Minister:

The passage of the 'same-sex' marriage law identified as Bill C-38 will obviously create some controversy in regard to a significant group of elderly war veterans who are co-habiting.

Although the practice is not widespread, our National Service Bureau has a number of cases on record where the circumstances would apparently be described as 'same-sex' marriages, whether marriage is described in the Pension Act under the terms of common-law unions.

Our reading of Bill C-38 does not appear to cover specifically those cases where a common-law relationship has existed under the War Veterans Pension Act.

In this YEAR OF THE VETERAN the passage of the 'same-sex' marriage provision will, unless rectified or clarified, create a difficult decision in those cases where there is a relationship described as co-habiting, created by the fact that two aged war veterans, living together, would bring into consideration the provisions of the Pension Act as they relate to marriages.

It is difficult to accept, except that under law, the people of Canada would agree that the benefits of a 'same-sex' marriage conferred by Bill C-38 would recognize gays and lesbians (as an example) and deny similar benefits to aging war veterans who are widowers or otherwise eligible for marriage and have decided to live out their remaining years together.

The legislation, as you know, does make provision for common-law marriages and where two aging war veterans are living together, it would be difficult to explain to the people of Canada why benefits which would be available to partners of the same sex and are living together would be denied to such veteran or veterans who have engaged in a partnership for reasons other than 'same-sex.'

We would wish, at this point, to make it clear that under no circumstances would The War Amputations of Canada comment on the propriety of 'same-sex' marriages, regardless of the reasons for the union.

It would be appreciated therefore if the Government would advise us as to whether a 'same-sex' partnership as described earlier will be acceptable for the purposes of the War Veterans Pension Act.

We have, in our National Service Bureau, a number of cases where two World War II veterans (in the category of seniors for identification the age bracket of 80 – 90 is used) have been living together for a number of years.

The information in our files indicates we are dealing here with couples of two former members of the Forces who have decided to live together. They are known to be partnering in all aspects of the life of two people, with the exception of a relationship which may presumably be deemed not practicable on the basis of age and/or sexual preference.

The cases to which we have reference herein all involve previously married veterans who are now widowers and are living together, usually as a matter of companionship. In these cases, both parties are in receipt of war disability pensions in varying degrees and, although this situation may not be relevant in all cases, most had overseas service during World War II.

The question now is whether their relationship would be acceptable in respect of benefits under the Veterans Pension Act in the same manner as if they were legally married or living in a common-law relationship as recognized under the Pension Act. In all cases, one partner is a male and the second partner is also a male.

The applicable sections of the War Veterans Pension Act, to which this letter is addressed, are set out under easily recognized headings as follows:

PENSION ACT – R.S.C. 1985 

An Act to provide pensions and other benefits to or in respect of members of the Canadian naval, army and air forces and of the Canadian Forces. 

Pensions for Death 

Pension to surviving spouse 

45. (1) Subject to subsection 47(3), no pension shall be paid to the surviving spouse of a member of the forces unless the spouse was living with the member, was maintaining or being maintained by the member or was entitled to be maintained by the member at the time of the member's death and for a reasonable time before the death. 

Pensions for surviving spouses 

(2) Except as otherwise provided in this Act, the surviving spouse of a member of the forces who was, at the time of the member's death, in receipt of a pension paid at a rate set out in one of classes one to eleven of Schedule I is entitled to a pension in accordance with the rate for a survivor set out in Schedule II, regardless of the cause of that member's death, if ( a) the surviving spouse was married to the member before the pension was granted, or ( b) the marriage took place after the grant of the pension, and (i) the member's death occurred one year or more after the date of the marriage, or (ii) the member's death occurred less than one year after the date of the marriage and the member had, at the date of the marriage, a reasonable expectation of surviving for at least one year after that date, but no payment shall be made under this subsection from a date prior to that from which pension is payable in accordance with section 56. 

Pensions for surviving common- law partners 

(2.1) Except as otherwise provided in this Act, the surviving common-law partner of a member of the forces who was, at the time of the member's death, in receipt of a pension paid at a rate set out in one of classes one to eleven of Schedule I is entitled to a pension in accordance with the rate for a survivor set out in Schedule II, regardless of the cause of member's death, but no payment shall be made under this subsection from a date prior to that from which pension is payable in accordance with section 56. 

Pension to person cohabiting with member 

46. On the death of a member of the forces (war vet), a person who was cohabiting in a conjugal relationship with the member in Canada at the time the member became a member of the forces and for a reasonable period before that time may be awarded a pension at a rate not exceeding the rate provided for a survivor in Schedule II or determined pursuant to subsection 45(3.01), whichever rate is applicable. 

"common law partner"  

"common-law partner", in relation to an individual, means a person who is cohabiting with the individual at the relevant time in a conjugal relationship, having so cohabited for a period of at least one year. For greater certainty, 

( a) in the case of an individual's death, the "relevant time" means the time of that death; and 

( b) common-law partners cease to be common law partners when they cease to cohabit. 

"surviving common law partner" 

"surviving common-law partner", in relation to an individual, does not include, for greater certainty, a person who, at the time of the individual's death, was a former common-law partner of that individual. 

"surviving spouse" 

"surviving spouse", in relation to an individual, does not include, for greater certainty, a person who, at the time of the individual's death, was a former spouse of that individual. 

Couples deemed to be living together 

(3) A member of the forces and the member's spouse or common-law partner or survivor shall be deemed to be or to have been living together for the purposes of this Act where it is established that the member and the spouse or common-law partner are not, or the member and the survivor were not, living together by reason only of injury or disease, circumstances of a temporary nature or other circumstances not attributable to the member or the spouse or common-law partner or survivor. 

In view of the age of the parties involved, any delay in clarifying this matter would be unconscionable.

Yours sincerely, 

H. Clifford Chadderton, CC, O.Ont., OStJ, CLJ, CAE, DCL, LLD
Chief Executive Officer
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