark in the legal world.
“As old and cranky as I am, I’m still so lucky to be involved in the legal profession,” she says. “Because no matter what aspect of the profession you’re in, no matter how long you’ve been in it, you’ve got so many opportunities to make a contribution to society, and that’s such a privilege.”
Carolyn Gruske is an award-winning reporter and magazine editor. She often writes about the intersection of business, technology, and the law, but she also has a deep interest in educational topics.
