Christie,
A.CJ.T.C.:—The
first
question
that
must
be
addressed
and
answered
in
determining
this
appeal
is:
Do
its
facts
regarded
in
conjunction
with
paragraphs
60(b)
and
(c.1)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
establish
that
there
has
been
“discrimination”
against
the
appellant
within
the
meaning
to
be
attributed
to
that
word
in
subsection
15(1)
of
the
Canadian
Charter
of
Rights
&
Freedoms
("the
Char-
ter")?
The
appeal
relates
to
1985,
1986
and
1987.
In
computing
his
income
for
those
years
the
appellant
made
these
deductions:
1985-$3,640;
1986-$3,640;
1988-
$3,145.
In
assessing
the
appellants
liability
to
income
tax
the
respondent
disallowed
them.
Both
the
appellant
and
Valerie
Ball
were
residents
of
Ontario
at
all
times
relevant
to
this
appeal.
From
January
1973
to
October
1983
their
domestic
relationship
was
that
of
cohabitation.
Two
children
were
born
during
this
time,
namely,
Troy
on
May
13,
1979,
and
Tara
on
July
21,
1982.
Two
or
three
months
prior
to
October
1983
the
marriage
of
Valerie
Ball
to
another
was
dissolved.
The
appellant
was
“single”
during
the
period
of
his
cohabitation
with
her.
Since
October
1983
they
nave
lived
apart.
On
April
8,
1984,
they
signed
an
agreement
prepared
by
a
lawyer
dated
March
20,
1984,
that
recites
the
fact
of
their
having
lived
together
in
a
commonlaw
relationship;
that
the
relationship
terminated
in
October
1983
and
that
Troy
and
Tara
were
torn
of
that
relationship.
The
operative
clauses
of
the
agreement
read:
1.
Valerie
Ball
shall
have
custody
of
the
two
children
subject
to
reasonable
access
to
John
Weronski.
2.
John
Weronski
shall
pay
the
sum
of
$35
per
week
for
the
support
of
each
of
the
aforementioned
children
(a
total
of
$70
per
week).
The
agreement
is
witnessed.
The
amounts
sought
to
be
deducted
in
the
years
referred
to
were
paid
under
this
agreement.
But
payments
of
that
kind
are
only
deductible
if
paid
pursuant
to
an
order
made
by
a
competent
tribunal
as
provided
under
paragraph
60(c.1)
of
the
Act.
As
originally
enacted
paragraph
60(c.1)
read:
60.
There
may
be
deducted
in
computing
a
taxpayer's
income
for
a
taxation
year
such
of
the
following
amounts
as
are
applicable:
(c.1)
an
amount
paid
by
the
taxpayer
in
the
year,
pursuant
to
an
order
made
in
accordance
with
the
laws
of
a
province
by
a
competent
tribunal,
as
an
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
the
recipient
thereof,
children
of
the
recipient,
or
both
the
recipient
and
children
of
the
recipient
if,
at
the
time
the
payment
was
made
and
throughout
the
remainder
of
the
year,
he
was
living
apart
from
the
recipient
who
was
an
individual
within
a
prescribed
class
of
person
described
in
the
laws
of
the
province;
Section
6502
of
the
Income
Tax
Regulations
provides:
6502.
For
the
purposes
of
paragraph
56(1)(c.1),
section
56.1,
paragraph
60(c.1)
and
section
60.1
of
the
Act,
the
class
of
individuals
(a)
who
were
parties,
whether
in
a
personal
capacity
or
by
representation,
to
proceedings
giving
rise
to
an
order
made
in
accordance
with
the
laws
of
the
Province
of
Ontario,
and
(b)
who,
at
the
time
the
application
for
the
order
was
made,
were
persons
described
in
subclause
14(b)(i)
of
the
Family
Law
Reform
Act,
Revised
Statutes
of
Ontario
1980,
c.
152,
is
prescribed
as
a
class
of
persons
described
in
the
laws
of
a
province.
Subclause
14(b)(i)
provided:
14.
In
this
Part,
(b)
"spouse"
means
a
spouse
as
defined
in
section
1,
and
in
addition
includes
(i)
either
of
a
man
and
woman
not
being
married
to
each
other
who
have
cohabited,
(A)
continuously
for
a
period
of
not
less
than
five
years,
or
(B)
in
a
relationship
of
some
permanence
where
there
is
a
child
born
of
whom
they
are
the
natural
parents,
and
have
so
cohabited
within
the
preceding
year,
Paragraph
60(c.1)
was
amended
by
Statutes
of
Canada
1988,
c.
55,
subsection
37(1)
to
read:
60.
There
may
be
deducted
in
computing
a
taxpayer's
income
for
a
taxation
year
such
of
the
following
amounts
as
are
applicable:
(c.1)
an
amount
paid
by
the
taxpayer
in
the
year,
pursuant
to
an
order
made
by
a
competent
tribunal
in
accordance
with
the
laws
of
a
province,
as
an
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
the
recipient
thereof,
children
of
the
recipient,
or
both
the
recipient
and
children
of
the
recipient
if
(i)
the
order
was
made
(A)
after
February
10,
1988,
or
(B)
before
February
11,
1988
and
the
taxpayer
and
the
recipient
jointly
elected
before
the
end
of
the
year
to
have
this
paragraph
and
paragraph
56(1)(c.1)
apply
with
respect
to
the
payment,
(ii)
at
the
time
the
payment
was
made
and
throughout
the
remainder
of
the
year,
the
taxpayer
was
living
apart
from
the
recipient,
and
(iii)
the
taxpayer
required
to
pay
the
amount
is
an
individual
of
the
opposite
sex
who
(A)
before
the
date
of
the
order
cohabited
with
the
recipient
in
a
conjugal
relationship,
or
(B)
is
the
natural
parent
of
a
child
of
the
recipient;
There
being
no
court
order
pursuant
to
which
the
payments
for
the
maintenance
of
the
children
were
made,
both
litigants
agree
that
paragraph
60(c.1)
in
its
original
form
or
as
amended
cannot
be
invoked
as
authority
for
the
deductions.
The
appellant
relies,
however,
on
a
submission
based
upon
paragraphs
60(b)
and
(c.1)
of
the
Act
in
conjunction
with
subsection
15(1)
of
the
Charter.
Paragraph
60(c.1)
has
just
been
cited.
Paragraph
60(b)
and
subsection
15(1)
provide:
60.
There
may
be
deducted
in
computing
a
taxpayer's
income
for
a
taxation
year
such
of
the
following
amounts
as
are
applicable:
(b)
an
amount
paid
by
the
taxpayer
in
the
year,
pursuant
to
a
decree,
order
or
judgment
of
a
competent
tribunal
or
pursuant
to
a
written
agreement,
as
alimony
or
other
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
the
recipient
thereof,
children
of
the
marriage,
or
both
the
recipient
and
children
of
the
marriage,
if
he
was
living
apart
from,
and
was
separated
pursuant
to
a
divorce,
judicial
separation
or
written
separation
agreement
from,
his
spouse
or
former
spouse
to
whom
he
was
required
to
make
the
payment
at
the
time
the
payment
was
made
and
throughout
the
remainder
of
the
year;
15.(1)
Every
individual
is
equal
before
and
under
the
law
and
has
the
right
to
the
equal
protection
and
equal
benefit
of
the
law
without
discrimination
and,
in
particular,
without
discrimination
based
on
race,
national
or
ethnic
origin,
colour,
religion,
sex,
age
or
mental
or
physical
disability.
Under
paragraph
60(b)
of
the
Act
married
parents
of
children
can
enter
into
an
agreement
for
their
maintenance
and
the
amounts
paid
pursuant
to
that
agreement
are
deductible
in
computing
the
payer's
income
thereunder
if
the
other
conditions
stipulated
therein
are
met
about
the
amounts
being
an
allowance
payable
on
a
periodic
basis
and
the
parties
to
the
agreement
living
apart.
These
deductions
can
also
be
made
under
paragraph
60(b)
if
the
amounts
for
maintenance
are
paid
pursuant
to
a
decree,
order
or
judgment
of
a
competent
tribunal
and
the
conditions
referred
to
are
complied
with.
On
the
other
hand
amounts
paid
as
an
allowance
for
the
maintenance
of
children
born
in
consequence
of
cohabitation
are
deductible
in
computing
the
payer's
income
under
paragraph
60(c.1)
only
if
they
are
paid
pursuant
to
an
order
made
in
accordance
with
the
laws
of
a
province
by
a
competent
tribunal
and
if
the
other
matters
stipulated
in
the
paragraph
are
complied
with.
A
taxpayer
who
must
rely
on
paragraph
60(c.1)
to
make
deductions
in
computing
his
income
does
not
have
the
option
that
is
available
under
paragraph
60(b)
of
relying
on
a
written
separation
agreement.
This
is
the
focal
point
of
the
alleged
discrimination
against
the
appellant.
Counsel
for
the
appellant
does
not
ask
that
this
appeal
be
disposed
of
on
the
basis
that
paragraph
60(c.1)
is
"of
no
force
or
effect".
Obviously
that
would
not
achieve
the
purpose
of
her
client
in
bringing
this
appeal.
She
requests
instead
that
a
remedy
be
granted
under
subsection
24(1)
of
the
Charter
that
will
have
the
effect
of
incorporating
into
paragraph
60(c.1)
the
provisions
of
paragraph
60(b)
that
authorizes
a
written
agreement
to
form
one
of
the
primary
bases
for
deductions
in
computing
income.
In
short,
what
is
sought
is
the
amending
of
an
Act
of
Parliament
by
judicial
fiat.
Subsection
24(1)
provides:
24.
(1)
Anyone
whose
rights
or
freedoms,
as
guaranteed
by
this
Charter,
have
been
infringed
or
denied
may
apply
to
a
court
of
competent
jurisdiction
to
obtain
such
remedy
as
the
court
considers
appropriate
and
just
in
the
circumstances.
In
Schachter
v.
Canada,
[1990]
2
F.C.
129;
66
D.L.R.
(4th)
635
(F.C.A.)
what
is
now
section
20
of
the
Unemployment
Insurance
Act,
R.S.C.
1985,
c.
U-1,
was
under
consideration.
It
entitles
adoptive
parents
to
payments
in
respect
of
time
taken
off
work
by
fathers
to
look
after
adopted
children
after
their
arrival
home.
The
same
child
care
benefits
are
not
available
to
natural
parents.
Mr.
Justice
Strayer
of
the
Federal
Court-Trial
Division
found
that
this
provision
of
the
Unemployment
Insurance
Act
was
inconsistent
with
subsection
15(1)
of
the
Charter.
Instead
of
disposing
of
the
litigation
on
the
basis
that
those
provisions
were
without
force
or
effect,
he
fashioned
a
remedy
under
section
24
of
the
Charter
that
is
a
declaration
that
a
natural
father
or
mother
is
entitled
to
the
child
care
benefits
referred
to
in
the
same
manner
as
adoptive
parents.
Also
a
natural
mother
should
not
be
precluded
from
entitlement
to
the
child
care
benefits
because
she
received
pregnancy
benefits
during
the
same
period.
Mr.
Justice
Heald
who
delivered
the
judgment
of
the
majority
sustaining
Strayer,
J.
said
at
pages
134-35
(D.L.R.
638)
that
the
appeal
raised
squarely
".
.
.
the
role
of
the
judiciary
in
circumstances
where
the
granting
of
a
Charter
remedy
results
in
a
judicial
amendment
to
the
legislation
and,
as
well,
entails
the
appropriation
of
public
moneys
from
the
Consolidated
Revenue
Fund
for
a
purpose
not
authorized
by
Parliament.”
Mr.
Justice
Mahoney,
dissenting,
said,
at
page
153
(D.L.R.
653)
that
the
appeal
raised
”.
.
.
in
stark
terms,
a
fundamental
constitutional
question.
That
is
whether
a
competent
Court,
when
it
has
found
legislation
to
be
inconsistent
with
a
provision
of
the
Constitution
of
Canada,
has
the
power
to
grant
a
remedy
which
trespasses
upon
Parliament's
jurisdiction
to
legislate
and,
in
the
present
circumstances
at
least,
to
appropriate
monies."
Schachter
is
under
appeal
to
the
Supreme
Court
of
Canada.
The
appellant's
submission
is
that
he
is
being
discriminated
against
in
that
had
he
and
Valerie
Ball
been
married
while
living
together
he
could
deduct
the
payments
made
for
the
maintenance
of
Troy
and
Tara
under
the
agreement
they
entered
into
in
that
regard.
In
the
course
of
argument
his
counsel
said:
Besides
what
has
already
been
indicated
in
the
pleadings,
that
getting
a
court
order
is
costly
and
time
consuming
and
ties
up
the
resources
of
the
Court,
I
would
also
point
out
that
it
is
a
question
of
privacy
and
confidentiality.
I
think
it
is
invasive
to
have
to
put
in
the
kind
of
pleadings
in
order
to
get
to
court
with
public
documents.
There
may
be
a
public
hearing
in
fact
in
order
to
prove
your
entitlement
to
pay
the
support
or
to
obtain
the
support
and
that
is
invasive
and
it
is
not
something
that
married
couples
need
go
through.
Why
then
should
the
lack
of
a
solemnized
marriage,
a
certificate,
mean
that
common-law
couples
have
to
go
through
this
breach
of
their
private
affairs
and
their
confidentiality?
The
current
paramount
authority
on
subsection
15(1)
of
the
Charter
is
Andrews
v.
Law
Society
of
British
Columbia,
[1989]
1
S.C.R.
143;
56
D.L.R.
(4th)
1.
It
was
heard
by
seven
judges
but
decided
by
six,
Mr.
Justice
Le
Dain
having
taken
no
part
in
the
judgment.
The
judgment
of
Dickson,
C.J.
and
Wilson
and
L'Heureux-Dube,
JJ.
was
delivered
by
Wilson,
J.
who
was
in
complete
agreement
with
Mr.
Justice
McIntyre
regarding
the
way
in
which
subsection
15(1)
should
be
interpreted
and
applied.
But
she
disagreed
with
him
on
the
application
of
section
1
of
the
Charter
to
this
case,
being
of
the
opinion
that
it
did
not
apply.
Mcintyre,
J.,
with
whom
Lamer,
J.
(now
Chief
Justice)
concurred,
was
of
the
view
that
while
section
42
of
the
Barristers
and
Solicitors
Act
of
British
Columbia
that
restricted
admission
to
the
practice
of
law
to
Canadian
citizens
infringed
subsection
15(1)
he
regarded
the
citizenship
requirement
to
be
demonstrably
justified
in
a
free
and
democratic
society
within
the
meaning
of
section
1.
Mr.
Justice
La
Forest
was
in
substantial
agreement
with
McIntyre,
J.
regarding
the
meaning
of
subsection
15(1)
insofar
as
it
was
relevant
to
the
appeal.
But
he
took
the
same
position
as
Madam
Justice
Wilson
regarding
section
1.
The
consequence
was
the
striking
down
of
section
42.
McIntyre
J.
said
at
pages
178-81
(D.L.R.
21-23):
Three
main
approaches
have
been
adopted
in
determining
the
role
of
s.
15(1),
the
meaning
of
discrimination
set
out
in
that
section,
and
the
relationship
of
s.
15(1)
and
s.
1.
The
first
one
which
was
advanced
by
Professor
Peter
Hogg
in
Constitutional
Law
of
Canada,
2nd
ed.
(1985)
would
treat
every
distinction
drawn
by
law
as
discrimination
under
s.
15(1).
There
would
then
follow
a
consideration
of
the
distinction
under
the
provisions
of
s.
1
of
the
Charter.
He
said,
at
pp.
88-801:
I
conclude
that
s.
15
should
be
interpreted
as
providing
for
the
universal
application
of
every
law.
When
a
law
draws
a
distinction
between
individuals,
on
any
ground,
that
distinction
is
sufficient
to
constitute
a
breach
of
s.
15,
and
to
move
the
constitutional
issue
to
s.
1.
The
test
of
validity
is
that
stipulated
by
s.
1,
namely,
whether
the
law
comes
within
the
phrase
"such
reasonable
limits
prescribed
by
law
as
can
be
demonstrably
justified
in
a
free
and
democratic
society".
He
reached
this
conclusion
on
the
basis
that,
where
the
Charter
right
is
expressed
in
unqualified
terms,
s.1
supplies
the
standard
of
justification
for
any
abridgment
of
the
right.
He
argued
that
the
word
“discrimination”
in
s.
15(1)
could
be
read
as
introducing
a
qualification
in
the
section
itself,
but
he
preferred
to
read
the
word
in
a
neutral
sense
because
this
reading
would
immediately
send
the
matter
to
s.
1,
which
was
included
in
the
Charter
for
this
purpose.
The
second
approach
put
forward
by
McLachlin
J.A.
in
the
Court
of
Appeal
involved
a
consideration
of
the
reasonableness
and
fairness
of
the
impugned
legislation
under
s.
15(1).
She
stated,
as
has
been
noted
above,
at
p.
610:
The
ultimate
question
is
whether
a
fair-minded
person,
weighing
the
purposes
of
legislation
against
its
effects
on
the
individuals
adversely
affected,
and
giving
due
weight
to
the
right
of
the
Legislature
to
pass
laws
for
the
good
of
all,
would
conclude
that
the
legislative
means
adopted
are
unreasonable
or
unfair.
She
assigned
a
very
minor
role
to
s.
1
which
would,
it
appears,
be
limited
to
allowing
in
times
of
emergency,
war,
or
other
crises
the
passage
of
discriminatory
legislation
which
would
normally
be
impermissible.
A
third
approach,
sometimes
described
as
an
"enumerated
or
analogous
grounds"
approach,
adopts
the
concept
that
discrimination
is
generally
expressed
by
the
enumerated
grounds.
Section
15(1)
is
designed
to
prevent
discrimination
based
on
these
and
analogous
grounds.
The
approach
is
similar
to
that
found
in
human
rights
and
civil
rights
statutes
which
have
been
enacted
throughout
Canada
in
recent
times.
The
following
excerpts
from
the
judgment
of
Hugessen
J.A.
in
Smith,
Kline
&
French
Laboratories
Ltd.
v.
A.-G.
Canada,
[1987]
2
F.C.
359,
at
pp.
367-69,
illustrate
this
approach:
The
rights
which
it
[s.
15]
guarantees
not
based
on
any
concept
of
strict,
numerical
equality
amongst
all
human
beings.
If
they
were,
virtually
all
legislation,
whose
function
it
is,
after
all,
to
define,
distinguish
and
make
categories,
would
be
in
prima
facie
breach
of
section
15
and
would
require
justification
under
section
1.
This
would
be
to
turn
the
exception
into
the
rule.
Since
courts
would
be
obliged
to
look
for
and
find
section
1
justification
for
most
legislation,
the
alternative
being
anarchy,
there
is
a
real
risk
of
paradox:
the
broader
the
reach
given
to
section
15
the
more
likely
it
is
that
it
will
be
deprived
of
any
real
content.
The
answer,
in
my
view,
is
that
the
text
of
the
section
itself
contains
its
own
limitations.
It
only
proscribes
discrimination
amongst
the
members
of
categories
which
are
themselves
similar.
Thus
the
issue,
for
each
case,
will
be
to
know
which
categories
are
permissible
in
determining
similarity
of
situation
and
which
are
not.
It
is
only
in
those
cases
where
the
categories
themselves
are
not
permissible,
where
equals
are
not
treated
equally,
that
there
will
be
a
breach
of
equality
rights.
As
far
as
the
text
of
section
15
itself
is
concerned,
one
may
look
to
whether
or
not
there
is
“discrimination”,
in
the
pejorative
sense
of
that
word,
and
as
to
whether
the
categories
are
based
upon
the
grounds
enumerated
or
grounds
analogous
to
them.
The
inquiry,
in
effect,
concentrates
upon
the
personal
characteristics
of
those
who
claim
to
have
been
unequally
treated.
Questions
of
stereotype
of
historical
disadvantagement,
in
a
word,
of
prejudice,
are
the
focus
and
there
may
even
be
a
recognition
that
for
some
people
equality
has
a
different
meaning
than
for
others.
The
analysis
of
discrimination
in
this
approach
must
take
place
within
the
context
of
the
enumerated
grounds
and
those
analogous
to
them.
The
words
"without
discrimination”
require
more
than
a
mere
finding
of
distinction
between
the
treatment
of
groups
or
individuals.
Those
words
are
a
form
of
qualifier
built
into
s.
15
itself
and
limit
those
distinctions
which
are
forbidden
by
the
section
to
those
which
involve
prejudice
or
disadvantage.
His
choice
of
approach
is
made
at
page
182
(D.L.R.
23):
The
third
or
"enumerated
and
analogous
grounds"
approach
most
closely
accords
with
the
purposes
of
s.
15
and
the
definition
of
discrimination
outlined
above
and
leaves
questions
of
justification
to
s.
1.
However,
in
assessing
whether
a
complainant's
rights
have
been
infringed
under
s.
15(1),
it
is
not
enough
to
focus
only
on
the
alleged
ground
of
discrimination
and
decide
whether
or
not
it
is
an
enumerated
or
analogous
ground.
The
effect
of
the
impugned
distinction
or
classification
on
the
complainant
must
be
considered.
Once
it
is
accepted
that
not
all
distinctions
and
differentiations
created
by
law
are
discriminatory,
then
a
role
must
be
assigned
to
s.
15(1)
which
goes
beyond
the
mere
recognition
of
a
legal
distinction.
A
complainant
under
s.
15(1)
must
show
not
only
that
he
or
she
is
not
receiving
equal
treatment
before
and
under
the
law
or
that
the
law
has
a
differential
impact
on
him
or
her
in
the
protection
or
benefit
accorded
by
law
but,
in
addition,
must
show
that
the
legislative
impact
of
the
law
is
discriminatory.
Wilson,
J.,
after
noting
that
not
every
distinction
between
individuals
and
groups
will
violate
subsection
15(1)
went
on
at
page
154
(D.L.R.
34):
If
every
distinction
between
individuals
and
groups
gave
rise
to
a
violation
of
s.
15,
then
this
standard
might
well
be
too
stringent
for
application
in
all
cases
and
might
deny
the
community
at
large
the
benefits
associated
with
sound
and
desirable
social
and
economic
legislation.
This
is
not
a
concern,
however,
once
the
position
that
every
distinction
drawn
by
law
constitutes
discrimination
is
rejected
as
indeed
it
is
in
the
judgment
of
my
colleague,
Mcintyre
J.
La
Forest,
J.
said
at
page
194
(D.L.R.
38):
.
.
.
I
am
convinced
that
it
was
never
intended
in
enacting
s.
15
that
it
become
a
tool
for
the
wholesale
subjection
to
judicial
scrutiny
of
variegated
legislative
choices
in
no
way
infringing
on
values
fundamental
to
a
free
and
democratic
society.
Like
my
colleague,
I
am
not
prepared
to
accept
that
all
legislative
classifications
must
be
rationally
supportable
before
the
courts.
Much
economic
and
social
policy-making
is
simply
beyond
the
institutional
competence
of
the
courts:
their
role
is
to
protect
against
incursions
on
fundamental
values,
not
to
second
guess
policy
decisions.
I
also
refer
to
Rudolf
Wolff
&
Co.
v.
Canada,
[1990]
1
S.C.R.
695;
69
D.L.R.
(4th)
392,
because
I
think
it
can
be
inferred
from
this
decision
that
the
fact
that
legislation
is
so
structured
that
it
has
the
potential
for
creating
unnecessary
hardship
or
expense
to
a
taxpayer
in
establishing
a
right
to
deductions
under
the
Act
will
not
of
itself
afford
the
basis
for
a
finding
that
there
has
been
discrimination
in
contravention
of
subsection
15(1).
In
citing
this
authority
I
am
not
suggesting
that
in
the
case
at
hand
it
has
been
established
that
in
fact
paragraph
60(c.1)
is
the
source
of
unnecessary
hardship
or
expense.
In
Rudolf
Wolff
the
appellants
brought
an
action
against
Her
Majesty
in
the
Supreme
Court
of
Ontario
for
damages
for
alleged
tortious
conduct,
breach
of
contract
and
breach
of
fiduciary
duty
by
the
Government
of
Canada
in
its
capacity
as
a
member
of
the
International
Tin
Council,
an
unincorporated
association
consisting
of
22
member
states
and
the
European
Economic
Community.
The
object
of
the
Council
was
to
support
the
market
price
of
tin
by
buying
this
commodity
on
organized
markets
for
the
purpose
of
maintaining
its
price
above
a
defined
floor
price.
The
proceedings
were
instituted
in
the
provincial
court
with
a
view
to
the
appellants
preserving
their
right
to
bring
claims
against
other
prospective
defendants.
The
Crown
brought
a
motion
to
have
the
action
dismissed
for
the
reason
that
the
Supreme
Court
of
Ontario
did
not
have
jurisdiction
to
entertain
it.
In
this
regard
reliance
was
placed
on
subsections
17(1)
and
(2)
of
the
Federal
Court
Act
and
subsection
7(1)
of
the
Crown
Liability
Act
(now
subsection
15(1)
of
that
Act)
which
gave
the
Federal
Court-Trial
Division
exclusive
original
jurisdiction
to
entertain
the
claims
brought
against
the
Crown
by
the
appellants.
The
appellants
contended
that
these
provisions
contravened
subsection
15(1)
of
the
Charter.
The
judgment
of
the
court
was
delivered
by
Mr.
Justice
Cory.
He
said
at
pages
700-703
(D.L.R.
396-99):
The
manner
in
which
a
court
must
approach
an
alleged
infringement
of
s.
15(1)
was
set
forth
by
McIntyre
J.
in
Andrews
v.
Law
Society
of
British
Columbia,
[1989]
1
S.C.R.
143.
He
made
it
clear,
at
p.
182;
that
one
complaining
of
the
violation
of
s.
15
''must
show
not
only
that
he
or
she
is
not
receiving
equal
treatment
before
and
under
the
law
or
that
the
law
has
a
differential
impact
on
him
or
her
in
the
protection
or
benefit
accorded
by
law
but,
in
addition,
must
show
that
the
legislative
impact
of
the
law
is
discriminatory.”
The
appellants
have
not
been
able
to
satisfy
either
of
these
requirements.
With
respect
to
the
issue
of
whether
the
appellants
have
received
unequal
treatment,
it
must
be
apparent
that
the
Crown
cannot
be
equated
with
an
individual.
The
Crown
represents
the
State.
It
constitutes
the
means
by
which
the
federal
aspect
of
our
Canadian
society
functions.
It
must
represent
the
interests
of
all
members
of
Canadian
society
in
court
claims
brought
against
the
Crown
in
right
of
Canada.
The
interests
and
obligations
of
the
Crown
are
vastly
different
from
those
of
private
litigants
making
claims
against
the
Federal
Government.
I
agree
with
the
words
of
Tarnopolsky
J.A.,
speaking
for
the
court
in
that
case
[R.
v.
Stoddart
(1987),
37
C.C.C.
(3d)
351],
at
pp.
362-63,
where
he
stated:
The
Crown
is
not
an
“individual”
with
whom
a
comparison
can
be
made
to
determine
a
s.
15(1)
violation.
.
.
.
the
Crown
Attorney
does
not
participate
in
a
criminal
trial
as
an
"individual".
He
participates
as
a
representative
of
the
Crown,
which
in
turn
represents
the
state,
i.e.
organized
society.
It
will
be
recalled
that
the
Oxford
English
Dictionary
defines
an
“individual”
as
“a
single
human
being”,
in
contradistinction
to
“society”.
Therefore,
the
accused,
as
an
“individual”,
cannot
be
compared
with
Crown
counsel,
as
representative
of
our
organized
society,
for
the
purpose
of
a
s.
15(1)
analysis.
Nor
did
the
appellants
demonstrate
that
if
any
inequality
existed
it
was
discriminatory.
The
impugned
legislation
granting
the
Federal
Court
exclusive
jurisdiction
over
claims
against
the
Crown
in
right
of
Canada
does
not
distinguish
between
classes
of
individuals
on
the
basis
of
any
of
the
grounds
enumerated
in
s.
15(1)
nor
on
any
analogous
grounds.
Certainly,
it
cannot
be
said
that
individuals
claiming
relief
against
the
Federal
Crown
are
in
the
words
of
Wilson
J.
in
R.
v.
Turpin,
[1989]
1
S.C.R.
1296,
at
p.
1333,
a
“discrete
and
insular
minority”
or
"a
disadvantaged
group
in
Canadian
society
within
the
contemplation
of
s.
15".
Rather,
they
are
adisparate
group
with
the
sole
common
interest
of
seeking
to
bring
a
claim
against
the
Crown
before
a
court.
Before
leaving
this
matter,
I
must
observe
that
I
sympathize
with
the
appellants
who
found
themselves
in
a
difficult
position
through
no
fault
of
their
own.
There
is
no
doubt
that
the
impugned
provisions
of
the
Federal
Court
Act
and
Crown
Liability
Act
can
create
unnecessary
hardships,
delays,
and
additional
unnecessary
expense
for
litigants.
I
emphasize
that
Rudolf
Wolff
is
not
referred
to
as
an
authority
that
on
its
facts
provides
guidance
in
determining
whether
there
has
been
discrimination
in
the
appeal
under
consideration.
Its
importance,
for
present
purposes,
lies
in
the
last
paragraph
cited
from
Mr.
Justice
Cory's
reasons
for
judgment
and
its
bearing
on
what
was
said
by
the
appellant
in
his
pleadings
and
in
argument
about
the
cost
and
inconvenience
of
obtaining
a
court
order.
The
appellant
contends
that
while
the
discrimination
against
him
was
not
based
on
a
ground
enumerated
in
subsection
15(1),
it
does
rest
on
the
analogous
ground
of
“marital
status".
Mr.
Olsson,
appearing
for
the
respondent,
did
not
dispute
that
marital
status
could,
in
some
circumstances,
be
an
analogous
ground
of
discrimination
that
is
prohibited
by
subsection
15(1).
I
agree.
But
he
made
it
perfectly
certain
that
his
position
in
opposing
the
appeal
is
that
there
is
no
such
discrimination
under
the
Act
against
the
appellant.
It
is
important
to
bear
in
mind
that
both
the
father
of
a
child
born
within
marriage
and
the
father
of
a
child
born
of
cohabitation
are
entitled
in
computing
their
incomes
for
income
tax
purposes
to
deduct
amounts
paid
by
them
under
a
legal
obligation
to
do
so
for
the
maintenance
of
these
children.
The
only
difference
between
paragraphs
60(b)
and
(c.1)
that
is
germane
to
this
appeal
is
that
with
respect
to
the
father
of
a
child
born
outside
of
marriage
there
must
be
a
court
order
directing
payment
to
entitle
him
to
make
the
deductions.
This
goes
to
the
procedure
whereby
the
obligation
to
pay
maintenance
and
the
corresponding
right
to
make
deductions
in
computing
income
are
to
be
established.
The
distinction
is
essentially
a
policy
decision
relating
to
an
evidentiary
requirement
to
entitlement
under
the
Act
to
make
the
deductions
and
it
is
quite
understandable.
Separation
agreements
have
been
identified
with
marriage
for
many
decades.
They
are
defined
in
Black's
Law
Dictionary,
5th
(1979)
ed.
at
page
1224
as:
“Written
arrangements
concerning
custody,
child
support,
alimony
and
property
division
made
by
a
married
couple
who
are
usually
about
to
get
a
divorce
or
legal
separation."
The
social
institutions
of
marriage
and
cohabitation
are
not
the
same
in
the
eyes
of
the
law.
Marriages
solemnized
under
laws
in
force
in
Canada
are
a
matter
of
public
record.
This
is
not
so
respecting
cohabitation.
The
moment
persons
are
married,
matrimonial
obligations
and
responsibilities
are
created.
While
some
of
the
legal
obligations
and
benefits
of
marriage
can
arise
out
of
cohabitation
this
does
not
happen
with
the
certainty
and
immediacy
of
marriage.
The
same
assumptions
that
exist
about
legal
relationships
created
by
marriage
cannot
be
made
regarding
cohabitation.
In
Holland
&
Stalbecker-Pountney
Cohabitation:
The
Law
in
Canada
this
is
said
in
paragraph
1.5:
Both
marriage
and
cohabitation
are
changing;
the
former
no
longer
necessarily
involves
a
lifelong
commitment
while
the
latter
is
receiving
increased
legal
recognition.
However
there
are
still
significant
differences
in
the
legal
treatment
of
the
two
types
of
relationship.
Matrimonial
property
legislation
across
Canada
does
not
apply
to
cohabitees;
they
are
forced
to
rely
on
general
legal
remedies
available
in
property
disputes.
The
complexities,
inconsistencies
and
inappropriateness
of
the
remedies
led
to
legislative
reforms
for
married
spouses.
However,
cohabitees
continue
to
experience
those
difficulties.
Married
spouses
have
support
rights
in
all
provinces
(although
these
are
becoming
more
limited
in
scope).
Some
provinces
have
provided
for
a
support
obligation
between
cohabitees,
but
the
entitlement
varies
from
province
to
province
and
the
differences
are
often
not
based
on
any
discernible
principle.
Each
province
provides
for
married
spouses
when
one
dies
intestate,
but
to
date
no
province
has
extended
intestacy
provisions
to
cover
cohabitees
although
the
Alberta
Law
Reform
Institute
has
recommended
this
step.
All
provinces
have
provisions
protecting
occupational
rights
in
the
matrimonial
home
and
preventing
dealings
with
the
home
unless
certain
conditions
are
satisfied.
However
while
some
provinces
provide
for
occupational
rights
for
cohabitees
in
the
family
home,
others
leave
the
cohabitee
unprotected.
Some
provinces
have
enacted
legislation
dealing
with
cohabitation
contracts,
whereas
all
provinces
made
provision
for
domestic
contracts
for
married
spouses.
Many
statutory
remedies
only
apply
to
married
spouses
and
do
not
extend
to
cohabitees.
As
for
the
children
of
cohabitation
relationships,
some
provinces
have
abolished
the
status
of
illegitimacy.
In
these
provinces
nuptial
and
exnuptial
children
are
treated
similarly
in
regard
to
support
obligations,
succession
rights,
and
custody
and
access.
However,
there
may
still
be
problems
in
establishing
paternity.
Reference
is
also
made
to
one
of
the
provisions
of
subsection
8(1)
of
the
Children’s
Law
Reform
Act,
R.S.O.
1980,
c.
68,
having
to
do
with
recognition
in
law
of
parentage.
Paragraph
1
of
subsection
8(1)
provides
that
unless
the
contrary
is
proven
on
a
balance
of
probabilities,
there
is
a
presumption
that
a
male
person
is,
and
shall
be
recognized
in
law
to
be,
the
father
of
a
child
in
this
circumstance:
the
person
is
married
to
the
mother
of
the
child
at
the
time
of
the
birth
of
the
child.
This
is
essentially
a
recasting
of
the
common
law
rule
that
a
child
born
of
a
married
woman
during
the
subsistence
of
the
marriage
is
prima
facie
legitimate.
In
Cohabitation:
The
Law
in
Canada,
it
is
said
in
chapter
5.3
that
the
legislatures
of
six
provinces
have
made
provision
for
cohabitation
agreements
which
includes
separation
agreements
between
unmarried
persons.
Ontario
is
one
of
those
provinces
and
I
shall
focus
on
the
Family
Law
Act,
1986
of
Ontario
because
this
appeal
arose
in
that
province.
Particular
reference
is
made
to
subsection
1(1),
sections
29,
30,
31,
35,
51,
54,
55
and
60.
What
is
relevant
therein
to
these
reasons
provides
that
a
man
and
a
woman
who
cohabited
in
the
sense
of
having
lived
together
in
a
conjugal
relationship
outside
marriage
and
who
are
living
separate
and
apart
may
enter
into
a
separation
agreement
in
which
they
agree
on
their
respective
rights
and
obligations
regarding
support
obligations
and
the
right
to
custody
of
and
access
to
their
children.
Such
an
agreement
is
unenforceable
unless
made
in
writing,
signed
by
the
parties
and
witnessed.
Every
spouse
has
an
obligation
to
provide
support
for
the
other
spouse
in
accordance
with
need
and
to
the
extent
that
he
or
she
is
capable
of
doing
so.
Spouse
in
this
context
includes
either
of
a
man
and
woman
who
are
not
married
to
each
other
and
have
cohabited
continuously
for
a
period
of
not
less
than
three
years,
or
in
a
relationship
of
some
permanence,
if
they
are
the
natural
parents
of
a
child.
Every
parent
has
an
obligation
to
provide
support,
in
accordance
with
need,
for
his
or
her
unmarried
child
who
is
a
minor
to
the
extent
that
the
parent
is
capable
of
doing
so.
But
this
obligation
does
not
extend
to
a
child
who
is
sixteen
years
of
age
or
older
and
has
withdrawn
from
parental
control.
A
person
who
is
a
party
to
a
separation
agreement
may
file
the
agreement
with
the
clerk
of
the
Provincial
Court
(Family
Division)
or
the
Unified
Family
Court
together
with
the
person's
affidavit
stating
that
the
agreement
is
in
effect
and
has
not
been
set
aside
or
varied
by
a
court
or
agreement.
A
provision
for
support
or
maintenance
contained
in
an
agreement
that
is
filed
in
this
manner
may
be
enforced
as
if
it
were
an
order
of
the
court
where
it
is
filed.
The
provisions
of
the
Family
Law
Act,
1986
apply
in
respect
of
separation
agreements
validly
made
before
March
1,
1986,
which
is
the
date
on
which
that
Act
came
into
force.
I
cannot
accept
that
paragraphs
60(b)
and
(c.1)
of
the
Act
give
rise
to
the
kind
of
discrimination
envisaged
under
subsection
15(1)
of
the
Charter.
As
these
reasons
show,
there
are
substantial
legal
differences
between
the
relationships
of
marriage
and
cohabitation
and
there
is
no
doubt
in
my
mind
that
in
legislating
to
provide
for
deductions
of
alimony
or
other
outlays
for
maintenance
in
computing
income
Parliament
was
entitled
to
take
this
into
consideration
and,
as
well,
the
somewhat
chequered
pattern
of
provincial
law
regarding
rights
and
obligations
stemming
from
cohabitation.
Further
I
believe
the
inference
to
be
drawn
from
the
wording
of
these
provisions
is
that
this
occurred.
Even
if
an
argument
were
advanced
which
a
court
found
persuasive
that
reference
to
a
written
separation
agreement
could
be
included
in
paragraph
60(c.1)
without
adversely
affecting
the
operation
or
administration
of
that
aspect
of
the
Act
unduly,
this
would
not
alone
provide
a
valid
reason
for
declaring
it
to
be
of
no
force
or
effect
or
adding
amending
words.
To
do
so
would
amount
to
the
judiciary
second
guessing
Parliament
regarding
a
policy
decision
under
the
guise
of
protecting
individuals
against
incursions
on
fundamental
values.
It
is
clear
from
what
is
said
in
Andrews
v.
Law
Society
of
British
Columbia,
and
most
clearly
in
the
passage
cited
from
the
reasons
for
judgment
delivered
by
Mr.
Justice
La
Forest,
that
this
is
not
permitted
because
judicial
scrutiny
of
this
nature
is
not
intended
under
subsection
15(1)
of
the
Charter
and
this
kind
of
decision
falls
within
that
area
of
policy
making
that
His
Lordship
said
is
simply
beyond
the
institutional
competence
of
the
courts.
The
appeal
is
dismissed.
Appeal
dismissed.