Canadian Court Orders Retroactive Same-Sex Benefits

December 22, 2003 ( - An Ontario court has determined that the Canadian government has discriminated against same-sex couples by denying pension benefits to survivors whose partners died before 1998 - and has ordered retroactive relief for those affected by the decision.

>Ontario Superior Court Justice Ellen MacDonald ruled Friday that the federal government has discriminated against the survivors of same-sex couples by denying them benefits under the Canada Pension Plan if their partner died before January 1, 1998.   Under her ruling, those benefits will now be retroactive to April 17, 1985, when equality guarantees were included in the Charter of Rights and Freedoms.

>The decision also entitles the plaintiffs to interest on payments retroactive to February 1, 1992 – a calendar limitation that also applies to heterosexual couples, according to the Canadian Press.

>Four hundred people have registered for the class action so far, but plaintiffs’ attorneys estimate that some 1,500 gays and lesbians across are eligible for survivor benefits – at a cost of $400 million to the Canadian government (see  Trial Begins In Canadian Pension Same-Sex Survivor Benefits Case ).

Controversy Origin

>The government imposed the 1998 cutoff date when it introduced Bill C-23, which granted a variety of rights to same-sex couples in 2000.   While the court’s decision is effective immediately, the government has 30 days to appeal.   The Justice Department is reviewing the judgment, according to the Canadian Press.   “It’s not just about same-sex partners,” Justice Department spokesman Patrick Charette told the Canadian Press. “It’s about Parliament’s right to establish the date legislation becomes effective.”

>The government had contended that providing benefits retroactive to 1998 was generous, and in step with the evolving legal status of same-sex relationships.   Justice MacDonald dismissed that argument, noting “I can find nothing generous in codifying a mechanism for discrimination that has been in existence since at least the advent of the charter.”

>Same-sex unions have been a contentious topic for the federal Liberals since courts in and British Columbia allowed gays to marry in June by declaring traditional marriage laws unconstitutional (see  Border Line? ).