Before We Could Marry, We Built Our Own Marriage in Law

The image at the top of this article comes from the March 2006 issue of Wayves, an LGBTQ publication in Halifax. Across the top is a story about equal marriage still being politically contested. Beneath it is an advertisement for Catherine D. A. Watson of BoyneClarke, describing herself simply as:

“A lawyer for our community.”

Cathy Bennett and I chose Catherine Watson for a reason.

She was highly recommended within our community in Halifax. Cathy and I had already spent years building a life and family together during a very different period for same-sex couples. We had raised our children, rebuilt a home for our combined family, worked and contributed together, and navigated a world in which being open about our relationship did not always feel safe.

When our children were younger, we were cautious. There were reasons for that caution.

Times changed. Our children grew up and left home. Society was changing. We came out more openly in our community and eventually publicly in the Halifax media.

But legal and social equality did not arrive overnight.

Our “Equal to Marriage” contract

In 2004, Cathy and I went to Catherine Watson together.

We weren't simply making a will.

We undertook a coordinated legal planning process and executed a group of professionally prepared reciprocal legal documents, including wills, powers of attorney and other protections intended to secure one another.

We had our own name for what we had done.

We called it our “Equal to Marriage” contract.

To us, it was our marriage licence.

That language was not meant to suggest that these documents legally constituted a marriage. They did not. It described what they meant to us: two women using the legal tools then available to provide one another with security and protections resembling those married couples could take for granted.

That distinction matters enormously to me today.

Twenty-seven years are difficult to put into separate boxes

Cathy and I were together for approximately 27 years.

Over those years our economic circumstances changed repeatedly.

At the beginning of our relationship I was the higher income earner. We combined families. I contributed savings I had been putting aside toward a home of my own to the reconstruction of the house that became our family home. We helped one another professionally. As my own business declined from its earlier success, I increasingly worked with Cathy and assisted in her work. At other times, she supported me.

That is what happens over decades.

One person contributes more at one stage. Circumstances reverse. People work together. Money, labour, opportunities, sacrifices and responsibilities become increasingly difficult to disentangle.

Canadian unjust-enrichment law has a concept for examining relationships in which wealth may have been accumulated through this kind of mutual effort: the joint family venture.

In the litigation following the end of our relationship, whether Cathy and I had participated in such a venture became an important issue.

And that is why the 2004 documents matter so much to me.

What does “actual intent” look like?

Courts examining a claimed joint family venture consider matters that include economic integration and the parties' actual intentions.

So I continue to struggle with a basic question.

What better evidence of actual intention can there be than what two people deliberately did together at the time?

In 2004, we didn't merely talk about commitment.

We went together to a professional lawyer known and trusted within our community and created reciprocal legal protections for one another.

Those documents still exist.

Yet another set of documents became enormously important in our litigation: an alleged 2003 separation agreement and an alleged handwritten 2004 “prenup.”

I disputed their authenticity at trial. I maintain that I did not sign them.

I will not use this article to ask readers to decide that evidentiary dispute. My case is before the courts, where such questions belong.

But I believe there is a legitimate and much larger question:

When assessing the actual intentions of a same-sex couple during this extraordinary period of legal and social transition, how should professionally prepared reciprocal legal documents be weighed against disputed informal documents said to point in the opposite direction?

The history matters

Look again at the image at the top of this article.

It is from March 2006.

Canada had already enacted equal-marriage legislation federally in 2005.

Yet the headline still said:

“Equal marriage back on the agenda.”

The community was still confronting the possibility that a newly achieved right could be reopened politically.

Immediately beneath that story was Catherine Watson's advertisement:

“A lawyer for our community.”

That page captures something that can be difficult to explain decades later.

Changing a law does not instantly change people's lives.

It doesn't instantly erase fear.

It doesn't instantly erase discrimination.

And it doesn't retroactively change the reasons people made decisions years earlier about property, banking, business, children or whether to identify themselves publicly as a couple.

When Cathy and I first built our family in the 1990s, we made decisions in the world that existed then.

By 2004 and 2005, that world was changing dramatically.

So were we.

Formal separation on paper does not necessarily mean separation in life

This is the part of my experience that I believe reaches beyond my own litigation.

When courts examine older same-sex relationships, they must be careful about interpreting conventional documentary evidence without its historical context.

A name missing from a deed may tell part of a story.

Separate business structures may tell part of a story.

A lease may tell part of a story.

But those pieces of paper cannot necessarily tell us why two people arranged their affairs that way.

For some same-sex couples of our generation, maintaining outward separation could coexist with profound private integration.

And as circumstances changed, the documentary evidence could change too.

That is why our 2004 legal package means so much to me.

It recorded something we deliberately chose to do together.

We sought professional advice.

We created reciprocal protections.

We continued our life together for many years afterward.

And we were proud of what we had created.

We called it Equal to Marriage.

Whatever ultimately happens in my appeal, I do not want that history—or the history of other same-sex couples who lived through those years—to become invisible.