JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, March 2, 2000

• 0936

[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): I call this meeting of the justice and human rights committee to order, and we are continuing hearing witnesses on Bill C-23, an act to modernize the statutes of Canada in relation to benefits and obligations.

We have today as witnesses the Evangelical Fellowship of Canada, represented by Dr. Janet Epp Buckingham, and Focus on the Family, represented by Jim Sclater, director of public policy, and Derek Rogusky, researcher.

As you are aware, I'm sure, the format for this exercise is that each group has 10 minutes to make a presentation, and that will be followed by a dialogue with the members who are present. So we'll begin then with the Evangelical Fellowship of Canada for 10 minutes. Thank you.

Dr. Janet Epp Buckingham (Acting Director, Centre for Faith and Public Life; General Legal Counsel, Evangelical Fellowship of Canada): For those of you who are unfamiliar with the Evangelical Fellowship of Canada, it is a national association of evangelical Christians. Our members include 32 denominations, over 100 religious organizations, many churches, and individual members. It is estimated there are three million evangelical Christians in Canada. I understand there's a mistake in our brief, which indicates there are only three evangelicals. I apologize for that error; it should be three million, of which we estimate 1.2 million are affiliated with EFC member institutions.

I wish to take the opportunity to thank the justice committee for our being able to come and express our concerns regarding Bill C-23.

Our first concern is with the haste to pass the bill. While we are pleased the committee has extended the original one day of hearings to four days, we still recommend that hearings be extended and that a greater degree of public participation be invited. We feel Bill C-23 makes some fairly major social changes in Canada, and greater public participation would assist in this process.

The EFC is also pleased with what the bill does not do. It does not purport to change the definition of “marriage” as being between a man and a woman, nor does it change the definition of “spouse” as pertaining to married spouses. Thus in nomenclature at least, marriage is not affected by the legislation. The EFC does have several concerns with what the bill does do, however.

There are historical reasons for extending benefits to spouses. The original reasons were to protect spouses, particularly wives, who were more vulnerable and likely to be economically dependent upon their husbands because of their child-rearing activities and unequal earning power. The unequal earning power continues to the present day.

Secondly, it is the primary relationship by which children are procreated, and therefore carries the burden of raising and nurturing children. Some of the benefits and obligations pertaining to married spouses were also extended to partners in common-law relationships because they were analogous to married spouses in both the areas I've mentioned.

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In provincial law, the requirements to qualify for benefits are conjugality, coupled with cohabitation for a certain period of time—usually two or three years—or a child of the relationship. This child category was a kind of automatic buy-in to rights, obligations, and benefits because this was the very type of relationship the benefits were intended for.

The particular range of obligations and benefits were afforded to spouses because of their distinctiveness when compared to other forms of domestic relationships. Speaking for the majority, in Egan, Justice La Forest wrote:

...viewed in the larger context, then, there is nothing arbitrary about the distinction supportive of heterosexual family units.

It is the social unit that uniquely has the capacity to procreate children and generally cares for their upbringing, and as such warrants support by Parliament to meet its needs. This is the only unit in society that expends resources to care for children on a routine and sustained basis.

The basis of benefits was therefore not the sexual aspect of the relationship, but the emotional and economic interdependence and the likelihood of procreating and raising children.

The requirement of conjugality to qualify as a common-law partner, therefore, is not only unwise but is an unacceptable criterion in Bill C-23. As sexual intimacy between same-sex couples is not procreative, there is no justification for this being the qualification or requirement for benefits. The most egregious problem with the definition of “common-law partner” is that it requires the government to ask individuals and couples to declare whether they are sexually intimate. This is a gross intrusion into privacy.

There is also a strong argument that the requirement of conjugality as the basis for extension of benefits is discriminatory under section 15 of the charter. The Supreme Court of Canada has found that marital status and sexual orientation are analogous grounds of discrimination. The federal government's refusal to include domestic relationships, such as two sisters living together, or two unmarried women or unmarried men who live together as domestic partners but have a platonic relationship, is discriminatory both on the basis of marital status and on the basis of sexual orientation.

We argue that all non-marital, economically interdependent relationships are equally deserving of legal structures to address their particular needs. A couple like the fictional brother and sister, Matthew and Marilla Cuthbert, in Anne of Green Gables would be excluded from benefits under Bill C-23, even though they're a man and a woman who live together, have adopted a child, and are therefore the beloved parents of Anne. They would be excluded from benefits under Bill C-23, even though to outsiders they may look like a happy family who many people in the community might even think were married.

There are many domestic relationships that are deserving of protection, and I've mentioned some. Others may include an elderly parent and an adult child who cares for that parent.

The majority of Canadians agree with de-conjugalizing benefits. The Angus Reid poll commissioned for Justice Canada dated June 23, 1999, indicates that 57% of Canadians say they would support a shift away from spouse-like relationships as a basis for benefits and obligations to a definition based on dependency and need. This is what we are advocating in this situation.

If this committee recommends that this bill pass without amendments to include non-sexual domestic partners, it will be granting benefits on the basis of sexual activity. This is clearly discriminatory and inappropriate. In the sense that it promotes sexually intimate domestic partnerships outside of marriage by granting them legitimacy in government benefits, it does affect marriage.

My second point is with respect to the period of cohabitation. Bill C-23 defines “common-law partnership” as the relationship between two persons who are cohabiting in a conjugal relationship for a period of at least one year. If one is looking for evidence of commitment in a relationship, one year's residence does not seem adequate to establish evidence of a long-term relationship and commitment.

I recognize that some of the benefits at the moment under the current common-law spouse category use either 12 months or one year. But where these benefits are now being extended to a broader category of people, I think it's time to revisit this period of cohabitation.

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In addition, this one-year period of cohabitation could result in conflicts with provincial law. Much of provincial law requires either two or three years of cohabitation, and I think one could recognize that where that is true in different provincial jurisdictions, one could end up with conflicting rights created.

Also, as there is a requirement under the Divorce Act that the couple live separate and apart for a one-year period before being eligible to commence divorce proceedings, and the one-year period is barely sufficient to commence divorce proceedings, it is therefore possible that there'll be outstanding division-of-property issues under provincial family law legislation, and there will be conflicts under the Divorce Act as there may be a common-law partner as well as a still-married spouse.

I would particularly draw your attention to subsection 44(3) dealing with the Canada Pension Plan, where the common-law partner, if there is one, has priority for survivor benefits, and if there is a still-married spouse and yet-to-be-determined division-of-property issues, this could create some conflict.

The EFC recommends that the cohabitation period be extended to three years.

My last point deals with the importance of marriage. There's quite a bit more material in my brief than what I'm going to address here, but I will just say that an ongoing Statistics Canada survey, the national longitudinal survey of children and youth, in which 23,000 children were tracked from infancy to 11 years, reports that 20.4% of all births in Canada in 1993-94 were in common-law unions, double those of 10 years before. The study says the children born to parents who are married and have not lived in common-law union beforehand are approximately three times less likely to experience family breakdown. This study clearly ties common-law relationships with family breakdown, and indicates that if the parents are married, they are less likely to break up.

I would, therefore, urge that marriage be considered a special category and given priority so that parents in Canada are encouraged to marry. If all the rights, benefits, and obligations of marriage are extended to non-marital unions, it would seem that people will be less inclined to marry.

In a sense, it's like front-end load or back-end load mutual funds. Common-law partnerships require a front-end load—you have to live together in a common-law union for one year before the benefits kick in—but there's no back-end load on it. You can walk out the door and the relationship is ended.

Whereas with marriage, there's no waiting period particularly to get in, other than the time period required for a licence, but there is the one-year period to get out of the relationship, the one-year period of living separate and apart. It may be that many couples will choose the front-end load so that they will be able to terminate the relationship with a minimum of fuss and bother, and that this legislation will encourage people to live in common-law unions, which Statistics Canada indicates are clearly, very clearly, leading to the breakdown of the family.

The problem with the breakdown of the family is that children really suffer from the breakdown of parental relationships. They are much more likely to suffer social problems, emotional problems, and problems with school. So we would encourage you, for the benefit of Canadian children, to be encouraging marriage.

In conclusion, the Evangelical Fellowship of Canada is pleased that “marriage” and “spouse” have not been redefined in Bill C-23. Our concerns and recommendations, however, are that there should be broader public consultation on the bill; that the requirement of conjugality is erroneous, inappropriate, and discriminatory, and should be changed to economic and social interdependency; that the period of one year to meet the cohabitation requirements is too short and should be extended; and that marriage is the best foundation for families and the raising of children.

This should be reflected in law by marriage having a unique status including special benefits and privileges. Marriage, I would recommend, should be defined in this statute or in another statute as being between a man and a woman so that it is legislatively clear that marriage is not being changed or threatened by this legislation.

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Thank you.

The Chair: Thank you very much.

We'll now turn to Focus on the Family.

Mr. Jim Sclater (Vice-President, Public Policy, Focus on the Family (Canada) Association): Thank you, Mr. Chairman, members of the committee.

I'm presenting on behalf of the Focus on the Family (Canada) Association. We're a charitable organization built on Christian principles, which supports, encourages, and strengthens the Canadian family. We have a variety of programs and resources for parents, grandparents, and children.

We've been concerned for the past dozen years or so, shortly after we were founded in our country, about the erosion of the basic institutions in our society.

We have appeared before this committee on previous occasions and before several other committees, both in the House of Commons and the Senate, and we've asked committee members to support, rather than erode, marriage and the family. We believe marriage, and therefore family, is threatened when government affirms alternative arrangements that change the historic concepts of these most foundational units in our culture.

Focus on the Family regularly mails its material to 160,000 households across the country. We have a listening audience to our radio programs of several hundred thousand per week, and these programs air on over 100 outlets all across the country. We've been hearing from many of them of their concern about Bill C-23.

From our point of view, Bill C-23 sends a signal that this government no longer has the goal of upholding and enhancing marriage. It is telling the world that marriage is no longer Canada's priority. It lays the grounds for a challenge to the discrimination that is still there. This already has been pointed out by many. The one-year requirement to qualify is a discrimination. The lack of being able to be called “spouse” or “married” is discrimination. Apparently, the lack of having the divorce laws is a discrimination, according to the justice minister.

We believe we should have discrimination in our society. We do it with regard to age and to qualifications for various things in our country. But it should be especially with regard to the building block and social glue of society, which is marriage.

The bill does these things: it bases benefits on the ill-defined, intrusive, and inappropriate term “conjugal”, which in its origins was derived from the term “husband and wife”. The bill also enlarges the category of common law, which is a very problematic category for our society. Derek Rogusky, our researcher, is here, and he has some statistics in that regard that you may want to question him about.

This is not the way to create stability and a positive environment for children. Focus on the Family has a great concern for the children of our nation, and we believe this will be detrimental to them. The common-law category itself has created problems, such as the fact that by age 10, 63% of children in common-law relationship families have experienced the breakup of the family unit. The bill does not have the best interests of children at heart.

It is driven by a right-centred agenda that has gone too far. Governments should be working to reverse the trend to instability and breakdown, not feeding it by diluting the emphasis on committed, legal marriage.

Two years ago at our Ottawa Conference on the Family, our twelfth such event, a document was drafted called the Declaration on the Canadian Family. I'll read brief excerpts from it:

1. The family is an institution ordained by God and rooted in human nature. It exists to satisfy the longings of the human heart to give and receive love, to propagate the human race, and to provide a safe and secure environment in which to nurture, teach and love children.

2. The family is society's fundamental social unit...

3. A family is based on the lifelong covenant marriage of a man and woman...

Jumping down to point five in the declaration:

5. We in Canada need to protect the family from those in society who, whether for social or political reasons, seek to undermine it, change its definition, or diminish its importance.

I quickly jotted down some of the ramifications I can see, and I'll just insert them here.

It will weaken the marriage category. There's no question about that. We believe that will lead to less marriage formation, which is not reversing the trend, as we should be. Young people will be confused about matters of sexuality and family formation. Young people will be educated within the education system about the fact that they must believe this is what tolerant Canada believes. We think that goes counter to a great many things, not the least of which are the conscience and religious sensibilities of a great number of our citizens.

I think we will look back at this brief time period as a swing of the pendulum away from the larger social causes of the family; morality; and, above all, marriage. This period, I believe, will be seen as an aberration, a time when the social fabric was torn and tattered, but not irreversibly, I believe.

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We call on the government to look at the broader picture and at the future their policies are forcing into present reality. This bill is not modernizing our policies and laws. It is deconstructing our fundamental social units: marriage and the family.

The government's rationale, as we are told by the justice minister and others, is that we're just catching up with the Canadian public on this. We don't believe that is true. There remains a solid majority who want to protect marriage as a favoured institution and a smaller but very solid one-third of the population who are strongly opposed to eroding marriage in any manner and giving away its benefits to other arrangements. Those are the facts that I think the government has not taken fully into account.

The government also tells us the courts are making us do it, but there is no decision of the Supreme Court of Canada that has asked this government to move this far. The court has recognized the value of upholding marriage as a favoured institution and has acknowledged that it has always been that and should remain so for its procreative and nurturing role in society.

Dr. Darrel Reid, Focus Canada's president, stated in his news release of February 11 in this matter:

If this bill passes into law, marriage will for the first time be defined by ideology—not biology. Make no mistake about it. This proposed law strikes at the root of our legal, cultural, social and moral traditions. It represents a fundamental attack on marriage and the family as special institutions in Canada.

He went on to say it's obvious that the government in Ontario is doing as the federal government is: “...they gutted completely the meaning of `spouse' and `marriage”'.

Dr. Reid also called for national public consultations on the bill. He said:

Such profound changes demand that Canadians be given ample opportunity to express their views directly to MPs before it comes to a vote.

Canadians who cherish the natural family, and polls consistently show that the vast majority still do, must tell the government in the strongest terms that they reject this legislation. They need to contact their MPs today on this issue and urge them to defeat it.

In concluding, I would say that the whole debate about extending benefits and obligations needs to be revisited. There may be an appropriate way to extend benefits to those in true economic and social interdependencies without stripping marriage of all but its name. How ironic it is that the only thing left to marriage, if this bill succeeds, is a set of laws telling us how we can get out of it, the divorce laws.

So, firstly, we ask the government to withdraw the bill. Go back to the drawing board. Acknowledge that public opinion specifically on this bill is overwhelmingly against it.

Secondly, we ask that the hearings be rescheduled and that there be a whole new consultative process after withdrawing the bill. We need to hear from sociologists and other experts, average Canadians, and the religious community. We said in an urgent alert to those on our mailing list that this bill disregards the deeply held beliefs of millions of Canadians, including Christians, Jews, Muslims, Sikhs, and many other faith groups.

Canadians who find the homosexual lifestyle offensive and who morally object to gay marriages and adoptions will be forced to support these relationships through their tax dollars. Private citizens and organizations, regardless of their religious or moral beliefs, may be forced to provide benefits to homosexual couples.

Thirdly, we would suggest very strongly that the government simply put the definition of marriage into federal statute. Regardless of whether they take our strong advice to withdraw and to extend the consultations, marriage must be affirmed as it was in the marriage motion not many months ago in the House of Commons. We're told this is difficult, but we are told by many that this is not impossible, and it is important to do.

Fourthly, we would suggest that we get rid of basing benefits on the idea of sexual/conjugal behaviour that is self-reported, ill-defined, and intrusive, regardless of what the government does.

Thank you very much for your attention.

The Chair: Thank you very much. It's obvious that you've done this many times before. You were right on the 10 minutes.

We'll now turn to Mr. Lowther for seven minutes.

Mr. Eric Lowther (Calgary Centre, Ref.): Thank you, Mr. Chair. I hear the timer starting, so I see that we're being right to the second here.

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To the witnesses, I guess I'd like to start by saying that it's my understanding that there have been some changes to common law in this legislation. To bring some clarity to this, we talk about extending common-law benefits to same-sex couples, and yet when I look at the bill it appears to me we've actually moved common law closer to marriage and then extended all the benefits of common law to same-sex couples.

Is there any distinct social policy left, if this bill goes ahead, for marriage? Is there any distinct social policy left here? It seems to me this is more extending every social benefit and obligation that marriage has to same-sex couples who live together for a year.

Mr. Derek Rogusky (Researcher, Focus on the Family (Canada) Association): During our analysis of the bill, yes, we found, as Jim has mentioned, that with the exception of the divorce laws and also the immigration laws, which, we understand, are expected to also be brought forward with some changes, there is really no distinction except for the one-year waiting period. In other words, once you're married, these benefits are available to you, whereas in a common-law relationship you would have to wait a full 12 months.

Mr. Eric Lowther: I guess that works on the exit side as well. I mean, in this relationship, if it's same-sex, I can move out, but if I'm married, I actually have to go and get a divorce, right?

Mr. Derek Rogusky: One of the interesting things about Bill C-23 is that there is the potential for you to actually have a spouse and a common-law partner at the same time. Some acts that would be changed give the nod towards the current common-law partner over the spouse. Technically, as you're waiting for a legal separation or that type of thing, you could still have a spouse and he or she may be denied some of the benefits they would normally have had under this.

Mr. Eric Lowther: I also look at the bill and at the term “related persons” in clause 9 and “family” in clause 134. I see that those two terms have now been changed by Bill C-23. Before, family and related persons were defined as being an offspring of a parent or being married or related by blood, marriage or adoption. Now we've changed related person and family to those I mentioned but also to people of the same sex who live together for a year.

Can you comment on that?

Mr. Derek Rogusky: Certainly the definition of family would be redefined under the Income Tax Act, and quite radically so. I think that just drives home the point we're attempting to make, that this bill does in fact affect family and marriage. It's not simply about just extending common-law rights. It does have an impact, because it changes the definition of some of these words. Over 100 times it strikes out such words as “spouse”, “husband”, “wife” or “widow”—words we would normally relate to marriage. They're either struck down or redefined more than 100 times.

So this bill certainly does have an impact on marriage, although it may not necessarily technically redefine it.

Mr. Eric Lowther: Dr. Buckingham, you started off by saying you were glad to see that marriage was not affected by the legislation. Yet in clause 254, for example, with regard to the Pension Benefits Standards Act, the whole term “marriage” has been repealed right out of there. I think there are other examples.

So when you say marriage isn't affected, I'm wondering where you're going with that.

Dr. Janet Epp Buckingham: I think there's a misunderstanding. I didn't say marriage wasn't affected; I said marriage wasn't redefined. I think marriage is fundamentally affected, which I brought out later in the argument. I'm sorry if there was a misunderstanding.

Mr. Eric Lowther: As well, Dr. Buckingham, there's some debate out there in terms of whether or not conjugality means sexual intimacies. Some say it doesn't, some say it does. We don't have clarity on this.

Can you speak to that issue of what is the normative understanding of a conjugal relationship?

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Dr. Janet Epp Buckingham: I think the term “conjugal” can be confusing or misleading. In the dictionary definition, it means sexual intimacy between a husband and wife. Now, there has been some indication by the courts that they may use some different criteria, but right now, from the classic Black's legal dictionary to the Oxford dictionary, it is defined, in dictionary terms, as being sexual intimacy between a husband and a wife.

If one wants to use the term “conjugal” without defining it in the legislation, it can be very confusing. It can create a great deal of confusion. The only indication we have that there can be a broader definition for conjugal is in the M. and H. case, where the court said, well, conjugal could include these other criteria, and doesn't necessarily have to include sexual intimacy. But that is the only indication anyone has had of anything other than the classic dictionary definition.

Mr. Eric Lowther: Mr. Sclater, you made a comment near the end of your presentation that this is the first time we've extended benefits—and I'm paraphrasing a bit here—on ideology, not biology.

I think there's an understanding that there's some social contribution out there that families have made by procreating, rearing children, bringing forth the next generation. I'm wondering, is there a social contribution we're seeing by extending this on ideology, not biology? Can you explain that terminology a little bit more and bring out a little bit what your point is here?

Mr. Jim Sclater: That was a quote from Dr. Reid, our president. I think the main point here is that we've been immersed in a rights agenda for a number of years here, and that has become the basic ideology behind understanding our society. The Charter of Rights and many other things have been interpreted as meaning, if they don't actually take us fully in that direction, that individual rights are more important than the social fabric. That's what's been happening.

So that's ideology. We have to go back to understanding the nature...

When I read our statement about the family, I said that these things are rooted in human nature. This is biology, we believe—how we're made, how we're wired, how we function. To take a rights agenda and put it on top is just an ideological approach. It can be called many things—social engineering, reinventing the human race—but we don't think it's ultimately productive for anyone who might think they would benefit from it.

I would just in passing comment on the fact that in spite of what the government has said to us about the public, I don't think many people, even around this table, could say they've been hearing from vast numbers of people demanding that we do this.

We're aware, as I'm sure people around the table are, that many within the gay community are saying this isn't a good idea; our society doesn't need to redefine marriage for us to get benefits.

I've said in my presentation that maybe there's another way to accommodate legitimate economic dependencies, but not by stripping marriage of its meaning.

The Chair: Thank you, both.

Mr. Ménard for seven minutes.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): I join our Chairman to welcome you here. To say that your presentation surprised me would be lying.

I have three questions for you. If you look into family law, you'll find that there is a federal statute dealing with marriage, that the fundamental aspects of marriage are defined by the federal government and that the celebration of marriage falls within the provincial jurisdiction. The bill we have before us does not change the federal statute dealing with marriage.

Would you agree that, if we look through the bill, the legislation dealing with marriage and the fundamental definitions, we'll see that the basic principles, as defined by the federal government, have not been changed? Do you agree with me on that?

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My question is for Dr. Buckingham.

[English]

Dr. Janet Epp Buckingham: There is no federal legislation that defines marriage. Marriage is currently defined under the common law. There are court cases dating back to the 1800s wherein marriage is defined as being between a man and a woman. The federal government has the jurisdiction to define marriage but has not done so in legislation. The only federal legislation is prohibited degrees of consanguinity, which means you can't marry your sister or your brother or your parents. That is the only federal legislation.

[Translation]

Mr. Réal Ménard: Yes, there is a federal statute on the degrees of consanguinity. In French, we call it la Loi sur les degrés apparentés. There is a federal legislation which says who can marry whom and which determines the fundamental criteria. The federal government has jurisdiction over this matter. And the form that takes has to do with the celebration of marriage. There is a reference in a federal legislation regarding who can marry.

I want to be sure you agree that such criteria are defined in law. Indeed, a member of Parliament, Mr. Tom Wappel, is saying that we should go further and give more teeth to this legislation. So there is such a legislation. If we go to the Library of Parliament, we'll both be able to see that there is a statute which determines who can marry and who cannot, according to the degree of consanguinity, what we call in French liens apparentés.

What I'd like to hear from you is that this legislation, this reference or this practice, which is also confirmed by the common law, is not changed in any way by the bill we have before us.

So, when you come here and say that marriage is threatened, I find it difficult to see how this can be, at least as far as the legal basis of marriage is concerned, when the definition given in the legislation has not changed.

[English]

Mr. Jim Sclater: Maybe I could comment briefly. It's true that marriage is still defined as the legal institution into which people can enter. What we're saying is that traditionally, historically, and certainly in our country, this has been given special benefits and favour because of its procreative and nurturing role. What we're saying is this: now that this has been taken and just given to literally any other arrangement that qualifies after one year, we think that's a strong signal, as I said at the beginning, that we no longer honour marriage—you can still get married.

[Translation]

Mr. Réal Ménard: But this is a misuse of language. As you see it, in sociological terms, do we draw a distinction between a couple and a family? When you say that we are going to give benefits to people whose mission in life, if I may say so, is not procreation, it's not entirely true. This bill doesn't change anything in the legislation on child benefits.

Let me say it a little differently. My colleague, Ms. Venne, who has lived with a partner of the opposite sex for several years doesn't have any children. She and her partner are a couple. My partner and I are also a couple. The purpose of the bill is to consider as equivalent these two types of commitment, these two types of common-law relationships—since these types of relations are referred to as being common-law in the act. Do we read the legislation the same way? It has nothing to do with child benefits. It has nothing to do with the definition of the family.

The way I see it, two partners who don't have any children are a couple, but they are not a family. Do we agree on that?

How then does the bill threaten families? How anyone who lives in Canada and decides to have children, to get married and have two, three, four or five children can be threatened by this bill? How does this bill threaten the family which you hold in such a high regard?

[English]

Mr. Jim Sclater: I'll comment briefly and maybe Derek or Janet could add to it.

One of the main things I said was that young people look to law. They don't read much of it and they don't see much of it, but they'll be taught in school what it means. I think we have now diluted the concept to a degree sufficient that young people will begin to think, as I said, that our country doesn't honour this institution any more, so why should they? We think that's a significant factor.

Perhaps Derek or Janet would like to pick up on parts of your question.

[Translation]

Mr. Réal Ménard: Yes, I understand. I know you are a scrupulous man; I saw you on television and I follow your career closely. However, I do think that the reverse is also a bit true, and I don't understand your answer.

Young people are going to be told in school that family and marriage are no longer one and the same thing. Could you be a bit more explicit? How would young heterosexuals, who are 16, 17 or 20, and who go to school in Chomedey-Maisonneuve or in British- Columbia, come to think that getting married is no longer possible in our society or that the family is threatened?

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[English]

Mr. Jim Sclater: Well, the short answer is that by the time the truth about this bill filters down to educators, the message may be quite different. Now that might sound like a slam on educators, but I've been aware of and personally involved in situations where certain things have been changed by government or proclaimed by government and by the time my children come home from school, they're told, they learn, something quite different about it.

We also know that as we move in this direction, people representing your point of view have been freely welcomed into the schools to talk about alternative arrangements, etc. I think the message young people will get is that you don't have to get married any more, that you can simply enter into a relationship of any kind you want. That's really what I'm addressing: they will be learning that because Canada is a tolerant nation, no longer do we have to think in terms of the old legalities. Marriage hasn't been stripped from people who might want to do this legal thing, but I think it will appear—and in fact I think it is—as a totally different concept.

The Chair: Monsieur Ménard, can we wait until the next round? You've run out of time, and I would like to keep inside the timeframe.

[Translation]

Mr. Réal Ménard: Yes.

[English]

The Chair: Monsieur Robinson, please.

Mr. Svend J. Robinson (Burnaby—Douglas, NDP): Thank you, Mr. Chairman.

I just want to follow this, because I must say I'm a little perplexed about the logic of this. Or maybe what you're really saying is that common-law heterosexual relationships should be discouraged just as vigorously as common-law same-sex relationships, if you're talking about the sanctity of marriage. Is that in fact what you're saying?

And when you talk about ensuring special benefits for those who are married, would you take away existing benefits that are extended to common-law heterosexual partners?

Mr. Jim Sclater: Someone asked in our press conference yesterday why we would want to tear that package open and get into it, and I said, “Well, the government has done it with this bill. They have actually opened the question. They have changed the category of common-law status.” It is a question that I think we should revisit. I think common-law status has eroded the concept of family to quite a degree. I'm not saying... I don't have a final position on that, but I think it is a debate we need to revisit.

I'd like to hear from Janet or Derek further on that.

Mr. Svend Robinson: In the interests of clarity, do you believe that those benefits and obligations currently extended to unmarried, common-law heterosexual couples should be maintained? Or should they be taken away?

Mr. Jim Sclater: I think the answer to that and to the new category that's being talked about by the bill is that we look at each area. There are 68 statutes here. I think they each need to be looked at. We should ask what they were intended to do and what they should continue to do. So it is a whole new debate. I haven't gone through them. Derek has analysed them, but we don't have a final position—

Mr. Svend Robinson: Maybe, Mr.—

Mr. Jim Sclater: We don't have a final position on which ones should still pertain or which ones shouldn't.

Mr. Svend Robinson: Sorry to interrupt.

Maybe, in the interests of time, you could come back to the committee and indicate which benefits you would take away from common-law heterosexual couples as well. I think it would be interesting to know what that might be.

Dr. Janet Epp Buckingham: But I think one of the points is that more benefits are being extended to heterosexual common-law couples under this legislation.

Mr. Svend Robinson: And you say that's bad.

Dr. Janet Epp Buckingham: Yes.

Mr. Svend Robinson: Right, but you also say that extending benefits to common-law heterosexual couples, as it now stands, is also bad.

Dr. Janet Epp Buckingham: Yes, we would like to see a greater debate on this.

Mr. Svend Robinson: Well, what does that mean? What's the answer? Do you think we should take away existing benefits or not?

Dr. Janet Epp Buckingham: There may be some existing benefits that we would advocate taking away. We are not at this point saying that all benefits should be removed from common-law couples—

Mr. Svend Robinson: Well, maybe—

Dr. Janet Epp Buckingham: —because they're in a situation of raising children.

Mr. Svend Robinson: Okay. Maybe the witnesses could come back to the committee and tell us which benefits they would take away then. That would be helpful.

Can you do that?

Dr. Janet Epp Buckingham: Would that help in addressing this particular bill?

Mr. Svend Robinson: It would. Thank you.

Now you also referred to the definition of conjugal, and I think you said there was some indication... I'm not sure if Dr. Buckingham is a lawyer.

Dr. Janet Epp Buckingham: Yes, I am.

Mr. Svend Robinson: Then Dr. Buckingham would know that it's more than an indication. When the Supreme Court of Canada rules, that's not just an indication, is it? That's a ruling by the highest court in the land.

I was a little perplexed and confused to hear about this suggestion of an indication about the definition of conjugal. In fact, in M. v. H., it wasn't just an indication: the court ruled that same-sex relationships in fact are capable of meeting the definition of conjugal and that in fact the distinction between opposite-sex conjugal relationships and same-sex conjugal relationships was unconstitutional. Is that not the case, Dr. Buckingham?

• 1020

Dr. Janet Epp Buckingham: That is the case. The court also indicated that “conjugal” could include a relationship that wasn't sexual, but it would be considered obiter dictum in that case because it wasn't necessarily part of a legal ruling. They weren't dealing with a relationship of that nature.

Mr. Svend Robinson: Okay, but it wasn't just an indication, in terms of the distinction between the two; it was a ruling.

Dr. Janet Epp Buckingham: It was a ruling on that particular issue. They gave a broader definition of conjugal, but that would go beyond the particular legal ruling, so it wasn't clear whether that extended definition would be binding in all its aspects.

Mr. Svend Robinson: When the laws were changed to extend benefits and obligations under the Income Tax Act to common-law heterosexual relationships, your organizations were around at that time. Did you speak out against this, and did you suggest at that time it was unfair because it didn't extend to other relationships of dependency?

Mr. Jim Sclater: We were not aware of it at that time. We've only been in the country for 15 years and—

Mr. Svend Robinson: This was in 1993.

Mr. Jim Sclater: I know, but we just began our concern for public policy. I started essentially in 1990 to build the department, so we hadn't taken that on. There are dozens of issues we haven't taken on, and that certainly was one of them.

Mr. Svend Robinson: Would you be concerned about the extension of benefits and obligations under the Income Tax Act—let's be specific—to common-law heterosexual partners?

Mr. Jim Sclater: I've said the only answer is that lawyers and other committees of Parliament should look at each law and try to decide what was being extended for what purpose. We obviously don't have definitive answers for each one.

Mr. Svend Robinson: Just so I understand, neither of your organizations has raised any concerns about the extension of benefits or obligations to common-law heterosexual partners, to this point in time. Is that correct?

Dr. Janet Epp Buckingham: We have identified the discriminatory aspects of common law under the Income Tax Act. The provisions that extend to common law actually create a greater burden on married couples with children than on common-law couples with children, and we have addressed that issue before.

Mr. Svend Robinson: I guess my last question would be to Mr. Sclater with respect to his concern for children. He said—and I've made note of his words—that young people will be confused about matters of sexuality. How will this bill confuse young people about matters of sexuality?

Mr. Jim Sclater: Well, it delivers the message that same-sex couples are equivalent to and should be honoured the same as heterosexual couples. You would be aware of the teenage time when young people go through real sexual identity crises sometimes.

Mr. Svend Robinson: So this could tempt them into what you've called the gay lifestyle, is that it?

Mr. Jim Sclater: It could inform them, as I said at the beginning of my presentation, that our country doesn't honour the heterosexual married relationship as it did. Some young people are growing up in homes where they're perhaps not getting a clear message about what I said is the inherent nature of the human race. So I think there will be confusion.

Mr. Svend Robinson: Sorry, what is the inherent nature of the human race?

Mr. Jim Sclater: As I said, the concept of marriage and conjugality, as we understand it, is rooted in human nature. This is how we're made.

Mr. Svend Robinson: Are you saying that gay men—

The Chair: Last question.

Mr. Svend Robinson: Sorry, this is my final question.

Are you saying that gay men and lesbians are not part of the inherent nature of the human race?

Mr. Jim Sclater: You'd be aware of the stats. I would suggest that at least 97% of the human race finds themselves with the biological imperative to opposite-sex relationships. There are sociological and other explanations that, of course, you're well aware of.

Mr. Svend Robinson: The other 3% aren't part of the inherent nature of the human race?

Mr. Jim Sclater: No. I'm suggesting they're part of a phenomenon that we think is sociologically based.

The Chair: Thank you very much.

I'll now go to Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman. Thank you, witnesses.

As you well know, one of the debates here has to do with the government's ability, and thus far unwillingness, to put the definition of marriage in statutory form by either amending the Marriage Act or putting it in this particular bill.

I'd be interested particularly in your comments, Dr. Buckingham, with respect to what will inevitably be the next frontier, shall we say, of charter litigation. As a lawyer, would you prefer to argue a case based upon a statute Parliament has passed, or would you prefer to argue on the basis of a 150-year-old definition of common law?

• 1025

Dr. Janet Epp Buckingham: We have already seen a couple of challenges raised to the heterosexual definition of marriage, and it's always been based on the provincial licensing requirements, as being between a man and a woman. No one has yet raised the common-law aspect, although it's there. It would definitely be preferable to deal with it in legislation. The terminology used in the common law is quite archaic, and it would be helpful to have a statement from Parliament on this issue. That's what legislators are for.

Mr. John McKay: Do you think the use of the the word “conjugality” in this bill aids or detracts from that argument with respect to what will be the next frontier in this area of rights-based litigation?

Dr. Janet Epp Buckingham: I think the use of the word “conjugality” will be challengeable. It is not a clear statement. The definition given by the court in M. v. H. is even less clear, as to whether it would include non-sexual domestic partners as well. I think the intention of those who were drafting this legislation may have been one thing; the common understanding of “conjugal” is something different. What the court may interpret “conjugal” to include may be something different yet again.

Mr. John McKay: I would like to address a question to Mr. Rogusky.

I'm curious. We're talking about, if you will, three states of relationship here: marriage, heterosexual common-law, and homosexual. I'd be interested in your research and knowledge with respect to the differences in stability in those relationships—or are there any?

Mr. Derek Rogusky: Certainly, if we look at Statistics Canada's research based on the national longitudinal survey of children and youth, it clearly shows that particular parenting relationships—which of course we're extremely concerned with—other than legal marriage are at risk of breakdown. For example, children born into traditional marriages with no prior common-law unions are the least likely, at 13.6%, to experience family breakdown before the age of 10. However, children whose parents lived in a common-law union before they were married fall into an intermediary category, where family breakdown has been experienced by approximately 25%. The figures for children from common-law unions are, by far, the most spectacular. By the age of 10, over 63% of them have experienced family breakdown.

Similar results have been shown for same-sex couples, not dealing necessarily with children. There's not a lot of research on family breakdown in same-sex couples who have children, but we've certainly seen some research that shows that's also a fairly volatile... or the chances of breakdown are greater than for those who are legally married.

Mr. John McKay: Let me see if I understand your analysis here. In the first category, 13.6% of marriages break down after 10 years, but when there's a common-law element to the relationship, the statistic doubles. Is that fair?

Mr. Derek Rogusky: That's pretty close.

Mr. John McKay: Is that over a 10-year period of time as well?

Mr. Derek Rogusky: Yes. They were looking at a 10-year period. Also, where common law is the only element to a relationship—there is no marriage after a common-law period—the family breakdown actually jumps to just over 63%.

Mr. John McKay: And for same-sex couples, you have no parallel statistics.

Mr. Derek Rogusky: There's nothing parallel to that because there is still a rather small population with children, so it's difficult to do statistical analysis. However, some analysis of same-sex relationships shows they are certainly more apt to have breakdowns or separations than married relationships.

Mr. John McKay: But is that rate of breakdown similar to that in a heterosexual common-law relationship?

Mr. Derek Rogusky: Yes.

• 1030

Mr. John McKay: I suppose the premise of the bill is to treat virtually all three categories of relationships as equivalent. It's interesting to know that at least statistically there is some argument about their equivalency.

I'll ask my final question in a provocative sort of way because my colleagues opposite would probably like to ask this question. Isn't this simply the religious right agenda trying to impose its views on the rest of society? Essentially you represent a statistically insignificant group in society, and you're trying to impose your views on the rest of our country.

Dr. Janet Epp Buckingham: I'll start with that.

First of all, I'd want to say that we do represent a very large constituency. Very good sociological studies have estimated there to be three million evangelical Christians in Canada, so we're looking at about 10% of the population. This is a significant percentage of the population. We're not imposing views; we're bringing our views to the table. We represent a community that has a very high view of marriage, and we feel there are some very good reasons for having a high view of marriage.

We do have some concerns over the breakdown of the family in society. More generally, we have a concern that our society function well and that children be raised well. As we examine our society, we want to raise the concerns for the good of society as a whole.

I think as we've seen a change in the way common-law relationships have been regulated and a greater extension of benefits to common-law relationships over the last few years, we've also seen a rise in the number of common-law relationships. This is what a Statistics Canada study from 1998 shows us; there's an increase in common-law relationships. Is this because of regulation? Perhaps it is based on that. So we say it is time, for the good of society, to stop this flow, to have a higher regard for the family. Part of that is having a high regard for marriage.

Mr. Jim Sclater: I'd also say that these are historic truths. There's no era of human history, as far as any anthropologist I've ever read, or sociologist for that matter, that has said there is a time before marriage and family when other relationships pertain. Of course, there wasn't much history written in the early years of the race, but this has been a fundamental truth, and therefore we don't necessarily fall back on our religious arguments at this point.

As far as religion is concerned, it's not only evangelical Christians. It's not only “right”. There are many other religions that believe as we do. We think this is a worldwide phenomenon. However you interpret religion and its source of information, this is a widespread phenomenon. We think we're defending historic truth and we think we have strong sociological grounds on which to do it.

The Chair: Thank you very much.

Mr. Svend Robinson: I have a point of order. The witnesses have referred to a Statistics Canada study from 1998. I wonder if they could table a copy of that with the clerk.

Mr. Derek Rogusky: Sure. I'm not sure how that happens, but by all means.

Mr. Svend Robinson: If you just give a copy to the clerk, the clerk can circulate it to the members of the committee.

The Chair: Thank you very much.

Mr. Lowther, for three minutes.

Mr. Eric Lowther: I didn't know it came back to me that quickly, but that's great.

A quick question I had was on the fact that I think it could be argued—and I think the witnesses have presented this in a general sort of way—that there is a demonstrable interest served in paying public benefits to two people of the same sex who live together. I should say there's a demonstrable interest served in paying public benefits to two people of the opposite sex who live together. Heterosexual couples were given benefits in the past because in a large majority of cases—not in every case but certainly in by far the majority of cases—kids often resulted and these couples raised them. So there was some public interest served in extending some benefits to them for their procreative and child-rearing contribution to society.

• 1035

Can you see any reason in this bill for giving all, every one, of the same benefits to two men who live together for a year and have some sort of sexual relationship? I can't see it. Can you see it?

Dr. Janet Epp Buckingham: I think you have to look at what is the foundation of benefits. We have said that historically, as Mr. Lowther said, it is because it was these kinds of relationships that produced children. You have to then ask whether the basis for benefits is social and economic dependency. If you want to say that is the rationale, then there's no rationale at this point for extending benefits based on sexual intimacy. If you want to say the basis for benefits is having children, then you still have to say there's no basis for extending benefits on the basis of sexual intimacy. The basis should be on having children.

The original basis for it was that sexual intimacy produced children. If that is not going to be the case, then it makes a lot of sense to change the basis for benefits altogether.

Mr. Eric Lowther: Doesn't this bill take us in the direction of extending benefits largely based on sexual intimacy or some fuzzy thing called conjugality, which nobody seems prepared to nail down too much? We talked about the Supreme Court saying they did, but we can't get the justice minister to tell us. If I don't have sex, do I qualify? If I do have sex, do I qualify? We're leaving that; we're throwing that into the courtroom.

Let's assume that the dictionary definition is right, that “conjugality” means some sort of physical intimacies. Then isn't this bill simply extending all the benefits that were there for the procreative ability of a heterosexual couple to two men who live together for a year and have sex? Yes or no?

Dr. Janet Epp Buckingham: Absolutely.

Mr. Jim Sclater: I think you're right. I think there are some other factors.

I don't have a percentage, but a very high percentage of people who come together in an opposite-sex relationship are hoping to have children. They don't all have it, but there is still a basic reason that society should favour the opposite-sex married union, and that is that this is how sexuality has been regulated down through human history, whether it's in a tribal situation or wherever. This is the social compact. Let's put people in pairs so we can regulate and control this thing. A high percentage are expected to have children. Many are very disappointed when they don't.

Mr. Eric Lowther: That's why we extended it to common law in the first place, right?

The Chair: Mr. Lowther, that's it. The witnesses can respond, but that's it.

Mr. Jim Sclater: Anyone else?

The Chair: Mr. Saada, for three minutes, please.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Thank you, Mr. Chairman.

[English]

I have only one question.

Mr. Sclater, I heard you refer to a lifelong covenant. You used the expression “deconstructing the family”. Let's imagine you are the prime minister of a country. Would you make it legally prohibited to divorce, legally prohibited to live together with someone else without being married? How would you treat a father who is leaving his home where there are a wife and kids?

I would like to go into the logic of what you are saying here. The only recognition you have of any type of society, according to your criteria—you are the one who speaks about ideology so I would like you to tackle that—is when there is a covenant that is going to last for a whole life and where nothing should be allowed that deconstructs families.

My question is simple. Would you declare it illegal to live comme conjoint de fait? Never mind sexes here. Would you declare it illegal to divorce or to separate and would you declare it illegal if any member of a family were to leave the family behind?

Mr. Jim Sclater: I think you're asking for our religious perspective. I've said that we're coming mainly from sociology. In any society that I would want to affirm, we wouldn't have anyone regulating every aspect of life. You can't make it illegal for people to do the things they do. We have chosen which ones to do that for. We've chosen to make murder a capital offence. We've gradated it, and many would say we've backed off from that even, in terms of punishment.

• 1040

But even in the scripture, if you want to take our point of view as Christians, there was a provision for divorce. It was because of the hardness in the heart of the people.

So I wouldn't want to be part of a society where we try to make these things illegal. That would be so far over to what some people call the right that I believe it would be very counterproductive. We have to be realists in how we legislate.

What I'm saying is, if we don't put up the flag, if we don't give a strong signal about what we honour, then we are deconstructing it.

Mr. Jacques Saada: Just a second. You're saying one thing and at the same time it's contrary. You're saying at one time we have to legislate to frame the process you would like to recognize, that, for instance, in the Bible there was a reason for divorce to be recognized. Here you say the basis for your rejection of this bill is an ideology by which you would reject anything that is not a life-long covenant and you would reject anything that would be aimed at deconstructing the family. So there is a direct contradiction in terms.

Mr. Jim Sclater: No, I haven't said that. I've said that what we should honour in law is a strong signal to our country. That's quite different from what you implied there. I'm not suggesting that we take away the divorce laws. I'm not suggesting any of the other things you said. I'm saying that the things we run up the flagpole are the things people will salute.

What I'm suggesting is that the category of marriage has to be maintained. I didn't say we should throw out the divorce laws or any of the other things you mentioned. Your other example was that people choose to live together. You also said making it illegal for people to leave the family unit. I'm suggesting that in this case, we're talking about Bill C-23, we look at all 68 statutes, we start from the drawing board and we decide which ones were designed for what purpose, and we go back to those purposes and then decide to whom they should apply.

The Chair: Thank you very much, Mr. Saada, and Mr. Sclater. We'll go to Mr. Ménard for three minutes.

[Translation]

Mr. Réal Ménard: I just want to be sure that I understand your point of view and make a preliminary comment. I, for one, would like to live in a society where people who are heterosexual and want to have children can do that with as much help from the government as possible, but also in a society where homosexuals can enjoy the same rights.

Do you wish to live in the same type of society as I? In this regard, do you agree that at the present time, if we set aside any religious consideration, from a legal point of view, homosexual couples are discriminated against? Can we start from that premise?

[English]

The Chair: Janet, do you want to start on that?

Dr. Janet Epp Buckingham: I'm afraid I didn't understand the question part of it.

[Translation]

Mr. Réal Ménard: Do you agree that, as we speak, in the year 2000, in March 2000, homosexual couples are discriminated against in Canada? Do you recognize that as a fact?

[English]

Dr. Janet Epp Buckingham: I recognize that homosexual couples do not have the same benefits as heterosexual couples in law.

[Translation]

Mr. Réal Ménard: Would you rather say that, from a legal point of view, since this is the particular aspect we are discussing here, or even from a sociological point of view, there is a discrimination of some sort which the legislator should be concerned about?

[English]

Mr. Jim Sclater: What I've said is that there is what we call positive discrimination in society, and I gave one example, that you had to be a certain age. We would say in regard to sexuality and family formation that there are some qualifications, the basic one being opposite sex to create a conjugal partnership.

There has been discrimination, unfortunately, towards gays in the marketplace, and in housing and everything else. We've stood up very firmly against that. No one in our society should be discriminated against in terms of basic access to what every citizen should have.

[Translation]

Mr. Réal Ménard: You want to sidestep my question, I can feel it. I can also feel that this is upsetting for you, because this kind of discussion is really not your cup of tea. Do you recognize that, strictly in legal or sociological terms, if we set aside procreation, an issue we could come back to later on, there is some sort of discrimination? Some people, who happen to be homosexual, make a commitment to live with a partner as a couple, and that commitment is no different from the one which binds heterosexual couples. Do you recognize that they are discriminated against? As legislators, should we be concerned by that? Do you agree that homosexual couples are discriminated against when it comes to recognizing them as true couples?

• 1045

[English]

Mr. Jim Sclater: Certainly I would say there is “discrimination”, and I put it in quotation marks. But we believe it's appropriate because of the absolutely fundamental nature of heterosexual marriage to our society. A great many of people within the homosexual community are saying the same thing.

California is going through proposition 22 right now and debating an issue there. Some of the gay leaders have come out and said California is not ready to acknowledge gay marriages in our society. I think that vote takes place in the next few days. Vermont has gone through the process of the court telling them they have to figure out, as our courts have told the government here, how to end discrimination. But down in Vermont they've let them decide how to do it, and there's been a huge outcry against the idea of moving towards gay marriage.

I'll try to answer quickly by saying that somewhere in that continuum I think the line has to be drawn for the sake of our whole society. We know there is a very small minority within the gay community who will not end... Even if Bill C-23 goes through, they will be bringing action to get full marriage, is what I'm saying.

The Chair: Thank you, Monsieur Ménard.

Madame Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Mr. Chair.

I wanted to swing back a bit to the beginning of your testimony. Dr. Buckingham, I read here that your headquarters are here in Ottawa.

Dr. Janet Epp Buckingham: Our headquarters are in Markham.

Ms. Aileen Carroll: So you are Ontario-based.

Dr. Janet Epp Buckingham: Yes.

Ms. Aileen Carroll: I'm going to come right back to you, but, Mr. Sclater, you said you came to this country ten years ago. I was a little confused. Are you an Ontario-based organization?

Mr. Jim Sclater: I was just referring to Focus on the Family being established here.

Ms. Aileen Carroll: Right. That's what I'm asking. From where?

Mr. Jim Sclater: It was founded by Dr. James Dobson, in California actually, in the United States.

Ms. Aileen Carroll: I'm not as cognizant of your organization as my colleagues are.

Mr. Jim Sclater: We were formed here in Canada with our own board, our own president, our own policies.

Ms. Aileen Carroll: And are you also Ontario-based in terms of your headquarters?

Mr. Jim Sclater: No. We're based in Vancouver, British Columbia.

Ms. Aileen Carroll: I see. What I'd like to ask then, in terms of your being active in coming to us here in Ottawa, is when the Ontario government brought all of their legislation and statutes in compliance with the dictum of the Supreme Court, did you appear before the justice committee of the Ontario government at that time?

Dr. Janet Epp Buckingham: There were no committee hearings. The Government of Ontario passed the legislation in a space of two days. We made submissions to the Ontario government prior to the legislation being introduced.

Ms. Aileen Carroll: So you would have expressed, both of you, the same thoughts you are expressing to us today had you had that opportunity?

Dr. Janet Epp Buckingham: Yes.

Ms. Aileen Carroll: But you did not.

I do have difficulty as well, as Mr. Robinson was attempting to nail down... I'm not getting a clear response to the questions he asked you regarding the status of heterosexual common-law relationships. What would you have this government do? How would you have us modify our legislation so as to incorporate your views of heterosexual common-law relationships? I couldn't get the answer. I was listening very closely.

Dr. Janet Epp Buckingham: I think we call it the issue of benefits for common-law couples with 20-20 hindsight, saying we should have been more active in that debate when it occurred. Part of our concern comes from looking at Statistics Canada studies—like the one that will be tabled, called “Growing Up with Mom and Dad?”—which show that there has been a marked increase in the level of common-law relationships over the last 15 to 20 years, as there have been greater rights benefits and obligations for these couples. We have to ask ourselves, has the extension of rights benefits and obligations been partly responsible for the increase in common-law relationships, which clearly leads to the breakdown of the family?

Ms. Aileen Carroll: I think what I'm hearing is a lot of discussion on the definition of family. My understanding is that there is no jurisprudential definition of family. We certainly have one in common law for marriage, but to the best of my knowledge, and I'm not a lawyer, there isn't one for family.

• 1050

I think there are a lot of people in our society who struggle with the Leave it to Beaver image—if I can call it that—of what defined marriage at a certain time in our society's lifespan. That was the perception of marriage. There are many single women who are struggling to raise children on their own and who cope with what has been mentioned in the schools as perhaps what the educators conceive of as family. I don't think that's an easy ideological concept to deal with. I don't think we, as legislators, can really presume at any point to try to impose a view. I'm struggling again with how you think we at the federal level could in any way encompass within statute law some clearly defined prescription for what is a family today.

The Chair: Thank you, Madam Carroll. Could you wrap it up?

Ms. Aileen Carroll: Could you give me your insights on that? How would you have us do that?

Dr. Janet Epp Buckingham: There are two comments I have to make about that. The first is that we have Statistics Canada telling us that the so-called traditional family, with a mom and dad and kids, is very much the best way for children to grow up. I therefore have a hard time saying that you can ignore that evidence, as legislators, and to then say that however someone wants to live, we're going to treat everybody equally because we want to be inclusive. Of course we want to be inclusive and help everyone, but we also have to recognize that for the raising of children, there is a family situation that is vastly superior for kids and for their futures.

Secondly, I would say that the way this legislation is developed, it is still discriminatory. There are still all kinds of families that are not being addressed by this situation. The federal government says it can't define “family” and is going to say that all family types have to be treated equally. If so, then what about the two single women who live together in a platonic relationship for twenty years, share everything, consider themselves family, but are not conjugal and are not going to be included in this kind of legislation? Are they any less worthy than a lesbian couple to be included as family? I think one either has to say one thing or the other. Either you have to say you're going to develop a preferential way of defining “family” because you realize it's the best way for society and for children, or you're not going to be discriminatory and you are going to include everybody and all of the alternative non-marital situations that are out there.

The Chair: Thank you very much.

Mr. Robinson.

Mr. Svend Robinson: The witnesses' concern for the two elderly sisters is touching. It's interesting that they didn't express the same concern about an elderly brother and and elderly sister when common-law heterosexual relationships in fact were recognized. There was never any suggestion that somehow they were being discriminated against.

I want to pick up on Ms. Carroll's point about families. Let's focus on the family for a minute. Is a single mother who's raising two or three children considered a family by you?

Mr. Jim Sclater: Focus has a strong ministry toward single moms. We've got a magazine—

Mr. Svend Robinson: Is that considered a family by you?

Mr. Jim Sclater: Oh, yes, very much.

Mr. Svend Robinson: Okay, but something you seem to overlook is that there are an awful lot of children in Canada who are also raised by two moms or two dads. Do you consider such a case to be a family as well? Two mothers, meaning a lesbian couple that is raising children? Or two gay men who are raising children? Is that a couple? Is that a family?

Mr. Jim Sclater: We wouldn't define it that way for the simple reason that we don't think it's the flag we want to run up the pole. We think that is what will confuse young people. Obviously, we have a great concern and interest, and we hope to be of help to children and the parents in that situation.

Mr. Svend Robinson: But that's not a family.

Mr. Jim Sclater: We wouldn't define it as a family, no.

Mr. Svend Robinson: So if there's one mom and a couple of kids, it's a family, but if there are two moms, it's not a family.

Mr. Jim Sclater: No, but for a single mom we would not say—

Mr. Svend Robinson: Is that what you're saying? I just want to be clear.

Mr. Jim Sclater: Yes.

Mr. Svend Robinson: Okay, I understand that's what you're saying, but I find that to be a bizarre argument.

I want to just ask a couple of other brief questions. First of all, Mr. Sclater, I think you said many in the gay community think this isn't a good idea. Are you talking about this bill? Are you saying they think this bill isn't a good idea? That many in the gay community—

Mr. Jim Sclater: That's what I was referring to at this point, yes.

Mr. Svend Robinson: Okay, then I just want to challenge you on that. You've talked about Vermont and you've talked about California, but we're in Canada. Can you name any significant spokespeople from the gay and lesbian community anywhere in Canada who have said this bill is not a good idea?

• 1055

Mr. Jim Sclater: I'm not sure I know the names of those who have spoken out on this bill, that's true. I know the names of people within the community—

Mr. Svend Robinson: You made a statement, and I'm suggesting that you can't back it up.

Mr. Jim Sclater: I believe I can, but I'm not going to name the people here that I know who have spoken out against this progression. I don't know, but I assume they have spoken out on Bill C-23. You're absolutely right that I can't quote someone who said something about the bill.

Mr. Svend Robinson: So you can't quote anybody in Canada from the gay and lesbian community who has opposed this bill.

Mr. Jim Sclater: I can certainly quote people who have said they're opposed to the movement towards what this bill does.

Mr. Svend Robinson: That's not what you said, did you?

Mr. Jim Sclater: I'm sorry?

Mr. Svend Robinson: You said there were prominent people from the gay and lesbian community who opposed this bill.

Mr. Jim Sclater: I may have said that, but I'm not certain how I said it. If that's true, then I stand corrected.

Mr. Svend Robinson: Okay, thank you.

The Chair: Last question.

Mr. Svend Robinson: My last question is on the definition of “family”, and we can have a lengthy discussion about that. I actually disagree with my colleague Mr. Ménard. I've been in a relationship with my partner for some time now. We constitute a family. We may not be raising children, but we do constitute a family. And certainly many gay and lesbian partners believe they constitute a family as well. In fact, there's a group called the Foundation for Equal Families, not the Foundation for Equal Couples. My family is just as strong, just as loving, and just as committed as many other families.

I want to ask about the definition of “spouse”—and this is my last question. I was interested to note that a Reform Party member of Parliament, Mr. Jay Hill, who is quite a prominent member of the Reform Party actually—I think he's the whip of the Reform Party—has actually redefined the definition of “spouse” in a bill that he has proposed to Parliament, Bill C-223, an act to amend the Witness Protection Program Act. He has suggested that we redefine the definition of “spouse” to include

a former spouse and person who has cohabited with another person for a period of not less than one year in a conjugal relationship

He has said this would also apply to gay and lesbian relationships. Do you have any comments on that Reform Party proposal? Would you disagree with that, or agree with it?

Mr. Jim Sclater: I hadn't been aware of it.

Mr. Svend Robinson: What's your response to it?

Mr. Jim Sclater: I'd like to read it. I know what you said is probably an accurate representation, but what I'm suggesting—and this has been the whole argument here—is that “marriage” and “spouse”, for the sake of keeping the social fabric strong, should pertain only to a heterosexual couple.

Mr. Eric Lowther: On a point of order, Mr. Chairman, the witnesses haven't had access to the context of the bill they're being challenged to comment upon. There are some details that they don't know about that bill. To be asked to comment on it is unfair.

The Chair: I think the witnesses are aware of their right to withhold comment on things they don't feel qualified to comment upon, if that's their choice.

Mr. Svend Robinson: I'd be happy to make a copy of Mr. Hill's bill available to the witnesses.

The Chair: Thank you very much.

In the interest of the fullness of this debate, I feel compelled to bring to the attention of the committee the fact that we have in fact received a request to appear from an organization called Homosexuals Opposed to Pride Extremism. That's just for the record.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): Jim, in your testimony you made the comment that those who were opposed to the homosexual lifestyle are upset that their tax dollars will be financing benefits to homosexuals. The Minister of Finance has told us that this legislation will be either revenue neutral or that there could in fact be a surplus because of the obligations factor. Would you disagree with the Minister of Finance?

Mr. Jim Sclater: Who would have the courage to do that?

Mr. John Maloney: That's a very good point.

But there are rights and there are also obligations. I take issue with your statement that...

Mr. Jim Sclater: I understand that. I'd suggest that the government has said that many programs would be revenue neutral, and we've been surprised later.

Mr. John Maloney: Can you substantiate your statement then?

Mr. Jim Sclater: I would suggest that the issue is the granting of the benefits, the running up of the flag in a certain way, as I keep saying. I don't think whether or not that gets balanced later is the issue.

If I could ask Derek to answer, I think he's done a little bit more study of the actual provisions.

Would you be prepared to answer that, Derek?

Mr. Derek Rogusky: One of the things we have a concern about is that, first of all, the relationship will be a self-reported relationship. When obligations are involved, the incentive is to not necessarily report. We've seen that happen within the heterosexual common-law community; therefore, we see that the rights would be availed of a lot sooner than the obligations would be.

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Even if there is an offsetting of revenues versus expenses, many Canadians would just simply be opposed to the fact that there are publicly funded programs going to a lifestyle that they oppose for whatever reason. It's not so much whether we're making money or losing money on it; it's just the idea that the government is acting on certain taxpayers' behalf, and people are not comfortable with that.

Mr. John Maloney: I want to point out that this government had been lobbied by married couples concerned or upset by the fact that opposite-sex, common-law spouses actually paid less tax. In 1993 we changed that inequity. Is this not the same thing?

Mr. Derek Rogusky: However, there still have been reported cases—obviously there's nothing to be proven that way—of people still avoiding the reporting of their relationships in order to avoid some of the obligations that come with being defined as the equivalent of a married couple or a common-law couple.

Mr. John Maloney: I believe you referred to the definition of “family” found in the Income Tax Act. We had a member of the finance department here who pointed out to us that the definition referred only to Hutterite colonies. Do you have any comment on that?

Mr. Derek Rogusky: Once again, we just think it's the symbolic nature of it. The fact is that we will have redefined the word “family” in actual legislation. It's one of the few places where we do actually define “family”. What it currently says is that in the case of an unmarried adult, “family” means a person and that person's unmarried children who are not adults, and in the case of a married adult, a person, the person's spouse, and the unmarried children of either or both of them who are not adults. Now it's extended to include common-law same-sex partners and their children. We're just saying it's the symbolism of changing the definition of family from what we once knew it to be to something that is very different.

Dr. Janet Epp Buckingham: I would also say that I don't think the Hutterite colonies would want this kind of change in the definition of their colonies either.

The Chair: Mr. Maloney, you can ask a very quick question, but we're past the time and we have people waiting.

Mr. John Maloney: I didn't get the entire comment, Jim, but in the last part that I got, you said something like, “because Canada is a tolerant nation”. Is this legislation not all about tolerance?

Mr. Jim Sclater: I was asked that question earlier, having made the statement that this is being driven by ideology. We think tolerance has been made the highest value. Properly understood, it's a wonderful virtue, but it's the word behind which the whole rights agenda has been driving. In that regard I would suggest that tolerance shouldn't be extended to the issue we're talking about here in the way we're talking about it. It's stripping marriage of its meaning and is moving all the benefits to any other arrangements that people can get into.

Why won't somebody else protest that their kind of arrangement isn't included in this? This is always a delicate topic and I'm not going to pursue it here, but there are other people. We had a demonstration on Parliament Hill of three people putting on a mock marriage. That might have been silliness, but it does indicate that we're losing the lines here. We're losing definitions rapidly.

The Chair: Thank you, Mr. Maloney. We have people waiting, and they're going to be running against the end of their time at some point.

I'd like to thank members for the way we've been able to carry on. I'd also like to thank you, witnesses, for your appearance here today. I would say you have helped us as we move along this process of coming up with what we think to be the appropriate legislation.

Thank you very much.

We'll adjourn for five minutes.