M. v. H., [1999] 2 S.C.R. 3, 1999 CanLII 686 (SCC) : Conjugal Relationship Factors and Recognition of Same-Sex Relationships

M. v. H. is a landmark Supreme Court of Canada decision concerning the legal recognition of same-sex conjugal relationships. The case arose from a dispute between two women in a long-term relationship and involved the constitutionality of Ontario’s Family Law Act, which at the time extended certain spousal support rights to opposite-sex common-law couples but excluded same-sex couples.

For Canadian immigration law, the case is particularly important because the Supreme Court described the generally accepted characteristics of a conjugal relationship and emphasized that the assessment must be flexible, because relationships can take many different forms.

Background

M. and H. were two women who had been in a long-term same-sex relationship. Following the breakdown of their relationship, M. sought spousal support under Ontario’s Family Law Act.

The legislation defined a spouse in a manner that excluded same-sex partners. M. challenged this exclusion under s. 15(1) of the Canadian Charter of Rights and Freedoms, arguing that the legislation discriminated against same-sex couples.

The Supreme Court ultimately found the exclusion unconstitutional.

Key Principle

The Supreme Court recognized that a conjugal relationship is not determined by a single factor and does not require a couple to replicate the traditional model of marriage.

At paragraph 59, Justice Cory identified the generally accepted characteristics of a conjugal relationship, derived from Molodowich v. Penttinen:

1.      Shared shelter

2.      Sexual and personal behaviour

3.      Services

4.      Social activities

5.      Economic support

6.      Children

·         Societal perception of the couple

Importantly, these characteristics may exist to varying degrees, and not all factors are necessary before a relationship can be characterized as conjugal.

Court Findings

• Conjugal relationships must be assessed flexibly

The Court rejected a rigid definition of conjugality. Relationships differ significantly from one couple to another, and therefore courts must examine the particular circumstances of the relationship rather than requiring conformity with a traditional marital model.

• No single factor is determinative

The presence or absence of sexual relations, children, shared accommodation, financial interdependence, or another individual factor does not automatically determine whether a relationship is conjugal.

The factors must be considered collectively and in context.

• Traditional marriage is not the exclusive model

The Court expressly recognized that neither opposite-sex nor same-sex couples must precisely replicate the traditional characteristics of marriage to establish a conjugal relationship.

Thus, the concept of conjugality is broader than simply asking whether two people are legally married or whether they satisfy every traditional feature of marriage.

• Application to Canadian immigration

Although M. v. H. was not an immigration case, its description of conjugality has subsequently been relied upon in Canadian immigration jurisprudence when determining whether a relationship qualifies as conjugal.

The Federal Court and immigration decision-makers have used the M. v. H. factors when assessing whether a couple has developed the level of intimacy, interdependence and commitment characteristic of a conjugal relationship.

Outcome

The Supreme Court dismissed the appeal and cross-appeal, holding that the exclusion of same-sex couples from the relevant spousal-support provisions violated s. 15(1) of the Charter and could not be justified under s. 1.

Immigration-law takeaway

For conjugal partner sponsorship, M. v. H. is a foundational authority for the proposition that:

Conjugality is assessed flexibly and holistically; the relationship need not perfectly resemble a traditional marriage, and no single factor is indispensable.

The seven M. v. H. factors are therefore highly relevant when assessing whether a couple has a genuine conjugal relationship, particularly in conjunction with later immigration authorities such as Leroux v. Canada (Citizenship and Immigration), 2007 FC 403, and Haer v. Canada (Citizenship and Immigration), 2020 FC 530.

Case Citation:

M. v. H., 1999 CanLII 686 (SCC), [1999] 2 SCR 3