SUPREME
COURT OF CANADA
Between:
Attorney
General of Quebec
Appellant
and
A
Respondent
And
Between:
B
Appellant
and
A
Respondent
And
Between:
A
Appellant
and
B
and Attorney General of Quebec
Respondents
-
and -
Attorney
General of New Brunswick, Attorney General of Alberta,
Fédération
des associations de familles monoparentales et recomposées du Québec and
Women’s
Legal Education and Action Fund
Interveners
Official
English Translation: Reasons of LeBel J. and
Deschamps J.
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein,
Cromwell, Moldaver and Karakatsanis JJ.
Reasons for
Judgment:
(paras. 1 to 282)
Reasons
Dissenting in Result:
(paras. 283 to 381)
Reasons
Dissenting in Part in Result:
(paras. 382 to 409)
Reasons
Concurring in Result:
(paras. 410 to 450)
|
LeBel J. (Fish, Rothstein and Moldaver JJ. concurring)
Abella J.
Deschamps J. (Cromwell and Karakatsanis JJ. concurring)
McLachlin C.J.
|
Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R.
61
Attorney General of Quebec Appellant
v.
A Respondent
‑ and ‑
B Appellant
v.
A Respondent
‑ and ‑
A Appellant
v.
B and Attorney General of
Quebec Respondents
and
Attorney
General of New Brunswick,
Attorney
General of Alberta,
Fédération des associations de familles
monoparentales et
recomposées du Québec and Women’s Legal
Education
and Action
Fund Interveners
Indexed as: Quebec (Attorney General) v. A
2013 SCC 5
File No.: 33990.
2012: January 18; 2013: January 25.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for
quebec
Constitutional law — Charter of
rights — Right to equality — Discrimination based on marital status — De facto
spouses — Whether provisions of Civil Code of Québec dealing with family
residence, family patrimony, compensatory allowance, partnership of acquests
and obligation of spousal support infringe guaranteed right to equality because
their application is limited to private legal relationships between married
spouses and civil union spouses — If so, whether infringement justified
— Civil Code of Québec, S.Q. 1991, c. 64, arts. 401 to 430,
432, 433, 448 to 484, 585 — Canadian Charter of Rights and Freedoms, ss. 1 ,
15(1) .
Constitutional law —
Charter of rights — Right to equality — Analytical framework applicable to
claim under s. 15(1) of Canadian Charter of Rights and Freedoms — Whether
prejudice and stereotyping are separate elements into which claim of
discrimination must fit — Distinction
between two stages of analysis on right to equality, namely stage of review
under s. 15 and that of justification under s. 1 — Stage of analysis
at which freedom of choice and autonomy of spouses should be considered in
relation to partition of property and support.
Family law — De facto spouses —
Separation — Support — Spousal support — Family assets — De facto spouses not
being covered by protections granted in Civil Code of Québec to married and
civil union spouses in relation to support and partition of property — Whether
failure to grant same rights to de facto spouses infringes right to equality
guaranteed by s. 15(1) of Canadian Charter of Rights and Freedoms — Civil Code
of Québec, S.Q. 1991, c. 64, arts. 401 to 430, 432, 433, 448
to 484, 585.
A and B met in A’s home country in
1992. A, who was 17 years old at the time, was living with her parents
and attending school. B, who was 32, was the owner of a lucrative business. From
1992 to 1994, they travelled the world together several times a year. B
provided A with financial support so that she could continue her schooling. In
early 1995, the couple agreed that A would come to live in Quebec, where B
lived. They broke up soon after, but saw each other during the holiday season
and in early 1996. A then became pregnant with their first child. She gave
birth to two other children with B, in 1999 and 2001. During the time they
lived together, A attempted to start a career as a model, but she largely did
not work outside of the home and often accompanied B on his travels. B
provided for all of A’s needs and for those of the children. A wanted to get
married, but B told her that he did not believe in the institution of
marriage. He said that he could possibly envision getting married someday, but
only to make a long‑standing relationship official. The parties
separated in 2002 after living together for seven years.
In February 2002, A filed a motion
in court seeking custody of the children. The motion was accompanied by a
notice to the Attorney General of Quebec stating that A intended to challenge
the constitutionality of several provisions of the Civil Code of Québec
(“C.C.Q.”) in order to obtain the same legal regime for de facto
spouses that existed for married spouses. A thus claimed support for herself,
a lump sum, partition of the family patrimony and the legal matrimonial regime
of partnership of acquests. She also sought to reserve her right to claim a
compensatory allowance. A’s claim concerning the use of the family residence
was settled in an agreement between A and B. These appeals relate solely to
the constitutional aspect of the case. The Quebec Superior Court rejected A’s
constitutional arguments and found that the impugned provisions did not violate
the right to equality guaranteed by s. 15 of the Charter . A appealed to
the Quebec Court of Appeal, which allowed A’s appeal in part and declared the
provision that provides for the obligation of spousal support to be of no force
or effect. However, the Court of Appeal upheld the Superior Court’s decision
as regards the constitutionality of the provisions concerning the family
residence, the family patrimony, the compensatory allowance and the partnership
of acquests. The majority of the court suspended the declaration of
constitutional invalidity of art. 585 C.C.Q. for 12 months. B and
the Attorney General of Quebec are appealing the Court of Appeal’s decision to
strike down art. 585. A appeals the conclusion that the provisions
concerning the partition of property are constitutionally valid.
Held (Deschamps,
Cromwell and Karakatsanis JJ. dissenting in part in the result and Abella J.
dissenting in the result): The appeals of the Attorney General of
Quebec and B should be allowed, and the appeal of A should be dismissed.
Articles 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of
Québec are constitutional.
The constitutional questions
should be answered as follows:
1.
Do arts. 401 to
430, 432, 433, 448 to 484 and 585 of the Civil Code of Québec, S.Q.
1991, c. 64, infringe s. 15(1) of the Canadian Charter of Rights
and Freedoms ?
Answers: McLachlin C.J. and Deschamps, Abella,
Cromwell and Karakatsanis JJ. would answer yes. LeBel, Fish, Rothstein
and Moldaver JJ. would answer no.
2.
If so, is the
infringement a reasonable limit prescribed by law that can be demonstrably
justified in a free and democratic society under s. 1 of the Canadian
Charter of Rights and Freedoms ?
Answers: LeBel, Fish, Rothstein and Moldaver JJ.
would answer that it is not necessary to answer this question. McLachlin C.J.
would answer yes. Deschamps, Cromwell and Karakatsanis JJ. would answer
that only art. 585 is not justified under s. 1 . Abella J. would
answer no.
____________________________
(1) Section 15(1) of the Charter
Per LeBel, Fish, Rothstein
and Moldaver JJ. (minority on s. 15(1) ): The Civil Code of Québec
establishes a mandatory primary regime in a chapter that defines the
fundamental effects of marriage. This regime creates mutual rights, duties and
obligations and radically alters each spouse’s patrimonial rights. More
specifically, the primary regime results in the formation of a partial economic
union between the spouses. Aside from the primary regime, where there is no
marriage contract providing for separation as to property or for changes to the
legal regime, the legal matrimonial regime of partnership of acquests applies
to the spouses as a result of their marriage. Like the primary regime, the
regime of partnership of acquests significantly changes the rights of both
spouses in relation to their patrimony. The Quebec legislature has imposed
these regimes only on those who, by agreement with another person, have
demonstrated that they wish to adhere to them. Their consent must be explicit,
and must take the form of marriage or a civil union. The Civil Code of
Québec does not lay down the terms of the union of de facto
spouses. Since the de facto union is not subject to the mandatory
legislative framework that applies to marriage and the civil union, de facto
spouses are free to shape their relationships as they wish, having proper
regard for public order. They can enter into agreements to organize their
patrimonial relationships while they live together and to provide for the
consequences of a possible breakdown.
By arguing that arts. 401 to
430, 432, 433, 448 to 484 and 585 of the Civil Code of Québec are
contrary to s. 15(1) of the Charter and not justified under
s. 1 , A is claiming the benefit of certain aspects of the primary regime
that applies in cases of separation from bed and board, divorce, or dissolution
of a civil union. She is also seeking the automatic and mandatory application
of the legal matrimonial regime of partnership of acquests. In R. v. Kapp,
2008 SCC 41, [2008] 2 S.C.R. 483, and Withler v. Canada (Attorney General),
2011 SCC 12, [2011] 1 S.C.R. 396, the Court reworked and provided important
clarifications to the analytical framework for applying the equality guarantee
provided for in s. 15(1) of the Charter . As can be seen from this
framework, a discriminatory distinction is as a general rule an adverse
distinction that perpetuates prejudice or that stereotypes. The existence of a
pre‑existing or historical disadvantage will make it easier to prove
prejudice or a stereotype. However, the existence or perpetuation of a
disadvantage cannot in itself make a distinction discriminatory. Substantive
equality is not denied solely because a disadvantage is imposed. Rather, it is
denied by the imposition of a disadvantage that is unfair or objectionable,
which is most often the case if the disadvantage perpetuates prejudice or
stereotypes. Thus, according to the established analytical framework, a court
analyzing the validity of an allegation that s. 15(1) has been infringed
must address the following questions: (1) Does the law create a
distinction based on an enumerated or analogous ground? (2) Does the
distinction create a disadvantage by perpetuating prejudice or stereotyping?
The claimant can show that the impugned law creates a distinction expressly or
that it creates one indirectly.
The majority of the Court would
have reached the same conclusion in Nova Scotia (Attorney General) v. Walsh,
2002 SCC 83, [2002] 4 S.C.R. 325, if its analysis had been based on the
reworked analytical framework from Kapp and Withler. Although
the statute at issue in Walsh imposed differential treatment based on
marital status by limiting the presumption of equal division of matrimonial
property to married couples and excluding persons in common law relationships,
that distinction did not create a disadvantage by perpetuating prejudice or
stereotyping. The majority’s analysis was thus based on the wish to promote
substantive equality. Walsh was based on a principle of freedom to
choose between different marital statuses that had different consequences for
spouses, and that principle did not in that context infringe the constitutional
equality guarantee. The principle in question continues to be valid in the circumstances
of the case at bar despite the subsequent developments in the case law.
Although Walsh concerned not the obligation of support, but the equal
division of family assets, the majority’s comments on the sources of the
distinctions between the various forms of relationships and the consequences of
those distinctions remain relevant.
To dispose of these appeals, it
would be inappropriate to distinguish the partition of property from the
obligation of support. Such a distinction disregards the character of an
“economic partnership” that the Quebec legislature has established for marriage
and the civil union. It also disregards the fact that this partnership is
structured around a mandatory primary regime that has both patrimonial and
extrapatrimonial aspects and that the primary regime establishes the obligation
of support as an effect of marriage and of the civil union. In this sense, the
obligation of support is tied to the other effects of marriage and of the civil
union, such as the obligation to contribute to household expenses, rights and
obligations with respect to the family residence, and the creation of a family
patrimony. It forms an integral and indissociable part of the set of measures
that constitute Quebec’s primary regime. What must therefore be determined in
these appeals is not whether the exclusion of de facto spouses from
the obligation of support is discriminatory, but whether their exclusion from
the entire statutory framework imposed on married and civil union spouses is
discriminatory under s. 15(1) of the Charter .
To prove that she has been
discriminated against, A must show on a balance of probabilities that the
provisions of the Civil Code of Québec at issue create an adverse
distinction based on an enumerated or analogous ground and that the
disadvantage is discriminatory because it perpetuates prejudice or
stereotypes. The provisions relating to the family patrimony, the family
residence, the compensatory allowance, the partnership of acquests and the
obligation of support apply only to persons who are married or in a civil
union, and do not apply to de facto spouses. These provisions
therefore have the effect of creating a distinction based on the analogous
ground of marital status. That distinction may result in disadvantages for
those who are excluded from the statutory framework applicable to a marriage or
a civil union. Generally speaking, when de facto spouses separate,
one of them will likely end up in a more precarious patrimonial situation than
if the couple had been married or in a civil union. As a result, unless these de facto
spouses have exactly the same earning capacity and exactly the same patrimony,
one of them will be in a worse position after the relationship ends than would
a married or civil union spouse in a similar patrimonial situation.
However, the distinction is not
discriminatory, because it does not create a disadvantage by expressing or
perpetuating prejudice or by stereotyping. Although there was a period of
Quebec history during which de facto spouses were subjected to both
legislative hostility and social ostracism, nothing in the evidence suggests
that de facto spouses are now subject to public opprobrium. The expert
reports filed by the parties tend to show the contrary. According to them, the
de facto union has become a respected type of conjugality and is
not judged unfavourably by Quebec society as a whole. Likewise, the
legislature’s traditional hostility generally seems to have changed into
acceptance of the de facto union. In this regard, Quebec social
legislation no longer draws distinctions between the various types of
conjugality either in granting benefits to or imposing obligations on spouses
where their relations with government institutions are concerned. The
distinction continues to exist in the context of relations between the spouses
themselves, within their conjugal relationship, where there is still a will to
preserve the possibility of choosing between various types of conjugality.
Nor is the exclusion of de
facto spouses from the application of the impugned provisions
discriminatory on the basis of an expression of prejudice. The legislature has
not established a hierarchy between the various forms of conjugality, nor has
it expressed a preference for marriage and the civil union at the expense of
the de facto union. It has merely defined the legal content of the
different forms of conjugal relationships. It has made consent the key to changing
the spouses’ mutual patrimonial relationship. In this way, it has preserved
the freedom of those who wish to organize their patrimonial relationships
outside the mandatory statutory framework. Express, and not deemed, consent is
the source of the obligation of support and of that of partition of spouses’
patrimonial interests. This consent is given in Quebec law by contracting
marriage or a civil union, or entering into a cohabitation agreement.
Participation in the protective regimes provided for by law depends necessarily
on mutual consent. In this regard, the conclusion of a cohabitation agreement
enables de facto spouses to create for themselves the legal
relationship they consider necessary without having to modify the form of
conjugality they have chosen for their life together. In this context in which
the existence of a set of rights and obligations depends on mutual consent in
one of a variety of forms, it is hard to speak of discrimination against de facto
spouses. The resulting choice has become a key factor in the determination of
the scope of the right at issue, and not only in the justification of a limit
on that right. It is not imperative that there be an identical framework for
each form of union in order to remain true to the purpose of s. 15(1) . In
the instant case, the fact that there are different frameworks for private
relationships between spouses does not indicate that prejudice is being
expressed or perpetuated, but, rather, connotes respect for the various conceptions
of conjugality. Thus, no hierarchy of worth is established between the
different types of couples.
The articles of the Civil Code
of Québec whose constitutional validity is being challenged by A therefore
do not express or perpetuate prejudice against de facto spouses.
On the contrary, it appears that, by respecting personal autonomy and the
freedom of de facto spouses to organize their relationships on the
basis of their needs, those provisions are consistent with two of the values
underlying s. 15(1) of the Charter . They were enacted as part of a
long and complex legislative process during which the Quebec National Assembly
was concerned about keeping step with changes in society and about adapting
family law to new types of conjugal relationships in a manner compatible with
the freedom of spouses.
Furthermore, there is no evidence
in the Court’s record that would justify finding that the exclusion of de facto
spouses from the primary regime and the regime of partnership of acquests is
based on a stereotypical characterization of the actual circumstances of such
spouses. More specifically, none of A’s evidence tends to show that the policy
of freedom of choice, consensualism and autonomy of the will does not
correspond to the reality of the persons in question. Nor can judicial notice
be taken of the fact that the choice of type of conjugality is not a deliberate
and genuine choice that should have patrimonial consequences but necessarily
results from the spouses’ ignorance of the consequences of their status. Such
a fact is clearly controversial and not beyond reasonable dispute. It is not
unreasonable to believe that, in theory, individuals sometimes make uninformed
choices and that some individuals may be unaware of the consequences of their
choice of conjugal lifestyle. Nevertheless, to take judicial notice of the
fact that the voluntary choice not to marry does not reflect an autonomous
decision to avoid the legal regimes would be to exceed the limits of legitimate
judicial notice, especially in relation to an issue at the centre of the
controversy. In this case, A has not established that it is stereotypical to
believe that couples in a de facto union have chosen not to be
bound by the regimes applicable to marriage and civil unions. The Quebec
scheme, the effect of which is to respect each person’s freedom of choice to
establish his or her own form of conjugality, and thus to participate or not to
participate in the legislative regime of marriage or civil union with its
distinct legal consequences, is not based on a stereotype. In this sense,
recognition of the principle of autonomy of the will, which is one of the
values underlying the equality guarantee in s. 15 of the Charter ,
means that the courts must respect choices made by individuals in the exercise
of that autonomy. In this context, it will be up to the legislature to
intervene if it believes that the consequences of such autonomous choices give
rise to social problems that need to be remedied.
In conclusion, although
arts. 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of
Québec draw a distinction based on marital status between de facto
spouses and married or civil union spouses, they do not create a disadvantage
by expressing or perpetuating prejudice or by stereotyping. These provisions
accordingly do not violate the right to equality guaranteed by s. 15 of
the Charter .
Per Abella J. (majority on s. 15(1) ):
The total exclusion of de facto spouses — the term used in Quebec for
those who are neither married nor in a civil union — from the legal protections
for both support and property given to spouses in formal unions is a violation
of s. 15(1) of the Canadian Charter of Rights and Freedoms .
When spouses who are married or in civil unions separate or divorce in Quebec,
they are guaranteed certain legal protections. They have the right to claim
support from each other and an equal division of the family property. The
spousal support and family property provisions in Quebec are aimed at
recognizing and compensating spouses for the roles assumed within the relationship
and any resulting interdependence and vulnerability on its dissolution. Many de
facto spouses share the characteristics that led to the protections for spouses
in formal relationships. They form long‑standing unions; they divide
household responsibilities and develop a high degree of interdependence; and,
critically, the economically dependent, and therefore vulnerable, spouse is
faced with the same disadvantages when the relationship is dissolved. Yet de
facto dependent spouses in Quebec have no right to claim support, no right
to divide the family patrimony, and are not governed by any matrimonial regime.
As the history of modern family
law demonstrates, fairness requires that we look at the content of the
relationship’s social package, not at how it is wrapped. In Quebec and throughout
the rest of Canada, the right to support does not rest on the legal status of
either husband or wife, but on the reality of the dependence or vulnerability
that the spousal relationship creates. The law dealing with division of family
property also rests on a protective basis rather than a contractual one. The
provisions in Quebec on compensatory allowance and the family patrimony regime
are part of public order, applying mandatorily to all married spouses and those
in civil unions. The mandatory nature of both the compensatory allowance and
family patrimony regimes highlights the preeminent significance Quebec has
given to concerns for the protection of vulnerable spouses over other values
such as contractual freedom or choice.
Historically, unmarried spouses in
Canada were stigmatized; but as social attitudes changed, so did the approaches
of legislatures and courts, which came to accept conjugal relationships outside
a formal marital framework. This change reflected an enhanced understanding of
what constitutes a “family”. As attitudes shifted and the functional
similarity between many unmarried relationships and marriages was accepted,
this Court expanded protection for unmarried spouses. In Miron v. Trudel,
[1995] 2 S.C.R. 418, for example, the Court found that “marital status” was an
analogous ground under s. 15(1) of the Charter because of the
historic disadvantage of unmarried spouses. Notably too, the Court observed
that while in theory an individual is free to choose whether to marry, there
are, in reality, a number of factors that may place the decision beyond his or
her effective control. This was a recognition of the complex and mutual nature
of the decision to marry and the myriad factors at play in that decision. It
was also an acknowledgment that the decision to live together as unmarried
spouses may, for some, not in fact be a choice at all.
The purpose of the s. 15
equality provision is to eliminate the exclusionary barriers faced by
individuals in the enumerated or analogous groups in gaining meaningful access
to what is generally available. In Kapp, this Court reaffirmed its commitment to the test
that was set out in Andrews v. Law
Society of British Columbia, [1989] 1
S.C.R. 143, whereby s. 15 was seen as an anti‑discrimination
provision. The claimant’s burden under the Andrews test is to show that
the government has made a distinction based on an enumerated or analogous
ground and that the distinction’s impact on the individual or group perpetuates
disadvantage. If this has been demonstrated, the burden shifts to the
government to justify the reasonableness of the distinction under s. 1 . Kapp,
and later Withler restated these principles as follows: (1) Does the law create a distinction
based on an enumerated or analogous ground? (2) Does the distinction
create a disadvantage by perpetuating prejudice or stereotyping?
In referring to prejudice and stereotyping in the second step of the Kapp
reformulation of the Andrews test, the Court was not purporting to
create a new s. 15 test. Prejudice
and stereotyping are not discrete elements of the test which a claimant is
obliged to demonstrate. Prejudice is the holding of pejorative attitudes based
on strongly held views about the appropriate capacities or limits of
individuals or the groups of which they are a member. Stereotyping, like prejudice, is a disadvantaging
attitude, but one that attributes characteristics to members of a group regardless
of their actual capacities. Attitudes of prejudice and stereotyping can undoubtedly lead to
discriminatory conduct, and discriminatory
conduct in turn can reinforce these negative attitudes. But Kapp and Withler
should not be seen as establishing an additional requirement on s. 15
claimants to prove that a distinction will perpetuate prejudicial or
stereotypical attitudes towards them. Such an approach improperly focuses
attention on whether a discriminatory attitude exists, not a discriminatory
impact, contrary to Andrews, Kapp and Withler. It is the discriminatory conduct that
s. 15 seeks to prevent, not the underlying attitude or motive. Requiring claimants, therefore, to prove
that a distinction perpetuates negative attitudes about them imposes a largely
irrelevant, not to mention ineffable burden.
The root of s. 15 is our awareness that certain groups have been
historically discriminated against, and that the perpetuation of such
discrimination should be curtailed. The key is whether a distinction has the effect of perpetuating arbitrary
disadvantage on the claimant because of his or her membership in an enumerated
or analogous group. If the state conduct
widens the gap between the historically disadvantaged group and the rest of
society rather than narrowing it, then it is discriminatory.
Assessment of legislative purpose is an important part
of a Charter analysis, but it is conducted under s. 1 once the
burden has shifted to the state to justify the reasonableness of the
infringement. To focus on the legislative purpose — freedom of choice — at the
s. 15(1) stage is not only contrary to the approach in Andrews, it
is also completely inconsistent with Miron and undermines the
recognition of marital status as an analogous ground. Having accepted
marital status as an analogous ground, it is contradictory to find not
only that de facto spouses have a choice about their marital
status, but that it is that very choice that excludes them from the protection
of s. 15(1) to which Miron said they were entitled. Moreover, this
Court has repeatedly rejected arguments that choice protects a distinction from
a finding of discrimination.
Because the equality analysis
under s. 15(1) of the Charter has evolved substantially in the
decade since Walsh was decided, Walsh need not be followed. In
particular, the majority in Walsh relied on the dignity test and on
comparator groups, neither of which is any longer required as part of the s. 15(1)
analysis.
The exclusion of de facto
spouses from the economic protections available to formal spousal relationships
is a distinction based on marital status, an analogous ground. That it imposes
a disadvantage is clear: the law excludes vulnerable and economically
dependent de facto spouses from protections considered so fundamental to
the welfare of vulnerable married or civil union spouses that one of those
protections is presumptive, and the rest are of public order, explicitly
overriding freedom of contract or choice for those spouses. The disadvantage
this exclusion perpetuates is an historic one: it continues to deny de facto
spouses access to economic remedies of which they have always been
deprived, remedies Quebec considered indispensable for the protection of
married and civil union spouses. There is little doubt that some de facto
couples are in relationships that are functionally similar to formally
recognized spousal relationships. Since many spouses in de facto
couples exhibit the same functional characteristics as spouses in formal
unions, with the same potential for one partner to be left economically
vulnerable or disadvantaged when the relationship ends, their exclusion from
similar protections perpetuates historic disadvantage against them based
on their marital status. There is no need to look for an attitude of
prejudice motivating or created by the exclusion of de facto couples
from the presumptive statutory protections. There is no doubt that attitudes
have changed towards de facto unions in Quebec, but what is relevant is
not the attitudinal progress towards them, but the continuation of their
discriminatory treatment.
Per Deschamps, Cromwell and
Karakatsanis JJ. (concurring with Abella J. on s. 15(1) ): There
is agreement with Abella J.’s analysis of s. 15 of the Charter
and with her conclusion that the right protected by that section has been
infringed. The Quebec legislature has infringed the guaranteed right to
equality by excluding de facto spouses from all the measures adopted to
protect persons who are married or in civil unions should their family
relationships break down. The Court has recognized the fact of being unmarried
as an analogous ground because, historically, unmarried persons were considered
to have adopted a lifestyle less worthy of respect than that of married
persons. For this reason, they were excluded from the social protections.
Even though society’s perception of de facto spouses has changed in
recent decades and there is no indication that the Quebec legislature intended
to stigmatize them, the denial of the benefits in question perpetuates the
disadvantage such people have historically experienced. The Attorney General
of Quebec therefore had to justify this distinction.
Per McLachlin C.J.
(concurring with Abella J. on s. 15(1) ): The s. 15 analysis set
out in Abella J.’s reasons is agreed with, as is her conclusion that there
is a breach. While the promotion or the perpetuation of prejudice, on the one
hand, and false stereotyping, on the other, are useful guides, what constitutes
discrimination requires a contextual analysis, taking into account matters such
as pre‑existing disadvantage of the claimant group, the degree of
correspondence between the differential treatment and the claimant group’s
reality, the ameliorative impact or purpose of the law, and the nature of the
interests affected. The issue of whether the law is discriminatory must be
considered from the point of view of the reasonable person, dispassionate and
fully apprised of the circumstances, possessed of similar attributes to, and
under similar circumstances as, the claimant.
It is important to maintain the
analytical distinction between s. 15 and s. 1 . Walsh does not
bind the Court in the present case. Public policy considerations such as
freedom of choice and individual autonomy, which were held in Walsh to
negate a breach of s. 15 , are better considered at the s. 1 stage of
the analysis.
Here, the Quebec approach of
applying mandatory protections only to married and civil union spouses limits
the s. 15 equality right of de facto spouses. A reasonable person
in A’s position would conclude that the law in fact shows less concern for
people in A’s position than for married and civil union spouses on break‑up
of a relationship. As it applies to people in A’s situation, the law
perpetuates the effects of historical disadvantage rooted in prejudice and rests
on a false stereotype of choice rather than on the reality of the claimant’s
situation. While the legislative animus against de facto spouses in
Quebec has disappeared, the present law continues to exclude de facto spouses
from the protective schemes of Quebec family law. Moreover, the law assumes
that de facto partners choose to forgo the protections it offers to
married and civil union partners. This assumption fails to accord to the
reality of the situation of de facto spouses such as A.
(2) Section 1 of the Charter
Per LeBel, Fish, Rothstein and Moldaver JJ.:
Since the exclusion of de facto spouses from the scope of the
provisions of the Civil Code of Québec at issue is not discriminatory
within the meaning of s. 15(1) of the Charter and does not violate
the constitutional right to equality, it is not necessary to proceed to the
s. 1 stage of the Charter analysis.
Per McLachlin C.J.: The limit on the
equality right of de facto spouses is justified under s. 1 of the Charter .
The objective of the Quebec legislature, which is to promote choice and
autonomy for all Quebec spouses with respect to property division and support,
was pursued in response to rapidly changing attitudes in Quebec with respect to
marriage and is sufficiently important to justify an infringement to the right
to equality. The distinction made by the law is rationally connected to the
state objective: the Quebec approach only imposes state‑mandated
obligations on spouses who have made a conscious and active choice to accept
those obligations. The law falls within a range of reasonable alternatives for
maximizing choice and autonomy in the matter of family assets and support.
While schemes adopted in other Canadian provinces impair the equality right of de
facto spouses to a lesser degree, such approaches would be less effective
in promoting Quebec’s goals of maximizing choice and autonomy for couples in
Quebec. The question at the minimum impairment stage is whether the
legislative goal could be achieved in a way that impacts the right less, not
whether the goal should be altered. Finally, the effects of the Quebec scheme
on the equality rights of de facto spouses are proportionate to the
scheme’s overall benefits for the group. The scheme enhances the freedom of
choice and autonomy of many spouses as well as their ability to give personal
meaning to their relationship. Having regard to the need to allow legislatures
a margin of appreciation on difficult social issues and the need to be
sensitive to the constitutional responsibility of each province to legislate
for its population, the unfortunate dilemma faced by women such as A is not
disproportionate to the benefits of the scheme to an extent that warrants a
finding of unconstitutionality.
Per Deschamps, Cromwell and Karakatsanis JJ.:
Although support and the measures relating to patrimonial property have some of
the same functions and objectives, they cannot and must not be confused with
one another. The needs they address and how the legislature has dealt with
them in the past warrant their being considered separately. The measures that
protect the patrimony of spouses are not, like support, focused on the basic
needs of the vulnerable spouse. Their purpose is to ensure autonomy and
fairness for couples who have been able to, or wanted to, accumulate property.
The process that leads to the acquisition of a right of ownership is different
from the one that causes a spouse to become economically dependent. Whereas a
plan to live together takes shape gradually and can result in the creation of a
relationship of interdependence over which one of the parties has little or no
control, property can be acquired only as a result of a conscious act.
This analysis leads to the
conclusion that only the exclusion of de facto spouses from support is
not justified under s. 1 of the Charter . The objective of
promoting the autonomy of the parties is pressing and substantial. There is
also a rational connection. However, the minimal impairment test is not met.
The affected interest is vital to persons who have been in a relationship of
interdependence. The rationale for awarding support on a non‑compensatory
basis applies equally to persons who are married or in a civil union and to de
facto spouses. If the legal justification for support is based on, among
other things, the satisfaction of needs resulting from the breakdown of a
relationship of interdependence created while the spouses lived together, it is
difficult to see why a de facto spouse who may not have been free to
choose to have the relationship with his or her spouse made official through
marriage or a civil union, but who otherwise lives with the latter in a “family
unit”, would not be entitled to support. For someone in such a position, the
possibility the parties have, according to the Attorney General, of choosing to
marry or to enter into a civil union does not really exist. The concept of
“mutual obligation” as the non‑compensatory basis for the obligation of
support must guide legislators in seeking ways to promote the autonomy of the
parties while interfering as little as reasonably possible with the right to
support itself. A total exclusion from the right to support benefits only de
facto spouses who want to avoid the obligation of support, and it impairs
the interests of dependent and vulnerable former spouses to a disproportionate
extent.
Per Abella J.: The breach of s. 15(1) is not saved under s. 1 ,
failing the minimal impairment and proportionality steps of the Oakes
test. The exclusion of de
facto spouses from spousal support and property regimes in Quebec was a
carefully considered policy choice. It was discussed and reaffirmed during
successive family law reforms from 1980 onwards. But the degree of legislative
time, consultation and effort cannot act as a justificatory shield to guard
against constitutional scrutiny. What is of utmost relevance is the resulting
legislative choice. Neither the deliberative policy route nor the popularity
of its outcome is a sufficient answer to the requirement of constitutional
compliance.
An outright exclusion of de
facto spouses cannot be said to be minimally impairing of their equality
rights. This Court has
generally been reluctant to defer to the legislature in the context of total
exclusions from a legislative scheme. The antipathy towards complete
exclusions is not surprising, since the government is required under s. 1 to explain why a significantly less
intrusive and equally effective measure was not chosen. This will be a difficult burden to meet when, as in
this case, a group has been entirely left out of access to a remedial scheme.
The current opt-in protections may well be adequate for some de facto
spouses who enter their unions with sufficient financial security,
legal information, and the intent to avoid the consequences of a more formal
union. But their ability to exercise freedom of choice can be equally protected
under a regime with an opt-out mechanism. The needs of the economically
vulnerable, however, require presumptive protection no less in de facto unions
than in more formal ones. The
evidence discloses that many de facto spouses simply do not turn their minds to the eventuality of
separation. This lack of awareness speaks to the relative merit of a system of
presumptive protection, under which they would be protected whether aware of
their legal rights or not, while leaving de facto spouses who wish to do
so the freedom to choose not to be protected. A further weakness of the
current opt‑in system is its failure to recognize that the choice to
formally marry is a mutual and complex decision, as Miron pointed out.
Where one member of a couple refuses to marry or enter into a civil union, he
or she thereby deprives the other of the benefit of needed economic support
when the relationship ends.
Every other province has extended
spousal support to unmarried spouses. They have set minimum periods of
cohabitation before couples are subject to their regimes, and have preserved
freedom of choice by allowing couples to opt out. Some have also extended
statutory division of property to unmarried spouses. These presumptively protective schemes with a right
on the part of de facto spouses to opt out are examples of
alternatives that would provide economically vulnerable spouses with the
protection they need, without in any way interfering with the legislative
objective of giving freedom of choice to those de facto spouses who want
to exercise it. At the end of
the day, the methodology for remedying the s. 15 breach lies with the
Quebec legislature, and Quebec
is in no way obliged to mimic any other province’s treatment of de
facto spouses. But the fact of these other regimes can be
helpful in determining that there is a less impairing way to
fulfill the objective of preserving freedom of choice without infringing the
equality rights of de facto spouses.
The choices for de facto spouses
in Quebec are to enter into a contract to enshrine certain protections, to
marry and receive all the protections provided by law, or to remain unbound by
any mutual rights or obligations. It is entirely possible for Quebec to design
a regime that retains all of these choices without violating s. 15 .
Spouses who are aware of their legal rights, and choose not to marry so they
can avoid Quebec’s support and property regimes, would be free to choose to
remove themselves from a presumptively protective regime. Changing the default
situation of the couple, however, so that spousal support and division of
property protection of some kind applies to them, would protect those spouses
for whom the choices are illusory and who are left economically vulnerable at
the end of the relationship.
The deleterious effect of
excluding all de facto spouses, who represent over a third of Quebec
couples, from the protection of the family support and division of property
regimes is profound. Being excluded requires potentially vulnerable de
facto spouses, unlike
potentially vulnerable spouses in formal unions, to expend time, effort and
money to try to obtain some financial assistance. If the vulnerable spouse
fails to take these steps, either through a lack of knowledge or resources, or
because of the limits on his or her options imposed by an uncooperative
partner, he or she will remain unprotected. The outcome for such a spouse in
the event of a separation can be, as it is for economically dependent spouses
in formal unions, catastrophic. The difference is that economically dependent
spouses in formal unions have automatic access to the possibility of financial
remedies. De facto spouses have no such access. The salutary impact of
the exclusion, on the other hand, is the preservation of de facto
spouses’ freedom to choose not to be in a formal union. Those for whom a de
facto union is truly a chosen means to preserve economic independence would
still be able to achieve this result by opting out. Since the salutary effect
can be achieved without in any way compromising a de facto spouse’s
freedom of choice, it cannot be said to outweigh the serious harm for
economically vulnerable de facto spouses that results from their
exclusion from the family support and property regimes.
Cases Cited
By LeBel J.
Applied: R. v. Kapp,
2008 SCC 41, [2008] 2 S.C.R. 483; Withler
v. Canada (Attorney General), 2011
SCC 12, [2011] 1 S.C.R. 396; Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325; distinguished: M.
v. H., [1999] 2 S.C.R. 3; discussed: Law v. Canada (Minister of
Employment and Immigration), [1999] 1 S.C.R. 497; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; referred to: Miron v. Trudel, [1995] 2 S.C.R. 418; M.T. v. J.‑Y.T., 2008 SCC 50, [2008] 2 S.C.R. 781; Droit de la
famille — 977, [1991] R.J.Q. 904; Bracklow v. Bracklow, [1999] 1
S.C.R. 420; G.B. v. C.C., [2001] R.J.Q. 1435; Couture v. Gagnon,
[2001] R.J.Q. 2047, leave to appeal refused, [2002] 3 S.C.R. vii; Ponton v.
Dubé, 2005 QCCA 413 (CanLII); Bourbonnais v. Pratt, 2006 QCCS 5611,
[2007] R.D.F. 124; M.B. v. L.L., [2003] R.D.F. 539; Peter v. Beblow,
[1993] 1 S.C.R. 980; Cie Immobilière Viger Ltée v. Lauréat Giguère Inc.,
[1977] 2 S.C.R. 67; Benzina v. Le, 2008 QCCA 803 (CanLII); Barrette
v. Falardeau, 2010 QCCA 989 (CanLII); C.L. v. J.Le., 2010 QCCA 2370
(CanLII); Droit de la famille — 121120, 2012 QCCA 909 (CanLII); Blencoe
v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R.
307; Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R.
429; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v.
Morgentaler, [1988] 1 S.C.R. 30; Rodriguez v. British Columbia (Attorney
General), [1993] 3 S.C.R. 519; Eldridge v. British Columbia (Attorney
General), [1997] 3 S.C.R. 624; Hodge v. Canada (Minister of Human
Resources Development), 2004 SCC 65, [2004] 3 S.C.R. 357; Egan v. Canada,
[1995] 2 S.C.R. 513; Corbiere v. Canada (Minister of Indian and Northern
Affairs), [1999] 2 S.C.R. 203; Thibaudeau v. Canada, [1995] 2 S.C.R.
627; R. v. Oakes, [1986] 1 S.C.R. 103; Alberta v. Hutterian Brethren
of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Ermineskin Indian
Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222; A.C. v.
Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R.
181; Alberta (Aboriginal Affairs and Northern Development) v. Cunningham,
2011 SCC 37, [2011] 2 S.C.R. 670; R.
v. Turpin, [1989] 1 S.C.R. 1296; Lavoie v. Canada, 2002 SCC 23,
[2002] 1 S.C.R. 769; Trociuk v. British Columbia (Attorney General),
2003 SCC 34, [2003] 1 S.C.R. 835; Eaton v. Brant County Board of Education,
[1997] 1 S.C.R. 241; R. v. Williams, [1998] 1 S.C.R. 1128; R. v. Find,
2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Spence, 2005 SCC 71, [2005] 3
S.C.R. 458.
By Abella J.
Applied: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Andrews v.
Law Society of British Columbia,
[1989] 1 S.C.R. 143; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; not followed: Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325; discussed: Miron v. Trudel, [1995] 2 S.C.R. 418; referred to: Québec (Procureure générale) v. B.T., 2005
QCCA 748, [2005] R.D.F. 709; Moge v. Moge, [1992] 3 S.C.R. 813; Bracklow v. Bracklow, [1999] 1 S.C.R. 420; M. (M.E.)
v. L. (P.), [1992] 1 S.C.R. 183; Droit
de la famille — 977, [1991] R.J.Q.
904; Rathwell v. Rathwell, [1978]
2 S.C.R. 436; Murdoch v. Murdoch, [1975] 1 S.C.R. 423; Pettkus v.
Becker, [1980] 2 S.C.R. 834; M. v. H., [1999] 2
S.C.R. 3; Ontario Human Rights Commission
v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Canadian National
Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R.
1114; Law v. Canada
(Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Griggs v. Duke Power Co., 401 U.S. 424 (1971); Corbiere v. Canada (Minister of Indian and Northern
Affairs), [1999] 2 S.C.R. 203; Brooks v. Canada Safeway Ltd., [1989] 1
S.C.R. 1219; Lavoie v. Canada, 2002 SCC 23, [2002] 1 S.C.R. 769; Janzen v. Platy Enterprises Ltd., [1989] 1
S.C.R. 1252; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003
SCC 54, [2003] 2 S.C.R. 504; Alberta
v. Hutterian Brethren of Wilson Colony,
2009 SCC 37, [2009] 2 S.C.R. 567; RJR‑MacDonald
Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Tétreault‑Gadoury
v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Vriend
v. Alberta, [1998] 1 S.C.R. 493.
By Deschamps J.
Not followed: Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325; referred to: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Withler v.
Canada (Attorney General), 2011 SCC
12, [2011] 1 S.C.R. 396; Law v. Canada (Minister of Employment and
Immigration), [1999] 1
S.C.R. 497; Miron v. Trudel, [1995] 2 S.C.R. 418;
Bracklow v. Bracklow, [1999] 1 S.C.R. 420; Moge v.
Moge, [1992] 3 S.C.R. 813; M. v. H., [1999] 2
S.C.R. 3.
By McLachlin C.J.
Not followed: Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325; referred
to: Miron v. Trudel, [1995] 2 S.C.R. 418; R. v. Kapp, 2008
SCC 41, [2008] 2 S.C.R. 483;
Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Law
v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art
Ltd., [1986] 2 S.C.R. 713; Irwin Toy Ltd. v. Quebec (Attorney General),
[1989] 1 S.C.R. 927; Alberta v. Hutterian Brethren of Wilson Colony,
2009 SCC 37, [2009] 2 S.C.R. 567; Lavoie v. Canada, 2002 SCC 23, [2002]
1 S.C.R. 769; RJR‑MacDonald Inc.
v. Canada (Attorney General), [1995]
3 S.C.R. 199; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; R.
v. Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209.
Statutes and Regulations Cited
Act
instituting civil unions and establishing new rules of filiation, S.Q.
2002, c. 6, s. 143.
Act
respecting duties on transfers of immovables, R.S.Q., c. D‑15.1.
Act
respecting financial assistance for education expenses, R.S.Q., c. A‑13.3.
Act
respecting financial services cooperatives, R.S.Q., c. C‑67.3.
Act
respecting industrial accidents and occupational diseases, R.S.Q., c. A‑3.001.
Act
respecting insurance, R.S.Q., c. A‑32.
Act
respecting labour standards, R.S.Q., c. N‑1.1.
Act
respecting legal aid and the provision of certain other legal services, R.S.Q.,
c. A‑14.
Act
respecting matrimonial regimes, S.Q. 1969, c. 77.
Act
respecting school elections, R.S.Q., c. E‑2.3.
Act
respecting the Civil Service Superannuation Plan, R.S.Q., c. R‑12.
Act
respecting the conditions of employment and the pension plan of the Members of
the National Assembly, R.S.Q., c. C‑52.1.
Act
respecting the Government and Public Employees Retirement Plan, R.S.Q.,
c. R‑10.
Act
respecting the legal capacity of married women, S.Q. 1964, c. 66.
Act
respecting the Pension Plan of Certain Teachers, R.S.Q., c. R‑9.1.
Act
respecting the Pension Plan of Elected Municipal Officers, R.S.Q., c. R‑9.3.
Act
respecting the Pension Plan of Peace Officers in Correctional Services,
R.S.Q., c. R‑9.2.
Act
respecting the Québec Pension Plan, R.S.Q., c. R‑9.
Act
respecting the Québec sales tax, R.S.Q., c. T‑0.1.
Act
respecting the Teachers Pension Plan, R.S.Q., c. R‑11.
Act
respecting trust companies and savings companies, R.S.Q., c. S‑29.01.
Act
to amend the Civil Code and the Code of Civil Procedure respecting the civil
rights of women, S.Q. 1931, c. 101, s. 27.
Act
to amend the Civil Code as regards marriage, S.Q. 2004, c. 23,
s. 7.
Act
to amend the Civil Code of Québec and other legislation in order to favour
economic equality between spouses, S.Q. 1989, c. 55.
Act
to amend various legislative provisions concerning de facto spouses, S.Q.
1999, c. 14.
Act
to establish a new Civil Code and to reform family law, S.Q. 1980, c. 39.
Automobile
Insurance Act, R.S.Q., c. A‑25.
Canadian
Charter of Rights and Freedoms, ss. 1 , 15 .
Civil
Code of Lower Canada, arts. 173, 768, 1056.
Civil Code of Québec [en. S.Q. 1980,
c. 39, s. 1], art. 633.
Civil Code of Québec, S.Q. 1991,
c. 64, arts. 15, 264, 266, 269, 391, 392, 394, 395, 396, 401 to 430, 404,
409, 410, 414 et seq., 416, 419, 423, 427 et seq., 431, 432 et
seq., 433, 438, 448 to 484, 461, 467, 485, 486, 487, 492, 507, 511, 512,
516, 521.1, 521.6, 521.8, 521.12, 521.13, 521.17, 522, 585 to 596.1, 587, 597 et
seq., 604, 653 et seq., 655, 1030, 1493 to 1496, 1818, 1819, 1938,
1958, 2380, 2419.
Civil
Marriage Act, S.C. 2005, c. 33 .
Code
of Civil Procedure, R.S.Q., c. C‑25, art. 553.
Common‑Law
Partners’ Property and Related Amendments Act, S.M. 2002, c. 48.
Cooperatives
Act, R.S.Q., c. C‑67.2.
Courts
of Justice Act, R.S.Q., c. T‑16.
Divorce
Act, R.S.C. 1985, c. 3 (2nd Supp .), s. 15.2 .
Divorce
Act, S.C. 1967‑68, c. 24.
Domestic
Relations Act, R.S.A. 2000, c. D‑14.
Family
Law Act, R.S.N.L. 1990, c. F‑2.
Family
Law Act, R.S.O. 1990, c. F.3.
Family
Law Act, R.S.P.E.I. 1988, c. F‑2.1.
Family
Law Act, S.N.W.T. 1997, c. 18.
Family
Maintenance Act, R.S.M. 1987, c. F20.
Family
Maintenance Act, 1997, S.S. 1997, c. F‑6.2.
Family
Relations Act, R.S.B.C. 1996, c. 128.
Family
Services Act, S.N.B. 1980, c. F‑2.2.
Individual
and Family Assistance Act, R.S.Q., c. A‑13.1.1.
Insurance
Act, R.S.O. 1980, c. 218.
Interpretation
Act, R.S.Q., c. I‑16, s. 61.1.
Law
Reform (2000) Act, S.N.S. 2000, c. 29.
Maintenance
and Custody Act, R.S.N.S. 1989, c. 160, s. 52(1).
Maintenance
Enforcement Act, S.N.S. 1994‑95, c. 6, s. 2(e).
Matrimonial Property Act, R.S.N.S. 1989,
c. 275, s. 2(g), “spouse”.
Miscellaneous
Statutes (Domestic Relations) Amendment Act, 2001 (No. 2), S.S. 2001, c. 51.
Supplemental
Pension Plans Act, R.S.Q., c. R‑15.1.
Taxation
Act, R.S.Q., c. I‑3.
Vital
Statistics Act, R.S.N.S. 1989, c. 494.
Workers’
Compensation Act, R.S.Q., c. A‑3.
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APPEALS from a judgment of the Quebec Court of Appeal (Beauregard,
Dutil and Giroux JJ.A.), 2010 QCCA 1978, [2010] R.J.Q. 2259, [2010] R.D.F.
659, 89 R.F.L. (6th) 1, [2010] Q.J. No. 11091 (QL), 2010 CarswellQue 15654,
SOQUIJ AZ‑50685017, affirming in
part a decision of Hallée J., 2009 QCCS 3210, [2009] R.J.Q. 2070, [2009] R.D.F.
545, 67 R.F.L. (6th) 315, [2009] Q.J. No. 7153 (QL), 2009 CarswellQue
14051, SOQUIJ AZ‑50566038. Appeals of the Attorney General of Quebec and
B allowed, appeal of A dismissed, Deschamps, Cromwell and Karakatsanis JJ.
dissenting in part in the result and Abella J. dissenting in the result.
Benoît Belleau and Hugo Jean, for the appellant/respondent the Attorney General
of Quebec.
Guy J. Pratte and Mark Phillips, for the appellant/respondent
A.
Pierre Bienvenu, Suzanne H. Pringle, Catherine Martel and Azim Hussain, for the appellant/respondent B.
Gaétan Migneault, for the intervener the Attorney General of New
Brunswick.
Robert J. Normey, for the intervener the Attorney General
of Alberta.
Jocelyn Verdon, Dominique Goubau and Mireille Pélissier‑Simard,
for the intervener Fédération des associations de familles monoparentales et
recomposées du Québec.
Martha McCarthy and Johanne Elizabeth O’Hanlon, for the intervener the Women’s Legal Education and
Action Fund.
English version of the judgment of LeBel, Fish,
Rothstein and Moldaver JJ. delivered by
LeBel
J. —
I. Introduction
[1]
The issue raised by the
parties in these appeals is whether it is valid to exclude de facto
spouses from the patrimonial and support rights granted to married and civil
union spouses. Does this exclusion violate the right to equality guaranteed by
s. 15 of the Canadian Charter of Rights and Freedoms (“Charter ”)?
[2]
The Court must
determine whether the provisions of the Civil Code of Québec, S.Q. 1991,
c. 64 (“C.C.Q.”), dealing with the family residence (arts. 401
et seq.), the family patrimony (arts. 414 et seq.),
the compensatory allowance (arts. 427 et seq.), the
partnership of acquests (arts. 432 et seq.) and the obligation
of spousal support (art. 585) infringe s. 15(1) of the Charter
because their application is limited to private legal relationships between
married spouses and civil union spouses (see arts. 521.6 and 521.8 C.C.Q.).
[3]
The Court must
therefore decide whether the exclusion of de facto spouses from the
scope of these provisions is discriminatory within the meaning of
s. 15(1) . For the reasons that follow, I am of the opinion that the
exclusion is not discriminatory within the meaning of s. 15(1) and
accordingly does not violate the right to equality guaranteed by s. 15 of
the Charter .
II. The Dispute
[4]
Parties Ms. A and
Mr. B met in 1992 in A’s native country. A, who was 17 years old at
the time, was living with her parents and attending secondary school. B, who
was 32 years old, was running a large international business. From 1992
to 1994, the parties travelled the world together several times a year. B
provided A with financial support so that she could continue her schooling. In
early 1995, the parties agreed that A would come to live in Quebec, where B
lived.
[5]
The parties broke up
for the first time in late July 1995. They saw each other again during the
holiday season, and then again in February 1996. A then became pregnant with
her first child. The couple had three children together, born in 1996, 1999
and 2001. During the time they lived together, A did not hold employment. She
regularly accompanied B on his trips, and he provided for all her needs and for
the children’s needs. A wanted to get married, but B told her that he did not
believe in the institution of marriage and that he might consider getting
married after living with her for 25 years. The parties separated in 2002.
They had lived together for a total of seven years.
[6]
In February 2002, A
filed a motion in the Quebec Superior Court seeking custody of the children,
support, a lump sum, use of the family residence, a provision for costs and an
interim order. The motion was accompanied by a notice to the Attorney General
of Quebec stating that A intended to challenge the constitutionality of several
provisions of the Civil Code of Québec in order to obtain the same legal
regime for de facto spouses that existed for married spouses. More
specifically, A claimed support for herself, a lump sum, partition of the
family patrimony and the legal matrimonial regime of partnership of acquests.
She also sought to reserve her right to claim a compensatory allowance. A
claim concerning the use of the family residence was settled in an agreement
between A and B.
[7]
Since the
constitutionality of the provisions relating to child custody and the child
support obligation had not been challenged, the Superior Court awarded the
parties joint custody of the children and awarded A $34,260.24 a month in child
support and a provision for costs on May 16, 2006. The court also made a
series of orders requiring B to pay certain specific expenses, including the
children’s tuition fees, expenses related to their extracurricular activities,
the salaries of two nannies and the salary of a cook working for A. As
well, the court ordered B to continue paying all costs, school and municipal
taxes, home insurance premiums and general maintenance and renovation costs
required for the residence where the parties had agreed that A and the children
would live. B remained the owner of that residence.
[8]
The appeals relate
solely to the constitutional aspect of the case and concern only the provisions
of the Civil Code of Québec alleged by A to be invalid under s. 15
of the Charter . Hallée J. of the Superior Court ruled on the
constitutional issues on July 16, 2009. She found that the impugned
provisions did not violate the right to equality guaranteed by s. 15(1) ,
and she denied A’s requests for a declaration of constitutional invalidity,
which had been opposed by B and the Attorney General of Quebec. A then
appealed to the Quebec Court of Appeal.
[9]
On November 3,
2010, the Quebec Court of Appeal allowed A’s appeal in part. Dutil J.A.,
with whom Giroux J.A. concurred, declared art. 585 C.C.Q.,
which provides for the obligation of spousal support, to be of no force or
effect on the basis of an unjustified infringement of the right to equality set
out in s. 15(1) of the Charter . However, Dutil J.A. upheld
the Superior Court’s decision as regards the constitutionality of the
provisions concerning the family residence, the family patrimony, the
compensatory allowance and the partnership of acquests. In her opinion, those
provisions are not discriminatory and therefore do not infringe s. 15(1) .
Dutil J.A. also suspended the declaration of constitutional invalidity of
art. 585 for 12 months to give the Quebec legislature time to amend the
provision in order to make it consistent with the Charter . Beauregard J.A.
dissented on the issue of the appropriate remedy. He concluded that the
declaration of constitutional invalidity of arts. 511 and 585 C.C.Q.
should apply immediately so that A could benefit from the obligation of spousal
support without delay.
[10]
In this Court, B and
the Attorney General of Quebec are appealing the Court of Appeal’s decision to
strike down art. 585 on the obligation of spousal support. A is also
appealing that decision. She takes issue with the conclusion that the Civil
Code’s provisions concerning the family residence, the family patrimony,
the compensatory allowance and the partnership of acquests are constitutionally
valid. To ensure that the issues in these appeals are fully understood, I will
begin by reviewing the proceedings in the Superior Court and the Court of
Appeal in greater detail.
III. Judicial History
A. Quebec Superior Court, 2009 QCCS 3210, [2009] R.J.Q. 2070
[11]
This case came before
Hallée J. by way of a Charter motion. In addition to her claims
based on s. 15 of the Charter , A originally made certain arguments
concerning the division of constitutional powers between Parliament and the
provincial legislatures as regards the definition of marriage. Hallée J.
rejected all those arguments, and A abandoned them on appeal. In this Court,
the only remaining issues have to do with the equality guarantee set out in the
Charter .
[12]
Hallée J. began
with an overview of the legal situation of de facto spouses in
Quebec. She noted that they cannot bring support proceedings against one
another or partition the family patrimony, and that they are not governed by a
legal matrimonial regime. However, they are treated in the same way as married
spouses for the purposes of life insurance (art. 2419 C.C.Q.),
annuities (art. 2380 C.C.Q.) and the protective supervision of
incapable or vulnerable persons (arts. 264, 266 and 269 C.C.Q.).
Moreover, they are authorized by art. 15 C.C.Q. to consent to care
for a person of full age who is incapable of giving consent. Hallée J.
added that the Quebec legislature has enacted a number of social or tax laws
(including the Act respecting the Québec Pension Plan, R.S.Q., c. R‑9,
and the Taxation Act, R.S.Q., c. I‑3) that grant de facto
spouses benefits similar to the ones already available to married spouses.
With these exceptions, only a cohabitation agreement can govern the rights of de facto
spouses. In such an agreement, de facto spouses can provide for,
among other things, an obligation of support in the event of a breakdown.
[13]
Hallée J. then
summarized the most relevant points from the expert reports filed by the
parties. Although none of the experts had been heard during the trial, some of
them had been examined out of court. Hallée J. found on the basis of
these reports that de facto unions were a growing phenomenon in
contemporary Quebec society:
[translation] After having read the
expert reports attentively, the Court finds that the phenomenon of de facto
unions is growing in Quebec. From 1981 to 2006, the proportion of couples
living in a de facto union grew from 7.9% to 34.6%.
The
2006 Statistics Canada census indicates that 34.6% of Quebeckers live in a de facto
union, while an average of 18.4% of couples throughout Canada choose to live in
this type of relationship. Thus, Quebec is far in the lead in terms of the
number of couples living in a de facto union. Moreover, according
to the Institut de la statistique du Québec, 60% of children in Quebec are born
out of wedlock.
Some
experts would therefore like to see the legislature intervene to regulate these
unions, while others believe that further study is required before drawing [actual]
conclusions about this phenomenon. [paras. 59‑61]
[14]
Hallée J. then
noted that, in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, this
Court had adopted a two‑part test for finding that a distinction is
discriminatory in the constitutional sense: (1) Does the law create a
distinction based on an enumerated or analogous ground? (2) Does the
distinction create a disadvantage by perpetuating prejudice or stereotyping?
[15]
Hallée J. added
that marital status has been recognized as a ground analogous to the grounds of
discrimination enumerated in s. 15(1) . She also noted that, to find that
s. 15(1) has been infringed, it is not enough to establish the existence
of a legislative distinction based on an analogous ground. According to the
case law, the claimant must prove that the differential treatment has a purpose
or effect that discriminates in a substantive sense.
[16]
In this case,
Hallée J. concluded that A had not shown that the distinction between de facto
spouses and married spouses resulting from the impugned provisions had
substantively discriminatory effects and added that the lack of evidence in
this regard was fatal to A’s action. Hallée J. stressed the limitations
of the expert reports filed by the parties. Those reports indicated that
living conditions were by and large better for intact married families than for
the new forms of family, but they did not assess the impact of the impugned
provisions, particularly in the event of a breakdown. Hallée J. found on
the basis of this evidence that de facto spouses in Quebec are not
subject to [translation] “any
stereotypical disadvantages or prejudice”. In her opinion, “the legislature’s
purpose in preserving a distinction between marriage and de facto
union is to safeguard freedom of choice and to respect the dignity and autonomy
of de facto spouses” (para. 222). Finally, she concluded that
A had not established concrete effects of the distinctions between de facto
and married spouses either during the conjugal relationship or upon its
breakdown.
[17]
However, Hallée J.
did not stop there. She also took the precedential value of Nova Scotia
(Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325, into
account. In that case, this Court had held that, when the rights and
obligations of common law spouses vis‑à‑vis each other are
in issue, the spouses’ choice to marry or not to marry becomes the most
important factor for the purposes of s. 15(1) of the Charter .
Since the distinctions between the rights and obligations of married spouses
and those of common law spouses reflect choices made by those individuals, the
consequences of the choices do not infringe s. 15. In short,
Hallée J. found that Walsh fully disposed of A’s Charter ‑based
constitutional arguments. In her view, Walsh showed that the
possibility for de facto spouses to make such choices is consistent
with the fundamental purpose of s. 15 of the Charter :
[translation] In the view of this Court,
this is the fundamental point in Walsh. Whether to establish an
identical protective regime, regardless of the choice made regarding marital
status, is not a decision that falls within the purview of the courts, provided
the choices made by the legislature are not discriminatory. It is the
legislature’s task to determine whether it is necessary to impose, in whole or
in part, a universal and standardized protective regime that does not take into
account the matrimonial status of the de facto spouses.
[para. 249]
[18]
Hallée J. then
rejected A’s argument that Walsh could be distinguished from the case at
bar because there was an obligation of support between common law spouses in
Nova Scotia that does not exist in Quebec law. In her opinion, the majority’s
reasons in Walsh were not based on the existence of such an obligation
in Nova Scotia. Hallée J. found that Walsh instead reflected the
fundamental importance of freedom of choice and that this factor is just as
applicable in Quebec as in Nova Scotia. The rights of married couples are
not denied to de facto spouses, who can choose to benefit from them
in different ways, by, for example, contracting a civil union or entering into
an agreement. In addition to freedom of choice, Hallée J. stated, other
contextual factors supported the finding that there was no discrimination in
the instant case. As in Walsh, the evidence showed that distinctions
exist between married and de facto couples, and that there is
significant heterogeneity within the group consisting of de facto
spouses. Moreover, the legislative history of the Civil Code, like that
of the legislation at issue in Walsh, shows that the legislature’s
consistent and considered purpose for the past 30 years has been to
respect the freedom of every individual to choose whether or not to marry. As
a result, Hallée J. found that the differential treatment of de facto
spouses and married persons with respect to the obligation of support and the
partition of property does not perpetuate prejudice or result from
stereotyping.
[19]
For all these reasons,
Hallée J. denied the constitutional conclusions sought by A and found that
the provisions of the Civil Code of Québec A challenges are
constitutional.
B. Quebec Court of Appeal, 2010 QCCA 1978, [2010] R.J.Q. 2259
(1) Reasons of Dutil J.A.
[20]
Dutil J.A.
considered A’s appeal in reasons concurred in by Giroux J.A. She found
first that the main issues raised by the appeal concerned, on the one hand, the
obligation of support of de facto spouses and, on the other hand,
the partition of property upon separation, that is, the right to partition of
the family patrimony, protection of the family residence, the partnership of
acquests and the compensatory allowance.
[21]
According to
Dutil J.A., the trial judge had been correct in concluding that this
Court’s decision in Walsh is binding on the Quebec courts with respect
to the partition of property between de facto spouses upon
separation. She explained this as follows:
[translation] In the case before us, the
impugned C.C.Q. provisions pertaining to the division of property govern
patrimonial relations between married spouses. On this issue, the Supreme
Court has spoken clearly, stating that the freedom to choose whether to marry
or not is paramount. Although in Quebec the legislature has stipulated that
the C.C.Q. provisions governing the effects of marriage are of public order
(article 391 C.C.Q.), while in Nova Scotia married spouses can choose not
to be subject to the MPA [Matrimonial Property Act], this does
not in my opinion permit Walsh to be distinguished from the present case
on this point.
The
Quebec legislature has addressed the issue of conjugal status and de facto
unions on a number of occasions (1980, 1989, 1991, 1999, 2002) and has
deliberately decided to allow spouses the freedom to choose the type of
relationship they wish. If the issue is to be revisited from the perspective
of the division of assets, this should be done by the legislature in light of
the changes that have taken place in society, since the Supreme Court has
determined that the legislative choice already made on this issue does not
contravene section 15 of the Charter . [paras. 59‑60]
[22]
Dutil J.A. then
considered the obligation of support provided for in art. 585 C.C.Q.
She disagreed with the trial judge on this point, finding that Walsh
does not have precedential value with respect to the obligation of spousal
support. On the one hand, she noted that common law spouses already had an
obligation of support under the Nova Scotia legislation considered by this
Court in Walsh. On the other hand, she found that there is an important
distinction between the obligation of support and the provisions on partition
of property. In her view, [translation]
“support payments exist to meet basic needs and represent an aspect of social
solidarity, whereas the division of property is contractual in origin”
(para. 68).
[23]
Dutil J.A.
therefore considered whether art. 585 C.C.Q. infringes
s. 15(1) of the Charter . Applying the test established by this
Court in Kapp, she concluded that the first stage of the analysis was
not problematic, since marital status had already been held to be a ground of
discrimination analogous to the ones enumerated in s. 15(1) . The case
therefore turned on the second stage of the analysis, namely whether the
distinction created a disadvantage by perpetuating prejudice or stereotyping.
She concluded that by failing to mention de facto spouses in
art. 585 C.C.Q., the legislature had created a disadvantage by
stereotyping and by expressing a prejudice.
[24]
Although she
acknowledged that the legislative disadvantages that once existed for de facto
spouses have become less significant and that the de facto union is
now socially acceptable, Dutil J.A. concluded that [translation] “the fact remains that the
legislature’s failure to include them within the protection afforded by
article 585 C.C.Q. perpetuates the stereotype that these types of unions
are less durable and serious than marriage and civil unions, which are
recognized by means of a formal act” (para. 98). She stated that her
conclusion concerning the existence of such a stereotype was based on the
opinion expressed by McLachlin J. in Miron v. Trudel, [1995] 2
S.C.R. 418, which Bastarache J. had reproduced in Walsh, about the
historical disadvantage suffered by de facto spouses. She also
relied on the fact that “concubinage” had been considered a reprehensible
lifestyle choice before the 1980 family law reform. She added that, in
enacting the new Civil Code, the legislature had deliberately refrained
from including the de facto union in the provisions on the family
because it considered such unions to be less stable than marriage. She relied
in this regard on certain remarks made by the Quebec Minister of Justice in
September and November 1991 in the course of the study of Bill 125 on the C.C.Q.
by a parliamentary committee. Finally, although many recommendations had
been made by an interdepartmental committee that considered the situation of de facto
spouses in 1996, the Quebec legislature had not passed a bill to structure
their mutual relationships.
[25]
According to
Dutil J.A., other signs of the disadvantages suffered by de facto
spouses are still present in the Civil Code. For example, a de facto
spouse can inherit from his or her spouse only by will (arts. 653 C.C.Q.
et seq.) and cannot make gifts of future property (arts. 1818 and
1819 C.C.Q.). Finally, referring to M. v. H., [1999] 2 S.C.R. 3,
in which this Court explained that one factor which may demonstrate that a
distinction violates a person’s dignity is the vulnerability of the group in
question, Dutil J.A. stated that de facto spouses are
vulnerable just as same‑sex spouses were. In her opinion, since the
legislature had not made the obligation of support provided for in
art. 585 applicable to de facto spouses, it deemed them less
worthy of the protection afforded to married spouses even though de facto
unions may be similar in several respects to the other types of conjugal
relationships.
[26]
Dutil J.A.
referred to Gonthier J.’s comment in Walsh that the obligation of
support has an important social objective that differs from the objective of
the division of property. By providing in art. 585 C.C.Q. that
spouses and relatives in the direct line in the first degree owe each other
support, the Quebec legislature also recognized that the obligation of support
is different. According to Dutil J.A., it [translation] “is not solely the consequence of a contractual
agreement; rather, it is a social obligation toward members of the immediate
family unit” (para. 101). In Quebec, the family unit concept now also
includes families formed by de facto spouses. In ignoring such
families, the Quebec legislature excluded more than a third of Quebec couples
from the application of a measure that exists precisely to protect the family
unit. Dutil J.A. also found that, by requiring marriage or civil union as
a precondition for the right to support, the legislature had failed to consider
social realities. The purpose of an obligation of support of former spouses is
to enable an economically dependent person to obtain support, following the
breakdown of a conjugal relationship, from a former spouse who is capable of
paying it. The nature of the couple’s relationship, be it a de facto
union, civil union or marriage, does not alter the extent to which one of the
former spouses needs support after they separate.
[27]
Rather, Dutil J.A.
noted that a de facto union that lasts a certain length of time and
produces children is very similar to marriage. Finally, she disagreed with the
trial judge that the lack of evidence about the concrete effects of the
distinction between de facto spouses and married spouses was fatal
to A’s action. She referred in this regard to Law v. Canada (Minister of
Employment and Immigration), [1999] 1 S.C.R. 497, in which this Court
had stated that it will often be evident on the basis of facts of which
judicial notice is taken and logical reasoning that a distinction is
discriminatory within the meaning of s. 15(1) of the Charter . In
her opinion, Hallée J. should therefore have taken judicial notice of the
concrete effects of the distinction made by the legislature between de facto
spouses and married spouses. She concluded that the Quebec legislature’s
differential treatment of de facto spouses and married or civil
union spouses with respect to the obligation of support has a substantive
impact on de facto spouses. More specifically, in her view,
art. 585 C.C.Q. deprives certain individuals of a right — the
ability to meet basic financial needs following the breakdown of a relationship
— however fundamental it may be, since they cannot claim support from a former
spouse following separation. This exclusion exists regardless of the length of
the union, the birth of children or the creation of a situation of economic
dependence.
[28]
Having concluded, in
light of certain contextual factors, that the exclusion of de facto
spouses from art. 585 C.C.Q. is discriminatory, Dutil J.A.
held that this legislative provision is not justified under s. 1 of the Charter .
As a result, she decided that the appropriate constitutional remedy in this
case would be a declaration that art. 585 C.C.Q. is invalid; this
declaration was to be suspended for 12 months without any exemption for A.
(2) Reasons of Beauregard J.A.
[29]
Beauregard J.A.
agreed that, because de facto spouses in Quebec are excluded from
the right to support after separation, they are discriminated against in
violation of s. 15(1) of the Charter and that this discrimination
cannot be justified under s. 1.
[30]
However,
Beauregard J.A. disagreed with Dutil J.A. about the appropriate
remedy, since many de facto spouses would be deprived of support
during the period in which the declaration of invalidity of art. 585 C.C.Q.
was to be suspended. To avoid this result, he would have ordered that
art. 585 C.C.Q., which provides for the obligation of support, and
art. 511 C.C.Q., which allows a court to order the payment of
support at the time of separation from bed and board, be immediately
interpreted as applying to de facto spouses.
IV. Analysis
A. Issues
[31]
After the parties
appealed to this Court, the Chief Justice stated the following constitutional
questions:
1. Do
arts. 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of
Québec, S.Q. 1991, c. 64, infringe s. 15(1) of the Canadian
Charter of Rights and Freedoms ?
2. If
so, is the infringement a reasonable limit prescribed by law that can be
demonstrably justified in a free and democratic society under s. 1 of the Canadian
Charter of Rights and Freedoms ?
[32]
A added the following
question concerning the immediate application of a declaration of
constitutional invalidity:
3. [translation] Did the majority of the
Court of Appeal err in the choice of remedy, in particular by failing to
immediately enable all Quebeckers to benefit from a remedy rectifying the
constitutional invalidity in issue, and also with respect to the question of an
individual remedy for the claimant?
[33]
In determining whether
the Civil Code’s provisions on the relationship between spouses are
consistent with the equality guarantee of s. 15(1) of the Charter ,
it will be necessary to consider certain questions related to this main issue.
First, I will review the development of the framework for the legal
relationship between spouses in Quebec, Quebec’s legislative policy as regards
the distinction between married or civil union spouses and de facto
spouses, and the development of the de facto union in Quebec
society. Second, I will discuss the nature and application of the right to
equality. Third, I will consider the nature and precedential value of Walsh.
Lastly, I will go on to discuss the constitutional issues raised by the
parties.
B. Positions of the Parties
(1) A
[34]
A submits that the
Court of Appeal properly struck down art. 585 C.C.Q., which
provides for the obligation of spouses to support one another, on the ground
that it unjustifiably infringes s. 15(1) of the Charter . She also
argues that the Court of Appeal erred in finding that the provisions on
partition of property are not inconsistent with s. 15(1) . In her opinion,
both the provisions on partition of property and the provision concerning the
obligation of spousal support unjustifiably infringe the right to equality
guaranteed by s. 15(1) .
[35]
A adds that it was an
error to apply this Court’s reasoning in Walsh to the provisions on
partition of property. She submits that the Quebec scheme differs from the
Nova Scotia scheme considered by this Court in Walsh and that Walsh
did not resolve the issues in the case at bar. She also challenges its
precedential value.
[36]
A further argues that
the theory of freedom of choice, consensualism or autonomy of the will relied
on by the Attorney General and B to support the constitutional validity of the Civil
Code provisions she is challenging does not correspond to reality. This
Court cannot permit a legislature to justify discriminatory treatment by
relying on a theory that has no connection with the reality of the persons being
discriminated against. Such an approach would favour the recognition of
distinctions based on prejudice and exempt the legislature from the obligation
to ensure the substantive equality promised by s. 15 of the Charter .
A argues that the exclusion of de facto spouses from the protection
the Civil Code affords the family in relation to both the partition of
property and the obligation of support disregards their actual situation and
their needs.
[37]
In short, A argues that
it was up to the Attorney General to defend the legislation by showing that it
is not based on prejudice or stereotypes. In her opinion, far from combatting
stereotypes, the Attorney General and B are relying on them and basing their
arguments on them.
[38]
According to A, the
appropriate remedy in this case would be for this Court to read de facto
spouses into the impugned provisions. Her case would then have to be remitted
to the Superior Court to determine the amount and duration of the support owed
to her and partition the parties’ property.
(2) Attorney General of Quebec
[39]
The Attorney General of
Quebec submits that the Court of Appeal did not err in finding that the
provisions on partition of property are not inconsistent with s. 15(1) of
the Charter . However, he argues that the Court of Appeal erred in
striking down art. 585 C.C.Q., which provides for the obligation of
spousal support, on the ground that it unjustifiably infringes s. 15(1) .
In his opinion, the right to equality guaranteed by s. 15(1) is violated
by neither the provisions on partition of property nor the provision concerning
the obligation of spousal support.
[40]
The Attorney General
submits that, in light of the evidence and in accordance with this Court’s
reasons in Walsh, the exclusion of de facto spouses from the
impugned provisions of the Civil Code is not discriminatory. In his
view, it does not create a disadvantage by perpetuating prejudice or
stereotyping. According to the Attorney General, the reasons and principles
stated by the majority in Walsh apply to all the impugned statutory
provisions, including the one on the obligation of spousal support. He argues
that any other conclusion would be illogical and contradictory. Otherwise, the
respect shown by the legislature in the Civil Code for the freedom of
choice of partners to marry or not to marry would on the one hand be
interpreted as a legislative choice that is not based on stereotyping of or
prejudice against the de facto union in the case of the matrimonial
regime and the partition of property, whereas on the other hand, the same
legislative choice would be considered to be tainted by stereotyping of or
prejudice against the de facto union in the case of the obligation
of support.
[41]
The Attorney General
submits that, with regard to both the obligation of support and the patrimony
of the spouses, the Quebec legislature’s objective is the same one the
Nova Scotia legislature was pursuing in Walsh: to respect
individual autonomy. In other words, both for the obligation of spousal
support and for patrimonial property, the exclusion of de facto
spouses is intended to respect the freedom of every individual to choose
whether to marry and thus whether to participate in the statutory scheme
applicable to marriage and accept the specific legal consequences flowing from
that scheme. According to the Attorney General, the distinction between
married or civil union spouses and de facto spouses can be
explained by the fact that the former have chosen to make a commitment the
nature of which legally entails a certain number of rights and obligations,
while the latter have not done so. Under the Quebec scheme, a decision to live
together is not enough to show an intention to make such a commitment.
[42]
In short, the Attorney
General argues that to extend the Civil Code’s provisions on the rights
and obligations of marriage, including the obligation of support, to persons in
de facto unions is a societal choice that falls within the
political and not the judicial realm. However, if the Court were to conclude
that some of the impugned provisions unjustifiably infringe s. 15, the
Attorney General is opposed to reading in as a solution and prefers to have the
declaration of invalidity suspended to enable the legislature to correct the
constitutional defect. The Attorney General is also opposed to granting A an
individual remedy during any period in which the declaration of invalidity is
suspended.
(3) B
[43]
B adopts the Attorney
General’s positions on the validity of the Quebec legislative scheme and on the
remedy the Court should grant if it reaches the conclusion proposed by A on the
constitutional questions.
[44]
B also argues that the
evidence adduced in the Superior Court, this Court’s determinative case law on
discrimination based on marital status, and an analysis of the relevant
contextual factors lead necessarily to the conclusion that the impugned
distinctions under Quebec law between de facto unions and marriage
or civil unions are not discriminatory, as they do not perpetuate prejudice and
do not result from stereotyping. Moreover, according to B, the principles from
Walsh are directly applicable in the instant case, and the Court of
Appeal erred in holding that they do not apply to the obligation of support.
[45]
B points out that he
and A, in their own way and for their own reasons, chose to live together
outside the institution of marriage. For deeply personal reasons, he never
wanted to participate in that institution. As for A, she chose to live with B
in a conjugal relationship without making marriage a precondition to their
cohabitation.
(4) Interveners
[46]
In this Court, four
interveners stated their positions on the constitutional challenge.
[47]
Although New Brunswick
has established a support remedy for common law spouses, the Attorney General
of that province submits that the respect for freedom of choice shown by the
Court in Walsh must apply in relation to both the provisions on
partition of property and those on spousal support. In her view, freedom of
choice characterizes the type of union contracted by the spouses, so there is
no reason to distinguish the obligation of support from obligations with
respect to the partition of property in the case of de facto
unions.
[48]
The Attorney General of
Alberta, whose province also imposes an obligation of support on common law
spouses, intervened only with respect to the provisions on partition of
property. In his view, the Court disposed of the issue adequately in Walsh
by stressing the importance of the factor of freedom of choice in the analysis
under s. 15 of the Charter .
[49]
The Women’s Legal
Education and Action Fund, adopting some of A’s arguments, contends that
spousal relationships are marked by gender inequality and that the Court should
take that inequality into account in determining whether the impugned statutory
provisions are discriminatory. Finally, this intervener asks that the Civil
Code provisions relating to the obligation of support and the partition of
property be applied to de facto spouses.
[50]
Similarly, the
Fédération des associations de familles monoparentales et recomposées du Québec supports A’s arguments concerning the
infringement of the right to equality that results from the exclusion of de facto
spouses from art. 585 on the obligation of support. Disagreeing with the
weight attached to freedom of choice by the Attorney General and B, it disputes
the validity of this factor. Moreover, as with the obligation of support, the
Fédération submits that the exclusion of de facto spouses from the
provisions on protection of the family residence discriminates against them and
cannot be justified under s. 1 of the Charter . The Fédération also
argues that this Court should consider the impact on children of the
discrimination against their parents.
C. Changes in the Framework for Legal Relationships Between
Spouses in Quebec Since 1980
[51]
This case centres on
the exclusion of de facto spouses from the scope of certain
provisions of the Civil Code of Québec that shape legal relationships
between spouses. To determine whether the provisions in question are
discriminatory, it will be necessary to consider them in the relevant
historical and legislative context. For this purpose, I will discuss the
framework applicable to legal relationships between spouses in Quebec, Quebec
legislative policy with respect to the distinction between de facto
spouses and married or civil union spouses, and the development of the de facto
union in Quebec society.
(1) Married Spouses
(a) Historical Review of the Situation of
Married Spouses and Development of the Legal Framework for Their Relationships
[52]
Before discussing the
situation of de facto spouses, I must review the civil law’s
matrimonial regimes for legally married spouses. On enacting the Civil Code
of Lower Canada (“C.C.L.C.”) in 1866, the legislature gave spouses a
choice, at the time of their marriage, between two principal matrimonial
regimes: community of property and separation of property. Originally, under
the 1866 Code, the choice made at the time of marriage was irrevocable
for the duration of the marriage.
[53]
The legal matrimonial
regime, that is, the regime that applied where the spouses did not enter into a
marriage contract choosing another regime, was that of “community of moveables
and acquests” (“community of property”). The community of property was
administered by the husband. [translation]
“[T]he regime was organized around the supremacy of the husband . . ., the head
of the community”: B. Lefebvre, “L’évolution de la notion de conjoint en
droit québécois”, in P.‑C. Lafond and B. Lefebvre, eds., L’union
civile: nouveaux modèles de conjugalité et de parentalité au 21e
siècle (2003), 3, at p. 11. In 1931, to give the wife some autonomy
in relation to her husband, the legislature created the category of “reserved
property” of the wife. Reserved property was property the wife acquired by
working outside the household and over which she had certain powers of
administration: An Act to amend the Civil Code and the Code of Civil
Procedure respecting the civil rights of women, S.Q. 1931, c. 101,
s. 27. After that, the Civil Code of Lower Canada provided that
upon being dissolved, the community, including the wife’s reserved property,
was partitioned equally between the spouses. If the wife renounced the
partition, she kept only her reserved property.
[54]
Alternatively, the
spouses could enter into a marriage contract before a notary to establish a
regime of separation of property. Under this regime, the spouses’ assets did
not constitute a mass of community created during the marriage. Thus, for
spouses who opted out of the regime of community of property, there was no
partition upon dissolution; they therefore kept their respective patrimonies.
In addition, the Civil Code of Lower Canada authorized a variety of
stipulations that might change the scope of the regimes. The basic choice was
nevertheless between separation of property and community of property.
[55]
New trends in the
implementation of matrimonial regimes began emerging in the 1930s. Wives
increasingly adopted the conventional regime of separation of property even
though the vast majority of them did not have paid employment outside the home
through which they could accumulate property. In 1932, 43% of couples chose separation of property;
this rose to 70% by 1970: A. Roy, Le contrat de mariage réinventé:
Perspectives socio‑juridiques pour une réforme (2002), at pp. 58‑62;
J. Pineau and D. Burman, Effets du mariage et régimes matrimoniaux
(1984), at p. 123. As a
result, in the event of separation from bed and board or, more rarely, of
divorce, wives who had chosen the regime of separation of property, and who had
probably not accumulated patrimonies because they did not work outside the home,
were not entitled to partition of the property owned by their husbands.
[56]
Several explanations
have been advanced for this trend, at first glance surprising, in favour of the
regime of separation of property during that period. They include rejection of
the patriarchal nature of the regime of community of property, the
incompatibility of this regime with women’s newly acquired legal capacity, the
risk represented by the community of property in the event of bankruptcy and,
more generally, the fact that an effective divorce procedure was not
accessible.
[57]
According to many
commentators, this change could be explained as a reaction to the fact that
wives had no power under the regime of community of property. Since the regime
of separation of property gave wives some powers of administration over their
patrimonies, it seemed to guarantee them more autonomy than that of community
of property: see, inter alia, M. Tétrault, Droit de la
famille (4th ed. 2010), vol. 1, at p. 562; D. Burman,
“Politiques législatives québécoises dans l’aménagement des rapports
pécuniaires entre époux: d’une justice bien pensée à un semblant de justice —
un juste sujet de s’alarmer” (1988), 22 R.J.T. 149, at pp. 151‑52
and 155.
[58]
Moreover, when the Act
respecting the legal capacity of married women, S.Q. 1964, c. 66,
came into force, wives obtained the legal capacity to freely dispose of their
property and to perform the same acts in relation to it as a person of full
age. The concept of “authority of the husband”, which was based on the
obedience owed by wives to their husbands, also disappeared from the Civil
Code at that time. [translation]
“As a result, there was a clear dichotomy between the legal regime — community
of property, which was administered by the husband — and this new legal
capacity”: Lefebvre, at p. 12. The regime of community of property, which
failed to reflect this new reality, was therefore abandoned in favour of that
of separation of property.
[59]
Another explanation is
that, as pointed out by a number of notaries at the time, the regime of
separation of property protected a wife if her husband went bankrupt after
going into business: see, inter alia, Burman, at p. 151;
Tétrault, Droit de la famille, at p. 562. It may therefore have
seemed prudent in such situations to opt for the regime of separation rather
than that of community of property.
[60]
Finally, the Divorce
Act, S.C. 1967‑68, c. 24, did not come into force in Canada
until 1968. Before then, divorce was not accessible to the vast majority of
the population, since it could be obtained only through a private Act. Some
authors assume that many wives viewed separation or the possible dissolution of
their union as an unrealistic prospect: see, inter alia,
J. Jarry, Les conjoints de fait au Québec: vers un encadrement légal (2008),
at p. 87. In such circumstances, the choice of a particular matrimonial
regime could have seemed to be of no practical consequence.
[61]
Whatever the reasons
for the choice of the regime of separation of property and for its growing
popularity, the fact remains that, in a context in which wives were not engaged
in remunerative activities outside the matrimonial home, the consequences of
this regime could be devastating in the event of separation or divorce. The
effects of this choice of regime became clear after the Divorce Act came
into force.
[62]
To try to reverse this
“separatist” trend that often caused serious problems for married women when
their unions were dissolved, the Quebec legislature “modernized” the legal
regime of community of property [translation]
“to make it more attractive”: A. Roy, “Le régime juridique de l’union
civile: entre symbolisme et anachronisme”, in Lafond and Lefebvre, 165, at
p. 184; see also S. Massé, “Les régimes matrimoniaux au Canada —
Analyse comparative des législations provinciales” (1985), 88 R. du N.
103, at p. 148. Thus, the legal matrimonial regime of partnership of
acquests came into existence on July 1, 1970 with the coming into force of
the Act respecting matrimonial regimes, S.Q. 1969, c. 77.
From then on, the community consisted only of property acquired by the spouses
during the marriage. Professor Tétrault explains this change as follows:
[translation] The change of legal regime
from community of property to partnership of acquests is easily explained by
the main characteristic of the regime of community of property, which
concentrated the administration of the regime in the husband’s hands. This
approach was difficult to reconcile with the goals of feminist movements and
the granting of full legal capacity to women.
(Droit
de la famille, at p. 511)
[63]
Under the new legal
regime, each spouse had the full administration of his or her property during
the union, and most of the property acquired during the marriage could be
partitioned upon dissolution. This regime distinguished two categories of
property: acquests, which could be partitioned upon dissolution of the regime,
and private property, of which the legislature provided an exhaustive list and
which could not be partitioned. Acquests were property acquired during the
marriage by either spouse, while private property was property owned before the
marriage or property acquired after the marriage that was intrinsically
personal, such as clothing or work tools.
[64]
The creation of this
legal matrimonial regime was accompanied by the repudiation of the principle of
immutability of marriage agreements. Until 1970, once a marriage had been
solemnized, the matrimonial regime could not be modified, even by mutual agreement
of the spouses. Only one type of change was permitted by the legislature at
that time: a wife to whom the regime of community of property applied could,
subject to certain conditions, ask a court for permission to opt for the regime
of separation of property: see E. Caparros, Les régimes matrimoniaux
au Québec (3rd ed. 1988), at p. 97.
[65]
The reason why spouses
had been prohibited from amending their marriage agreements while married lay,
in part, in the idea that only contracts entered into before marriage were
entered into by independent persons capable of making the agreements they
wished to make. Once the couple were married, since the wife fell legally
under her husband’s power, her interests could not be validly defended if she
entered into contracts with him. This was why spouses were prohibited from amending agreements entered
into before marriage: see Roy, Le contrat de mariage réinventé, at
pp. 99‑100; P.‑B. Mignault, Le droit civil canadien,
vol. 6 (1902), at pp. 128‑29; L. Faribault, Traité de
droit civil du Québec, vol. 10 (1952), at pp. 44‑45;
R. Comtois, Traité théorique et pratique de la communauté de biens (1964),
at p. 195.
[66]
Like the rules under
which the husband was responsible for the administration of the property of the
community of property, the principle of immutability was hard to reconcile with
the full legal capacity of married women and the end of the “authority of the
husband”, according to which wives had been required to obey their husbands:
see Roy, Le contrat de mariage réinventé, at p. 125. The creation
of the regime of partnership of acquests was therefore accompanied by the
introduction of a principle of mutability of matrimonial agreements, which
allowed spouses to change their regime in whole or in part during their marriage:
see Caparros, Les régimes matrimoniaux au Québec, at p. 97.
[67]
However, as Professor
Burman points out, [translation]
“[a]t the time of the reform of matrimonial regimes, the new legal regime of
partnership of acquests was given a very chilly reception, with spouses
continuing to prefer that of separation of property” (p. 156). Thus,
between 1971 and 1980, 48% of couples chose the legal regime of partnership of
acquests, while 52% chose the regime of separation of property: Roy, Le
contrat de mariage réinventé, at pp. 63‑64. However, this trend
gradually reversed itself during the 1980s, with the result that fewer than 1%
of couples chose the regime of separation as to property between 1995 and
2005: A. Roy, “Le contrat de mariage en droit québécois: un destin marqué
du sceau du paradoxe” (2006), 51 McGill L.J. 665, at
p. 668.
[68]
Since the regime of
partnership of acquests was neither retroactive nor mandatory, its introduction
did not change the situation of wives who had chosen the regime of separation
of property either before or after 1970. It should be borne in mind that, at
the time, married women had not yet joined the labour market in large numbers.
As the Committee on Matrimonial Regimes Committee of the Civil Code Revision
Office pointed out in its report of May 20, 1968, “[i]t is still usual in
Quebec households for the wife to devote all her time to the care of the family
and for the husband to be the only one able to amass an estate by his work”: Report
on Matrimonial Regimes (1968), at p. 9.
[69]
In 1981, the
legislature undertook a major new reform of family law. The Act to
establish a new Civil Code and to reform family law, S.Q. 1980,
c. 39, established a primary regime of public order and provided for
certain effects of marriage for spouses. This regime applied to all future
marriages and to marriages already entered into regardless of the matrimonial
regime that had previously been chosen. The reform introduced the principle
that spouses had equal rights and obligations in marriage. This principle of
equality was reflected in, among other things, the spouses’ obligation to take
in hand the moral and material direction of the family together and to choose
the family residence together. Other new measures were adopted to ensure
adherence to the principle of joint direction by requiring the consent of both
spouses for certain acts, such as alienation of the family residence by the
spouse who owned it. To the obligations arising out of marriage before the
reform, namely fidelity, cohabitation, assistance and succour, the legislature
added an obligation for each spouse to contribute toward the expenses of the
marriage in proportion to his or her means, including through activities within
the home.
[70]
The legislature also
dealt directly with the situation of women who had married under the regime of
separation of property rather than that of community of property or partnership
of acquests during the preceding decades. To remedy their vulnerability, it
created the compensatory allowance mechanism, which entitled each spouse to
claim compensation for his or her contribution, in property or services, to the
enrichment of the other spouse’s patrimony. Payment of such compensation could
be ordered by a court in the course of proceedings leading to the spouses’
separation. However, this measure proved ineffective after a few years, as the
Minister of Justice and the Minister for the Status of Women explained in 1988:
[translation] As for the compensatory
allowance, it has not proved effective enough to fully remedy the problems
experienced by certain married spouses, particularly those who have chosen
separation of property as their matrimonial regime. Thus, according to the
majority of the jurisprudence, the work performed by a spouse within the home
does not entitle that spouse to a compensatory allowance if the spouse was
merely fulfilling his or her obligation to contribute towards the expenses of
the marriage; in asserting his or her right, the co‑operating spouse
encounters major evidentiary difficulties that, in some cases, render the
remedy illusory . . . .
(H. Marx
and M. Gagnon Tremblay, Les droits économiques des conjoints (1988),
document tabled for consultation, at p. 10.)
[71]
In 1989, because the
compensatory allowance had not had the intended effect, the Quebec National
Assembly passed the Act to amend the Civil Code of Québec and other
legislation in order to favour economic equality between spouses, S.Q.
1989, c. 55, which introduced the concept of family patrimony into the Civil
Code. As a result, “a marriage has the immediate effect . . .
of establishing a family patrimony, and it creates a claim that can be
asserted upon separation from bed and board or upon dissolution of the
marriage”: M.T. v. J.‑Y.T., 2008 SCC 50, [2008] 2 S.C.R. 781, at
para. 14 (emphasis added). Like all the other effects of marriage, such
as the obligation to provide assistance and succour, the family patrimony was
of public order and applied regardless of the legal or conventional matrimonial
regime chosen by the parties to govern their patrimonial relationship.
[72]
The claim so created
provided a basis for equal partition of the net value of certain property, such
as the family’s residences, the household furniture used by the family, the
vehicles used by the family and rights under retirement plans, regardless of
which spouse had a right of ownership in that property. Residences, furniture
and vehicles were included in the family patrimony regardless of whether they
were acquired before or during the marriage, but in the case of rights under a
retirement plan, only those accrued during the marriage were part of that
patrimony.
[73]
The transitional
provisions enacted by the legislature indicated that the articles concerning
the family patrimony applied to spouses who had married before the Act came
into force. However, the legislature allowed such spouses to opt out of the
family patrimony provisions by mutual agreement. They had 18 months after the
Act came into force to make that choice and record it in an agreement.
[74]
There were
three objectives underlying this further reform of the rights and
obligations of spouses vis‑à‑vis one another. The
legislature wanted to remedy the problems encountered by women who had married
under the regime of separation of property, make up for the ineffectiveness of
the compensatory allowance and redefine marriage.
[75]
First, as
Baudouin J.A. of the Quebec Court of Appeal explained in a decision
rendered shortly after the creation of the family patrimony,
[translation] [b]y introducing into our law the partition of the family patrimony (An Act to
amend the Civil Code of Québec and other legislation in order to favour
economic equality between spouses [S.Q. 1989, c. 55]), the legislature
intended to remedy injustices that could be suffered by a certain category of
married women and to recognize the value of work done in the home. Upon
divorce or separation from bed and board, women who were married under the
regime of separation of property were sometimes severely disadvantaged from an
economic standpoint when the time came to liquidate the patrimony accumulated
while the spouses were living together.
Through
Bill 146, the legislature wanted to correct the
sometimes perverse effects of choosing the regime of
separation of property . . . .
Indeed,
these injustices had sometimes been pointed out by this Court [Droit de la famille — 67, [1985] C.A. 135], which had always
found that, in the absence of specific provisions on this point, the courts had
no power to change the freely chosen matrimonial regime to alleviate such
inequities.
(Droit
de la famille — 977, [1991] R.J.Q. 904, at pp. 907‑8; see also
Tétrault, Droit de la famille, at pp. 152‑53; Roy, “Le
contrat de mariage en droit québécois: un destin marqué du sceau du paradoxe”,
at pp. 668‑69; Roy, “Le régime juridique de l’union civile: entre
symbolisme et anachronisme”, at p. 180; E. Caparros, “Le patrimoine
familial: une qualification difficile” (1994), 25 R.G.D. 251, at
p. 253.)
[76]
As well, spouses who
had previously chosen the regime of separation of property now had a claim on
the value of the family patrimony. The legislature was, in a sense, giving
wives an opportunity to change the impact of the choice of matrimonial regime
they had made in the past by making the regime of separation of property
inapplicable to a large portion of the family patrimony, which now became
subject to a form of partition. However, this change was not irrevocable,
since a wife could choose to renounce her rights in the family patrimony upon
the dissolution of their union (art. 423 C.C.Q.).
[77]
Second, “[t]hat Act
represented a partial response to the disappointment and difficulties that had
resulted from the implementation of the compensatory allowance in the years
prior to its enactment”: M.T. v. J.‑Y.T., at para. 17; see also L. Langevin, “Liberté de
choix et protection juridique des conjoints de fait en cas de rupture:
difficile exercice de jonglerie” (2009), 54 McGill L.J. 697,
at p. 714; Lefebvre, at p. 17.
[78]
Third, the legislature
redefined marriage by means of the Act. From the time the Act came into force,
marriage became not only a union of persons, but also an egalitarian economic
union with a number of patrimonial consequences. In M.T. v. J.‑Y.T.,
I elaborated on the basis for the legislature’s objective in introducing the
family patrimony:
Marriage
represents, first and foremost, a union of persons. However, the legislature
also wanted it to be a partial economic union or an association of
interests (D. Burman and J. Pineau, Le “patrimoine familial”
(projet de loi 146) (1991), No. 31). The adoption of the
partnership of acquests as the suppletive matrimonial regime that is to apply
unless the spouses make another choice shows that this is what the legislature
intended. The creation of the family patrimony confirms that intention even
more clearly.
Marriage
results in the establishment of a form of economic union to which both
spouses must contribute as best they can (Kasirer, at p. 572).
Article 396 C.C.Q. clearly imposes on the spouses a legal
obligation to contribute toward the expenses of the marriage “in proportion to
their respective means”. It also provides that “[t]he spouses may make their
respective contributions by their activities within the home.” The law is not
really concerned with the size or nature of the contributions, and in fact
presumes them to be equal (Droit de la famille — 1893, [1993] R.J.Q.
2806 (C.A.), at p. 2809). [Emphasis added; paras. 21‑22.]
[79]
As a result of this
reform, spouses who decided to marry were required to accept [translation] “a partnership model”
(B. Moore, “Culture et droit de la famille: de l’institution à l’autonomie
individuelle” (2009), 54 McGill L.J. 257, at p. 268) that involved
a willingness to partition: Droit de la famille — 977, at p. 908.
It can therefore be concluded that [translation]
“[i]n 1989, [the legislature] transformed marriage into a primarily economic
partnership by creating a family patrimony”: M. Tétrault, “L’union
civile: j’me marie, j’me marie pas”, in Lafond and Lefebvre, 101, at
p. 111.
[80]
In Quebec, marriage
thus became not only a union, but also, “as this Court held in Moge (at
p. 870), . . . a ‘joint endeavour’, a socio‑economic
partnership”: Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at
para. 49. From the time of the legislative reform in which the family
patrimony was created, any person who chose to marry was deemed to want to
create this socio‑economic partnership on the basis of a number of
provisions of public order that established the effects of marriage, such as
those governing acts involving the family residence and the spouses’
proportional contributions to the expenses of the marriage. In return for this
obligation to form an economic partnership, the new definition of marriage
provided for mechanisms of public order to apportion the patrimonial
consequences of dissolution of the partnership, such as the partition of the
family patrimony and the awarding of support following the breakdown of the
marriage. Conversely, persons who did not wish to be subject to these effects
or to create a joint endeavour or economic union with a partially predetermined
content could choose to remain in a de facto union outside
marriage.
[81]
In sum, whereas the
legislature’s first two objectives in introducing the family patrimony related
to the existing economic context, its third objective was decidedly forward‑looking,
as it proposed a new definition of marriage, which now included an economic
union or partnership.
(b) Legal Framework for Marriage
[82]
As a result of the
reforms outlined above, marriage is now subject to a legal framework that
governs the mutual relationships of spouses. This framework is made up of a
primary regime and a legal or conventional matrimonial regime the effects of
which are felt both during the marriage and when it ends. However, before
looking at the effects of each of these regimes during and after marriage, I
note that, aside from the death of a spouse, marriage can end as a result of
separation from bed and board under the Civil Code of Québec or divorce
under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .).
(i) Primary Regime
[83]
The Civil Code of
Québec establishes a primary regime in a chapter that defines the
fundamental effects of marriage. The provisions setting out these effects are
mandatory, since the spouses may not derogate from or renounce them in a
marriage contract:
391. In
no case may spouses derogate from the provisions of this chapter, whatever
their matrimonial regime.
[84]
The primary regime thus
governs certain aspects of the spouses’ relationship with one another and
creates mutual rights, duties and obligations for the spouses. During the
marriage, the spouses “owe each other respect, fidelity, succour and
assistance” and “are bound to live together” (art. 392, paras. 2 and
3 C.C.Q.). “[They] together take in hand the moral and material
direction of the family” (art. 394 C.C.Q.), they “choose the family
residence together” (art. 395, para. 1 C.C.Q.) and they
“contribute towards the expenses of the marriage in proportion to their
respective means” (art. 396, para. 1 C.C.Q.). And
arts. 401 to 408 C.C.Q. limit the exercise of each spouse’s right
of ownership in the family residence and the movable property serving for the
use of the household during the marriage. Certain acts of alienation, hypothec
and lease may not be performed by one spouse without the other spouse’s
consent. In addition, as we have seen, “[m]arriage entails the establishment
of a family patrimony consisting of certain property of the spouses regardless
of which of them holds a right of ownership in that property” (art. 414 C.C.Q.).
[85]
Some of these duties
are moral or extrapatrimonial in nature. For example, the duty of assistance
concerns a person’s obligation to support his or her spouse through affection,
help, care and devotion: M. D.‑Castelli and D. Goubau, Le
droit de la famille au Québec (5th ed. 2005), at pp. 98‑99;
J. Pineau and M. Pratte, La famille (2006), at p. 132;
Tétrault, Droit de la famille, at pp. 134‑35; J.‑P. Senécal,
Droit de la famille québécois, vol. 1 (loose‑leaf), ¶ 11‑615.
[86]
The duty of succour is
economic in nature and involves providing the other spouse with the resources
or support required for subsistence on the basis of his or her needs: Senécal,
vol. 1, ¶ 11‑625; Pineau and Pratte, at pp. 132‑33 and
156‑57; D.‑Castelli and Goubau, at p. 99. More specifically,
it relates to the spouses’ obligation of support to one another:
arts. 392 and 585 to 596.1 C.C.Q.
[87]
The duty of succour
lasts until the marriage is dissolved. Since separation from bed and board —
although it loosens the marital bond by releasing the spouses from the
obligation to live together — does not terminate the marriage, it does not
terminate the other effects of marriage, including the duty of succour:
art. 507 C.C.Q. This explains why a court granting a separation
from bed and board may order either spouse to pay support to the other:
art. 511 C.C.Q. Since the duty of succour is based solely on the
respective needs of the spouses, an award of support is never automatic but
depends on each spouse’s needs and ability to pay: arts. 512 and 587 C.C.Q.
[88]
Unlike separation from
bed and board, divorce dissolves marriage: art. 516 C.C.Q. This is
why [translation] “in the context
of a divorce . . . the right to support is no longer based on the
duty of succour, which is an effect of marriage, but derives from ss. 15.2
and 17 [of the Divorce Act ]”: Senécal, vol. 2, ¶ 65‑770;
see also Pineau and Pratte, at pp. 132‑33; Bracklow, at
paras. 20‑21. At this stage, a support award will depend on the
condition, means, needs and other circumstances of each spouse, including the
length of time the spouses cohabited and the functions performed by each spouse
during cohabitation.
[89]
In the event of
separation from bed and board or of divorce, the primary regime has
consequences other than a possible support award. First, the value of the
family patrimony is divided equally between the spouses: art. 416 C.C.Q.
Second, a compensatory allowance may be awarded by a court on the application
of either spouse: art. 427 C.C.Q. Third, where applicable, a court
may award to either spouse the lease of the family residence (art. 409 C.C.Q.)
and the ownership or use of certain movable property (art. 410
para. 1 C.C.Q.), or, to a spouse who has custody of the children,
the use of the family residence (art. 410, para. 2 C.C.Q.).
(ii) Matrimonial Regime
[90]
After deciding to marry
and thus to be subject to the primary regime, spouses must choose a matrimonial
regime to govern the rest of their financial relationship. They are free to
select the regime they consider the most appropriate. As the Quebec Court of
Appeal has pointed out, [translation]
“the matrimonial regime concept [is] based on the spouses’ freedom of choice
of regime”: G.B. v. C.C., [2001] R.J.Q. 1435, at para. 22
(emphasis in original). Spouses are also free to change their matrimonial
regime by mutual agreement during their marriage: art. 438 C.C.Q.
[91]
The Civil Code
provides that spouses who, before the solemnization of their marriage, have not
fixed their matrimonial regime in a marriage contract are subject by default to
the legal regime of partnership of acquests, under which [translation] “each spouse has the
administration and free disposal of all his or her property, both private
property and acquests, while subject to the regime but is required to partition
the value of his or her acquests equally with the other spouse on the date of
separation or dissolution”: Roy, “Le régime juridique de l’union civile: entre
symbolisme et anachronisme”, at p. 183; arts. 432, 461 and 467 C.C.Q.
[92]
Alternatively, spouses
who decide to enter into a marriage contract are free to organize their
patrimonial relationship through “[a]ny kind of
stipulation . . . subject to the imperative provisions of law
and public order”: art. 431 C.C.Q.
[93]
Spouses may also prefer
the regime of conventional separation as to property to that of partnership of
acquests, and can establish it by including a declaration to this effect in
their marriage contract: art. 485 C.C.Q. Under this regime, the
spouses, individually, have the administration, enjoyment and free disposal of
all their property both during marriage and upon its breakdown: art. 486 C.C.Q.
No distinction is drawn between private property and acquests, and no partition
occurs at the time of separation or divorce, except in the case of property
held in co‑ownership and property over which neither spouse is able to
establish an exclusive right of ownership. The latter type of property is
presumed to be held by both spouses in undivided co‑ownership:
art. 487 C.C.Q.
(2) Civil Union Spouses
[94]
On June 7, 2002,
the Quebec legislature passed the Act instituting civil unions and
establishing new rules of filiation, S.Q. 2002, c. 6. This Act
provided same‑sex couples, in particular, with a first mechanism for
making their unions official, namely the civil union, which would also be
available to opposite‑sex couples. As Professor Tétrault notes, [translation] “[a]t the time of its
enactment, the Quebec legislature was responding to the fact that Parliament
did not recognize the right of persons of the same sex to marry”: Droit de
la famille, at p. 571. That recognition would come three years
later when Parliament enacted the Civil Marriage Act, S.C. 2005,
c. 33 .
[95]
A civil union is
defined as “a commitment by two persons 18 years of age or over who
express their free and enlightened consent to live together and to uphold the
rights and obligations that derive from that status”: art. 521.1,
para. 1 C.C.Q. Unlike marriage, which must be dissolved
judicially, a civil union may be dissolved by way of a notarized joint
declaration, provided that the spouses consent to the dissolution and settle
all the consequences of the dissolution in an agreement: art. 521.13 C.C.Q.
However, “[i]n the absence of a joint declaration dissolving the civil union
executed before a notary or where the interests of the common children of the
spouses are at stake, the dissolution of the union must be pronounced by the
court”: art. 521.17, para. 1 C.C.Q. It has also been
possible, since the coming into force of the Act to amend the Civil Code as
regards marriage, S.Q. 2004, c. 23, s. 7, for spouses to dissolve
their civil union by getting married. In such a case, the effects of the civil
union are maintained and are considered to be effects of the marriage from the
date of the civil union, and the spouses’ civil union regime becomes their
marriage regime: art. 521.12, para. 2 C.C.Q.
[96]
Article 521.6 C.C.Q.
provides that civil union has significant mandatory effects and refers, for
certain principles, to the Civil Code’s provisions on the effects of
marriage:
521.6.
The spouses in a civil union have the same rights and obligations.
They
owe each other respect, fidelity, succour and assistance.
They
are bound to live together.
The
effects of the civil union as regards the direction of the family, the exercise
of parental authority, contribution towards expenses, the family residence, the
family patrimony and the compensatory allowance are the same as the effects of
marriage, with the necessary modifications.
Whatever
their civil union regime, the spouses may not derogate from the provisions of
this article.
[97]
While in their union,
civil union spouses are subject to the duty of succour and therefore owe each
other support. The duty of succour ends with the dissolution of the union.
However, on application by either spouse, a court may, upon or after
pronouncing the dissolution, order one of the spouses to pay support to the
other: art. 521.17, para. 3 C.C.Q.
[98]
I note in passing that
no factors specific to civil union spouses for determining the amount of
support are set out in the Civil Code. The courts must therefore refer
to the general principles stated in art. 587 C.C.Q.: see, inter alia,
Senécal, vol. 2, ¶ 65‑815; Tétrault, Droit de la famille,
at p. 587.
[99]
In addition to being
subject on a mandatory basis to this primary regime, civil union spouses have a
legal regime that is identical to the matrimonial regime of partnership of
acquests that applies to married spouses. Should they wish to do so, persons
planning to enter into a civil union can also opt out of this legal regime by
way of a contract prepared before the solemnization of their union and adopt a
regime of separation as to property:
521.8. A
civil union regime may be created by and any kind of stipulation may be made in
a civil union contract, subject to the imperative provisions of law and public
order.
Spouses
who, before the solemnization of their civil union, have not so fixed their
civil union regime are subject to the regime of partnership of acquests.
Civil
union regimes, whether legal or conventional, and civil union contracts are
subject to the same rules as are applicable to matrimonial regimes and marriage
contracts, with the necessary modifications.
(3) De Facto Spouses
(a) Historical Review of the Situation
of De Facto Spouses Under the Civil Code of Lower Canada Before the
1980 Reforms
[100]
It should be noted at
the outset that, until the family law reform and the coming into force of part
of the draft Civil Code of Québec in 1981, the legislative treatment of
the de facto union, then referred to as “concubinage”, was
negative. As several authors have pointed out, the de facto union,
as an [translation] “obstacle to
family stability and peace”, was considered to be suspect and “contrary to
public order and good morals”, and had an “unfavourable” if not “immoral”
character that the government could not encourage: see, inter alia,
E. Deleury and M. Cano, “Le concubinage au Québec et dans l’ensemble du
Canada: Deux systèmes juridiques, deux approches”, in J. Rubellin‑Devichi,
ed., Des concubinages dans le monde (1990), 85, at p. 88;
A. Cossette, “Le concubinage au Québec” (1985), 88 R. du N.
42, at pp. 45 and 53; Tétrault, “L’union civile: j’me marie, j’me marie
pas”, at p. 127; Lefebvre, at p. 11; Tétrault, Droit de la famille,
at pp. 839‑49.
[101]
This disapproval of the
de facto union was expressed in legislation in two ways: one
concerned the relationships of de facto spouses, the other the
treatment of the children born of such unions. With regard to the former,
art. 768 C.C.L.C. limited “[g]ifts inter vivos made in
favor of the person with whom the donor has lived in
concubinage . . . to maintenance”. In this way, the
legislature prohibited de facto spouses from organizing their
patrimonial relationships. The law denied them the possibility of establishing
a legal framework for their cohabitation and limited their freedom of
contract. Notary Jean Sylvestre described the impact of this prohibition
as follows:
[translation] Agreements between concubinaries were, for all
practical purposes, unthinkable until [1981].
By prohibiting all gifts inter
vivos between concubinaries and persons who had lived in concubinage,
art. 768 C.C.L.C. closed the door on all financial arrangements between
persons in a de facto union that were gratuitous or in the nature
of a liberality or gift.
Since one or more of these
characteristics was almost always present in what were known as agreements
between spouses or concubinaries, it was impossible to consider making such
agreements between concubinaries.
(“Les
accords entre concubins”, [1981] C.P. du N. 195, at paras. 1‑3)
[102]
Moreover, the children
of de facto spouses, or “natural” children, were denied a number of
rights granted to “legitimate” children, those whose parents were married: see
J.‑L. Baudouin, “Examen critique de la situation juridique de
l’enfant naturel” (1966), 12 McGill L.J. 157, at p. 158. Historically,
unless they were legitimated by their parents’ getting married, natural
children could not inherit from their parents unless the latter had provided
for them in a will. Nor could they claim from their parents performance of the
obligations of maintenance and education that married spouses had to their
legitimate children. The [translation]
“Civil Code of Lower Canada [thus] distinguished legitimate, natural,
adulterine and incestuous children”: Moore, at p. 266. Professor Jean‑Louis
Baudouin, as he then was, explained the rationale for this distinction:
[translation]
The legal reasons given to justify ignoring the natural family group can be
seen clearly upon reading our Code . . .: a desire to protect the
rights of legitimate families, a refusal to condone conduct contrary to good
morals, a refusal to encourage the proliferation of de facto
unions, etc. [pp. 157‑58]
[103]
When it enacted the Act
to establish a new Civil Code and to reform family law, the legislature
moved away from this negative, even hostile, view of the de facto
union. The prohibition against gifts inter vivos was removed by
repealing art. 768 C.C.L.C. De facto spouses became
free to organize their relationships with one another through legally valid and
binding agreements. From that time on, it was open to them [translation] “to enter into agreements
freely [in what was] virtually the equivalent of a matrimonial regime for them”:
Sylvestre, at para. 8. According to Professor Benoît Moore, this change
confirmed the disappearance of the legislature’s hostility toward the de facto
union: p. 267.
[104]
The legislature also
eliminated the distinctions between legitimate, natural, adulterine and
incestuous children. It thus established the principle that children are equal
regardless of the circumstances of their birth and the nature of their
filiation. Article 522 C.C.Q. now codifies the principle that all
children whose filiation is established have the same rights and obligations.
The rules on parental authority (arts. 597 C.C.Q. et seq.),
the obligation of support (art. 585 C.C.Q.) and intestate
succession (art. 655 C.C.Q.) therefore apply to all children. In
addition, art. 604 C.C.Q. provides that, “[i]n the case of
difficulties relating to the exercise of parental authority, the person having
parental authority may refer the matter to the court, which will decide in the
interest of the child after fostering the conciliation of the parties”. Thus,
when de facto spouses cease living together, a court can rule on
child custody and access in the same way as it might in a case involving the
separation of married spouses. According to D. Goubau, G. Otis and
D. Robitaille, [translation]
“the Civil Code [thus] reflects the fact that marriage is no longer required as
a framework for the family”: “La spécificité patrimoniale de l’union de fait:
le libre choix et ses ‘dommages collatéraux’” (2003), 44 C. de D.
3, at p. 13.
(b) Legislative Policy Respecting the
De Facto Union Following the 1980 Reform
[105]
In the 1980 reform, the
Quebec legislature established the rule of freedom of contract for de facto
spouses in organizing their relationships with one another. At the same time,
as I mentioned above, it redefined the mandatory content of marriage by
introducing a primary regime that no spouse could opt out of. Whether the de facto
union should be redefined by imposing a similar mandatory legislative framework
on it was also discussed in the Quebec National Assembly at that time.
[106]
One proposal that had
already been made by the Civil Code Revision Office was to require de facto
spouses to contribute proportionately toward household expenses: Report on
the Québec Civil Code (1978), vol. II — Commentaries,
t. 1, at pp. 113 and 206; see also Lefebvre, at p. 18. With
this in mind, the Office proposed art. 338 in its draft Civil Code:
338. De facto
consorts owe each other support as long as they live together.
However, if
exceptional circumstances justify it, the court may order a de facto
consort to pay support to his spouse once they no longer live together.
(Report
on the Québec Civil Code (1978), vol. I — Draft Civil Code, at
p. 119)
[107]
However, Quebec’s
Conseil du statut de la femme, an independent agency created by the legislature
in 1973 to advise the government on all matters relating to the status of
women, was against imposing a mandatory legislative framework to govern
relationships between de facto spouses. Criticizing the proposals
of the Civil Code Revision Office on the basis that they limited the freedom of
de facto spouses, the Conseil stated that
[translation] . . . this
approach violates the animating principle of de facto spouses,
namely freedom of choice. To respect the will of the parties involved, the
[Conseil] recommends that no obligations result from a de facto
union.
. . .
Our
position on the de facto union is based on true recognition of the
equality and autonomy of individuals. This is why we consider it essential to
emphasize the non‑institutionalization of this type of union and to
respect the will of the parties involved.
(Mémoire
présenté à la Commission parlementaire sur la réforme du droit de la famille (1979),
at pp. 23‑24; see also Mémoire du Conseil du statut de la femme
présenté lors de la consultation générale sur les droits économiques des
conjoints (1988), at p. 40.)
[108]
At the end of the
parliamentary debate, the then Minister of Justice rejected the recommendation
that a legislative framework be imposed on de facto unions.
Instead, he decided to preserve the freedom of individuals to choose a form of
union whose content was not predetermined. He stated the following:
[translation] Another case requiring a
concrete application of the principle that individuals should be free to choose
how to organize their family unit is that of the de facto union.
Most of the briefs submitted to the parliamentary justice committee on family
law reform in March 1979 asked the legislature to respect the desire of
unmarried couples to distinguish their choice of lifestyle from marriage. We
therefore considered it appropriate not to interfere with this freely chosen
lifestyle; there is thus no need to institutionalize or regulate it.
Moreover,
to fully respect this option, it seemed reasonable to put de facto
spouses on the same footing as other individuals by proposing the abolition of
the restrictions that continue to apply to them today under article 768 of
the Civil Code, which limits their right to make gifts to each other.
(National
Assembly, Journal des débats, vol. 23, No. 15, 6th Sess.,
31st Leg., December 4, 1980, at p. 608 (second reading of
Bill 89). This position was supported by the then leader of the official
Opposition, who stated the following at p. 663: [translation] “Regarding the de facto union,
therefore, I think we should proceed very carefully. If people do not want to
give their union a legal or statutory status themselves, such a status cannot
be forced on them either.”)
[109]
The legislature would
debate but reaffirm this position several times during the successive reforms
that have modified Quebec family law since 1980. On the occasion of each
reform, the legislature reiterated its choice not to regulate the private
relationships of de facto spouses on the basis that their
individual autonomy and freedom should be respected: see, for example, the
remarks of the Minister for the Status of Women at the time of the creation of
the family patrimony (National Assembly, Journal des débats, vol. 30, No. 125, 2nd Sess.,
33rd Leg., June 8,
1989, at p. 6487), of the Minister of Justice two years later in the
context of the reform of the Civil Code (National Assembly, Subcommittee
on Institutions, Journal des débats, No. 22, 1st Sess., 34th Leg., November 19, 1991, at p. 859), of
the Minister of Justice at the time of the recognition of same‑sex de facto
spouses in social legislation (National Assembly, Journal des débats, No. 197, 2nd Sess.,
35th Leg., June 18,
1998, at pp. 12069‑70), and of the Minister of Justice at the time
of the establishment of the civil union (National Assembly, Standing Committee
on Institutions, Journal des débats, vol. 37, No. 46, 2nd Sess.,
36th Leg., February 12,
2002, at pp. 4‑5).
[110]
At the time of the
establishment of the civil union in 2002, the Minister of Justice clearly
stated that Quebec law now [translation]
“recognizes three types of conjugality: that of married spouses, that of
civil union spouses and that of de facto spouses”. He also
confirmed that the bill instituting the civil union [translation] “does not propose any amendments that affect
the conditions under which de facto spouses live together. They
remain free to establish the terms and conditions governing their
relationships”: National Assembly, Journal des débats, vol. 37, No. 96, 2nd Sess.,
36th Leg., May 7,
2002, at p. 5816.
(c) Relationships Between De Facto
Spouses: A Regime of Freedom of Contract
[111]
As we have seen,
married and civil union spouses are, both during the marriage or union and upon
its breakdown, subject to the mandatory application of the primary regime and
the suppletive application of the regime of partnership of acquests. The
situation is very different for de facto spouses.
[112]
As I mentioned above,
the Civil Code of Québec does not lay down the terms of the union of de facto
spouses. The law imposes no duty of assistance and succour on them, and thus
no obligation of support. The sharing of household expenses is left to their
discretion; they are not required to contribute toward those expenses in
proportion to their respective means. Nor are they required to choose the
family residence together. No mandatory provisions apply to limit the exercise
of their rights of ownership in the family residence. A de facto
spouse who is the sole owner of the residence can therefore sell it or lease it
without the other spouse’s consent. A de facto union does not
create a family patrimony, is not subject to the legal matrimonial regime of
partnership of acquests and does not entitle a spouse to a compensatory
allowance.
[113]
A de facto
spouse continues, both while living with the other spouse and after their
relationship breaks down, to own any property he or she acquired before or
during their union. Any change in this situation must be consented to by the
spouse whose rights are affected. Thus, under the Act respecting the Québec
Pension Plan, an application for the partition of pensionable earnings
accrued during the period in which de facto spouses lived together
requires the consent of both of them. Similarly, the Supplemental Pension
Plans Act, R.S.Q., c. R‑15.1, which establishes the legal
framework for private pension plans, permits former de facto
spouses to partition benefits accumulated under a member’s pension plan only if
both of them consent.
[114]
Since the de facto
union is not subject to the mandatory legislative framework that applies to
marriage and the civil union, de facto spouses are free to shape
their relationships as they wish, having proper regard for public order. They
can enter into agreements to organize their patrimonial relationships while
they live together and to provide for the consequences of a possible
breakdown: on the possible content of such agreements, see Tétrault, “L’union
civile: j’me marie, j’me marie pas”, at pp. 133‑34; Tétrault, Droit
de la famille, at pp. 870‑71; A. Roy, “La charte de vie
commune ou l’émergence d’une pratique réflexive du contrat conjugal” (2007), 41
R.J.T. 399. Such agreements are commonly referred to as “cohabitation
agreements”.
[115]
As some authors have
noted, in light of the Quebec jurisprudence, [translation]
“there is no longer any doubt that contracts between de facto
spouses are valid”: Jarry, at p. 134. The Quebec courts have held that de facto
spouses can validly enter into contracts that provide that the rules on partition
of the family patrimony will apply should their relationships break down (Couture
v. Gagnon, [2001] R.J.Q. 2047 (C.A.), leave to appeal refused, [2002] 3
S.C.R. vii), contracts that contemplate an obligation to pay spousal support
should cohabitation cease (Ponton v. Dubé, 2005 QCCA 413 (CanLII)), and
contracts that grant a right to exclusive use of the family residence after
separation (Bourbonnais v. Pratt, 2006 QCCS 5611, [2007] R.D.F.
124). According to the Quebec Court of Appeal, [translation] “[s]uch agreements can even provide for the
equivalent of a compensatory allowance”: M.B. v. L.L., [2003] R.D.F.
539, at para. 30.
[116]
In the absence of such
agreements, the general law applies to any patrimonial dispute that results
from the end of the spouses’ cohabitation. Since each of the de facto
spouses continues to own any property he or she acquired individually before or
while they lived together, a spouse who proves his or her sole ownership of
movable property can revendicate it. Where property is owned in undivided co‑ownership,
either spouse can force the other to proceed to the partition and licitation of
the undivided property, since no one is bound to remain in indivision
(art. 1030 C.C.Q.).
[117]
Finally, de facto
spouses who believe that they were wronged when their union broke down can
bring an action based on unjust enrichment, the rules for which have been
codified in arts. 1493 to 1496 C.C.Q. since 1994. That unjust
enrichment is applicable to relationships between de facto spouses
was confirmed by this Court in Peter v. Beblow, [1993] 1 S.C.R. 980.
The principle of unjust enrichment must be interpreted cautiously but
generously, in a manner consistent with the conditions originally established
by the Court in Cie Immobilière Viger Ltée v. Lauréat Giguère Inc.,
[1977] 2 S.C.R. 67, which are now set out in art. 1493 C.C.Q.
As Dalphond J.A. of the Quebec Court of Appeal explained, it should be
used [translation] “solely to
compensate one party for a contribution, in property or services, that enabled
the other party to be in a better position than he or she would have been in
had the parties not lived together, in short, that enriched the other party”: M.B.
v. L.L., at para. 39.
[118]
To obtain compensation
under arts. 1493 C.C.Q. et seq., a de facto spouse
alleging unjust enrichment must therefore prove on a balance of probabilities
that the following conditions are met: an enrichment, an impoverishment, a
correlation between the enrichment and the impoverishment, and the absence of
justification, of evasion of the law and of any other remedy: Cie Immobilière
Viger; Peter v. Beblow; M.B. v. L.L., at para. 34; J.‑L. Baudouin
and P.‑G. Jobin, Les obligations (6th ed. 2005), by P.‑G.
Jobin with N. Vézina, at paras. 566 et seq.
[119]
As this Court held in Peter
v. Beblow, a de facto spouse can benefit from certain
rebuttable presumptions that make it easier to discharge his or her burden of
proof. For example, in the case of a long‑term de facto
union, a court can presume, on the one hand, that there is a correlation
between the enrichment of one spouse and the impoverishment of the other and,
on the other hand, that there was no reason for the enrichment: Peter v.
Beblow, at pp. 1013 and 1018; M.B. v. L.L., at para. 37; Benzina v. Le, 2008 QCCA 803
(CanLII), at para. 7; Barrette v. Falardeau, 2010 QCCA 989
(CanLII), at paras. 26‑27.
Finally, when these conditions are met, the de facto spouse’s
action will be allowed in the lesser of the following two amounts: that of the
enrichment of his or her spouse and that of his or her own impoverishment (Cie
Immobilière Viger, at p. 77).
[120]
In a recent decision
written by Dalphond J.A. with the concurrence of Côté J.A., the Court
of Appeal reiterated the principles of the doctrine of unjust enrichment with
respect to de facto spouses and the importance of the presumptions
in the plaintiff’s favour: C.L. v. J.Le., 2010 QCCA 2370 (CanLII), at
paras. 10‑15, quoted in full in Droit de la famille — 121120,
2012 QCCA 909 (CanLII), at para. 65. The Court of Appeal correctly noted
that a court hearing [translation]
“a claim by a de facto spouse for compensation for unjust
enrichment [must] undertake a broad, overall analysis of the parties’
circumstances, taking into account all contributions made by the spouses
during the time they lived together”: C.L. v. J.Le., at para. 12
(emphasis added). As well, rather than a simple accounting exercise, [translation] “the analysis of the
factual and legal aspects requires a particular flexibility adapted to
the nature of relationships between spouses (Lacroix v. Valois, [1990]
2 S.C.R. 1259, at p. 1279)”: C.L. v. J.Le, at
para. 13 (emphasis added).
(d) Treatment of De Facto Spouses in
the Same Way as Married and Civil Union Spouses in Various Statutes
[121]
For the dealings that
couples have with third parties, and more particularly with the government,
there are a number of social statutes in which a distinction is no longer drawn
between marriage, civil union and de facto union: see, inter
alia, Workers’ Compensation Act, R.S.Q., c. A‑3; An
Act respecting industrial accidents and occupational diseases, R.S.Q.,
c. A‑3.001; An Act respecting financial assistance for education
expenses, R.S.Q., c. A‑13.3; An Act respecting legal aid and
the provision of certain other legal services, R.S.Q., c. A‑14; Automobile
Insurance Act, R.S.Q., c. A‑25; An Act respecting insurance;
R.S.Q., c. A‑32; An Act respecting financial services
cooperatives, R.S.Q., c. C‑67.3; An Act respecting trust
companies and savings companies, R.S.Q., c. S‑29.01; An Act
respecting school elections, R.S.Q., c. E‑2.3; An Act
respecting duties on transfers of immovables, R.S.Q., c. D‑15.1;
Cooperatives Act, R.S.Q., c. C‑67.2; Taxation Act,
R.S.Q., c. I-3; An Act respecting the Québec sales tax, R.S.Q.,
c. T‑0.1; An Act respecting labour standards, R.S.Q.,
c. N‑1.1; Courts of Justice Act, R.S.Q., c. T‑16; An
Act respecting the Québec Pension Plan; An Act respecting the Government
and Public Employees Retirement Plan, R.S.Q., c. R‑10; An Act
respecting the Civil Service Superannuation Plan, R.S.Q., c. R‑12;
Supplemental Pension Plans Act; An Act respecting the conditions of
employment and the pension plan of the Members of the National Assembly,
R.S.Q., c. C‑52.1; An Act respecting the Pension Plan of Certain
Teachers, R.S.Q., c. R‑9.1; An Act respecting the Pension
Plan of Peace Officers in Correctional Services, R.S.Q., c. R‑9.2;
An Act respecting the Pension Plan of Elected Municipal Officers,
R.S.Q., c. R‑9.3; An Act respecting the Teachers Pension Plan,
R.S.Q., c. R‑11; Individual and Family Assistance Act,
R.S.Q., c. A‑13.1.1.
[122]
As Professors D.‑Castelli
and Goubau explain, [translation]
“[p]rovided that a union meets the specific conditions of a statute, the
situation of de facto spouses is exactly the same as that of
married or civil union spouses under Quebec civil law for the purposes of that
statute”: p. 173. In this regard, the Quebec Court of Appeal has stated
that [translation] “a review of
these statutes . . . shows that the legislature intended to treat de facto
spouses and married spouses on an equal basis”: Couture v. Gagnon, at
para. 32.
[123]
It should be noted
that, since the 1999 enactment of the Act to amend various legislative
provisions concerning de facto spouses, S.Q. 1999, c. 14,
the de facto spouse concept has been extended in these statutes to
include same‑sex de facto spouses. Moreover, as a result of
the enactment in 2002 of the Act instituting civil unions and establishing
new rules of filiation, s. 143, the definition of spouse in the Interpretation
Act, R.S.Q., c. I‑16, s. 61.1, includes same‑sex
spouses.
[124]
This tendency in social
statutes to treat de facto spouses in the same way as married and
civil union spouses can also be seen in certain civil law matters involving
interaction between de facto spouses and third parties. For
example, a de facto spouse, like a married or civil union spouse,
can consent to care required by his or her spouse who is incapable of giving
consent (art. 15 C.C.Q.); where his or her spouse alone signed a
lease for a dwelling and subsequently leaves the dwelling or dies, maintain
occupancy and become the lessee (art. 1938 C.C.Q.); repossess a
dwelling in an immovable owned jointly with his or her spouse (art. 1958 C.C.Q.);
participate in meetings of relatives, persons connected by marriage or a civil
union and friends during the process of appointing a curator for his or her
spouse (art. 266 C.C.Q.); avoid the seizure of part of his or her
salary if supporting his or her spouse (art. 553 of the Code of Civil
Procedure, R.S.Q., c. C‑25); and bring a direct action in
liability where his or her spouse dies (abolition of the rule in art. 1056
C.C.L.C.).
D. Demographic and
Sociological Evolution of the De Facto Union in Quebec Since 1980
[125]
Parallel to the
evolution of family law in Quebec, it is interesting to see how the social
position of the de facto union in that province has changed. On
the basis of data collected by Statistics Canada and the Institut de la
statistique du Québec that are studied in some of the expert reports submitted
by the parties, some demographic trends with respect to the de facto
union can be observed. First, over the last 30 years, the development of the de facto
union has taken place largely in Quebec. In Canada, it is in that province
that the de facto union has spread most widely. Between 1981 and
2006, the proportion of Quebec couples in de facto unions increased
from 7.9% to 34.6%. By comparison, 18.4% of couples in Canada as a whole were
in such a relationship in 2006. Also, 60% of Quebec children are now
apparently being born out of wedlock. The 2011 census confirms these trends.
According to the now available data, 20% of Canadian couples live in de facto
unions. In Quebec, the proportion rises to 37.8%.
[126]
The statistics analyzed
by the experts suggest that de facto unions are more common among
young Quebeckers under the age of 35 than among Canadians in that age group as
a whole. Young Quebeckers opt for de facto unions in much higher
proportions (51%) than do young Canadians as a whole (29%). In Quebec, and to
a lesser extent in Canada as a whole, de facto unions remain
proportionately more common among couples in their third unions than among
couples in their first.
[127]
Whereas the purely
demographic aspect of the de facto union is easily quantified, the
same is not true of its sociological or socio‑demographic character. In
the instant case, four of the eight expert reports filed by the parties at
trial relate specifically to this sociological perspective. Among other
things, these experts discuss how conjugality is depicted in Quebec, the
differences and similarities between marriage and the de facto
union, and how Quebec couples organize themselves. Because of the
methodological limitations of the studies, their small sample sizes and the
general lack of quantitative data on which to base hypotheses, it seems
impossible in the context of this case to draw any definitive conclusions about
several aspects of this social phenomenon, including why this type of
relationship is chosen and how it functions from an economic standpoint.
[128]
It will be helpful here
to quote some remarks made by Professors Le Bourdais and Lapierre‑Adamcyk,
at pp. 3 and 4 of their report, on the state of the research on de facto
unions in Quebec:
[translation] Very little research based
on large samples representative of the population as a whole has been conducted
into the meaning of the de facto union in relation to marriage and
the meaning of the commitment made by the spouses to one another. Moreover,
the research that has been done has not gone into detail about the mechanisms
underlying the choice of type of union for unions formed recently, that is,
since the mid‑1990s. Many unknowns remain, and since the circumstances
are changing, relationships that seem to be well established for a given period
may no longer be valid for a subsequent period. . . .
[With
regard to certain links observed among various facts], the reliable data needed
to analyze them correctly are often unavailable. Thus, the link between
financial independence and the choice of type of union continues to be the
subject of speculation, since prospective longitudinal data following
individuals as they advance through their lives, which would make it possible
to observe their financial situations at the times they have to make choices,
are only rarely or partially available.
Furthermore,
in areas like money management by couples or the depictions of conjugality,
which have been addressed qualitatively in the studies examined here,
quantitative data on large samples are sorely lacking in Quebec and in Canada,
making it impossible to compare couples in de facto unions with
married couples or to take account of all relevant groups regardless of their
stage in the life cycle (at the beginning of the relationship, after several
years of living together or the arrival of a child, or immediately after
separating). Research on other societies, where it exists, may suggest some
elements of an answer, but it does not suffice to shed a satisfactory light on
the Canadian reality. [Joint Record, vol. 14, at pp. 7‑8]
[129]
Finally, as the trial
judge pointed out, none of the expert reports submitted by the parties
discusses the concrete effects of the breakdown of a relationship for de facto
spouses or for married or civil union spouses.
E. Scope of A’s Claim
[130]
Before considering the
nature and application of the right to equality in the context of this appeal,
I must review the scope of A’s claim. All its effects must be understood in
order to assess their impact on the application of the right to equality.
[131]
First, by arguing that
arts. 401 to 430, 432, 433, 448 to 484 and 585 C.C.Q. are contrary
to s. 15(1) of the Charter and not justified under s. 1 , A is
claiming the benefit of certain aspects of the primary regime that applies in
cases of separation from bed and board, divorce, or dissolution of a civil
union. On this basis, she is seeking to partition the family patrimony and
reserve her right to claim a compensatory allowance. She also submits that she
is entitled to support for herself and to a lump sum.
[132]
Although A is
challenging the constitutionality of the provisions protecting the family
residence, she makes no specific claim concerning those provisions in this
case. The issues relating to the place of residence of A and the parties’
children appear to have been dealt with in an agreement the parties entered
into before the trial.
[133]
Second, along with the
application of certain parts of the primary regime, A is seeking the automatic
and mandatory application of the legal matrimonial regime of partnership of
acquests. As I mentioned above, in the case of marriage and civil union, the
legal regime applies automatically only if the spouses do not enter into a
marriage contract or a civil union contract. Under Quebec civil law, the
regime of partnership of acquests is suppletive and applies only if there is no
contract designating a regime of separation as to property or containing
stipulations tailored to the spouses’ personal circumstances. In essence, as
regards matrimonial regimes, A wants her de facto union to be
treated not only like a marriage, but like a marriage entered into without a
marriage contract. She is therefore asking this Court to recognize the
retroactive creation of a partnership of acquests that applies on a mandatory
basis to her relationship with B.
[134]
When a marriage breaks
down, the dissolution of a legal regime of partnership of acquests results in
partition of the value of the acquests between the spouses to whom the regime
applies. Partition is of relatively little consequence to couples whose main
assets are part of the family patrimony, but it can acquire great significance
where, for example, one of the spouses is actively involved in business ventures.
Having made this clarification, I will now turn to s. 15(1) of the Charter ,
which is at the heart of this case. How it is interpreted and applied will
determine the outcome of A’s constitutional claims and, as a result, the scope
of her support and patrimonial rights in relation to B.
F. Development of the Jurisprudence on Section 15
(1) Underlying Values of Section 15 :
Equality, Dignity, Freedom and Personal Autonomy
[135]
Section 15(1) of
the Charter provides that “[e]very 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.” To understand the meaning and content of this guarantee
as well as its impact on government action, it is necessary to clearly
understand the nature of what McIntyre J. called “the broad range of values
embraced by s. 15”: Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143, at p. 171. The recognition of these values aids
in the interpretation of s. 15(1) and in the overall assessment of the
merits of claims that the right to equality has been violated: Law, at
para. 54; Walsh, at para. 63.
[136]
In Andrews, the
first case in which this Court considered the application of s. 15 ,
McIntyre J. stated emphatically that the equality guarantee is intended to
ensure the recognition of the equal worth of all human beings in Canadian
society:
It
is clear that the purpose of s. 15 is to ensure equality in the
formulation and application of the law. The promotion of equality entails the
promotion of a society in which all are secure in the knowledge that they are
recognized at law as human beings equally deserving of concern, respect and
consideration. [p. 171]
(See
also R. Dworkin, Taking Rights Seriously (1977), at pp. 272‑73.)
[137]
According to McIntyre
J., the establishment of formal equality does not suffice to meet the
objectives underlying the adoption of the equality guarantee. Section 15
instead introduces a concept of substantive equality.
[138]
As this Court has
pointed out on several occasions, this value of substantive equality at the
heart of s. 15 is closely tied to the concept of human dignity: Miron,
at paras. 145‑46; Law, at paras. 52 and 54; Blencoe
v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R.
307, at para. 77; Gosselin v. Quebec (Attorney
General), 2002 SCC 84, [2002] 4 S.C.R. 429, at para. 20. The innate and
equal dignity of every individual is invariably an “essential value underlying
the s. 15 equality guarantee”: Kapp, at para. 21. Indeed,
the Court has said that “the purpose of s. 15(1) is to prevent the violation
of essential human dignity and freedom” (Law, at para. 51) and to
eliminate any possibility of a person being treated in substance as “less
worthy” than others: Gosselin, at para. 22. In other words:
This
principle recognizes the dignity of each human being and each person’s freedom
to develop his body and spirit as he or she desires, subject to such
limitations as may be justified by the interests of the community as a whole.
It recognizes that society is based on individuals who are different from each
other, and that a free and democratic society must accommodate and respect
these differences.
(Miron,
at para. 145)
[139]
The principle of
personal autonomy or self‑determination, to which self‑worth, self‑confidence
and self‑respect are tied, is an integral part of the values of dignity
and freedom that underlie the equality guarantee: Law, at
para. 53; Gosselin, at para. 65. Safeguarding personal
autonomy implies the recognition of each individual’s right to make decisions
regarding his or her own person, to control his or her bodily integrity and to
pursue his or her own conception of a full and rewarding life free from
government interference with fundamental personal choices: R. v. Big
M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 346, per Dickson J;
R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 164, per
Wilson J.; Rodriguez v. British Columbia (Attorney General), [1993]
3 S.C.R. 519, at p. 554, per Lamer C.J., at pp. 587‑88,
per Sopinka J.; Blencoe, at para. 77, per Bastarache J.
[140]
In the application of
s. 15 , promotion of the values of equality, dignity, freedom and autonomy
requires “the remedying of discriminatory treatment” based on the personal
characteristics enumerated in s. 15(1) or characteristics analogous to
them: Law, at para. 52. Under the Charter , it is unfair to
limit an individual’s full participation in society solely because the
individual has one of these personal characteristics: Miron, at
para. 146; Eldridge v. British Columbia (Attorney General), [1997]
3 S.C.R. 624, at paras. 72‑73. Likewise, it is unacceptable to
refuse on the basis of these characteristics to treat a person as a full member
of society who deserves to realize his or her full human potential: Miron,
at para. 146; Gosselin, at para. 23.
[141]
Since Andrews,
this Court has endeavoured to identify types of situations involving
discrimination contrary to s. 15(1) and to establish an analytical
framework to help the courts deal with claims for application of the equality
guarantee. Having a framework that can be used to identify discriminatory
distinctions is of fundamental importance in light of the fact that the drawing
of distinctions lies at the heart of legislative action: Andrews, at
pp. 168‑69. Virtually all legislation distinguishes and makes
categories. Without a coherent analytical framework, every distinction
involving an enumerated or analogous ground of discrimination would be suspect
and would need to be justified, even those relating to fundamental and
essential measures, such as the prohibition against driving while intoxicated:
Andrews, at pp. 181‑82. Such a framework makes it possible
for a court to combat discrimination effectively without succumbing to the
temptation to redefine legislative solutions that do not violate the s. 15
equality guarantee: Hodge v. Canada (Minister of Human Resources
Development), 2004 SCC 65, [2004] 3 S.C.R. 357, at para. 26. Since
the analytical framework developed by this Court has been discussed,
reformulated and enriched many times over the past two decades, I must
summarize the changes made to it in order to better describe its current form.
(2) Creation of an Analytical Framework
(a) Andrews
[142]
In Andrews, the
Court was considering an alleged infringement of s. 15(1) by a legislative
provision under which Canadian citizenship was required for admission to the
British Columbia Bar. The Court concluded that the provision was contrary to
s. 15(1) because it barred a class of persons from certain types of
employment solely on the ground that they were not Canadian citizens, and
without consideration of their qualifications or of their individual attributes
or merits. Although he dissented on the application of s. 1 to the case,
McIntyre J. laid the foundations of the analytical framework that is
indispensable when considering an alleged violation of s. 15(1) .
[143]
McIntyre J.
acknowledged at the outset that not every differentiation in the treatment of
individuals under the law will result in inequality, “[n]or will a law
necessarily be bad because it makes distinctions”: Andrews, at
p. 167; see also pp. 164, 168 and 182. He thus refused to conclude
that the Charter prohibits any form of inequality between humans.
Rather, it is a tool for combating certain forms of inequality that are
considered discriminatory. On the basis of s. 15, which states that the
right to equality must apply “without discrimination”, McIntyre J.
identified the existence of discrimination as the fundamental requirement for
application of the protection afforded by s. 15(1) . Therefore, according
to him, s. 15(1) is deemed to limit or qualify itself, since it condemns
only distinctions that are “discriminatory”:
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. [p. 182]
(See also
Egan v. Canada, [1995] 2
S.C.R. 513, at paras. 33‑34,
per L’Heureux‑Dubé J., dissenting.)
[144]
McIntyre J. then
stated that discrimination under s. 15(1) is based on the grounds
enumerated in that provision or grounds analogous to them. Determining whether
a ground of distinction is an analogous ground and can therefore support a
discrimination claim involves a contextual inquiry to determine whether it
gives rise to questions of stereotyping, historical disadvantage or prejudice:
Andrews, at pp. 180‑81; see also Corbiere v. Canada
(Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at paras. 12‑13.
It can also be asked whether the complainant is a member of a discrete and
insular minority, many of which will be disadvantaged, like some of the groups
covered by the grounds enumerated in s. 15(1) . Thus, discrimination
“epitomizes the worst effects of the denial of equality”: Andrews, at
p. 172.
[145]
McIntyre J. added
that s. 15(1) limits prohibited distinctions or differentiations in
treatment to those which involve prejudice or disadvantage. In Andrews,
the members of the Court agreed that the legislative provision challenged by
the complainant infringed s. 15 because it imposed a specific burden on
non‑citizens. According to McIntyre J., “[n]on‑citizens,
lawfully permanent residents of Canada, are . . . a good example
of a ‘discrete and insular minority’ who come within the protection of
s. 15 ”: Andrews, at p. 183. The Court was divided only on
the application of s. 1 , and not on this finding of a discriminatory
infringement of the right to equality.
(b) From
Andrews to Law
[146]
As several authors have
noted, McIntyre J.’s reasons left some room for uncertainty about what
constitutes discriminatory treatment under s. 15 : see, inter alia,
P. W. Hogg, Constitutional Law of Canada (5th ed. Supp. (loose-leaf)),
vol. 2, at p. 55‑26; L. B. Tremblay, “Promoting Equality
and Combating Discrimination Through Affirmative Action: The Same Challenge?
Questioning the Canadian Substantive Equality Paradigm” (2012), 60 Am. J.
Comp. L. 181, at p. 185; B. J. Cameron, “A Work in Progress: The
Supreme Court and the Charter ’s Equation of Rights and Limits”, in
D. M. McAllister and A. M. Dodek, eds., The Charter at
Twenty: Law and Practice 2002 (2002), 31, at p. 34;
C. D. Bredt and A. M. Dodek, “Breaking the Law’s
Grip on Equality: A New Paradigm for Section 15” (2003), 20 S.C.L.R.
(2d) 33, at p. 56; D. G. Réaume, “Discrimination and Dignity”
(2003), 63 La. L. Rev. 645, at pp. 652‑53.
[147]
Taken out of context,
some passages from the decision might suggest that every adverse distinction
based on an enumerated or analogous ground is a form of discrimination
prohibited by s. 15 . However, McIntyre J. stated elsewhere in his
reasons that “[d]istinctions based on personal characteristics attributed to an
individual solely on the basis of association with a group will rarely
escape the charge of discrimination, while those based on an individual’s
merits and capacities will rarely be so classed”: Andrews, at
pp. 174‑75 (emphasis added). He added that discrimination cannot be
identified solely by determining whether the alleged ground is one of those
enumerated in s. 15(1) or an analogous ground thereto: Andrews, at
p. 182. McIntyre J. therefore seemed to leave open the question of
how to identify situations in which an adverse distinction based on an enumerated
or analogous ground is not discriminatory.
[148]
The Court gave two
separate answers in what has been called “the 1995 trilogy” of Miron, Egan
and Thibaudeau v. Canada, [1995] 2 S.C.R. 627. According to
Lamer C.J. and La Forest, Gonthier and Major JJ., adverse
differential treatment is discriminatory only if the alleged enumerated or
analogous ground is irrelevant to the legislative goals or the values
underlying the impugned provision. If the ground for excluding a group of
persons from certain benefits arising from a law is relevant to the goals and
values of that law, the exclusion will therefore not be discriminatory within
the meaning of s. 15 .
[149]
According to Sopinka, Cory,
McLachlin and Iacobucci JJ., and to some extent to L’Heureux‑Dubé J.,
differential treatment that disadvantages the complainant will be
discriminatory only if it conflicts with the purpose of s. 15 . They
explained that the purpose of s. 15 is “to prevent the violation of human
dignity and freedom through the imposition of limitations, disadvantages or
burdens through the stereotypical application of presumed group
characteristics, rather than on the basis of merit, capacity or circumstance”: Miron,
at para. 140, per McLachlin J. In other words, an adverse
distinction based on an enumerated or analogous ground will be discriminatory
only if it is “contrary to s. 15 ’s aim of protecting human dignity”: Egan,
at para. 180, per Cory and Iacobucci JJ. (dissenting).
According to McLachlin J., requiring that a provision be found to violate
the purpose of s. 15(1) before it can be characterized as discriminatory
averts a trivialization of s. 15 : Miron, at para. 131.
(c) Synthesis
in Law
[150]
In 1999,
Iacobucci J., writing for a unanimous Court, reaffirmed the substance of
the approach taken by Cory J. in Egan and McLachlin J. in Miron.
According to Iacobucci J., the Court had recognized “that the existence of
a conflict between an impugned law and the purpose of s. 15(1) is
essential in order to found a discrimination claim”: Law, at
para. 41. In his view, “the goal of [s. 15(1) is to assure] human
dignity by the remedying of discriminatory treatment”: Law, at
para. 52. He adopted an analytical approach based on a concept of
substantive equality that will be violated only where adverse differential
treatment by the government has a negative effect on the claimant’s human
dignity. On this basis, Law proposed a three‑stage analytical
framework to be used by the courts in ruling on a discrimination claim under
s. 15(1) .
[151]
First, the court must
determine whether the law treats the claimant differently than others either in
purpose or effect. To do so, the court must ask whether the impugned law draws
a formal distinction between the claimant and others on the basis of one or
more personal characteristics, or whether it fails to take into account the
claimant’s already disadvantaged position within Canadian society, thereby
giving rise to substantively differential treatment between the claimant and
others on the basis of one or more personal characteristics.
Bastarache J., discussing the nature of such differential treatment in a
subsequent case, stated that “it is clear that Iacobucci J. [was] talking
only about a detrimental purpose or effect, since it is nonsensical to
think that a claimant might establish that a beneficial or benign purpose or
effect infringes s. 15(1) ”: Gosselin, at para. 243 (emphasis
in original).
[152]
Second, the court must
determine whether one or more of the grounds enumerated in s. 15(1) , or
analogous grounds, are the basis for the differential treatment.
[153]
Third, the court must
then determine whether the law in question has a purpose or effect that is
discriminatory within the meaning of the equality guarantee by making the
following inquiry:
Does
the differential treatment discriminate, by imposing a burden upon or
withholding a benefit from the claimant in a manner which reflects the
stereotypical application of presumed group or personal characteristics, or
which otherwise has the effect of perpetuating or promoting the view that the
individual is less capable or worthy of recognition or value as a human being
or as a member of Canadian society, equally deserving of concern, respect, and
consideration?
(Law,
at para. 88(3)(C))
[154]
To resolve the third
issue and thus determine whether the differential treatment discriminates in a
substantive sense and brings the purpose of s. 15(1) into play, the court
must undertake a full contextual inquiry concerning the circumstances of the
claimant’s claim. This inquiry must be undertaken from the point of view of a
reasonable person in circumstances similar to those of the claimant who takes
the relevant context into account. Whereas the claimant must prove on a
balance of probabilities that the impugned provision discriminates in a substantive
sense, the court can take judicial notice of certain facts or matters but must
be careful not to use judicial notice to recognize social phenomena that may
not truly exist.
[155]
Iacobucci J.
identified four factors that are relevant to a contextual analysis of a
discrimination claim. According to him, these factors may overlap, are not
exhaustive and do not all have to be assessed in every case involving an
alleged violation of s. 15(1) . They can nevertheless guide the court in
determining whether the law in question discriminates in a substantive sense.
[156]
The first contextual
factor he identified is pre‑existing disadvantage experienced by the
claimant or the group of which the claimant is a member. This factor suggests
an inquiry into whether the individual or group might have experienced a
historical disadvantage, vulnerability, stereotyping or prejudice. According
to Iacobucci J., “[i]t is logical to conclude that, in most cases, further
differential treatment will contribute to the perpetuation or promotion of
their unfair social characterization, and will have a more severe impact upon
[these individuals], since they are already vulnerable”: Law, at
para. 63. However, the existence of a pre‑existing disadvantage
does not give rise to a presumption that the adverse treatment of historically
disadvantaged persons is necessarily discriminatory: Law, at
para. 67.
[157]
The second factor is
the correspondence, or lack thereof, between the ground or grounds on which the
discrimination claim is based and the actual needs, capacity or circumstances
of the claimant or the affected group. Acceptance of the need for
correspondence as a contextual factor is logical, since it will be more
difficult to prove that a person’s dignity has been violated if the legislation
in question takes into account the claimant’s actual circumstances, needs or
capacity. In a subsequent decision, McLachlin C.J., writing for a
majority of the Court, clarified the nature of this factor as follows:
The
fact that some people may fall through a program’s cracks does not show that
the law fails to consider the overall needs and circumstances of the group of
individuals affected, or that distinctions contained in the law amount to
discrimination in the substantive sense intended by s. 15(1) .
(Gosselin,
at para. 55)
[158]
The third factor is
whether the impugned law has an ameliorative purpose or effect for certain
members of society. Thus, a law that draws distinctions in order to alleviate
certain inequalities affecting disadvantaged groups is less likely to be found
to violate the dignity of more fortunate individuals to whom the measures do
not apply.
[159]
The fourth factor
concerns the nature or scope of the benefit or interest which the claimant
feels he or she has been denied. As Iacobucci J. explained, “[t]he more
severe and localized the consequences of the legislation for the affected
group, the more likely that the differential treatment responsible for these
consequences is discriminatory within the meaning of s. 15(1) ”: Law,
at para. 88(9)(D). Such consequences arise where the distinction
restricts access to a fundamental social institution or impedes full membership
in Canadian society.
(d) Application of the Equality Guarantee
in Kapp and Withler
[160]
Nearly 10 years after Law,
the Court, in reasons written by McLachlin C.J. and Abella J.,
reviewed the synthesis proposed by Iacobucci J.: see Kapp. Almost
three years after Kapp, the Court continued that review in Withler v.
Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, a unanimous
decision written, once again, by McLachlin C.J. and Abella J.
[161]
In those two decisions,
the Court observed that, despite the changes made to the s. 15 analysis
over the years, the concept of substantive equality had remained central to the
analytical framework for that provision: Kapp, at para. 15. The
Court also noted that, although the analytical framework adopted in Andrews
had been enriched since that case, including by Iacobucci J. in Law,
it had never been abandoned: Kapp, at para. 14. The Court added
that the purpose of s. 15(1) is “the elimination from the law of measures
that impose or perpetuate substantial inequality”: Withler, at
para. 40.
[162]
In Kapp, the
Court reworked the three‑stage analytical framework from Law in
light of the purpose of s. 15 , namely to promote substantive equality,
reshaping it into a two‑part test for showing discrimination under
s. 15(1) . Where a violation of s. 15(1) is alleged, a court must ask
the following questions: “(1) Does the law create a distinction based on
an enumerated or analogous ground? (2) Does the distinction create a
disadvantage by perpetuating prejudice or stereotyping?” (Kapp, at
para. 17). If the answer to each of these questions is yes, it can be
concluded that the impugned legislative provision violates the equality
guarantee in s. 15(1) . The Court stated that this two‑part test
was, “in substance, the same” as the test from Law and that Law
had confirmed the approach to substantive equality set out in Andrews: Kapp,
at paras. 17 and 24.
[163]
As the Court has
acknowledged, the review of the analytical framework for s. 15(1) that
began in Kapp and continued in Withler was also a response to
criticism of the framework proposed in Law and the subsequent
application of that framework, and in particular of the use of the violation of
human dignity test, of the application of the contextual factors and of the
comparison required by the framework.
[164]
The Court began by
stressing the importance of the value of human dignity. It stated that
“[t]here can be no doubt that human dignity is an essential value underlying
the s. 15 equality guarantee”: Kapp, at para. 21. However,
it noted that several difficulties had arisen from attempts to employ this
concept as a legal test as proposed in Law. On the one hand, human
dignity is a value that underlies all Charter rights: see R. v. Oakes,
[1986] 1 S.C.R. 103, at p. 136. In this sense, its relevance is not
limited to the equality guarantee: see, inter alia,
D. Greschner, “The Purpose of Canadian Equality Rights” (2002), 6 Rev.
Const. Stud. 291; D. Proulx, “Le concept de
dignité et son usage en contexte de discrimination: deux Chartes, deux
modèles”, [2003] R. du B. (numéro spécial) 485. On the other hand, as I mentioned above,
dignity is not the only value underlying s. 15. Other values associated
with it include freedom and personal autonomy.
[165]
Rather than emphasizing
the identification of a violation of the complainant’s dignity as an
independent factor, the Court proposed that the analysis to determine whether a
claimant has been discriminated against be focused on the context of the
claim. At that time, the Court reaffirmed the importance of context and the
relevance of the contextual factors set out in Law. Pre‑existing
disadvantage and the nature of the affected interest are therefore factors to
be applied to determine whether a distinction creates a disadvantage by
perpetuating prejudice. Correspondence between the ground or grounds on which
the claim is based and the actual circumstances of the claimant or the affected
group is a factor to be applied to determine whether a distinction creates a
disadvantage by stereotyping: Kapp, at para. 23. Next, the Court
attributed two main functions to the ameliorative factor referred to in Law.
First, the ameliorative purpose or effect of a law may bring it within the
purview of s. 15(2), which preserves the right of governments to implement
specific programs aimed at helping disadvantaged groups without fear of
challenge under s. 15(1) : Kapp, at para. 16. Second, the
Court explained alternatively that, “[w]here the impugned law is part of a
larger benefits scheme . . . the ameliorative effect of the law
on others and the multiplicity of interests it attempts to balance will also
colour the discrimination analysis [under s. 15(1) ]”: Withler, at
para. 38.
[166]
According to the Court,
regardless of whether the s. 15 analysis focuses on perpetuating
disadvantage or stereotyping,
the
analysis involves looking at the circumstances of members of the group and the
negative impact of the law on them. The analysis is contextual, not
formalistic, grounded in the actual situation of the group and the potential of
the impugned law to worsen their situation.
(Withler,
at para. 37)
The
Court thus noted that the contextual factors that are relevant at this stage of
the analysis will vary with the nature of the case. “Just as there will be
cases where each and every factor need not be canvassed, so too will there be
cases where factors not contemplated in Law will be pertinent to the
analysis”: Withler, at para. 66. In both Kapp and Withler,
the Court warned against an inflexible application of these factors that does
not take into account their concrete effects in their larger social, political
and legal contexts.
[167]
The Court also
recognized that it may be helpful at the stage of determining whether a
distinction exists to compare the group of which the claimant is a member with
other groups. However, it observed that a formalistic or artificial approach
to comparison may prevent a court from adequately addressing the issue raised
at the second stage of the analysis, namely whether the law has a purpose or
effect that discriminates in a substantive sense: Withler, at
paras. 62‑65. Thus, it appears that a
mirror
comparator group analysis may fail to capture substantive inequality, may
become a search for sameness, may shortcut the second stage of the substantive
equality analysis, and may be difficult to apply. In all these ways, such an
approach may fail to identify — and, indeed, thwart the identification of — the
discrimination at which s. 15 is aimed.
(Withler,
at para. 60)
[168]
At this second stage,
therefore, rather than limiting its analysis to a formalistic comparison of
particular groups, the Court must endeavour to take the contextual factors
relevant to the case into account: Kapp, at paras. 22‑23.
Although comparison may bolster the understanding of the context, “[t]he
probative value of comparative evidence, viewed in [a] contextual sense, will
depend on the circumstances”: Withler, at para. 65.
[169]
The Court thus
acknowledged the general usefulness of comparison in determining whether a
distinction exists and gaining a better contextual understanding of the
claimant’s place within the legislative scheme at issue and within society.
The Court nonetheless made the use of the comparative approach more flexible by
emphasizing the need to assess the impact of the impugned scheme on substantive
equality. In so doing, it moved away from the rigid comparative analytical
approach based on the identification of comparator groups that had been adopted
in some of its decisions: see, inter alia, Hodge, at
para. 17. Once a distinction is found to exist, therefore, the main
question must always be the same: does the distinction create a disadvantage by
perpetuating prejudice or stereotyping? In other words, if there is a
distinction, is it discriminatory? The Court therefore stressed the importance
of the factors of perpetuation of prejudice and stereotyping. While it did not
make them the only factors, it determined that they were crucial to the
identification of discrimination and to the application of the analytical
framework for s. 15 .
(e) Meaning
and Scope of Kapp and Withler
[170]
In Kapp and Withler,
the Court reworked and provided important clarifications to the analytical
framework for applying the s. 15(1) equality guarantee. However, some
authors argue that those decisions did not eliminate all uncertainty concerning
the concepts of disadvantage, prejudice and stereotyping in this framework:
S. Moreau, “R. v. Kapp: New Directions for Section 15 ” (2008‑2009),
40 Ottawa L. Rev. 283, at pp. 286 and 291‑92; J. Koshan
and J. W. Hamilton, “Meaningless Mantra: Substantive Equality after Withler”
(2011), 16 Rev. Const. Stud. 31, at pp. 48‑51; Tremblay, at
p. 188.
[171]
In Kapp, the
Court reiterated the fundamental principle that “[s]ection 15(1) is aimed
at preventing discriminatory distinctions that impact adversely on members of
groups identified by the grounds enumerated in s. 15 and analogous
grounds”: para. 16; Alberta v. Hutterian Brethren of Wilson Colony,
2009 SCC 37, [2009] 2 S.C.R. 567, at para. 106. The language used by the Court
is clear: s. 15(1) prevents governments from establishing “discriminatory
distinctions that impact adversely” on members of groups on the basis of
enumerated or analogous grounds (para. 106 (emphasis added)). Section 15
applies not only to laws enacted with discriminatory intent, but also, even if
there is no such intent, to laws with discriminatory effects.
Section 15(1) therefore does not prohibit distinctions that have an
adverse impact unless they are discriminatory. In other words, the adverse
impact or “disadvantage” must be discriminatory. What is a discriminatory
disadvantage? As can be seen from the analytical framework as articulated in Kapp,
a discriminatory disadvantage is as a general rule one that perpetuates
prejudice or that stereotypes:
(1) Does the law create a distinction
based on an enumerated or analogous ground?
(2) Does
the distinction create a disadvantage by perpetuating prejudice or
stereotyping? [Emphasis added; para. 17.]
[172]
In Ermineskin Indian
Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222,
Rothstein J. applied this analytical framework to dismiss a claim that the
right to equality had been infringed in the context of the relationship between
Aboriginal communities and the federal government. Rothstein J. summed up
the Court’s position as follows:
This
Court’s equality jurisprudence makes it clear that not all distinctions are
discriminatory. Differential treatment of different groups is not in and of
itself a violation of s. 15(1) . As this Court stated in Andrews v. Law
Society of British Columbia, [1989] 1 S.C.R. 143, at p. 182
(restated in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R.
483, at para. 28), a complainant 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” (emphasis added). The analysis, as established in Andrews,
consists of two questions: first, does the law create a distinction based on
an enumerated or analogous ground; and second, does the distinction create a
disadvantage by perpetuating prejudice or stereotyping. [para. 188.]
[173]
This analytical
framework has been reaffirmed by the Court in other recent decisions: Hutterian,
at para. 106; A.C. v. Manitoba (Director of Child and Family Services),
2009 SCC 30, [2009] 2 S.C.R. 181, at paras. 109 and 150. The Court
further explained the nature of the framework in Withler, in which it
stated that there are usually two ways for a claimant to prove that a law
containing an adverse distinction based on an enumerated or analogous ground
“discriminates in a substantive sense”. On the one hand, the claimant can show
that the impugned law perpetuates prejudice against members of a group. On the
other hand, the claimant can show that the disadvantage imposed by the law is
based on a stereotype. If either of these things is shown, the impugned law
will be found to violate s. 15(1) : Withler, at paras. 34‑36.
I would add that there will no doubt be cases in which prejudice and
stereotyping are both involved, and reinforce one another.
[174]
It was stated in Kapp
and reiterated in Withler that a discriminatory distinction is an
adverse distinction that perpetuates prejudice or that stereotypes. I will now
discuss the uncertainty that results from certain passages from Kapp and
Withler, after which I will consider the meaning and scope of the
concepts of disadvantage, prejudice and stereotyping.
[175]
I note that in certain
passages from Kapp and Withler, the Court used varying
terminology that strayed from the language used to describe the recommended
test. In particular, some of these passages might suggest that a violation of
the right to equality can be established simply by proof of a disadvantage
based on an enumerated or analogous ground, without having to establish that
the disadvantage is discriminatory by showing that it results from the
perpetuation of prejudice or from stereotyping: see, inter alia, Kapp,
at para. 25; Withler, at paras. 35, 37, 65 and 71.
[176]
It would be wrong to
ascribe such a meaning to the passages in question. The words “discriminates
by perpetuating disadvantage or prejudice” in para. 71 of Withler
(emphasis added) actually refer only to the importance of pre‑existing
disadvantage as a contextual factor for the purpose of identifying prejudice in
the sense of circumstances in which certain individuals are not recognized at
law as human beings fully deserving of concern, respect and consideration: Andrews,
at p. 171. In Law, Iacobucci J. explained the relevance of
this link between disadvantage and prejudice as follows:
As has been consistently recognized
throughout this Court’s jurisprudence, probably the most compelling factor
favouring a conclusion that differential treatment imposed by legislation is
truly discriminatory will be, where it exists, pre‑existing disadvantage,
vulnerability, stereotyping, or prejudice experienced by the individual or
group: see, e.g., Andrews, supra, at pp. 151‑53, per
Wilson J., p. 183, per McIntyre J., pp. 195‑97,
per La Forest J.; Turpin, supra, at
pp. 1331‑33; Swain, supra, at p. 992, per
Lamer C.J.; Miron, supra, at paras. 147‑48, per
McLachlin J.; Eaton, supra, at para. 66. These factors
are relevant because, to the extent that the claimant is already subject to
unfair circumstances or treatment in society by virtue of personal
characteristics or circumstances, persons like him or her have often not been
given equal concern, respect, and consideration. It is logical to conclude
that, in most cases, further differential treatment will contribute to the
perpetuation or promotion of their unfair social characterization, and will have
a more severe impact upon them, since they are already vulnerable.
[para. 63]
[177]
The existence of a pre‑existing
or historical disadvantage will thus make it easier to prove prejudice or a
stereotype. However, the existence or perpetuation of a disadvantage cannot in
itself make a distinction discriminatory. The following comment by
McLachlin C.J. from a recent case more clearly summarizes the need for a
link between disadvantage and prejudice, on the one hand, and between
disadvantage and stereotype, on the other:
Laws
and government acts that perpetuate disadvantage and prejudice, or that
single out individuals or groups for adverse treatment on the basis of
stereotypes, violate s. 15(1) and are invalid, subject to justification
under s. 1 of the Charter : Kapp; Withler v. Canada
(Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396. [Emphasis
added.]
(Alberta
(Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC
37, [2011] 2 S.C.R. 670, at para. 39)
[178]
The interpretation
according to which there cannot as a rule be substantive discrimination,
despite the existence of a disadvantage, without prejudice or stereotyping is
consistent with this Court’s case law on the meaning and application of
s. 15(1) . As McLachlin C.J. has stated, “not every adverse
distinction made on the basis of an enumerated or analogous ground constitutes
discrimination”: Gosselin, at para. 21. More recently,
Rothstein J. stated that, “even if [there] is a disadvantage, the legislation
will violate s. 15(1) only if that disadvantage is one that is
discriminatory, that is, if it perpetuates prejudice or stereotyping”: Ermineskin,
at para. 192.
[179]
This position is also
consistent with the approach taken by this Court to substantive equality, the
promotion of which “entails the promotion of a society in which all are secure
in the knowledge that they are recognized at law as human beings equally
deserving of concern, respect and consideration”: Kapp, at
para. 15, quoting Andrews, at p. 171; see also Tremblay, at
pp. 189‑92. In the context of s. 15(1) , substantive equality
is promoted by eliminating discrimination. The central question is not whether
one person receives less than another, but whether one person obtains less
than another as a result of prejudice or stereotyping. This is the essence of
the wrong or injustice that s. 15(1) is intended to prevent. As
Professor Moreau puts it,
[n]o
plausible theory of equality maintains that what is objectionable about unequal
treatment is the mere fact that some individuals end up with more or less than
others. Rather, such theories hold that unequal treatment is objectionable
when, and to the extent that, this treatment is unfair.
(“The
Wrongs of Unequal Treatment” (2004), 54 U.T.L.J. 291, at p. 293)
[180]
Thus, substantive
equality is not denied solely because a disadvantage is imposed. Rather, it is
denied by the imposition of a disadvantage that is unfair or objectionable,
which is most often the case if the disadvantage perpetuates prejudice or
stereotypes:
We
think of discrimination not just as any sort of differential treatment but as a
particular kind of differential treatment: to be discriminated against is not
just to be denied something that others have but to be denied it in a way that
is objectionable or unfair.
(S.
Moreau, “The Promise of Law v. Canada” (2007), 57 U.T.L.J.
415, at p. 426)
[181]
Finally, I would like
to make one more point about the principle of creation of a “disadvantage by
perpetuating prejudice”. The use of the word “perpetuating” might seem to
suggest that there can be discrimination within the meaning of s. 15(1)
only where the prejudice has a historical origin: see, inter alia,
Koshan and Hamilton, at p. 51.
[182]
But this view is
incorrect. Although it can be helpful, in order to establish that an impugned
law imposes a disadvantage by perpetuating prejudice, to show that certain
individuals or classes of persons have historically been victims of prejudice,
it is not necessary to do so. As Iacobucci J. explained in Law, at
paras. 65‑67, the historical contextual factors of vulnerability,
past exposure to prejudice or stereotyping and pre‑existing disadvantage
are useful, but if they do not apply, this does not necessarily mean that the
legislative provision at issue is currently free of prejudice. Moreover, a
proper assessment of a disadvantageous law’s impact on substantive equality
will in most cases require evidence of discrimination focused on the adverse
effects as of the date of the claim, as opposed to the date the impugned law
came into force: see, inter alia, Réaume, at p. 687. As well,
historical prejudices can change; some disappear, while new ones may emerge.
The concept of immutability on which my colleagues Deschamps and Abella JJ.
rely in their respective reasons, on the basis in particular of Corbiere,
is not synonymous with eternity. Although this concept of immutability may
underline the fact that certain factors of discrimination will exist for a long
time, it cannot be employed without taking the extreme diversity of those
factors and of societal circumstances into account. It does not mean that the
factors of discrimination can never change or disappear, especially where they
are related to customs or social behaviour that could change, as in the case of
the attitudes of Quebec society with respect to de facto unions.
[183]
Nor does recourse to
these changeable contextual factors in analyzing a specific allegation of
infringement of the right to equality mean that a ground of discrimination that
is accepted or rejected in a specific case cannot be relied on in another
situation. Context is critical, and it must be taken into account each time,
since such factors are recognized “in the context of the place of the group in
the entire social, political and legal fabric of our society”: R. v. Turpin,
[1989] 1 S.C.R. 1296, at p. 1332, per Wilson J., referring to her reasons
in Andrews, at p. 152. The contextual nature of these factors means
that they can change along with their social context, the one that has given
rise to them.
[184]
In Corbiere, the
majority of the Court stressed the meaning and limits of the concept of
immutability of the markers of discrimination. The presence of such a marker
is not necessarily proof of discrimination. According to McLachlin and
Bastarache JJ., the decision to categorize a characteristic as an analogous
ground instead tells the court that it should consider the situation in light
of s. 15 . In this regard, McLachlin and Bastarache JJ. made the following
observation in Corbiere: “To say that a ground of distinction is an
analogous ground is merely to identify a type of decision making that is
suspect because it often leads to discrimination and denial of substantive
equality. Like distinctions made on enumerated grounds, distinctions made on
analogous grounds may well not be discriminatory” (para. 8).
(3) Synthesis of the Analytical Framework
[185]
In light of these
reasons, and subject to my comments to the effect that prejudice or
stereotyping is a crucial, although not the only, factor to be considered, a
court analyzing the validity of a claim that s. 15(1) has been infringed
must address the following questions: (1) Does the law create a
distinction based on an enumerated or analogous ground? (2) Does the
distinction create a disadvantage by perpetuating prejudice or stereotyping?
[186]
The claimant must
therefore prove on a balance of probabilities (a) that the law creates an
adverse distinction based on an enumerated or analogous ground and
(b) that the disadvantage is discriminatory because (i) it
perpetuates prejudice or (ii) it stereotypes. Because of their fundamental
importance to the application of s. 15 , I will now review the key concepts
of “disadvantage”, “prejudice” and “stereotyping” in order to more precisely
set out the legal framework applicable to their use.
(a) Adverse
Distinction Based on an Enumerated or Analogous Ground
[187]
Right away in Andrews,
McIntyre J. adopted a broad definition of an adverse distinction based on
an enumerated or analogous ground that could be characterized as
discriminatory. According to him, it was
a
distinction, whether intentional or not but based on grounds relating to
personal characteristics of the individual or group, which has the effect of
imposing burdens, obligations, or disadvantages on such individual or group not
imposed upon others, or which withholds or limits access to opportunities,
benefits, and advantages available to other members of society. [p. 174]
[188]
In Law,
Iacobucci J. reiterated this definition and specified that limiting access
to advantages may create a disadvantage where the law fails “to take into
account the claimant’s already disadvantaged position within Canadian society
resulting in substantively differential treatment between the claimant and
others on the basis of one or more personal characteristics”: para. 39.
For example, a failure, as in Eldridge, to take account of the fact that
some deaf persons cannot receive government health services of adequate quality
without the aid of an interpreter creates an adverse distinction based on an
enumerated ground, namely physical disability.
[189]
Thus, the claimant can
show that the impugned law creates a distinction directly by imposing
limitations or disadvantages on the basis of an enumerated or analogous ground:
see, inter alia, Miron, at para. 131; Lavoie v.
Canada, 2002 SCC 23, [2002] 1 S.C.R. 769, at para. 52; Trociuk
v. British Columbia (Attorney General), 2003 SCC 34, [2003]
1 S.C.R. 835, at para. 10. The same is true where the law restricts
access to a fundamental social institution (Law, at para. 74) or
imposes obligations that are not imposed on others (Withler, at para. 62).
A claimant can also show that a law creates a distinction indirectly where,
“although the law purports to treat everyone the same, it has a
disproportionately negative impact on a group or individual that can be
identified by factors relating to enumerated or analogous grounds”: Withler,
at para. 64. At this stage, comparisons, if any, can help to demonstrate
the existence of an adverse distinction.
[190]
Once such a distinction
is established, the court must determine whether it is based on an enumerated
or analogous ground. These grounds stand as “constant markers of suspect
decision making or potential discrimination”: Corbiere, at
para. 8; see also Lavoie, at paras. 2 and 41. As I mentioned
above, although a disadvantageous law will be suspect if they are present, it
will not automatically be discriminatory. As this Court has pointed out, these
grounds correspond to personal characteristics that cannot be changed or can be
changed only at unacceptable cost to the claimant’s personal identity: Corbiere,
at para. 13; Withler, at para. 33.
[191]
If the court finds that
the government action being challenged creates an adverse distinction based on
an enumerated or analogous ground, it must then consider the context and the
facts of the case to determine whether the distinction is discriminatory
because it violates the right to substantive equality by perpetuating prejudice
or stereotyping: Withler, at para. 34. The presence of relevant
contextual factors will make it easier to determine whether such violations
have occurred. I repeat that at this second stage, comparison between the
claimant and other persons, although not indispensable, may bolster the
understanding of the context of the discrimination claim: Withler,
para. 65.
(b) Perpetuating
Prejudice
[192]
The first way that
substantive inequality — discrimination — may be established is by showing that
the impugned disadvantageous law, in purpose or effect, perpetuates prejudice
against members of a group on the basis of personal characteristics covered by
s. 15(1) : Withler, at para. 35. Such a law will be found to
be discriminatory if it “has the effect of perpetuating or promoting the view
that the individual is less capable, or less worthy of recognition or value as
a human being or as a member of Canadian society”: Law, at
para. 51. In my view, this inquiry is of particular importance, as it is
most likely to result in a finding of the types of discrimination to which
s. 15 applies. It provides a framework to enable courts to consider such
discrimination without lapsing totally into subjectivism. I do not rule out
the theoretical possibility that there are forms of exclusion for which this
analytical framework would be ill-suited. In practice, however, I feel that it
would be hard to identify them unless all that was required for s. 15 to
apply was a finding of disadvantages related to prohibited grounds and unless
the inquiry into discrimination per se was dispensed with. This is
another possible conception of the right to equality guaranteed by s. 15 ,
but it is not the one this Court has adopted since Andrews.
[193]
An adverse distinction
therefore discriminates by perpetuating prejudice if it denotes an attitude or
view concerning a person that is at first glance negative and that is based on
one or more of the personal characteristics enumerated in s. 15(1) or on
characteristics analogous to them. An adverse distinction can also be
inconsistent with s. 15 , even if there is no discriminatory intent
whatsoever, if it has a discriminatory effect. Since equality is an expression
of the values of a society in which all are secure in the knowledge that they
are recognized at law as human beings equally entitled to respect, the
perpetuation of such a negative view constitutes a denial of substantive
equality.
[194]
Thus, if the government
either directly or indirectly disadvantages certain persons who share one of
these personal characteristics that are immutable, or changeable only at
unacceptable cost, it may be that a negative view is thereby being expressed
either consciously or unconsciously. The government can treat individuals or
groups differently, however. For example, it is accepted that it can confer
advantages or impose disadvantages based on individual merit or capacity.
Under s. 15(2), it can also implement specific programs to help
disadvantaged groups. But the government is prohibited from showing certain
individuals greater respect and consideration simply because they share an
enumerated or analogous personal characteristic.
[195]
Denise G. Réaume
has described more precisely the meaning of the concept of prejudice and the
nature of the harm that results from the expression or perpetuation of
prejudice:
A
legislative distinction based on prejudice denies a class of persons a benefit
out of animus or contempt. It directly connotes a belief in their
inferiority, a denial of equal moral status. Legislated prejudice denies a
benefit for the sake of causing harm to those denied. It thus treats members
of a group as loci of intrinsic negative value, rather than intrinsic
moral worth. Such treatment not only deprives them of the concrete benefit at
issue, but also, through doing so, treats them as unworthy of basic human
respect. . . .
Prejudice
works through the attribution of negative worth to personal characteristics
that are important aspects of identity; it thus constitutes an assault on the
sense of self of its victims. Personal identity has both an individual and a
social dimension. The kinds of characteristics that people regard as important
to their sense of self tend to be, at the same time, characteristics by which
they define themselves as individuals and through which they identify as
members of a group. This group affiliation is as important to human identity as any purely individual understanding
of the self. We develop a sense of self only through our interactions with
others, and our most intimate and formative interactions are frequently with
people who share a cultural or ethnic identity that distinguishes them from
other such clusters of people in society. And we know from our social and
political history that it has tended to be precisely this aspect of identity
that has often been targeted for contempt — individuals have been denied
respect through use of a characteristic identifying them as part of a group
that is devalued. [Emphasis in original; pp. 679‑80.]
[196]
As I mentioned above,
the devaluing of individuals need not be intentional to be considered an
infringement of s. 15(1) . Although an intention that reflects prejudice on
the part of the government and its officials can sometimes be identified, such
an intention does not exist in every situation involving discrimination — far
from it.
[197]
For instance, a
government might make laws that unintentionally convey a negative social image
of certain members of society. This situation could arise if the government
favours certain individuals at the expense of others because the others share
an enumerated or analogous characteristic. Such laws would express or
perpetuate prejudice against certain individuals by establishing a hierarchy of
worth based on prohibited grounds of discrimination, such as sex or sexual
orientation. The identification of such prejudice will require a contextual
inquiry, which might take account, among other things, of the disadvantages
suffered by groups defined by a common personal characteristic.
[198]
Moreover, rules that
are seemingly neutral (because they do not draw obvious distinctions) may also
treat certain individuals like second‑class citizens whose aspirations
are not equally deserving of consideration. As Réaume writes, “[p]ublic
institutions and programs built, even unwittingly, in the image of a dominant
group convey the message that others are not equally entitled to participate in
society and its enterprises, and are not equally members of its institutions”:
p. 686. In such a case, a disadvantage resulting from exclusion
constitutes an expression and perpetuation of prejudice against certain
persons.
[199]
For example, in Eldridge,
this Court found that the lack of interpretation services for deaf persons in
the public health care system meant that such persons were treated as less
worthy even though the government had not intended to devalue them. The
disadvantage in that case was not based on stereotyping. Rather, it conveyed a
devalued image of deaf persons by failing to recognize them as human beings who
deserved to participate fully in Canadian society. The government was
therefore imposing a disadvantage on them that constituted an expression of prejudice.
The following passage from Eldridge illustrates how a law that does not
stereotype can nonetheless be discriminatory if it conveys prejudice by denying
certain individuals full participation in a fundamental aspect of life in
society because of a disability:
The principal object of certain of the
prohibited grounds is the elimination of discrimination by the attribution of
untrue characteristics based on stereotypical attitudes relating to immutable
conditions such as race or sex. In the case of disability, this is one of the
objectives. The other equally important objective seeks to take into account
the true characteristics of this group which act as headwinds to the enjoyment
of society’s benefits and to accommodate them. Exclusion from the mainstream
of society results from the construction of a society based solely on
“mainstream” attributes to which disabled persons will never be able to gain
access. Whether it is the impossibility of success at a written test for a
blind person, or the need for ramp access to a library, the discrimination does
not lie in the attribution of untrue characteristics to the disabled
individual. The blind person cannot see and the person in a wheelchair needs a
ramp. Rather, it is the failure to make reasonable accommodation, to fine‑tune
society so that its structures and assumptions do not result in the relegation
and banishment of disabled persons from participation, which results in
discrimination against them. The discrimination inquiry which uses “the
attribution of stereotypical characteristics” reasoning as commonly understood
is simply inappropriate here. It may be seen rather as a case of reverse
stereotyping which, by not allowing for the condition of a disabled individual,
ignores his or her disability and forces the individual to sink or swim within
the mainstream environment. It is recognition of the actual characteristics,
and reasonable accommodation of these characteristics which is the central
purpose of s. 15(1) in relation to disability. [para. 65]
(Quoting Eaton
v. Brant County Board of Education, [1997] 1 S.C.R. 241, at para. 67.)
[200]
As I mentioned above, a
court enquiring into the expression or perpetuation of prejudice can consider,
among other things, the nature or scope of the benefit or interest which the
claimant feels he or she has been denied. Does the distinction restrict access
to a fundamental social institution or impede full membership in Canadian
society? If the answer is yes, this could indicate that the government action expresses,
or has the effect of perpetuating, prejudice against — i.e., a lower or
demeaning opinion of — certain persons. Eldridge is one example of such
a situation, as I have stated.
(c) Stereotyping
[201]
In the analytical
approach I am recommending here, the second way that substantive inequality —
discrimination — may be established is “by showing that the disadvantage
imposed by the law is based on a stereotype that does not correspond to the
actual circumstances and characteristics of the claimant or claimant group”: Withler,
at para. 36. Such a law will be discriminatory because it is premised
upon personal traits or circumstances that do not relate to individual needs,
capacities or merits: Law, at para. 53. Laws premised on an
inaccurate characterization of an individual or group on grounds that are
unacceptable under s. 15(1) thus become arbitrary themselves: see, inter alia,
Moreau, “The Wrongs of Unequal Treatment”, at p. 298.
[202]
The following comments
by Réaume contain an interesting description of the nature of negative
stereotypes and their impact on the right to equality:
Stereotypes are inaccurate
generalizations about the characteristics or attributes of members of a group
that can usually be traced back to a time when social relations were based more
overtly on contempt for the moral worth of the group. . . .
Negative characteristics, such as lack of intelligence, laziness, being fit for
some pursuits rather than others, predisposition to criminality, avarice, vice,
etc., which are in fact distributed throughout the human race, are falsely
attributed predominantly to members of a particular group. It is then the
negative characteristic that becomes the focus of contempt. Nevertheless, inaccurate
assumptions and stereotypes about the capacities, needs, or desires of members
of a particular group can carry forward ancient connotations of second class
status, even if the legislators did not intend that meaning. The overt
hostility may have come to be washed out of the picture with the passage of
time or the “normalization” of such attitudes, but the implication that those
to whom the stereotype applies are less worthy than others remains.
Once
this construction of a group has set in, others are likely to treat members of
that group disadvantageously out of an honest belief that this merely reflects
their just deserts or even simply because that is how everyone treats them,
without ever thinking about the insult involved. They may even understand
their conduct, as with certain traditional sexist practices, as a positive
effort to accommodate the “natural weaknesses” of
the stereotyped group. However, neither the absence of contempt as a
subjective matter nor well‑meaning paternalism prevents the use of
stereotype from violating dignity. To be denied access to benefits or
opportunities available to others on the basis of the false view that because
of certain attributes members of one’s group are less worthy of those benefits
or less capable of taking up those opportunities can scarcely fail to be
experienced as demeaning because it is demeaning. The message such
legislation sends is that members of this group are inferior or less capable,
and such a message is likely, in turn, to reinforce social attitudes
attributing false inferiority to the group. [Emphasis in original;
pp. 681‑82.]
[203]
Continuing with a
contextual approach, it may be helpful in determining whether stereotypes exist
to consider the question of the correspondence, or lack thereof, between the
grounds on which the claim is based and the actual need, capacity or
circumstances of the claimant or the affected group. For example, in M. v.
H., the identification and rejection of certain stereotypes led the Court
to declare a law under which support remedies were available only to opposite‑sex
spouses to be invalid. The law in question conveyed the negative stereotype
that persons of the same sex were incapable of forming intimate relationships
involving economic interdependence similar to those of opposite‑sex
couples, without regard to their actual circumstances. As a result, the
impugned law violated s. 15(1) .
(d) Summary
[204]
In accordance with the
general analytical framework for the application of s. 15(1) of the Charter ,
there are thus two ways for a claimant to show that a law that draws a
distinction based on an enumerated or analogous ground is discriminatory. On
the one hand, the claimant can show that the impugned disadvantageous law
perpetuates prejudice against members of a group. On the other hand, the
claimant can prove that the disadvantage imposed by the law is based on a
stereotype. Two comments are in order in this regard.
[205]
First, because either
one of these facts can on its own support a finding that the impugned law
infringes s. 15(1) , a distinction need not be based on a stereotype to be
discriminatory: Gosselin, at para. 116, per L’Heureux‑Dubé J.; Lavoie,
at para. 52, per Bastarache J. A disadvantageous law can also be found to be
discriminatory on the basis that it expresses or perpetuates prejudice. The
Court has thus explicitly acknowledged the inadequacy of a uniquely
stereotype‑based approach that has been criticized by several authors:
see, inter alia, M. Young, “Blissed Out: Section 15 at
Twenty”, in S. McIntyre and S. Rodgers, eds., Diminishing Returns:
Inequality and the Canadian Charter of Rights and Freedoms (2006), 45, at p. 59;
G. Brodsky, “Case Comment: Gosselin v. Quebec (Attorney General):
Autonomy with a Vengeance” (2003), 15 C.J.W.L. 194, at p. 212;
M. Young, “Unequal to the Task: ‘Kapp’ing the Substantive Potential of
Section 15 ”, in S. Rodgers and S. McIntyre, eds., The Supreme
Court of Canada and Social Justice: Commitment, Retrenchment or Retreat
(2010), 183, at pp. 204‑9.
[206]
Second, the existence
of these two approaches, which make it possible to prove that the impugned law
infringes s. 15(1) , also guides the use of the contextual factor of
correspondence between the ground or grounds of discrimination on which the
claim is based and the actual circumstances of the claimant or the affected
group. It now seems clearer that this factor can be used to determine whether
the distinction creates a disadvantage by stereotyping: Kapp, at
para. 23. However, the Court also recognizes that the correspondence
factor may not be sufficient to support a finding of expression or perpetuation
of prejudice. Although it is true that prejudice and stereotyping are
frequently linked, a claimant can also show that the impugned law expresses or
perpetuates prejudice by emphasizing other contextual factors unrelated to that
of correspondence. The Court thus acknowledges that the correspondence factor
is only one of many factors that can be used to establish substantive
inequality. Indeed, in the past, some authors deplored an approach that was
overly dependent on the use of the correspondence factor at the expense of
other contextual factors: see, inter alia, B. Ryder,
C. C. Faria and E. Lawrence, “What’s Law Good For? An
Empirical Overview of Charter Equality Rights Decisions” (2004), 24 S.C.L.R.
(2d) 103, at pp. 120‑25.
G. Walsh — Precedential Value of the Decision
(1) Nature of the Case
[207]
At this point, the
evolution of the Court’s case law on the right to equality raises the issue of
the scope and application of an important case on the application of equality
rights of de facto or common law spouses. In Walsh, which
was decided several years before Kapp and Withler, this Court was
dealing with an alleged violation of s. 15(1) by a Nova Scotia statute
concerning the matrimonial rights of married spouses. The case involved a
challenge to the validity of Nova Scotia’s Matrimonial Property Act,
R.S.N.S. 1989, c. 275 (“MPA”), under s. 15(1) of the Charter .
The MPA established the consequences of marriage breakdown by creating a
presumption that matrimonial property was to be divided equally between the
former spouses. The MPA regulated the division of the property acquired
by one of the spouses either before or during the marriage and established
guidelines to assist in determining whether that property continued to be the
separate property of each spouse or became common property of the parties.
However, it did not provide for spousal support on the breakdown of a
marriage. Section 2(g) of the MPA defined the term “spouse” by
referring only to a man and a woman who were married to each other. It
therefore had the effect of excluding unmarried opposite‑sex couples who
lived together.
[208]
The claimant in Walsh
argued that, by limiting the presumption of equal division to married couples,
the MPA discriminated on the basis of an analogous ground, namely
marital status. The Court therefore had to decide whether the failure to
include unmarried opposite‑sex couples in the ambit of the MPA
violated s. 15(1) .
[209]
Bastarache J.,
writing for a majority of the Court, found that the distinction between common
law spouses and married spouses was not discriminatory and therefore did not
violate s. 15(1) . Gonthier J. added a few comments on the contractual
nature of marriage and its fundamental place in society. L’Heureux‑Dubé J.,
dissenting, found that married couples and unmarried couples were functionally
identical. As a result, she concluded that the exclusion of unmarried couples
from the ambit of the MPA was discriminatory and that the discrimination
could not be justified under s. 1 of the Charter . Given the
importance of that case, I will summarize the bases for the Court’s decision.
I will then discuss the relevance of Bastarache J.’s reasons to the
appeals now before this Court.
(2) Bases for Bastarache J.’s Reasons
[210]
Bastarache J.
analyzed the claimant’s position by applying the three‑stage framework
developed by Iacobucci J. a few years earlier in Law. He began by
considering whether the MPA imposed differential treatment between the
claimant and others. He then asked whether the differential treatment was
based on an enumerated or analogous ground. Finally, he considered whether the
law in question had a discriminatory purpose or effect for the purposes of the
equality guarantee. That would be the case if the law imposed a burden upon or
withheld a benefit from the claimant in a manner which reflected the
stereotypical application of presumed group or personal characteristics, or if
it otherwise had the effect of perpetuating or promoting the view that the
claimant was less deserving of respect than other members of Canadian society.
Thus, Bastarache J.’s analysis was based on the promotion of substantive
equality that was also the basis for Law and for this Court’s case law
since Andrews. His approach represented a continuation of that case
law.
[211]
Bastarache J.
began by acknowledging that the MPA imposed differential treatment
within the meaning of s. 15(1) because it applied only to persons who were
legally married and excluded persons in a common law relationship. That differential treatment was based on
the analogous ground of marital status, as the Attorney General of Nova Scotia
had conceded. Bastarache J. therefore proceeded to the third stage
of the analytical framework from Law and asked “whether a reasonable
heterosexual unmarried cohabiting person, taking into account all of the
relevant contextual factors, would find the MPA’s failure to include him
or her in its ambit has the effect of demeaning his or her dignity”: Walsh,
at para. 38. At this point in the analysis, he undertook a contextual
analysis of the claimant’s argument.
[212]
Bastarache J.
acknowledged that unmarried spouses had experienced historical disadvantage,
social prejudice, and stereotyping of various kinds. However, he found that
the version of the MPA then in force properly accommodated the
claimant’s circumstances. It reflected the differences between common law
relationships and marriage and respected the fundamental autonomy and dignity
of common law spouses. In Bastarache J.’s view, despite the functional
similarities between common law and married spouses, there was a fundamental
difference between the two groups.
[213]
On this point,
Bastarache J. noted that the MPA deemed all marriages to be
economic partnerships and thus imposed a significant alteration to the former status
quo of married persons’ proprietary rights and obligations. Those
statutorily created restrictions, obligations and rights arose at the time of
the marriage and continued throughout the duration of the marriage until
separation or death. According to Bastarache J., “[t]he decision to
marry, which necessarily requires the consent of each spouse, encapsulates
within it the spouses’ consent to be bound by the proprietary regime that the MPA
creates”: Walsh, at para. 48. This was a fundamental difference
between married couples and unmarried couples; the former had chosen to be
bound by the MPA, while the latter had not given their consent to be so
bound.
[214]
Moreover, common law
spouses who were unwilling to marry but wanted to modify their proprietary
rights and obligations had various alternatives for clearly expressing their
agreement. They could own property jointly or enter into domestic contracts
that could be enforced pursuant to the Maintenance and Custody Act,
R.S.N.S. 1989, c. 160 (“MCA”), s. 52(1), and the Maintenance
Enforcement Act, S.N.S. 1994‑95, c. 6 (“MEA”), s. 2(e).
Bastarache J. also took note of the recent Law Reform (2000) Act,
S.N.S. 2000, c. 29 (“LRA”), as a contextual consideration. Under
the LRA, common law partners who decided to register their partnerships
under the Vital Statistics Act, R.S.N.S. 1989, c. 494, thereby
became subject to the MPA. There were therefore several options available
to common law spouses who wished to avoid the application of the general
principle that people who do not take consensual action maintain the right to
deal with their property as they see fit. On this basis, Bastarache J.
stated that the legislation corresponded to the free choice of the individuals
involved and to their actual situation:
The
MPA, then, can be viewed as creating a shared property regime that is
tailored to persons who have taken a mutual positive step to invoke it.
Conversely, it excludes from its ambit those persons who have not taken such a
step. This requirement of consensus, be it through marriage or registration of
a domestic partnership, enhances rather than diminishes respect for the
autonomy and self‑determination of unmarried cohabitants and their
ability to live in relationships of their own design. As Iacobucci J.
phrased it in Law, at para. 102, “[t]he law functions not by the
device of stereotype, but by distinctions corresponding to the actual situation
of individuals it affects.”
(Walsh,
at para. 50)
[215]
Bastarache J. thus
found that it was not stereotyping to believe that common law couples had
chosen to avoid the institution of marriage: Walsh, at para. 43.
Because this group was highly heterogeneous, there was no basis for arguing
that even though common law spouses had not expressed a mutual intention to
alter their proprietary regime, they had nevertheless implicitly chosen to be
bound by the MPA. Accordingly, there was no constitutional requirement
that the legislature extend the protections of the MPA to couples who
had not expressed their consent to restrict their ability to deal with their
own property during the relationship or to share their assets and liabilities
should the relationship break down. The legislature’s decision to respect the
freedom of choice of common law spouses was not unconstitutional.
[216]
Furthermore, in
addition to not being based on negative stereotypes, the exclusion of unmarried
couples from the MPA did not promote or perpetuate the idea that they
were less capable, or less worthy of respect or value as members of Canadian
society. Bastarache J. concluded that the MPA was not
discriminatory in light of the values — such as dignity, liberty and autonomy —
that underlie the Charter , including s. 15 thereof. Rather, it
maintained the liberty of all spouses to make fundamental choices in their
lives, thereby respecting the fundamental personal autonomy and dignity of
common law spouses. According to Bastarache J., even if the freedom to
marry can sometimes be illusory, s. 15(1) did not justify eliminating an
individual’s freedom of choice or imposing on common law spouses a regime
designed for persons who had made an unequivocal commitment to form an equal
partnership as provided for in the MPA: Walsh, at
paras. 57, 62 and 63. Bastarache J. distinguished that case from the
Court’s decisions in Miron and M. v. H., and concluded that
the MPA was not discriminatory and therefore did not conflict with
s. 15(1) ’s purpose of ensuring substantive equality.
(3) Kapp and Withler
and Their Impact on Walsh
[217]
In my opinion,
Bastarache J. would have reached the same conclusion if his analysis had
been based on the reworked analytical framework from Kapp and Withler.
Although the MPA imposed differential treatment based on an analogous
ground, that distinction did not create a disadvantage by perpetuating
prejudice or stereotyping. Bastarache J.’s analysis of the MPA is
therefore consistent with the decisions rendered after Walsh and with
the principle of substantive equality, which “insists on going behind the
facade of similarities and differences [and] asks not only what characteristics
the different treatment is predicated upon, but also whether those
characteristics are relevant considerations under the circumstances”: Withler,
at para. 39. As I mentioned above, this analysis was based on the wish to
promote substantive equality that was also the basis for Law, despite
the conceptual difficulties and problems of application that led to Kapp and
Withler.
[218]
In Walsh, the MPA did not have the
effect of favouring marriage at the expense of cohabitation or of denying the
worth of common law relationships. Nor did it draw distinctions that caused a
disadvantage by perpetuating prejudice. According to Bastarache J., the
Nova Scotia legislature was not favouring one form of relationship over
another. It was merely defining the legal content of relationships and
providing that any individuals in a conjugal relationship could, without changing
their marital status, make a consensual choice to avail themselves of rights,
obligations and restrictions analogous to the ones contained in the MPA.
As a result, the law did not favour one form of relationship over another or
express any prejudice against common law relationships.
[219]
In Nova Scotia, as
Bastarache J. demonstrated, the legislature had defined the content and
consequences of various forms of relationship but had not favoured one form
over another. Marriage and the registration of a common law partnership
triggered the mutual rights, obligations and restrictions set out in the MPA,
including the presumption of equal division of property should the relationship
break down. Common law couples could also transform their relationships into
economic partnerships as contemplated in the MPA by entering into
domestic contracts that could be enforced under the MCA and the MEA.
They could also purchase property jointly. The legislation did not establish
an unacceptable hierarchy among the various forms of conjugal relationships.
By expressing a consensual choice or intention, spouses could opt in to the
regime of their choice to which the rights and obligations established by the
legislature applied. Walsh was thus based on a principle of freedom to
choose between different marital statuses that had different consequences for
spouses, and that principle did not in this context infringe the constitutional
equality guarantee. The principle in question continues to be valid in the
circumstances of the case at bar despite the subsequent developments in the
case law.
[220]
In this regard, Walsh
differed significantly from Miron. In the Insurance Act, R.S.O.
1980, c. 218, the Ontario legislature had not defined the content of
relationships (that is, the relations between the members of a couple).
Instead, it had favoured marriage over common law relationships by limiting
benefits under an automobile insurance plan on the basis of marital status to
those who were married.
[221]
The common law spouses
in Miron had therefore been excluded from certain provisions relating to
automobile insurance because they were not married, a ground that was in all
probability irrelevant to automobile insurance. As Bastarache J. pointed
out in Walsh, “[t]he marital status of the couple should have had no
bearing on the availability of the benefit”: para. 53. In the
legislation at issue in Miron, the Ontario legislature had not defined
the legal content of the spouses’ relationship with one another. Rather, it
had given one class of couples a privilege that expressed or perpetuated
prejudice in favour of marriage and against common law relationships.
[222]
Bastarache J. then
observed that the MPA was not based on stereotypes about common law
spouses. To support that conclusion, he considered the contextual factor of
correspondence and found that it was not stereotyping to believe that common
law couples had chosen to avoid the institution of marriage. The common law
spouses in that case had not expressed a consensual intention to change their
legal property relationship in any of the ways established by the government,
one of which would have been to enter into a domestic contract as a common law
couple. Thus, in distinguishing between married and unmarried spouses, the MPA
was not based on a stereotype that did not correspond to the actual
circumstances and characteristics of common law spouses.
[223]
Walsh can be distinguished in a similar way from
M. v. H., in which the Ontario legislature had limited certain
provisions of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”),
to heterosexual common law couples. More specifically, the FLA had
given opposite‑sex common law spouses, but not same‑sex common law
spouses, the right to seek support if their relationship broke down. The
possibility of obtaining support had thus been extended “beyond married persons
to include individuals in conjugal opposite‑sex relationships of some
permanence”: M. v. H., at para. 2; see also para. 52.
This differential treatment of same‑sex and opposite‑sex common law
spouses was based on the analogous ground of sexual orientation.
[224]
In the FLA, the
legislature had defined a common law relationship as a conjugal relationship of
some permanence. This form of relationship entitled the spouses to support if
they ceased living together. Individuals who decided to live in a common law
relationship were therefore covered by provisions of the FLA that
entitled them to apply to a court for support. Although same‑sex common
law spouses could choose to enter into a relationship similar to the one
defined in the FLA, they were denied the benefit of that support
remedy. A majority of the Court held that the exclusion of same‑sex
common law spouses “implies that they are judged to be incapable of forming
intimate relationships of economic interdependence, without regard to their
actual circumstances”: M. v. H., at para. 3. Since “[b]eing
in a same‑sex relationship does not mean that it is an impermanent or a
non‑conjugal relationship” (M. v. H., at para. 70), the
legislature was imposing differential treatment that was found to be
discriminatory because it created a disadvantage as a result of stereotyping.
It was impossible for same‑sex spouses to opt in to Ontario’s legal
regime. The exclusion of same‑sex couples from the FLA was based
on an inaccurate and stereotypical characterization of their actual
circumstances and therefore violated their dignity.
[225]
The opposite was true
in Walsh, in which the legislature had provided that the presumption of
equal division of property was conditional on the expression of a consensual
intention (through marriage, a domestic contract or, later, the registration of
a common law partnership). Since common law spouses, unlike married spouses,
had not expressed such an intention, their exclusion from the MPA was
not based on an inaccurate and stereotypical characterization of their actual
circumstances and did not violate their dignity.
[226]
In short, it seems to
me that Bastarache J. would have reached the same conclusion in Walsh
even if the current analytical framework had applied. Although the MPA
imposed differential treatment based on an analogous ground, that distinction
did not create a disadvantage by expressing or perpetuating prejudice or by
stereotyping. Accordingly, subject to the differences between the MPA
and the Quebec scheme, Bastarache J.’s analysis can properly serve as a
precedent for our assessment of the infringement of s. 15(1) alleged by A
in the instant case. It is true that the Court’s analysis concerned not the
obligation of support, but the Nova Scotia legislation’s presumption of
equal division of family assets. However, Bastarache J.’s comments on the
sources of the distinctions between the various forms of relationships and the
consequences of those distinctions remain relevant. At any rate, even without Walsh,
the same principles applied under the current analytical framework for
s. 15(1) would lead to the conclusions I propose with respect to the
Quebec legislation being challenged by A.
H. Preliminary Comments on the Approach Proposed by the Court
of Appeal
[227]
Before actually
considering A’s constitutional challenge, I believe a clarification is required
with regard to the judgment of Dutil J.A. in the Court of Appeal. In her
reasons, Dutil J.A. found that the main issues raised by A’s appeal
concerned [translation] “the
obligation of support” on the one hand and “the division of property” upon the
breakdown of a relationship on the other. That distinction was central to her
reasons and served as the framework for her reasoning. The same distinction is
central to Deschamps J.’s reasons. Regarding the discrimination that allegedly
results from the provisions on partition of property (family patrimony,
protection of the family residence, partnership of acquests and compensatory
allowance), Dutil J.A. considered herself bound by the reasoning in Walsh
and concluded on that basis that those provisions are not discriminatory.
Deschamps J. concludes that the exclusion of de facto spouses from
the provisions in question is discriminatory, but that it is justified under
s. 1 of the Charter .
[228]
Dutil J.A. argued
that, unlike in the case of the provisions on the partition of property, the
obligation of support is not contractual in origin but [translation] “exists to meet basic needs and represents an
aspect of social solidarity”: para. 68. As a result, she found that
art. 585 C.C.Q., which deals with the obligation of support, had to
be assessed separately from the rest of the impugned provisions, that the
reasoning in Walsh was not applicable to art. 585 and that
s. 15(1) of the Charter had to be considered in relation to
art. 585 alone. In my opinion, this is incorrect.
[229]
I find that the
distinction drawn by Dutil J.A. between the “partition of property” and
the “obligation of support” is inappropriate, as it disregards the character of
an “economic partnership” that the Quebec legislature has established for
marriage and the civil union. It also disregards the fact that this
partnership is structured around a mandatory primary regime that has both
patrimonial and extrapatrimonial aspects and that the primary regime
establishes the obligation of support as an effect of marriage and of the civil
union. In this sense, the obligation of support is tied to the other effects
of marriage and of the civil union, such as the obligation to contribute to
household expenses, rights and obligations with respect to the family
residence, and the creation of a family patrimony. It forms an integral and
indissociable part of the set of measures that constitute Quebec’s primary
regime.
[230]
This distinction also
overlooks the fact that each of the impugned provisions shapes the spouses’
private patrimonial relationship and that a number of them rebalance the
distribution of property between the spouses in some way, including through the
payment of certain amounts or the granting of rights of use of or ownership in
certain property. As well, by increasing the patrimony of the less wealthy
spouse, each of these measures can enhance that spouse’s autonomy and reduce
the potential of his or her becoming dependent on government assistance.
[231]
In Quebec law, the
obligation of support is one of the mandatory effects of marriage (or of a
civil union) that the spouses may not renounce in a marriage contract. As an
expression of the duty of succour that each spouse owes the other where needed,
the obligation of support, like the spouses’ obligation to contribute towards
household expenses in proportion to their respective means, is part of the
primary regime that the spouses accept when they choose to marry. This
obligation, in the form of the duty of succour, lasts as long as the spouses
remain married or in a civil union.
[232]
However, both the Civil
Code and the Divorce Act provide that such an obligation may be imposed
even after the bonds of civil union or marriage have been dissolved. Thus, in Bracklow,
the Court considered the Divorce Act and enquired into the basis for the
obligation of support after the marriage bond is dissolved. The Court noted
first that support may be awarded to compensate a spouse who has been
economically disadvantaged during the marriage: Bracklow, at
paras. 36, 39 and 49. In this regard, support is similar to a
compensatory allowance, since its objective will be to compensate one of the
spouses for losses incurred as a result of the marriage and its breakdown.
[233]
However, support can
also be non‑compensatory, and based on the “mere fact that a person who
formerly enjoyed intra‑spousal entitlement to support now finds herself
or himself without it”: Bracklow, at para. 41. This basis for the
obligation of support “postulates each of the parties to the marriage agreeing,
as independent individuals, to marriage and all that it entails — including the
potential obligation of mutual support” and “recognizes the artificiality of
assuming that all separating couples can move cleanly from the mutual support
status of marriage to the absolute independence status of single life,
indicating the potential necessity to continue support, even after the marital
‘break’”: Bracklow, at paras. 30‑31.
[234]
As the Court explained,
this form of post‑divorce support obligation is based on
two important factors. First, it is based on the fact that an obligation
of support, known as the duty of succour in the civil law, exists during
marriage and may remain necessary after a marriage breaks down. Second, it can
be seen as one of the many consequences to which individuals agree when they
choose to marry. Thus, the choice to get married results in the application of
certain mandatory effects codified in the Civil Code of Québec, such as
the claim that arises for the value of the family patrimony, and of the effects
set out in the Divorce Act , which provides for an obligation of support
following the breakdown of a marriage. In both cases, the obligation of
support is therefore based on consent to the marriage or civil union.
[235]
Accordingly, these
appeals cannot be disposed of on the basis of the distinction made by
Dutil J.A. between the partition of property and the obligation of
support. Indeed, Beauregard J.A. seemed to acknowledge this in his
concurring reasons in admitting that, were it not for Walsh, the Court
of Appeal’s reasoning on the discriminatory nature of the support obligation
provision would apply equally to the other impugned provisions, such as those
on the family patrimony: paras. 192 and 194. The main issue raised by
these appeals is not whether the exclusion of de facto spouses from
the obligation of support is discriminatory, but whether their exclusion
from the entire statutory framework imposed on married and civil union
spouses is discriminatory under s. 15(1) of the Charter . For the
reasons that follow, I find that it is not.
I. A’s Discrimination Claim
[236]
In these appeals, as I
mentioned above, A is challenging the constitutional validity of the provisions
of the Civil Code of Québec dealing with the family residence
(arts. 401 et seq.), the family patrimony (arts. 414 et seq.),
the compensatory allowance (arts. 427 et seq.), the
partnership of acquests (arts. 432 et seq.) and the obligation
of spousal support (art. 585) on the basis of the fact that they apply to
private legal relationships of married and civil union spouses but not to those
of de facto spouses. To prove that she has been discriminated
against, A must show on a balance of probabilities that the provisions in
question create an adverse distinction based on an enumerated or analogous
ground and that the disadvantage is discriminatory because it perpetuates
prejudice or stereotypes.
[237]
Although the burden of
proving that the impugned provisions discriminate in a substantive sense lies
on A, the Court can of course take judicial notice of certain facts. If it
does so, it must follow the rules that permit, but define the limits of, judicial
notice. As McLachlin J. explained in R. v. Williams, [1998]
1 S.C.R. 1128, “[j]udicial notice is the acceptance of a fact without
proof”: para. 54. In other words, it “dispenses with the need for proof
of facts that are clearly uncontroversial or beyond reasonable dispute”: R. v.
Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48.
[238]
According to the
principles laid down in Find, judicial notice applies only where facts
are either
(1) so
notorious or generally accepted as not to be the subject of debate among
reasonable persons; or (2) capable of immediate and accurate demonstration
by resort to readily accessible sources of indisputable accuracy: R. v.
Potts (1982), 66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka,
S. N. Lederman and A. W. Bryant, The Law of Evidence in
Canada (2nd ed. 1999), at p. 1055. [para. 48]
(See
also R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at
para. 53.)
[239]
These categories of
facts are obviously limited. A court must therefore be cautious when asked to
take judicial notice of particular facts. In particular, it must refrain from
taking judicial notice of social phenomena unless they are not the subject of
reasonable dispute for the particular purpose for which they are to be used: Spence,
at para. 65. As Binnie J. explained in Spence, the closer a
fact approaches the dispositive issue, or the closer it is to the centre of the
controversy between the parties, the more stringently the court ought to verify
it before taking judicial notice of it: paras. 60‑61.
[240]
Aside from the facts of
which the court may take judicial notice, the general rule of evidence remains
the same: “We must decide [the] case on the evidence before us”: Gosselin,
at para. 66. This rule applies to cases involving allegations of
infringements of the right to equality, including appeals to this Court.
(1) Adverse Distinction Based on an
Enumerated or Analogous Ground
[241]
In this appeal, the
first matter to be proved by A presents no problem. The various articles of
the Civil Code at issue here apply only to persons who are married or in
a civil union. They govern the private legal relationships of such persons,
but they do not apply to the relationships of de facto spouses.
They therefore draw a distinction based on the analogous ground of marital
status.
[242]
That distinction may
result in disadvantages for those who are excluded from the statutory framework
applicable to a marriage or a civil union. Generally speaking, when de facto
spouses separate, one of them will likely end up in a more precarious
patrimonial situation than if the couple had been married or in a civil union.
As a result, unless these de facto spouses have exactly the same
earning capacity and exactly the same patrimony, regardless of the origin of
that patrimony, one of them will be in a worse position after the relationship
ends than would a married spouse in a similar patrimonial situation. A married
spouse whose marriage breaks down would be entitled to partition under the
regimes of family patrimony and partnership of acquests and might also be
awarded the ownership of certain movables, the use of the family residence, a
compensatory allowance and support. The de facto spouse, on the
other hand, will not have the rights recognized by the relevant provisions of
the Civil Code. In reality, however, each form of conjugal relationship
is likely to have its share of disadvantages for one or the other of the
spouses, depending on their personal circumstances at the time of the
breakdown. The nature of these disadvantages will vary with the position of
each of the spouses and the nature of the legal regime applicable to them.
[243]
The provisions relating
to the family patrimony, the family residence, the compensatory allowance, the
partnership of acquests and the obligation of support therefore have the effect
of creating a distinction based on an analogous ground, and that distinction
can result in a disadvantage. What remains to be determined is whether the
exclusion of de facto spouses from the framework applicable to
marriage and civil unions discriminates in a substantive sense by violating the
principle of substantive equality protected by s. 15(1) of the Charter .
According to the general analytical framework in place since Withler and
Kapp, there are two ways for A to prove this. First, she can show that
the disadvantageous law perpetuates prejudice against de facto
spouses. Second, she can show that the disadvantage imposed by the law is
based on a stereotype. If either of these things is shown, the impugned
provisions will be found to violate s. 15(1) .
(2) Perpetuating Prejudice
[244]
The first way that
substantive inequality may be established is by showing that the impugned
disadvantageous law, in purpose or effect, perpetuates prejudice against
members of a group on the basis of personal characteristics covered by
s. 15(1) : Withler, at para. 35. Generally speaking, a law
will perpetuate prejudice if it denotes a negative attitude or opinion concerning
a person that is based on a personal characteristic enumerated in s. 15(1)
or a characteristic analogous thereto. The same is true of provisions that
attribute greater moral worth to certain persons at the expense of another
group of persons on the basis of such a characteristic. Legislation that
establishes a hierarchy among different individuals on the basis of their
having or not having an enumerated or analogous characteristic would also
perpetuate prejudice. As Professor Réaume explains, prejudice also works
through the attribution of negative worth to personal characteristics that are
important aspects of human identity: pp. 679‑80.
[245]
Prejudice can sometimes
be seen on the very face of the legislation, especially if the legislation
reflects contempt for or hostility toward the group concerned or if its purpose
is to inflict prejudice on a group of persons. In such circumstances,
discrimination through the expression or perpetuation of prejudice will likely
be intentional.
[246]
It is generally
accepted that de facto spouses in Quebec historically experienced
disadvantageous treatment based on intentional prejudice. As I explained
above, until the 1980 family law reform, disapproval of “concubinage” was
expressed in legislation. This disapproval could be seen in particular in the Civil
Code of Lower Canada, which effectively prohibited any financial
arrangements between de facto spouses and also maintained a strict
distinction between legitimate children, those born in wedlock, and “natural,
incestuous or adulterine” children, those born out of wedlock. These measures
were an attempt to prevent individuals from choosing to live in such unions,
which at the time were considered [translation]
“contrary to good morals”: Cossette, at p. 53. Moreover, the only way
for de facto spouses to legitimate their natural children was to
get married, where such a marriage was legally possible.
[247]
McLachlin J.
described the historical situation of de facto spouses as follows
in Miron:
There
is ample evidence that unmarried partners have often suffered social
disadvantage and prejudice. Historically in our society, the unmarried
partner has been regarded as less worthy than the married partner. The
disadvantages inflicted on the unmarried partner have ranged from social
ostracism through denial of status and benefits. [Emphasis added;
para. 152.]
(See
also Walsh, at para. 41.)
[248]
Thus, there was a
period of Quebec history during which de facto spouses were
subjected to both legislative hostility and social ostracism. In keeping with
the principles stated in Law, this historical disadvantage means that
particular care must be taken in reviewing any new legislation containing an
adverse distinction with respect to certain members of the same group:
paras. 63‑68. However, the recognition of historical disadvantage
does not automatically lead to the conclusion that a distinction remains
discriminatory today on the basis that it creates a disadvantage by
perpetuating prejudice. It is also necessary that the disadvantage continue to
exist today and that the new legislation confirm or perpetuate the legislative
and social stigmatization of such spouses.
[249]
On this point, I would
point out that the limits on freedom of contract imposed on de facto
spouses, like the distinction between legitimate and natural children, were
eliminated in 1980. Furthermore, nothing in the evidence suggests that de facto
spouses are now subject to public opprobrium or that they are otherwise subject
to social ostracism. The expert reports filed by the parties tend to show the
contrary. According to them, the de facto union has become a
respected type of conjugality and is not judged unfavourably by Quebec society
as a whole. Statistics from the latest census in 2011 confirm that it exists
and is developing in Quebec society. Several of the married spouses with whom
certain experts met in conducting sociological studies for the purposes of this
litigation even regularly use language specific to de facto unions
when describing themselves to third parties. The fact that they do so does not
support a view that society continues to be suspicious or intolerant of de facto
unions.
[250]
Moreover, the
legislature’s traditional hostility generally seems to have changed into
acceptance of the de facto union. As I mentioned above, Quebec
social legislation no longer draws distinctions between the various types of
conjugality: see, inter alia, An Act respecting financial
assistance for education expenses; An Act respecting legal aid and the
provision of certain other legal services; Automobile Insurance Act.
Rather, it applies uniformly to de facto, married and civil union
spouses both in granting benefits and in imposing obligations where their
relations with government institutions are concerned. As we have seen, the
distinction continues to exist in the context of relations between the spouses
themselves, within their conjugal relationship, where there is still a will to
preserve the possibility of choosing between various types of conjugality.
[251]
However, the fact that
the form of union chosen by de facto spouses now generally seems to
have the social and legislative acceptance it formerly lacked does not on its
own lead to the conclusion that the law at issue in this case does not express
prejudice. Prejudice does not have to be intentional for s. 15(1) of the Charter
to be violated. If a law has the effect of favouring certain individuals at
the expense of others by treating the latter as less worthy, or if it creates a
hierarchy between them, even inadvertently, it will be considered to
discriminate by expressing prejudice.
[252]
In the case at bar, the
articles of the Civil Code of Québec whose validity is challenged by A
have the purpose and effect of regulating the private relationships of married
spouses. They do this in two ways, as I explained above.
[253]
First, as a result of
their marriage, the spouses are subject to a mandatory primary regime that
radically alters each spouse’s patrimonial rights. More specifically, the
primary regime results in the formation of a partial economic union between the
spouses. Second, where there is no marriage contract providing for separation
as to property or for changes to the legal regime, the legal matrimonial regime
of partnership of acquests also applies to the spouses as a result of their
marriage. Like the primary regime, the regime of partnership of acquests
significantly changes the rights of both spouses in relation to their
patrimony. It expands the partial economic union already created by the
primary regime. Upon separation or divorce, this matrimonial regime requires
that the value of each spouse’s acquests be partitioned. The monetary impact
of this regime can be significant: each spouse’s acquests include the proceeds
of his or her work during the regime, and the fruits and income due or
collected from all his or her private property or acquests during the regime.
[254]
The Quebec legislature
has imposed these regimes only on those who, by agreement with another person,
have demonstrated that they wish to adhere to them. Their consent must be
explicit, and must take the form of marriage or a civil union. The legislature
did not view cohabitation on its own as an expression of such consent. As a
result, the regimes do not apply automatically to de facto unions.
[255]
Has the legislature in
this way established a hierarchy between the various forms of conjugality? Has
it expressed a preference for marriage and civil unions at the expense of de facto
unions? Do the articles of the Civil Code of Québec being challenged in
this case have the effect of sending a message or conveying a negative image or
belief concerning de facto spouses?
[256]
In my opinion, the
answer to these questions must be no. Like the Nova Scotia legislature in
enacting the MPA at issue in Walsh, the Quebec National Assembly
has not favoured one form of union over another. This conclusion can be
inferred if the questions of freedom of choice and autonomy of the will of the
parties are correctly considered. The legislature has merely defined the legal
content of the different forms of conjugal relationships. It has made consent
the key to changing the spouses’ mutual patrimonial relationship. In this way,
it has preserved the freedom of those who wish to organize their patrimonial
relationships outside the mandatory statutory framework.
[257]
This makes it easier to understand the real
purpose of these appeals. It concerns the mutual rights and obligations of
spouses in the various forms of conjugal relationships available to them in
Quebec law. In Quebec family law, these rights and obligations are always
available to everyone, but imposed on no one. Their application depends on an
express mutual will of the spouses to bind themselves. This express, and not
deemed, consent is the source of the obligation of support and of that of
partition of spouses’ patrimonial interests. As we have seen, this consent is
given in Quebec law by contracting marriage or a civil union, or entering into
a cohabitation agreement. Participation in the protective regimes provided for
by law depends necessarily on mutual consent. In this regard, the conclusion
of a cohabitation agreement enables de facto spouses to create for
themselves the legal relationship they consider necessary without having to modify
the form of conjugality they have chosen for their life together.
[258]
M. v. H. does not
preclude this conclusion. In that case, the same‑sex spouses were
excluded on the basis of their sexual orientation from a regime that required
no form of express consent in order to apply. In the case of Quebec, consent
is the ordinary rule. For de facto spouses, it can take legal
forms that are well known and often straightforward, with which legal
practitioners, if not the parties themselves, are familiar. If a spouse has
concerns about the relative fragility of such agreements in the event of
insolvency, agreements with respect to forms of co‑ownership are
possible.
[259]
In this context in which the existence of a set
of rights and obligations depends on mutual consent in one of a variety of
forms, it is hard to speak of discrimination against de facto
spouses. In this regard, my colleague Abella J. is mistaken in saying that the
choice of a form of conjugal relationship, especially that of marriage, is
necessarily a mutual one. She criticizes what she describes as the “opt‑in”
system of Quebec law, arguing that it leaves each member of the couple at the
mercy of the other should one of them refuse to marry: para. 375.
[260]
This represents an incomplete view of marriage and
de facto unions in contemporary society. If we accept that an
individual’s freedom to decide and personal autonomy are not purely illusory,
his or her decision to continue living with a spouse who refuses to marry has
the same value as that of a spouse who gives in to insistent demands to marry.
[261]
In Quebec family law, as I mentioned above,
choosing a de facto union permits spouses to opt out of the primary
regime that is mandatory in the case of marriage or a civil union. By making
this choice, they avoid entering into that regime and consequently assuming
such obligations as that of support or the partition of the family patrimony.
My colleague Abella J. adopts a position that would require these spouses to
perform positive acts to opt out of a regime they did not intend to adopt. She
would thus require them to exercise a freedom of choice whose validity and
relevance she nonetheless denies in the context of opting for a particular form
of conjugality.
[262]
Moreover, the entire history of societal and legal
changes that have led to the de facto union becoming an accepted
form of conjugality in Quebec, far from being irrelevant to the analysis of an
allegation that the right to equality has been infringed, is essential if we
are to understand the constitutional issue before us and consider it in its
context. This context can be understood only in light of the very widespread
acceptance of the de facto union in Quebec society since the
recognition of marital status as an analogous ground of discrimination: Turpin,
at p. 1332. The resulting choice has become a key factor in the
determination of the scope of the right at issue, and not only in the
justification of a limit on that right: Lavoie, at paras. 47‑48, per
Bastarache J.
[263]
That the legislature
did not intend to favour marriage or the civil union is made even clearer by
the fact that in Quebec law, de facto spouses may accept each of
the effects of marriage set out in the impugned provisions. To do so, they
must indicate their consent by expressing a clear intention.
[264]
Thus, de facto
spouses can enter into cohabitation agreements in which they can opt in to the
rules on the partition of the family patrimony, provide for an obligation of
support in the event that their relationship breaks down, grant a right of use
of the family residence or reserve the right to claim a compensatory
allowance. They can also establish the equivalent of a matrimonial regime and
agree to have the rules of the regime of partnership of acquests apply to their
relationship. Moreover, under statutory pension plans, de facto
spouses can apply by mutual agreement for the partition of amounts accrued in
one spouse’s name. Also, spouses who do not want to proceed by way of an
agreement can purchase property as co‑owners, thus ensuring that they are
entitled to partition the property when their union comes to an end. In the
absence of such arrangements, a de facto spouse can always go to
court to bring an action for unjust enrichment against his or her former spouse
in circumstances in which such an action is available.
[265]
To paraphrase
Bastarache J. in Walsh, I believe that this requirement that a
consensus between the spouses exist before any significant change is made to
their rights of ownership “enhances rather than diminishes respect for the
autonomy and self‑determination of unmarried cohabitants and their
ability to live in relationships of their own design”: para. 50.
[266]
In short, I do not
consider it imperative that there be an identical framework for each form of
union in order to remain true to the purpose of s. 15(1) . In the instant
case, the fact that there are different frameworks for private relationships
between spouses does not indicate that prejudice is being expressed or
perpetuated, but, rather, connotes respect for the various conceptions of
conjugality. Thus, no hierarchy of worth is established between the different
types of couples. Conversely, as we saw in Miron, differential
treatment of spouses by the government in conferring financial benefits may be
a sign that prejudice is being expressed against certain forms of conjugality.
On this fundamental distinction, I will repeat the comments of Professor
Goubau, who discusses the importance of maintaining the diversity of forms of
conjugality in private law and refraining from imposing a single form of
conjugal relationship on spouses:
[translation] Moreover, our reflection
on the appropriateness of extending certain rights traditionally reserved for
marriage (and now extended to civil unions) to de facto spouses must
not confuse, as is done too often, the recognition of de facto
spouses in social law with the idea that they should be treated in the same
way as other spouses in private law, which, in my view, is the very
negation of recognition. In public law and social law, the recognition of
conjugality outside marriage, both heterosexual and homosexual, is now a
fact. . . . To accept that unmarried couples can, for example,
enjoy the benefits of a public pension plan just like married couples or have
the same tax disadvantages is in fact to recognize that the private choices
made by individuals have nothing to do with their status in society. Making
the status of spouse available to all couples under social and public law
regardless of the legal forms of their relationships is therefore a genuine way
of recognizing the real diversity of conjugality in contemporary society.
On
the other hand, to treat all couples in the same way when it comes, for
example, to the obligation of support or the partition of the family patrimony,
that is, to matters of private law, would amount to denying precisely what
creates diversity among couples, namely the voluntary arrangement of the
private effects of their conjugality. [Emphasis in
original.]
(D. Goubau, “La conjugalité en droit privé: comment concilier
‘autonomie’ et ‘protection’?”, in Lafond and Lefebvre, 153, at p. 156)
[267]
I conclude on
completing this part of the analysis that the articles of the Civil Code of
Québec whose constitutional validity is being challenged by A do not
express or perpetuate prejudice against de facto spouses. On the
contrary, it appears that, by respecting personal autonomy and the freedom of de facto
spouses to organize their relationships on the basis of their needs, those
provisions are consistent with two of the values underlying s. 15(1) of
the Charter . They were enacted as part of a long and complex
legislative process during which the Quebec National Assembly was concerned
about keeping step with changes in society and about adapting family law to new
types of conjugal relationships in a manner compatible with the freedom of
spouses.
[268]
At this point of my analysis, I must mention my
reservations with respect to the position taken by my colleague Abella J.
First of all, she does not recognize the role played by consent in the
application of the rights and obligations that result from the various forms of
conjugality. And it is odd that the opt-out solution she proposes for parties
living in a de facto union would itself depend on this mutuality of
consent and would not be available to parties who have chosen other forms of
conjugal relationships. Next, she fails in practice to consider the social
context of the de facto union in Quebec. Finally, her analysis
would tend to reduce the review of alleged infringements of the right to
equality to a requirement that adverse distinctions be found. There would no
longer be an analytical framework to guide the courts in considering such
matters, and this could affect the legitimacy of their decisions in this
regard.
(3) Stereotyping
[269]
There is a second way
for A to prove substantive inequality, however. She can try to show that the
disadvantage imposed by these legislative provisions is based on a stereotype
that does not correspond to the actual circumstances or characteristics of de facto
spouses: Withler, at para. 36.
[270]
This argument
essentially focuses on the issue of the validity of the basic premise of Quebec
family law, namely the exercise of autonomy of the will. In Quebec, the
legislature has provided that the application of the provisions on the family
patrimony, the compensatory allowance, the obligation of support, the family
residence and partnership of acquests are conditional on the expression of a
consensual intention (through marriage, a civil union or a cohabitation
agreement). It thus refused to impose these measures on persons who have not
expressed their consent to be bound by them and, in so doing, took the view
that cohabitation alone does not amount to the expression of an intention to be
so bound.
[271]
If this premise is
false and the decision to marry or not to marry does not imply consent to be
bound by or excluded from the regimes in the Civil Code, the provisions
challenged by A could well be based on an inaccurate characterization of the
circumstances of Quebec couples. In other words, if autonomy of the will is
merely wishful thinking and does not really exist in matrimonial matters, then
the distinction made by the legislature does not correspond to the actual
circumstances and characteristics of de facto spouses and therefore
creates a disadvantage based on stereotyping.
[272]
There is no evidence in
the Court’s record in this case that would justify accepting the validity of
such an argument and finding that the exclusion of de facto spouses
from the primary regime and the regime of partnership of acquests is based on a
stereotypical characterization of the actual circumstances of such spouses.
More specifically, none of A’s evidence tends to show that the policy of
freedom of choice, consensualism and autonomy of the will does not correspond
to the reality of the persons in question.
[273]
Nor can I take judicial
notice of the fact that the choice of type of conjugality is not a deliberate
and genuine choice that should have patrimonial consequences but necessarily
results from the spouses’ ignorance of the consequences of their status. Such
a fact is clearly controversial and not beyond reasonable dispute: Find,
at paras. 48 and 60-61.
[274]
It is not unreasonable
to believe that, in theory, individuals sometimes make uninformed choices and
that some individuals may be unaware of the consequences of their choice of
conjugal lifestyle. Nevertheless, to take judicial notice of the fact that the
voluntary choice not to marry does not reflect an autonomous decision to avoid
the legal regimes would be to exceed the limits of legitimate judicial notice,
especially in relation to an issue at the centre of the controversy.
[275]
In the case at bar, A
has not established that it is stereotypical to believe that couples in a de facto
union have chosen not to be bound by the regimes applicable to marriage and civil
unions. The Quebec scheme, the effect of which is to respect each person’s
freedom of choice to establish his or her own form of conjugality, and thus to
participate or not to participate in the legislative regime of marriage or
civil union with its distinct legal consequences, is not based on a stereotype.
[276]
In this sense,
recognition of the principle of autonomy of the will, which is one of the
values underlying the equality guarantee in s. 15 of the Charter ,
means that the courts must respect choices made by individuals in the exercise
of that autonomy. In this context, it will be up to the legislature to
intervene if it believes that the consequences of such autonomous choices give
rise to social problems that need to be remedied.
[277]
In Quebec, the current
legal framework for marriage and the other forms of conjugal relationships
developed as a result of this type of intervention by the legislature, which
intended to remedy problems caused by the evolution of marriage in Quebec and
the longstanding preference of couples for the regime of separation of property
over community matrimonial regimes.
[278]
In the instant case, in
the absence of an infringement of s. 15(1) of the Charter , the
Court has no power to impose on the private relationships of de facto
spouses a legal framework based on a social policy that differs from the policy
adopted by the Quebec legislature. Only the legislature can intervene to
change that legislative policy and remedy any problems encountered by de facto
spouses.
[279]
This type of legislative
intervention has in fact occurred in certain provinces. Provincial
legislatures have chosen to regulate the private relationships of common law
spouses on the basis of their own provinces’ legislative objectives. Today,
each province defines the effects of de facto unions or common law
relationships differently, which is a mark of Canadian legal pluralism.
[280]
For example, in all
provinces except Quebec, and in the territories, cohabitation for a certain
number of years gives rise to an obligation of support between common law
spouses: see, inter alia, Family Law Act, R.S.O. 1990, c.
F.3; Family Services Act, S.N.B. 1980, c. F‑2.2; The
Family Maintenance Act, R.S.M. 1987, c. F20; Maintenance and
Custody Act, R.S.N.S. 1989, c. 160; Family Relations Act, R.S.B.C.
1996, c. 128; Family Law Act, R.S.N.L. 1990, c. F‑2; The
Family Maintenance Act, 1997, S.S. 1997, c. F‑6.2; Family
Law Act, R.S.P.E.I. 1988, c. F‑2.1; Family Law Act,
S.N.W.T. 1997, c. 18; Domestic Relations Act, R.S.A. 2000,
c. D‑14. Some provinces, such as Ontario, have imposed this policy
to alleviate the burden on the public purse: see, inter alia,
W. Holland, “Intimate Relationships in the New Millennium: The
Assimilation of Marriage and Cohabitation?” (2000), 17 Can. J. Fam. L.
114, at p. 128. In British Columbia, in addition to the obligation of
support, certain measures to protect the family residence apply to common law
spouses: Family Relations Act. In Saskatchewan and Manitoba, common
law relationships are, in addition to being subject to a support obligation and
measures related to the family residence, subject to the division of family
property: The Miscellaneous Statutes (Domestic Relations) Amendment Act,
2001 (No. 2), S.S. 2001, c. 51; Common Law Partners’ Property
and Related Amendments Act, S.M. 2002, c. 48. As we saw above, Nova
Scotia’s legislation provides that common law partners can choose to register
their partnerships and thus be governed by the legal framework applicable to
marriage with respect to matrimonial property: Law Reform 2000 Act,
S.N.S. 2000, c. 29.
(4) Conclusion
[281]
I therefore conclude
that, although arts. 401 to 430, 432, 433, 448 to 484 and 585 C.C.Q.
draw a distinction based on marital status between de facto spouses
and married or civil union spouses, they do not create a disadvantage by
expressing or perpetuating prejudice or by stereotyping. The exclusion of de facto
spouses from the scope of those provisions is not discriminatory within the
meaning of s. 15(1) of the Charter and does not violate the
constitutional right to equality. As a result, it is not necessary to proceed
to the s. 1 stage of the Charter analysis.
V. Disposition
[282]
I would allow the
appeals of the Attorney General of Quebec and B and dismiss A’s appeal, without
costs in all cases. I would answer the constitutional questions as follows:
1. Do
arts. 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of
Québec, S.Q. 1991, c. 64, infringe s. 15(1) of the Canadian
Charter of Rights and Freedoms ?
No.
2. If so, is the infringement a reasonable
limit prescribed by law that can be demonstrably justified in a free and
democratic society under s. 1 of the Canadian Charter of Rights and
Freedoms ?
It is not necessary to answer this
question.
The
following are the reasons delivered by
[283]
Abella J. (dissenting in result) — When spouses who are married or in civil unions separate or divorce in Quebec,
they are guaranteed certain legal protections. They have the right to claim
support from each other and an equal division of the family property. During
separation, their use of the family home and household effects is also
protected. These legal protections are not contractual by nature; they are
statutorily imposed either presumptively or mandatorily. The spousal support
and family property provisions in Quebec are aimed at recognizing and
compensating for the roles assumed within the relationship and any resulting
dependence and vulnerability on its dissolution.
[284]
Many de facto spouses — the term used in
Quebec for those who are neither married nor in a civil union — share the
characteristics that led to these protections. They form long-standing
relationships; they divide household responsibilities and develop a high degree
of interdependence; and, critically, the economically dependent — and therefore
vulnerable — spouse is faced with the same disadvantages when the union is
dissolved. Yet de facto dependent spouses in Quebec can claim none of
the economic protections that are available to those in marriages or civil
unions. They have no rights or obligations towards each other under the Civil
Code of Québec, S.Q. 1991, c. 64 (“C.C.Q.”). They are entitled to
enter into a cohabitation contract to govern their obligations, and can claim
child support where appropriate, but they have no right to claim spousal
support, no right to divide the family patrimony, and are not governed by any
matrimonial regime.
[285]
The question before us is whether dependent de
facto spouses in Quebec should be denied access to fundamental legal
protections simply because their spousal relationship lacks the formality of a
civil union or marriage. In my respectful view, the total exclusion of de
facto spouses from the legal protections for both support and property
given to spouses in formal unions is a violation of s. 15(1) of the Canadian
Charter of Rights and Freedoms and is not justified under s. 1 . As the
history of modern family law demonstrates, fairness requires that we look at
the content of the relationship’s social package, not at how it is
wrapped.
Facts
[286]
Mr. B and Ms. A met in Ms. A’s home country in 1992. At the
time, she was 17 years old, while Mr. B was 32 and the owner of a lucrative
business. The couple saw each other sporadically until 1995, travelling around
the world together at times. In early 1995, Ms. A came to live in Canada.
They broke up soon after, but saw each other over Christmas and in early 1996,
when Ms. A became pregnant with their first child. She gave birth to two other
children with Mr. B, in 1999 and 2001.
[287]
The couple discussed marriage on at least two occasions. In
1996, Ms. A asked Mr. B to marry her, but he refused, on the basis that he did
not believe in the institution of marriage. He said that he could possibly envision
getting married someday, but only to make a long-standing relationship
official. On January 1, 2000, the topic came up again, though the parties
presented different accounts as to whether they agreed to marry. In any event,
neither Ms. A nor Mr. B followed up on these plans.
[288]
In 2001, the parties discussed separating. They agreed to live
together for six months, in an attempt to reconcile, but in October 2001, Ms. A
ended the relationship. By the time they stopped living under the same roof in
2002, they had cohabited for seven years. During the relationship, Ms. A had
attempted to start a career as a model, but she largely did not work outside of
the home and often accompanied Mr. B on his travels.
[289]
In February 2002, Ms. A began proceedings seeking custody of the
children, spousal support, a lump sum support payment, and use of the family
home. She challenged the constitutionality of certain provisions of the Civil
Code, claiming access to the same protections as married spouses with
respect to support, the family patrimony, the presumptive partnership of
acquests regime, and the compensatory allowance. Her
constitutional challenges were dismissed by the application judge in the
Superior Court of Quebec. The Court of Appeal overturned the decision on
support, concluding that the spousal support provision (art. 585 C.C.Q.)
was unconstitutional. It considered itself bound, however, by this Court’s
decision in Nova Scotia (Attorney General) v. Walsh, [2002] 4
S.C.R. 325, and therefore did not interfere with the property aspect of the
decision.
[290]
Ms. A appealed the Court of Appeal’s conclusion
that the division of property provision was constitutional. Mr. B and the
Attorney General of Quebec also appealed, on the conclusion that the spousal
support provisions were unconstitutional.
Analysis
[291]
The current legislative
scheme in Quebec leaves an economically vulnerable spouse excluded from
mandatory support and property division regimes simply because he or she was
not in a formally created union. The issue in this appeal is whether
this exclusion violates s. 15 of the Charter .
[292]
It is helpful to review
the reasons motivating the development of the modern approach to spousal
support and family property regimes. While the ways in which these regimes
have been implemented vary between provinces, the social rationale for the
regimes is common across the country.
[293]
In Quebec, spouses in marriages or civil unions have an obligation of support during
the marriage (art. 585 C.C.Q.), which continues following separation,
allowing a court to require one spouse to pay support payments to the other
(arts. 507, 511 and 521.17 C.C.Q.). Following a divorce, the obligation
of support under the Code ends, and s. 15.2 of the federal Divorce
Act, R.S.C. 1985, c. 3 (2nd Supp .), governs support orders.
[294]
Article 585 of the Code
has a clearly protective purpose, since it extends the maintenance
obligation not only to married or civil union spouses, but also to “relatives in the direct line in the first
degree” such as children. The mechanism is adjustable, and support is
determined based on “the needs and means of the parties, their circumstances
and, as the case may be, the time needed by the creditor of support to acquire
sufficient autonomy” (art. 587 C.C.Q.; see Jean
Pineau and Marie Pratte, La famille (2006), at pp. 133 and 782). Moreover, the
provisions in the Code make it clear that the obligation of support is
fundamental. It is of public order and cannot be renounced, ceded or alienated
by the dependent spouse, since it is indispensable to his or her survival (Québec (Procureure générale) v. B.T.,
[2005] R.D.F. 709 (C.A.)).
[295]
In other words, Quebec explicitly subordinated a
contractual theory of support to a protective one based on mutual obligation,
since its law does not allow a couple in a formally recognized union to
contract out of the Civil Code’s mandatory support provision.
[296]
Throughout Canada, provincial and federal law
reform commissions were predominantly concerned with the impact of separation
and divorce on the economically vulnerable spouse, usually the wife (see British Columbia’s Royal Commission on
Family and Children’s Law, Family Maintenance (1975), at p. 7; Ontario’s
Ministry of the Attorney General, Family Law Reform (1976), at p. 1; Manitoba
Law Reform Commission, Reports on Family Law, Part I — The
Support Obligation, Report #23 (1976), at p. 19). The Law Reform
Commission of Canada concluded in its 1975 working paper 12, Maintenance on
Divorce, that the right to support — and the obligation to pay it — did not
rest on the legal status of either husband or wife, but on the reality of the
dependence or vulnerability that the spousal relationship had created:
Financial rights and obligations based
upon marriage should be legal results that follow from the internal
arrangements made by the spouses in line with their priorities, circumstances
and interests rather than being imposed according to traditional legal
preconceptions of the sexually determined roles of each spouse. [Emphasis deleted; p. 17.]
[297]
In other words, the
right to support was not created by marriage per se, but by the
“reasonable needs” of a vulnerable spouse (Maintenance on Divorce, at p.
18). Its purpose was protective: “. . . to enable a former spouse who has
incurred a financial disability as a result of marriage to become
self-sufficient again in the shortest possible time” (p. 17).
[298]
In elaborating on the
rationale underlying spousal support in Moge v. Moge, [1992] 3 S.C.R.
813, this Court held that spousal maintenance “seeks to
recognize and account for both the economic disadvantages incurred by the
spouse who makes such sacrifices and the economic advantages conferred upon the
other spouse” (p. 864). And in Bracklow v. Bracklow,
[1999] 1 S.C.R. 420, McLachlin J. confirmed that the mutual obligation of
support is protective: it stresses the interdependencies created by marriage,
and “recognizes the reality that when people cohabit over a period of time in a
family relationship, their affairs may become intermingled and impossible to
disentangle neatly” (para. 31). Need is central to this theory, which,
as discussed later in these reasons, is conceptually applicable as much to de
facto relationships as to marriages and civil unions.
[299]
Bracklow echoes the Law Reform Commission of Canada in noting that the spousal support
obligation does not stem from “the
bare fact of marriage, so much as the relationship that is established and the
expectations that may reasonably flow from it” (para. 44 (emphasis deleted)).
Notably, it also rejects the paramountcy of the “clean-break” theory of support
(para. 32), whereby each spouse is entitled at marriage breakdown to “what the
individuals contracted for” (para. 29).
[300]
A concern about the disproportionate
number of women who experienced poverty when they separated was also at play in
the development of the law. The goal of addressing this imbalance was clear in
the work of the law reform commissions. It was also accepted by this Court in Moge,
which noted that while support obligations were framed in gender-neutral terms,
the reality is that “in many if not most marriages, the
wife still remains the economically disadvantaged partner” (pp. 849-50).
Justice L’Heureux-Dubé explained what spousal support was intended to remedy as
follows:
Women
have tended to suffer economic disadvantages and hardships from marriage or its
breakdown because of the traditional division of labour within that
institution. . . . [O]nce the marriage dissolves,
the kinds of non‑monetary contributions made by the wife may result in
significant market disabilities. The sacrifices she has made at home
catch up with her and the balance shifts in favour of the husband who has
remained in the work force and focused his attention outside the home. In
effect, she is left with a diminished earning capacity and may have conferred
upon her husband an embellished one. [Emphasis added;
pp. 861-62.]
[301]
The law dealing with
division of family property has also come to be conceptualized in recent years
on a protective basis rather than a contractual one. Quebec has
legislation making the division of family property between married and civil
union spouses equitable. Its legislation dealing with property division for those
spouses states that during a marriage or civil union, or during a period of
separation, spouses are prohibited from alienating or leasing certain property,
including the family residence, without the other’s consent (arts. 401 and 404 C.C.Q.).
The Code also establishes the family patrimony, a core of family
property that must in principle be shared equally by the spouses on divorce.
The provisions creating the family patrimony are of public order, so they
cannot be contracted out of, except after separation, divorce or the death of
the other spouse (arts. 414 to 416, 419 and 423 C.C.Q.).
[302]
Except for the family patrimony, spouses in
marriages or civil unions are able to choose the matrimonial regime governing
their property. The default regime is the partnership of acquests, under which
spouses each have control of their own property during the relationship, but
most property acquired during the union is divided equally on its dissolution
(art. 432 C.C.Q.). Alternatively, spouses can elect the separation as
to property regime, under which spouses hold their property separately both
before and after the union (art. 486 C.C.Q.), or a community regime,
where property is controlled jointly during the union (art. 492 C.C.Q.).
[303]
Finally, on separation
or divorce, spouses in marriages or civil unions can claim a compensatory
allowance, a court-ordered payment that compensates one spouse for his or her
contribution to the enrichment of the other (art. 427 C.C.Q.).
[304]
The legislative
progression in Quebec from the “community” matrimonial regime, to the
partnership of acquests, to the compensatory allowance, and finally to the
family patrimony, has been elegantly unfolded by my colleague LeBel J. Two
important strands from this history merit particular attention.
[305]
The first is that the goal of better protecting
economically vulnerable spouses can be seen as motivating each successive stage
of reform in Quebec. With many spouses opting for separation of
property under the initial community regime, as Prof. Alain Roy explains, [translation] “the
breakdown of the conjugal relationship brought to light how very vulnerable
wives were financially. . . . From this
perspective, the legislature had to establish mechanisms to protect wives” (“Le
régime législatif de l’union civile: entre symbolisme et anachronisme”), in
Pierre-Claude Lafond and Brigitte Lefebvre, eds., L’union civile: nouveaux
modèles de conjugalité et de parentalité au 21e siècle (2003),
165, at p. 170).
[306]
In recommending the
partnership of acquests as the new default matrimonial regime, the Civil Code
Revision Office in 1968 noted that the “freedom and independence” provided to
those spouses who chose separation of property “sometimes proves extremely
burdensome for one of the consorts and, in certain cases, even results in real
injustice” (Report on Matrimonial Regimes (1968), at p. 9). The
subsequent compensatory allowance and family patrimony regimes targeted the
same injustices, which had lingered in spite of the partnership of acquests
(for judicial discussion of the respective goals of these regimes, see this
Court’s M. (M.E.) v. L. (P.), [1992] 1 S.C.R. 183, and Droit de la
famille — 977, [1991] R.J.Q. 904 (C.A.), at p. 908).
[307]
The second strand is that, far from being
designed to reflect the actual choices made by married spouses, these measures
subordinated those choices to the agenda of protection. In crafting the
partnership of acquests regime, which became the presumptive matrimonial regime
for all married couples in 1970, the National Assembly abandoned wording that
would have presumed that the equal sharing of property it created was an
implicit choice by the couple. The Law Reform Commission of Canada applauded
this decision, noting that “we cannot assume, in all cases, that the spouses
have not made a marriage contract because they consider the legal regime to be
the one which suits them best” (Studies on Family Property Law, Research
Paper: Matrimonial Regimes in Québec (1975), at p. 61). Significantly too,
the subsequent provision on compensatory allowance was made part of public
order, applying mandatorily to all married couples regardless of matrimonial
regime. As a result, couples who had chosen the separation of property regime
were largely denied their freedom to contract with respect to contributions
made during the marriage.
[308]
The same was true under the family patrimony
regime, which was also made part of public order. In introducing the new
legislation, Monique Gagnon-Tremblay, the Minister
responsible for the Status of Women, while noting that
a mandatory division of the family patrimony negates freedom of choice,
nonetheless said that choice would have to defer to the more important social
goal of remedying a legal and social barrier to equality:
[translation] It was necessary to rethink
a legal and social mechanism that tends to reproduce inequality.
. . .
In
a word, it seemed to us that to refuse to introduce a family patrimony on
the basis that this new institution is incompatible with certain matrimonial
regimes spouses might want to choose would amount to giving greater importance
to legal models than to the imperatives of social change. Were it to do
so, the legislature would deprive itself of an essential lever for social
change. [Emphasis added.]
(National
Assembly, Journal des débats, vol. 30, No. 125, 2nd Sess., 33rd Leg.,
June 8, 1989, at p. 6489)
The opposition critic at
the time, Louise Harel, provided crucial support to the
measure, noting specifically that it represented a move from formal to
substantive equality within marriage:
[translation] In our
society, for an entire generation, the institution of marriage represented
something that was contrary to the principle of equality. Then a legal
equality was introduced. And, Mr. President, I cannot place too much emphasis
on the fact that, if we are going to work together to pass this bill, it is
precisely because that formal legal equality is not enough. It is precisely to
open a new legal path to the full economic and social equality of women.
[Emphasis added.]
(National
Assembly, Journal des débats, vol. 30, No. 125, 2nd Sess., 33rd Leg.,
June 8, 1989, p. 6497)
[309]
Thus the mandatory nature of both the
compensatory allowance and family patrimony regimes highlights the preeminent
significance Quebec has accorded to concerns for the protection of vulnerable
spouses over other values such as contractual freedom or choice.
[310]
These concerns were harmoniously echoed across
Canada. The case of Rathwell v. Rathwell, [1978] 2 S.C.R. 436, contains
useful insight into the shift to a protective understanding of the division of
family property. Dickson J. noted that matrimonial property disputes were
“bedevilled by conflicting doctrine and a continuing struggle between the
‘justice and equity’ school . . . and the ‘intent’ school” (p. 442). Intent
had ruled the day in the prior case of Murdoch v. Murdoch, [1975]
1 S.C.R. 423, which confirmed the century-old approach to matrimonial property:
the wife had been denied any share in the property held in her husband’s name
because of her inability to prove common intent to vest in her a beneficial
interest in the property.
[311]
In Rathwell, Dickson J. relied instead on
the doctrine of constructive trust, which requires no common intent, to award
Helen Rathwell a share of the matrimonial property. Common intent, Dickson J.
explained, could rarely be found, and to look for it was to misapprehend the
way most couples approach their relationship:
. . . the
plain fact is that there rarely is agreement [on the disposition of matrimonial
property in the event of divorce] because the parties do not turn their minds
to the eventuality of separation and divorce.
. . .
. . .
There is rarely implied agreement or common intention, apart from the general
intention of building a life together. It is not in the nature of things for
young married people to contemplate the break-up of their marriage and the
division, in that event, of assets acquired by common effort during wedlock.
[pp. 444 and 447-48]
The emergence of a
constructive trust to resolve matrimonial property disputes, Dickson J.
explained,
reflects a diminishing preoccupation
with the formalities of real property law and individual property rights and
the substitution of an attitude more in keeping with the realities of
contemporary family life. . . . The state of legal title may merely reflect
conformity with regulatory requirements . . .; it may, on the other
hand, be a matter of utmost indifference to the spouses as to which name
appears on the title, so long as happy marriage subsists . . . . The
state of title may be entirely fortuitous . . . . [Emphasis added; p. 456.]
[312]
This brings us to the status of unmarried
spouses in Canada. Historically, they were stigmatized. The children
of unmarried relationships, for example, were deemed “illegitimate” and unable
to inherit on intestacy. But as social attitudes changed, so did the
approaches of legislatures and courts, which came to accept conjugal
relationships outside a formal marital framework.
[313]
This change reflected an enhanced understanding
of what constitutes a “family”. In a 1993 report in which it recommended the
extension of both spousal support and division of property regimes to unmarried
spouses, the Ontario Law Reform Commission noted that
throughout much of the [Family
Law Act, R.S.O. 1990, c. F.3], “family” is equated with “marriage”. . . .
[T]he Act . . . provides little room for other forms of relationship that
embody the fundamental elements of intimacy, mutual economic interdependence,
and living together in a “close personal relationship that is of primary
importance in both persons’ lives”, which we see as the essence of the concept
of “family”.
(Report
on the Rights and Responsibilities of Cohabitants under the Family Law Act
(1993), at p. 1)
The Report found that in
common-law
relationships, which embody virtually all the characteristics of marriage . . .
the need to protect the interests of both parties and to ensure equality and
fairness in the event of the breakdown of the relationship is the same as in
marriages.
. . .
Common-law spouses pool their
resources and make joint economic plans, they provide each other financial and
emotional support, and they raise children. [pp. 2 and 27]
[314]
This Court launched the possibility of an
equitable division of property for unmarried spouses in Pettkus v. Becker,
[1980] 2 S.C.R. 834, where it extended the availability of a constructive trust
to the division of property between separated common law spouses.
Significantly, Dickson J. found that there were no grounds for a distinction in
property division between a marriage and a less formally recognized long-term
relationship, and that being unmarried was no barrier to the claimant obtaining
the fruits of her contribution to a common law partnership.
[315]
Subsequently, in M. v. H., [1999] 2 S.C.R. 3, this Court found that the exclusion of same-sex
couples from statutory support benefits violated s. 15(1) of the Charter .
In developing its analysis, the Court noted that the various features that
characterize a conjugal relationship could be found in same-sex relationships. Those features could be
“present in varying degrees and not all are necessary for the relationship to
be found to be conjugal” (para. 59). A conjugal relationship, in other words,
is not a binary question: married or unmarried, opposite-sex or same-sex,
economically dependent or economically independent. This
decision highlighted an increasing willingness to look past the relationship’s
formal wrapping and into its content. It is the nature of the relationship that is
paramount, not what it is called.
[316]
As attitudes shifted and the functional
similarity between many unmarried relationships and marriages was accepted,
this Court expanded protection for unmarried spouses. In Miron v. Trudel,
[1995] 2 S.C.R. 418, the Court found that marital status was an analogous
ground under s. 15(1) of the Charter , because while in theory an
individual is free to choose whether to marry, there are, in reality, a number
of factors that may place the decision out of his or her control. McLachlin J.
described the impediments to choice as including:
The
law; the reluctance of one’s partner to marry; financial, religious or social
constraints — these factors and others commonly function to prevent partners
who otherwise operate as a family unit from formally marrying. In short,
marital status often lies beyond the individual’s effective control. [para. 153]
[317]
The recognition of marital status as an
analogous ground was a recognition of the complex and mutual nature of the
decision to marry and the myriad factors at play in that decision. It was also
an acknowledgment that the decision to live together as unmarried spouses may
not in fact be a choice at all.
[318]
I would make one further observation about the
narrative of the treatment of de facto or common law unions in Canada.
As part of the acceptance of marital status as an analogous ground in Miron,
McLachlin J. recognized that unmarried spouses have faced historical
disadvantage stemming from societal prejudice. She acknowledged that this
disadvantage has faded as attitudes have changed, but nonetheless concluded
that “the historical disadvantage associated with this group cannot be denied”
(para. 152), a significant reminder that there has rarely been, in our
lifetime, a bright line demarcating the successful evolution of an historically
disadvantaged group into a barrier-free reality. The fact that society appears
to have attenuated overtly discriminatory attitudes it once held towards a
group does not mean that there is no continuing discriminatory conduct, however
benignly or unconsciously motivated.
[319]
This is the history that animates our s.
15 inquiry. In R. v. Kapp,
[2008] 2 S.C.R. 483, this Court reaffirmed its
commitment to the test that was set out in Andrews v. Law
Society of British Columbia, [1989] 1 S.C.R. 143, whereby s. 15 was seen as
an anti-discrimination provision. Building on the human rights
decisions in Ontario Human Rights Commission v. Simpsons-Sears Ltd.,
[1985] 2 S.C.R. 536, at p. 551, and Canadian National Railway Co. v. Canada
(Canadian Human Rights Commission), [1987] 1 S.C.R. 1114 (“Action
Travail”), McIntyre J., in Andrews, noted that
the main consideration must be the
impact of the law on the individual or the group concerned. Recognizing
that there will always be an infinite variety of personal characteristics,
capacities, entitlements and merits among those subject to a law, there must be
accorded, as nearly as may be possible, an equality of benefit and protection
and no more of the restrictions, penalties or burdens imposed upon one than
another. [Emphasis added; p. 165.]
He identified the purpose
of the equality provision and anti-discrimination law in general, as being to
eliminate the exclusionary barriers faced by individuals in the enumerated or
analogous groups in gaining meaningful access to what is generally available.
[320]
Andrews involved a British citizen who challenged the
citizenship requirement for admission to the British Columbia bar under the Barristers
and Solicitors Act, R.S.B.C. 1979, c. 26. He succeeded because the
requirement was found to have drawn a distinction based on an enumerated ground
— national origin — and because that distinction resulted in an additional
burden on non-citizens, namely a delay of several years before they could
become entitled to practise law. The government’s justification was evaluated
under s. 1 of the Charter .
[321]
McIntyre J.’s approach in Andrews had several important
features. First, it stipulated that “[t]he analysis of discrimination . . .
must take place within the context of the enumerated grounds and those
analogous to them” (p. 180).
[322]
Second, the words “without discrimination” require more than a
mere distinction in the treatment given to different groups or individuals.
Instead, McIntyre J. found that those words were a form of qualifier built into
s. 15 which limits the distinctions forbidden by the section to “those which
involve prejudice or disadvantage” (p. 181 (emphasis added)). McIntyre
J.’s definition of discrimination contains the following statement about what
constitutes “disadvantage”:
. . . discrimination may be described
as a distinction, whether intentional or not but based on grounds relating to
personal characteristics of the individual or group, which has the effect of
imposing burdens, obligations, or disadvantages on such individual or group not
imposed upon others, or which withholds or limits access to opportunities,
benefits, and advantages available to other members of society. [Emphasis added; p. 174.]
[323]
In sum, the claimant’s burden under the Andrews test is to
show that the government has made a distinction based on an enumerated or
analogous ground and that the distinction’s impact on the individual or group
perpetuates disadvantage. If this has been demonstrated, the burden
shifts to the government to justify the reasonableness of the distinction under
s. 1 . As McIntyre J. explained, “any justification, any consideration of the
reasonableness of the enactment; indeed, any consideration of factors which
could justify the discrimination and support the constitutionality of the
impugned enactment would take place under s. 1 ” (p. 182).
[324]
Kapp, and later Withler v. Canada (Attorney General),
[2011] 1 S.C.R. 396, restated these principles as follows: (1)
Does the law create a distinction based on an enumerated or analogous ground?
(2) Does the distinction create a disadvantage by perpetuating prejudice or
stereotyping? (Kapp, at para. 17; Withler, at para.
30). As the Court stated in Withler:
The focus of the inquiry is on the
actual impact of the impugned law, taking full account of social, political,
economic and historical factors concerning the group. [para. 39]
[325]
In referring to prejudice and stereotyping in the second step of
the Kapp reformulation of the Andrews test, the Court was not
purporting to create a new s. 15 test. Withler is clear that “[a]t the
end of the day there is only one question: Does the challenged law
violate the norm of substantive equality in s. 15(1) of the Charter ?”
(para. 2 (emphasis added)). Prejudice and stereotyping are two of the indicia
that may help answer that question; they are not discrete elements of the test
which the claimant is obliged to demonstrate, as Professor Sophia
Moreau explains:
Such a narrow interpretation
will likely have the unfortunate effect of blinding us to other ways in which
individuals and groups, that have suffered serious and long-standing
disadvantage, can be discriminated against. This would include cases, for
instance, that do not involve either overt prejudice or false stereotyping, but
do involve oppression or unfair dominance of one group by another, or involve a
denial to one group of goods that seem basic or necessary for full
participation in Canadian society.
(“R.
v. Kapp: New Directions for Section 15 ” (2008-2009), 40 Ottawa
L. Rev. 283, at p. 292)
[326]
Prejudice is the holding of pejorative attitudes based on
strongly held views about the appropriate capacities or limits of individuals
or the groups of which they are a member. Stereotyping, like
prejudice, is a disadvantaging attitude, but one that attributes
characteristics to members of a group regardless of their actual capacities.
Attitudes of prejudice and stereotyping can undoubtedly lead to
discriminatory conduct, and discriminatory conduct in turn can
reinforce these negative attitudes, since “the very exclusion of the
disadvantaged group . . . fosters the belief, both within and outside the
group, that the exclusion is the result of ‘natural’ forces, for example, that
women ‘just can’t do the job’” (Action Travail, at p. 1139). As Walter Tarnopolsky observed:
. . . it is the overt act and
not the thought which is prohibited and, as a natural consequence thereof, in
many cases action could be contrary to human rights legislation even in the
absence of a discriminatory intent, if its effect is discriminatory. [Emphasis
in original.]
(Discrimination
and The Law in Canada (1982), at p. 86)
[327]
We must be careful not
to treat Kapp and Withler as establishing an additional
requirement on s. 15 claimants to prove that a distinction will perpetuate
prejudicial or stereotypical attitudes towards them. Such an approach
improperly focuses attention on whether a discriminatory attitude
exists, not a discriminatory impact, contrary to Andrews, Kapp
and Withler. In explaining prejudice in Withler,
the Court said: “Without attempting to limit the factors that may be useful in
assessing a claim of discrimination, it can be said that where the
discriminatory effect is said to be the perpetuation of disadvantage or
prejudice, evidence that goes to establishing a claimant’s historical position
of disadvantage or to demonstrating existing prejudice against the claimant
group, as well as the nature of the interest that is affected, will be
considered” (para. 38).
[328]
It is the discriminatory conduct that s. 15 seeks to prevent, not
the underlying attitude or motive, as Dickson C.J. explained in Action
Travail:
It is not a question of whether
this discrimination is motivated by an intentional desire to obstruct someone’s
potential, or whether it is the accidental by-product of innocently motivated
practices or systems. If the barrier is affecting certain groups in
a disproportionately negative way, it is a signal that the practices that lead
to this adverse impact may be discriminatory. [p. 1139, citing the Report of the Commission on Equality in Employment
(1984).]
This was reiterated in Withler,
where the Court said: “Whether the s. 15 analysis focuses on perpetuating
disadvantage or stereotyping, the analysis involves looking at the
circumstances of members of the group and the negative impact of the law
on them” (para. 37 (emphasis added)).
[329]
That was the lesson learned from the former
“dignity” test from Law v. Canada (Minister of Employment and Immigration),
[1999] 1 S.C.R. 497, which required claimants to establish that the impugned
law had “the effect of perpetuating or promoting the view that the
individual is less capable, or less worthy of recognition or value as a human
being or as a member of Canadian society” (para. 51 (emphasis added)). In Kapp,
this Court recognized that “dignity” was an underlying objective of the whole Charter ,
not a discrete and additional component of the equality test that the claimant
had the burden of proving:
. . . human dignity is an abstract and
subjective notion that . . . cannot only become confusing and difficult to
apply; it has also proven to be an additional burden on equality
claimants . . . . [Emphasis in original; para. 22.]
Similarly, prejudice and
stereotyping are neither separate elements of the Andrews test, nor
categories into which a claim of discrimination must fit. A claimant need not prove that a law promotes negative attitudes,
a largely unquantifiable burden.
[330]
Requiring claimants,
therefore, to prove that a distinction perpetuates negative attitudes about
them imposes a largely irrelevant, not to mention ineffable burden.
[331]
Kapp and Withler
guide us, as a result, to a flexible and contextual inquiry into
whether a distinction has the effect of perpetuating arbitrary
disadvantage on the claimant because of his or her membership in an enumerated
or analogous group. As Withler makes clear, the contextual factors will
vary from case to case — there is no “rigid template”:
The particular
contextual factors relevant to the substantive equality inquiry at the second
step [of the Andrews test] will vary with the nature of the case. A rigid
template risks consideration of irrelevant matters on the one hand, or
overlooking relevant considerations on the other: Kapp.
Factors such as those developed in Law — pre-existing disadvantage,
correspondence with actual characteristics, impact on other groups and the
nature of the interest affected — may be helpful. However, they need not be
expressly canvassed in every case in order to fully and properly determine
whether a particular distinction is discriminatory . . . . [Emphasis added;
para. 66.]
[332]
The root of s. 15 is our awareness that certain groups have been
historically discriminated against, and that the perpetuation of such
discrimination should be curtailed. If the state conduct widens the gap
between the historically disadvantaged group and the rest of society rather
than narrowing it, then it is discriminatory. As the U.S. Supreme Court warned
in Griggs v. Duke Power Co., 401 U.S. 424 (1971):
. . . practices, procedures, or tests
neutral on their face, and even neutral in terms of intent, cannot be
maintained if they operate to “freeze” the status quo of prior discriminatory
employment practices. [p. 430]
[333]
An emphasis at this stage on whether the claimant group’s exclusion was well motivated
or reasonable is inconsistent with this substantive equality approach to s.
15(1) since it redirects the analysis from the impact
of the distinction on the affected individual or group to the legislature’s intent
or purpose. As McIntyre J. warned in Andrews, an approach to
s. 15(1) based on assessing the “reasonableness” of the legislative distinction
would be a “radical departure from the analytical approach to the Charter ”,
under which “virtually no role would be left for s. 1 ” (pp. 181-82). It would
also effectively turn the s.
15(1) analysis into a review of whether the legislature had a “rational basis”
for excluding a group from a statutory benefit. This reduces the test for
discrimination to “a prohibition on intentional
discrimination based on irrational stereotyping” (Sheila McIntyre, “Deference and Dominance: Equality Without Substance”, in Sheila
McIntyre and Sanda Rodgers, eds., Diminishing Returns: Inequality and the
Canadian Charter of Rights and Freedoms (2006), 95, at p. 104). Assessment
of legislative purpose is an important part of a Charter analysis, but
it is conducted under s. 1 once the burden has shifted to the state to justify
the reasonableness of the infringement.
[334]
This crucial distinction
between the s. 15 analysis and the s. 1 justificatory step of the equality test
brings us to another legal issue of particular importance in this case: the
proper stage in the analysis to address the effect of the choice not to
marry. In Miron, the fact that marital
status is not a real choice was the basis for designating marital status as an
analogous ground under s. 15(1) . McLachlin J. accepted that the choice to marry
is constrained by a number of factors. Her reasons, already briefly referred
to, bear more fulsome repetition:
In theory, the individual is free to
choose whether to marry or not to marry. In practice, however, the reality may
be otherwise. The sanction of the union by the state through civil marriage
cannot always be obtained. The law; the reluctance of one’s partner to marry;
financial, religious or social constraints — these factors and others commonly
function to prevent partners who otherwise operate as a family unit from
formally marrying. In short, marital status often lies beyond the individual’s
effective control. In this respect, marital status is not unlike citizenship,
recognized as an analogous ground in Andrews: the individual
exercises limited but not exclusive control over the designation. [para. 153]
[335]
Any discussion of the reasonableness of
distinctions based on this ground, or justifications for such distinctions,
must take place under s. 1 . To focus on the “choice” to marry at the s. 15(1)
stage is not only contrary to the approach in Andrews, it is
completely inconsistent with Miron and undermines the recognition of
marital status as an analogous ground. By definition, analogous grounds
are “personal characteristic[s] that [are] immutable or changeable only at
unacceptable cost to personal identity” (Corbiere v. Canada (Minister of
Indian and Northern Affairs), [1999] 2 S.C.R. 203, at para. 13). This Court
has firmly rejected the context-dependency of analogous grounds: they are not
deemed immutable in some legislative contexts and a matter of choice in
others. Rather, they stand as “constant marker[s] of potential legislative
discrimination” (Corbiere, at para. 10). Having accepted marital
status as an analogous ground, it is contradictory to find not only that
de facto spouses do have a choice about their marital
status, but that it is that very choice that excludes them from the protection
of s. 15(1) to which Miron said they were entitled.
[336]
Moreover, this Court has
repeatedly rejected arguments that choice protects a distinction from a finding
of discrimination. In Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R.
1219, the employer argued that a different amount of compensation for
women who took time off from work while pregnant was not discriminatory because
“pregnancy is a voluntary state and, like other forms of voluntary leave, it
should not be compensated” (p. 1236). Dickson C.J. refused to accept that
pregnancy was a choice, noting that an emphasis on choice would be “against one
of the purposes of anti-discrimination legislation . . . the removal of unfair
disadvantages which have been imposed on individuals or groups in society” (p.
1238). In other words, not only was pregnancy not a “true choice”, but choice
was irrelevant to the question of discrimination.
[337]
In Lavoie v. Canada, [2002] 1
S.C.R. 769, the Court was faced with a question
of discrimination on the grounds of citizenship. The claimants challenged a
provision of the Public Service Employment Act, R.S.C. 1985, c. P-33 ,
that gave the Public Service Commission the discretion to prefer Canadian
citizens in open competitions for employment. Bastarache J., for the majority,
expressly rejected the argument, relied on by Arbour J. in her separate
reasons, that the claimants could have chosen to obtain Canadian citizenship.
In their own reasons, which agreed with Bastarache J. on this point, McLachlin
C.J. and L’Heureux‑Dubé J. were even clearer in rejecting choice as
justifying discriminatory treatment:
. . . the fact that a person could
avoid discrimination by modifying his or her behaviour does not negate the
discriminatory effect. If it were otherwise, an employer who denied women
employment in his factory on the ground that he did not wish to establish
female changing facilities could contend that the real cause of the
discriminatory effect is the woman’s “choice” not to use men’s changing
facilities. The very act of forcing some people to make such a choice violates
human dignity, and is therefore inherently discriminatory. The law of
discrimination thus far has not required applicants to demonstrate that they
could not have avoided the discriminatory effect in order to establish a denial
of equality under s. 15(1) . [para. 5]
[338]
Having reviewed the distinct analytical
approaches to the s. 15(1) analysis and s. 1 justificatory step and the
significance of this Court’s finding that marital status is an analogous
ground, I turn to the final legal issue that commands the Court’s attention:
the applicability of this Court’s decision in Walsh. Because the
equality analysis under s. 15(1) of the Charter has evolved
substantially in the decade since Walsh was decided, I would, with
respect, decline to follow Walsh. Two aspects of the majority’s
decision in Walsh are, in fact, manifestly contrary to the substantive
equality analysis developed in Kapp and Withler, namely its
approach to the issue of choice and its reliance on the heterogeneity of common
law relationships.
[339]
Walsh, similarly
to the case before us, considered the role of freedom
of choice in a s. 15 application dealing with the exclusion of common law
spouses from a family property regime. The majority judgment in Walsh found
that “people who marry can be said to freely accept mutual rights and
obligations” while common law spouses cannot. In turn, it found that common
law spouses “are free to take steps to deal with their personal property”
privately (para. 55). Walsh was determinatively applied by the trial
judge in the case before us, and in part by the Court of Appeal.
[340]
As noted, in Walsh freedom of choice was key to the s. 15(1) analysis. Although the Walsh majority accepted that some common law
spouses would suffer disadvantage under the Matrimonial Property Act,
R.S.N.S. 1989, c. 275, it held that because they could choose to marry,
their exclusion from the legislative scheme was not an issue that fell within
the protection of s. 15(1) :
While there is no denying that
inequities may exist in certain unmarried cohabiting relationships and that
those inequities may result in unfairness between the parties on relationship
breakdown, there is no constitutional requirement that the state extend the
protections of the MPA to those persons. The issue here is whether
making a meaningful choice matters, and whether unmarried persons are prevented
from taking advantage of the benefits of the MPA in an unconstitutional way.
[Emphasis added; para. 57.]
The majority in Walsh accepted that marital status is
an analogous ground, but justified distinctions within this ground by pointing
to an individual’s “choice” to marry. This contradicts
the approach to substantive equality under s. 15(1) , where any argument
concerning the reasonableness of the legislation is considered under s. 1 . Contrary
to this approach, the majority of the Court in Walsh collapsed the
justification into the s. 15 analysis, leaving the claimants to justify what
should analytically have been part of the government’s burden.
[341]
The majority in Walsh went on to find that despite the adverse impact suffered by some unmarried
spouses under the Matrimonial Property Act, the claimant had failed to
satisfy the dignity test. Again, the majority emphasized the importance of the
claimant’s choice, concluding that a legislative regime that respected the
personal autonomy and freedom of choice of an individual enhanced rather
than detracted from their dignity. This reliance on dignity is the analytic
approach this Court eschewed in Kapp when it dropped “dignity” as a
required component in the s. 15(1) analysis because it had become an undue
evidentiary burden for claimants.
[342]
In Walsh, the majority’s focus on choice rather than on the impact of the distinction on members
of the group also paid insufficient attention to the requirement for a true
substantive equality analysis, affirmed in Kapp and Withler. In
contrast to formal equality, which assumes an “autonomous, self-interested and
self-determined” individual, substantive equality looks not only at the choices
that are available to individuals, but at “the social and economic environments
in which [they] pla[y] out” (Margot Young, “Unequal to the Task: ‘Kapp’ing the
Substantive Potential of Section 15 ”, in Sanda Rodgers and Sheila McIntyre,
eds., The Supreme Court of Canada and Social Justice: Commitment,
Retrenchment or Retreat (2010), 183, at pp. 190-91 and 196).
[343]
This is not to suggest that the issue of choice
is entirely irrelevant to a claim under s. 15(1) . It may be an important
factor in determining whether a ground of discrimination qualifies as an
analogous ground. In addition, it may factor into the s. 1 analysis.
Examining choice at the s. 1 stage instead of integrating it into the
discrimination analysis as the majority did in Walsh properly places the
onus on the government to justify the exclusion based on freedom of choice,
rather than compromising the s. 15(1) analysis. It is not the claimant’s
burden to disprove the legislative purpose for the exclusion, but the
government’s to demonstrate it under s. 1 .
[344]
Walsh is also at
odds with the substantive equality analysis of Kapp and Withler in
its emphasis on the heterogeneity of common law relationships. The Walsh
majority found this heterogeneity to be a pertinent distinction between
married spouses and unmarried spouses. The majority accepted that some common
law spouses suffered adverse impact, but emphasized that “many persons in
circumstances similar to those of the parties, that is, opposite sex
individuals in conjugal relationships of some permanence, have chosen to avoid
the institution of marriage and the legal consequences that flow from it”
(para. 43). The majority relied on the fact that not all common law
spouses suffered discrimination as a basis for rejecting the s. 15(1) claim.
[345]
The importance the Walsh majority placed
on the heterogeneity of unmarried relationships resulted from its use of the
then operative comparator group analysis. The majority assessed the
discrimination claim by comparing two groups: married heterosexual cohabitants
and unmarried heterosexual cohabitants. Although the majority in Walsh
found that the “functional similarities” between married and common law spouses
may be substantial, it held that “it would be wrong to ignore the significant
heterogeneity that exists within the claimant’s comparator group [i.e.
unmarried heterosexual cohabitants]” (para. 39).
[346]
The majority’s reasoning in Walsh illustrates
the problems with comparator groups that the subsequent decision in Withler
sought to address, namely that “a mirror comparator group analysis may fail to
capture substantive inequality, may become a search for sameness, may shortcut
the second stage of the substantive equality analysis, and may be difficult to
apply” (para. 60). In Walsh, the fact that the comparator group of
married spouses was not perfectly mirrored by the group of unmarried spouses,
based on the heterogeneity of the latter, short-circuited the analysis of the
actual adverse impact experienced by a significant proportion of unmarried
spouses.
[347]
For all these reasons, and with great respect, I
think, unlike the Court of Appeal, we can appropriately proceed to the
application of the s. 15(1) test in this case untethered from Walsh.
Application
[348]
The first step in s. 15(1) is to identify the
distinction at issue and determine whether it is based on an enumerated or
analogous ground. This is easily demonstrated in this case. The exclusion of de
facto spouses from the economic protections for formal spousal unions is a
distinction based on marital status, an analogous ground.
[349]
We must then consider whether the distinction is
discriminatory. That it imposes a disadvantage is clear, in my view: the law
excludes economically vulnerable and dependent de facto spouses from
protections considered so fundamental to the welfare of vulnerable married or
civil union spouses that one of those protections is presumptive, and the rest
are of public order, explicitly overriding the couple’s freedom of contract or
choice. The disadvantage this exclusion perpetuates is an historic one: it
continues to deny de facto spouses access to economic remedies they have
always been deprived of, remedies the National Assembly considered
indispensable for the protection of married and civil union spouses.
[350]
There is little doubt that some de facto
couples are in relationships that are functionally similar to formally
recognized spousal relationships. When introducing family law reforms in 1976,
the Ontario Ministry of the Attorney General acknowledged that the functional
characteristics of unmarried relationships justified some protection:
When a man and woman have
been living together in a relationship of some permanence, their lives take on
the same financial characteristics as a legally recognized marriage. Often the
couple both contribute to household expenses. One may be just as dependent on
the other for certain tasks as married persons are.
(Family
Law Reform, at p. 18)
[351]
On the same note, the British Columbia Law
Institute commented that people in “relationship[s] that resembl[e] marriage
may suffer economic prejudice when the relationship ends” and “are also in need
of protection” (Report on Recognition of Spousal and Family Status
(1998), at p. 7). The Law Reform Commission of Nova Scotia noted that, due to
the functional similarities, unmarried relationships “deserve to be treated
similarly by the law” as marriages (Final Report: Reform of the Law Dealing
with Matrimonial Property in Nova Scotia (1997), at p. 21). And the Law
Reform Commission of Saskatchewan tied these functional similarities to the
goals of matrimonial property legislation, commenting that
[t]he realities of marriage,
not the legal status it creates, justified [matrimonial property] legislation.
If long-term common law relationships are functionally similar, the mechanism
by which the status is created is less important than the fact that the status
entails social expectations that are usually associated with marriage.
(Discussion
Paper, “Common Law Relationships Under the Matrimonial Property Act”, July 1997
(online), at p. 12)
[352]
This understanding of the functional similarity
of de facto unions to marriages, it should be stressed, is shared in
Quebec, where the Civil Code Revision Office, in proposing changes to the
regime governing de facto spouses in 1978, accepted these functional
similarities, commenting that “[d]e facto unions, though perhaps more tenuous,
are often as stable as marriages” (Report on the Québec Civil Code (1978), vol. II — Commentaries, t. 1, at p. 113).
[353]
This Court has also readily recognized that some
de facto spouses share the functional characteristics of those in formal
marriages. In the context of spousal support obligations, Cory and Iacobucci
JJ. held in M. v. H. that unmarried same-sex couples, unmarried
opposite-sex couples, and married couples, can all fulfill the “generally
accepted characteristics of a conjugal relationship [which] include shared
shelter, sexual and personal behaviour, services, social activities, economic
support and children, as well as the societal perception of the couple” (para.
59). And in Pettkus v. Becker, Dickson J. acknowledged that there was
“no basis for any distinction, in dividing property and assets, between marital
relationships and those more informal relationships which subsist for a lengthy
period” and that the unmarried parties “lived as man and wife” (p. 850).
[354]
Even if there is a range of need or
vulnerability among de facto spouses, as there must inevitably be, this Court has held that heterogeneity within a claimant group does
not defeat a claim of discrimination. In Janzen v. Platy Enterprises Ltd.,
[1989] 1 S.C.R. 1252, Dickson C.J., as he had in Brooks, squarely
rejected the idea that for a claim of discrimination to succeed, all members of
a group had to receive uniform treatment from the impugned law:
While the concept of discrimination is
rooted in the notion of treating an individual as part of a group rather than
on the basis of the individual’s personal characteristics, discrimination
does not require uniform treatment of all members of a particular group. It is
sufficient that ascribing to an individual a group characteristic is one factor
in the treatment of that individual. If a finding of discrimination
required that every individual in the affected group be treated identically,
legislative protection against discrimination would be of little or no value.
It is rare that a discriminatory action is so bluntly expressed as to treat all
members of the relevant group identically. In nearly every instance of
discrimination the discriminatory action is composed of various ingredients
with the result that some members of the pertinent group are not adversely
affected, at least in a direct sense, by the discriminatory action. To deny
a finding of discrimination in the circumstances of this appeal is to deny the
existence of discrimination in any situation where discriminatory practices are
less than perfectly inclusive. It is to argue, for example, that an
employer who will only hire a woman if she has twice the qualifications
required of a man is not guilty of sex discrimination if, despite this policy,
the employer nevertheless manages to hire some women. [Emphasis
added; pp. 1288-89.]
[355]
Although Janzen and Brooks were
decided in the human rights context, they were applied in the Charter
context in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2
S.C.R. 504, where Gonthier J. held that “[t]his Court has long recognized that
differential treatment can occur . . . despite the fact that not all persons
belonging to the relevant group are equally mistreated” (para. 76). In other
words, even if only some members of an enumerated or analogous group suffer
discrimination by virtue of their membership in that group, the distinction and
adverse impact can still constitute discrimination.
[356]
The National Assembly enacted economic
safeguards for spouses in formal unions based on the need to protect them from
the economic consequences of their assumed roles. Since many spouses in de
facto couples exhibit the same functional characteristics as those in
formal unions, with the same potential for one partner to be left economically
vulnerable or disadvantaged when the relationship ends, their exclusion from
similar protections perpetuates historic disadvantage against them based
on their marital status.
[357]
There is no need to look for an attitude of
prejudice motivating, or created by, the exclusion of de facto couples
from the presumptive statutory protections. Nor need we consider whether the
exclusions promote the view that the individual is less capable or worthy of
recognition as a human being or citizen — which, as discussed in Kapp,
would be difficult to prove. There is no doubt that attitudes have changed
towards de facto unions in Quebec, but what is relevant is not the attitudinal
progress towards them, but the continuation of their discriminatory treatment.
[358]
This brings us to the s. 1 analysis. The
application judge found that the purpose of the exclusion of de facto
spouses from the presumptive statutory protections was to preserve their
freedom to choose to be outside the legal regimes governing marriage and civil
unions. The Court of Appeal questioned whether, in the context of spousal
support, freedom of choice can qualify as a pressing and substantial objective.
Quebec has implemented mandatory provisions relating to support, they
noted, thereby denying spouses in marriages or civil unions any freedom of
choice in the interests of protecting and compensating economically vulnerable
spouses. De facto spouses, on the other hand, have been excluded from
similar protection based on the very freedom of choice Quebec has decided is
irrelevant for formally recognized spousal relationships. However, since the
objective of preserving freedom of choice was not vigorously challenged
by the parties before this Court, I would accept it for the purposes of the s.
1 analysis.
[359]
At the rational connection stage, the government
does not face a heavy burden. It must show “that it is
reasonable to suppose that the limit may further the goal, not that it will do
so” (Alberta v.
Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, at para.
48). While I find the connection tenuous, I cannot say that excluding de
facto spouses from the support and division of property protections is
wholly unconnected to the goal of allowing couples the freedom to be outside
the legal regimes governing marriage and civil union.
[360]
The critical stage in this case, in my view, is minimal impairment, under which “the government must show that the measures at issue
impair the right . . . as little as reasonably possible in order to achieve the
legislative objective” (RJR-MacDonald Inc. v. Canada (Attorney General),
[1995] 3 S.C.R. 199, at para. 160). In my view, an
outright exclusion of de facto spouses cannot be said to be minimally
impairing of their equality rights. A presumptively protective scheme, on the
other hand, with a right on the part of de facto spouses to opt out,
is an example of an alternative that would provide economically vulnerable
spouses with the protection they need, without in any way interfering with the
legislative objective of giving freedom of choice to those de facto
spouses who want to exercise it.
[361]
This Court has generally been reluctant to defer
to the legislature in the context of total exclusions from a legislative
scheme. In Eldridge v. British Columbia (Attorney General), [1997] 3
S.C.R. 624, the Court described the lack of funding for sign language
interpretation as an approach that did not “reasonably balanc[e] the competing social demands which
our society must address” (para. 93, citing McKinney v. University of Guelph,
[1990] 3 S.C.R. 229, at p. 314). Similarly, in Tétreault-Gadoury v. Canada
(Employment and Immigration Commission), [1991] 2 S.C.R. 22, the Court
held that, even allowing for “a healthy measure of flexibility . . ., the
complete denial of unemployment benefits [was] not an acceptable method of
achieving any of the government objectives” (p. 47). And in Vriend v. Alberta,
[1998] 1 S.C.R. 493, in the context of the total exclusion of sexual
orientation from human rights protections, the Court found that “the call for
judicial deference [was] inappropriate” (para. 127).
[362]
The antipathy towards complete exclusions is
hardly surprising, since the government is required under s. 1 to “explain why a significantly less intrusive and equally effective
measure was not chosen” (RJR-MacDonald, at para. 160). This will be a difficult burden to meet when, as
in this case, a group has been entirely left out of access to a remedial
scheme.
[363]
I concede that the
exclusion of de facto spouses from spousal support and property regimes
in Quebec was a carefully considered policy choice. As my colleague LeBel J.
points out, it was discussed and reaffirmed during successive family law
reforms from 1980 onwards. But the degree of legislative time, consultation
and effort cannot act as a justificatory shield to guard against constitutional
scrutiny. What is of utmost relevance is the resulting legislative choice.
Neither the deliberative policy route — nor the popularity of its outcome — is
a sufficient answer to the requirement of constitutional compliance.
[364]
This Court concluded in M. v. H. that there
should be deference to the policy choices that the legislature is “in a better
position than the court to make, as in the case of difficult policy judgments
regarding the claims of competing groups or the evaluation of complex and
conflicting social science research” (para. 79). But
it went on to find that the question of spousal support entitlement was not
a question on which the legislature should be given deference:
[Since] no group will be disadvantaged
by granting members of same-sex couples access to the spousal support scheme
under the [Family Law Act, R.S.O. 1990, c. F.3], the notion of deference
to legislative choices in the sense of balancing claims of competing groups has
no application . . . . [para. 126]
[365]
The argument was made that de facto spouses have other mechanisms
available to them that compensate for their exclusion from the support and
division of property regimes, specifically the ability to sign a cohabitation
agreement and the possibility of claiming for unjust enrichment. However, these contractual and statutory protections available to de facto
spouses in Quebec fall far short of what married and civil union spouses obtain
presumptively, both in their content and in their realistic availability to the
most vulnerable de facto spouses. The Court in
M. v. H. has already rejected the view that the availability of
either of these options meant that there was no discrimination against same-sex
couples who were excluded from spousal support. It held that “neither the
common law equitable remedies nor the law of contract are adequate substitutes
for the FLA’s spousal support regime” and that “if these remedies were
considered satisfactory there would have been no need for the spousal support
regime” (para. 124). As shall be seen, these alternatives are, in my
respectful view, equally inadequate as substitutes for division of property.
[366]
With respect to cohabitation agreements,
Iacobucci J. in M. v. H. found that they did not
provide an adequate justification for the exclusion of same-sex couples from
the statute (see para. 124). A contract requires
positive action on the part of the spouses. That means that “[t]hose who want to resolve support issues before the relationship
breaks down are forced either to expend resources to devise a suitable
contractual arrangement or risk being left without a remedy in law” (para.
122). De facto spouses face the same alternative with respect to
division of property: since they are excluded from presumptive statutory
regimes, they must either expend resources to create contractual protections or
accept the risk of being unprotected. Iacobucci J. noted further that contracts
provided inferior protection than a statute, such as against bankruptcy (para.
123).
[367]
As to the ability of de facto spouses to
claim unjust enrichment, M. v. H. also firmly rejected this as a viable
alternative for spousal support. The Court found that unjust enrichment
addressed different interests than a support order and that such a claim was
“more onerous [to] claimants [and] available under far
narrower circumstances” (para. 120). These comments
are a full answer to the notion that the availability of a claim for unjust
enrichment is an equitable substitute for spousal support.
[368]
A claim for unjust enrichment is equally inadequate as a substitute for a statutorily
presumptive division of property. The greatest
difference between unjust enrichment and the presumptive or mandatory division
of property in the Code is the burden placed on the claimant. While the partnership of acquests and the
family patrimony presume equal sharing, unjust enrichment requires the claimant
to establish his or her contribution before the court will order any
corresponding compensation.
[369]
Critical on this point,
in my view, is the legislative history of the family property provisions. As
discussed above, the family patrimony was adopted in
response to the perceived weaknesses of the compensatory allowance, which
allows a spouse to claim compensation for their demonstrated
contributions to the enrichment of the patrimony of the other spouse (art. 427 C.C.Q.).
In other words, the compensatory allowance fulfills a very similar role to
unjust enrichment. However, the National Assembly specifically decided that
the compensatory allowance was an insufficient remedy, because it imposed too
high a burden on the claimant. As a result, it established the family
patrimony, which was mandatory, did not require proof of contribution, and
presumed equal sharing. In light of the fact that the
legislature itself did not consider an unjust enrichment-type
remedy to be sufficient protection in marital spousal relationships, unjust
enrichment is an inadequate alternative remedy for de facto spouses
under s. 1 .
[370]
As this Court noted in Martin, we can look to the measures taken by the
rest of Canada in considering whether there are alternative, less infringing
options available (para. 112). Every other province has extended spousal
support to unmarried spouses. They have drawn different borders by setting
minimum periods of cohabitation before couples are subject to their regimes,
and have preserved freedom of choice by allowing couples to opt out.
Saskatchewan, Manitoba, British Columbia, Nunavut and the Northwest Territories
have also extended statutory division of property to unmarried spouses (with
British Columbia’s law to that effect not yet in force). In spite of the lack
of a uniform position on division of property, however, and regardless of the
various thresholds that the rest of Canada has drawn for unmarried spouses, the
existence of these alternatives to total exclusion is instructive.
[371]
Quebec is, of course, in no way obliged to mimic any other province’s treatment
of de facto spouses. Quebec not only has a separate system of private
law from the rest of Canada, it also has unique historical and societal values
which it has a right to express through its legislation. The fact of these
other regimes, however, can be helpful in determining that there is a
less impairing way to fulfill the objective of preserving freedom of
choice.
[372]
The current opt in protections may well
be adequate for some de facto spouses who enter their relationships with
sufficient financial security, legal information, and the deliberate intent to
avoid the consequences of a more formal union. But their ability to exercise
freedom of choice can be equally protected under a protective regime with an
opt out mechanism. The needs of the economically vulnerable, however,
require presumptive protection no less in de facto unions than in more
formal ones.
[373]
Professor Hélène Belleau’s expert report notes
that the de facto spouses in her sample most likely to be aware that
they did not benefit from the same legal protections as married or civil union
spouses were those familiar with law through their profession, their spouse’s
profession, or a prior separation with a previous spouse. Professor Belleau
explains that beyond this group who have had some personal or professional
experience with law, most spouses rarely consider, or are ignorant of, the law
surrounding de facto unions:
[translation] On the whole, it was clear that the respondents
were mistaken about the rights and obligations applicable to marriage, which
they associated more generally with conjugal life, and therefore also with
couples living in de facto unions. . . .
The majority of de facto
spouses and of married spouses think that couples who have been living together
in de facto unions for several years, or where they have children, have
the same rights and obligations in the case of a
breakdown. . . .
Aside from this
misunderstanding, it was also observed that couples rarely discuss legal
questions, in particular because such questions are incompatible with the
notion of being in love. To discuss the legal questions that circumscribe the
conjugal relationship inevitably leads one to foresee the possibility of an
eventual breakup. In the context of a proposed marriage or a de facto
relationship, these questions are not really compatible with the notion of
being in love. . . .
For the majority of de facto
spouses and of married spouses, legal questions are not included in the
reflection that takes place when deciding whether to get married. At any rate,
they believe that they have the same rights and obligations as married
spouses. [Joint Record, vol. 8, at pp. 70-71]
Similarly, in
“Controversy Over Couples in Canada: The Evolution of Marriage and Other Adult
Interdependent Relationships” (2003), 29 Queen’s L.J. 41, at p. 53,
Nicholas Bala points out that,
while
it is doubtless true that “some” cohabitants live together because they have
consciously chosen not to assume the obligations of marriage, many cohabitants
give little thought to their rights and obligations, or are ill-informed or
understandably confused about exactly what rights common-law partners have.
[374]
This echoes Dickson J.’s observations in Rathwell
that for many spouses, issues of economic or legal rights arising from their
relationship are not a preoccupation when the relationship is a happy one.
Many couples — married or de facto — simply “do not turn their minds to
the eventuality of separation and divorce” (p. 444). This lack of awareness of
a great number of de facto spouses, confirmed by the evidence, speaks to
the relative merit of a system of presumptive protection, under which they
would be protected whether aware of their legal rights or not, while leaving de
facto spouses who wish to do so the freedom to choose not to be protected.
[375]
A further weakness of the current opt-in system
is its failure to recognize that the choice to formally marry is a mutual decision.
One member of a couple can decide to refuse to marry or enter a civil union and
thereby deprive the other of the benefit of needed spousal support when the
relationship ends. In her dissenting reasons in Walsh, L’Heureux‑Dubé
J. observed that “[t]his results in a situation where one of the parties to
the cohabitation relationship preserves his or her autonomy at the expense of
the other: ‘The flip side of one person’s autonomy is often another’s
exploitation’” (para. 152, citing W. H. Holland, “Marriage and Cohabitation —
Has the Time Come to Bridge the Gap?”, in Special Lectures of the Law
Society of Upper Canada 1993 — Family Law: Roles, Fairness and Equality
(1994), 369, at p. 380). The case before us resonates with this observation:
Ms. A consistently wanted to marry, but Mr. B refused, depriving Ms. A of
access to the possibility of spousal support at the end of the relationship.
[376]
At the end of the day, the methodology for
remedying the s. 15 breach lies with the Quebec legislature. The Quebec scheme
currently gives de facto spouses the choice of entering into a contract
to enshrine certain protections, or marrying and receiving all the protections
provided by law, or remaining unbound by any mutual rights or obligations. None
of these choices is compromised by a presumptively protective scheme of some
sort. It is entirely possible for Quebec to design a regime that retains all
of these choices. Spouses who are aware of their legal rights, and choose not
to marry so they can avoid Quebec’s support and property regimes, would be free
to choose to remove themselves from a presumptively protective regime.
Changing the default situation of the couple, however, so that spousal
support and division of property protection of some kind applies to them, would
protect those spouses for whom the choices are illusory and who are left
economically vulnerable at the dissolution of their relationship.
[377]
In view of the conclusion that the provisions
are not minimally impairing since other mechanisms for preserving choice are
available, it is unnecessary, strictly speaking, to consider the final step of Oakes.
Nonetheless, there seems to me to be some value in clarifying why the
deleterious impact of the exclusion is more pronounced than its salutary
effects. The harm of excluding all de facto spouses from the protection
of the spousal support and family property regimes is clearly profound. Hallée
J. at the Superior Court found, based on census figures and expert reports,
that the number of de facto unions in Quebec continues to rise,
representing 34.6% of all Quebec unions in 2006. These exclusions thus impact
over a third of Quebec couples.
[378]
Being excluded requires potentially vulnerable de facto spouses, unlike potentially vulnerable spouses in formal unions, to
expend time, effort and money to try to obtain some financial assistance. If
the vulnerable spouse fails to take these steps, either through a lack of
knowledge or resources, or because of the limits on his or her options imposed
by an uncooperative partner, he or she will remain unprotected. The outcome
for such a spouse in the event of a separation can be, as it is for
economically dependent spouses in formal unions, catastrophic. The difference
is that economically dependent spouses in formal unions have automatic access
to the possibility of financial remedies. De facto spouses have no such
access.
[379]
The salutary impact of the exclusion, on the
other hand, is the preservation of de facto spouses’ freedom to choose
not to be in a formal union. Leaving aside the trenchant observation of
McLachlin J. in Miron about whether such choices are realistically
genuine, this freedom would be equally protected under a presumptive scheme.
Those for whom a de facto union is truly a chosen means to preserve
economic independence can still achieve this result by opting out. Since this
salutary effect can be achieved without in any way impairing a de facto spouse’s
freedom of choice, it cannot be said to outweigh the serious harm for
economically vulnerable de facto spouses that results from their
exclusion from the spousal support and family property regimes.
[380]
Because the distinction in excluding de facto
spouses from the protective support regime in art. 585 and the division of
property provisions in arts. 401 to 430, 432, 433 and 448 to 484 of the Civil
Code cannot be justified, these articles are unconstitutional.
[381]
I would therefore allow Ms. A’s appeal in part
and dismiss the appeals of the Attorney General of Quebec and Mr. B.
English
version of the reasons of Deschamps, Cromwell and Karakatsanis JJ. delivered by
[382]
Deschamps J. (dissenting in part in result) — I agree with Abella J. that the Quebec legislature has
infringed the guaranteed right to equality by excluding de facto spouses
from all the measures adopted to protect persons who are married or in civil
unions should their family relationships break down. Unlike my colleague,
however, I do not view all these measures as a package. Nor can I endorse the
position of my colleague LeBel J. that the majority of the protective
measures constitute a mandatory primary regime with a single dominant objective.
Although support and the measures relating to patrimonial property have some
of the same functions and objectives, they cannot and must not be confused with
one another. The needs they address and how the legislature has dealt with
them in the past warrant their being considered separately. My analysis leads
me to conclude that only the exclusion from support is not justified under
s. 1 of the Canadian Charter of Rights and Freedoms (“Charter ”).
[383]
Aside from support, the measures in question are
the matrimonial regime, the compensatory allowance, the family residence and
the family patrimony. The effect of these various measures, which are the
result of successive actions by the Quebec legislature, has been to gradually
increase the protection provided to married and civil union spouses. However,
art. 585 of the Civil Code of Québec, S.Q. 1991, c. 64 (“C.C.Q.”),
establishes that the right to support granted to persons in need who are part
of the family unit is distinct in that it does not have a compensatory function
and does not depend on the consent of the debtor of support. This provision is
different from the provisions on partition of property, which address a greater
variety of needs, including the needs to protect vulnerable spouses, to
compensate for contributions made by the parties while living together and to
recognize the economic union formed by married and civil union spouses. I
agree with the Court of Appeal’s conclusion that the exclusion of de facto
spouses from the protection of support cannot be treated the same way as their
exclusion from that of the other measures (2010 QCCA 1978, [2010] R.J.Q.
2259). For the reasons that follow, I would dismiss the appeals.
[384]
In my analysis on the right of de facto
spouses to equality, I will not be relying directly on Nova Scotia
(Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325. I
find that certain aspects of that decision have not survived the recent
decisions of this Court in R. v. Kapp, 2008 SCC 41, [2008]
2 S.C.R. 483, and Withler v. Canada (Attorney General), 2011 SCC
12, [2011] 1 S.C.R. 396, particularly the fact that, according to it, the
possibility for the parties of marrying to benefit from the measures relating
to patrimonial property was one of the factors to be applied in determining
whether the right to equality was infringed rather than in determining whether
the infringement was justified under s. 1 of the Charter . In my
opinion, the fact that the parties’ freedom of choice was invoked at the
infringement stage of the analysis can only be attributed to the application of
the test established in Law v. Canada (Minister of Employment and
Immigration), [1999] 1 S.C.R. 497. The autonomy of the will of the
parties becomes relevant only at the justification stage, since this is the
objective being pursued by the Quebec legislature.
[385]
My colleagues LeBel and Abella JJ. do not
take issue with the recognition of marital status as an analogous ground for
the purposes of the analysis under s. 15 of the Charter .
LeBel J. finds that the distinction at issue is not discriminatory. With
respect, I agree instead with Abella J.’s analysis of s. 15 of the Charter .
The exclusion of de facto spouses from the protections provided for in
the C.C.Q. perpetuates a historical disadvantage (Withler, at
paras. 3, 35, 37 and 54). The Court has recognized the fact of being
unmarried as an analogous ground because, historically, unmarried persons were
considered to have adopted a lifestyle less worthy of respect than that of
married persons. For this reason, they were excluded from the social
protections. Even though society’s perception of de facto spouses has
changed in recent decades and there is no indication that the Quebec
legislature intended to stigmatize them, the denial of the benefits in question
perpetuates the disadvantage such people have historically experienced (Miron
v. Trudel, [1995] 2 S.C.R. 418, at para. 152). The Attorney
General of Quebec therefore had to justify this distinction.
I. Justification
[386]
From a functional perspective, all the impugned
measures have the effect of protecting married and civil union spouses who are
in need following a separation. However, since support and the other
protections do not have all the same bases, I find that the Court of Appeal was
correct to distinguish support.
[387]
In Bracklow v. Bracklow, [1999]
1 S.C.R. 420, at para. 15, McLachlin J. (as she then was),
writing for the Court, recognized that there are three possible bases for
support: the first is compensatory, the second contractual and the third non‑compensatory.
Although the “autonomist” trend that has predominated for the last
50 years or so has emphasized the compensatory and contractual aspects,
the non‑compensatory basis nevertheless continues to be relevant.
McLachlin J.’s comments on the non‑compensatory basis for support in
the context of marriage are general enough to extend to de facto spouses
(para. 31):
The
mutual obligation view of marriage also serves certain policy ends and
social values. First, it recognizes the reality that when people cohabit
over a period of time in a family relationship, their affairs may become
intermingled and impossible to disentangle neatly. When this happens, it is
not unfair to ask the partners to continue to support each other (although
perhaps not indefinitely). Second, it recognizes the artificiality of
assuming that all separating couples can move cleanly from the mutual support
status of marriage to the absolute independence status of single life,
indicating the potential necessity to continue support, even after the marital
“break”. Finally, it places the primary burden of support for a needy
partner who cannot attain post‑marital self‑sufficiency on
the partners to the relationship, rather than on the state, recognizing the
potential injustice of foisting a helpless former partner onto the public
assistance rolls. [Emphasis added.]
[388]
These comments, together with others she had made in Miron, make it clear that the
non‑compensatory basis is just as valid for de facto spouses as
for married and civil union spouses, since de facto spouses may find
themselves in a position of vulnerability without having had the choice of
getting married or not getting married (Miron, at para. 153):
In
theory, the individual is free to choose whether to marry or not to marry. In
practice, however, the reality may be otherwise. The sanction of the union by
the state through civil marriage cannot always be obtained. The law; the
reluctance of one’s partner to marry; financial, religious or social
constraints — these factors and others commonly function to prevent partners
who otherwise operate as a family unit from formally marrying. In
short, marital status often lies beyond the individual’s effective control. [Emphasis added.]
[389]
The changes that have been made to the rules
governing support in Quebec confirm that this measure is distinct. In the
codification of 1866, the Quebec legislature provided that married persons had
an obligation of succour to one another (art. 173 of the Civil Code of
Lower Canada, obligation reiterated in art. 392 of the Civil Code
of Québec). At the time of the major reform of family law in 1980, the
legislature considered it appropriate to make the obligation of support
resulting from the creation of a family unit a separate requirement. That
obligation was incorporated into the Civil Code of Québec (1980), in
art. 633. When the Civil Code of Québec was enacted in 1991, the
obligation was set out in art. 585, which is in Book Two on
the family, under Title Three, “Obligation of Support”. That title
is separate from the one dealing with the rules of marriage, namely Title One,
“Marriage”. In 2002, the obligation in question was extended to civil union
spouses.
[390]
It can be seen from the legislative history as
set out by LeBel J. that the autonomist trend had a strong influence on
the reform of the rules governing cohabitation. However, that trend was not
what led to the recognition of the obligation of support itself or to the
decision to make it a separate obligation. Rather, art. 585 reflects the
non‑compensatory basis, which is closely tied to the creation of the
“family unit” referred to in Miron. This interpretation is reinforced
by the observation that art. 585 includes not only married and civil union
spouses but also children and relatives. In short, the family unit benefits
from the right to support.
[391]
The bases for the other disputed measures vary.
Several of them can easily be linked to the autonomist movement, while others
are motivated by a desire to protect the disadvantaged spouse and establish
rules of fairness between spouses. The oldest of the measures, the legal
regime of partnership of acquests (art. 432), was adopted in 1970. As
LeBel J. explains, it was introduced to counter a tendency among spouses
to choose the regime of separation of property, which often left wives with
nothing if the marriage broke down. The regime of partnership of acquests
gives spouses control over the property they acquire during the marriage and
provides a basis for recognizing, if the marriage breaks down and property is
to be partitioned, that the marriage gave rise to an “economic union” that
results in a presumptive claim to equal standards of living: Moge v. Moge,
[1992] 3 S.C.R. 813, at p. 870. Two of the other measures were part of
the major reform of family law that took place in 1980: the compensatory
allowance (arts. 427 to 430) and the family residence (arts. 401 to
413). As can be seen from the wording of art. 427, the former has a
compensatory basis and is intended to recognize the contribution one spouse may
have made to the other spouse’s patrimony. The purpose of this measure is to
protect the spouse who made the contribution, thereby ensuring that the
spouses’ economic autonomy is recognized — one spouse does not work for the
other as a volunteer. As for the provisions protecting the family residence,
their fundamental purpose is to protect the family unit. The final measure,
the family patrimony (arts. 414 to 426), dates back to 1989. I agree with
LeBel J. that the legislature’s objectives were to “remedy the problems
encountered by women who had married under the regime of separation of
property, make up for the ineffectiveness of the compensatory allowance and
redefine marriage” (para. 74). Thus, the purpose of these provisions is,
first and foremost, to protect the contributions made by the spouses and
establish a legislative framework for the economic partnership of the parties in
relation to family property.
[392]
Because of the diversity of legislative sources
and the variety of objectives being pursued and means that have been adopted by
the Quebec legislature, it is impossible to place the majority of the measures
at issue under a single umbrella, that of the “protection of vulnerable
persons”, or to conclude that these measures should form an inflexible unit
described as a “primary” regime, which, I should add, is a concept to which the
legislature did not refer. Moreover, the measures that protect the patrimony
of spouses are not, like support, focused on the basic needs of the vulnerable
spouse. Their purpose is to ensure autonomy and fairness for couples who have
been able to, or wanted to, accumulate property.
[393]
There is another reason, a pragmatic one, why a
distinction must be drawn between the measures related to property and those
related to support. Whereas a plan to live together takes shape gradually and
can result in the creation of a relationship of interdependence over which one
of the parties has little or no control, property such as the family residence
or pension plans can be acquired only as a result of a conscious act. The
process that leads to the acquisition of a right of ownership is different from
the one that causes a spouse to become economically dependent. In short, I
find that the Court of Appeal was correct to distinguish the right to support
from the patrimonial rights.
II. Support
[394]
I agree with Abella J. that, since the
parties do not really dispute that the objective of promoting the autonomy of
the parties is pressing and substantial, the Court need not discuss this stage
of the justification analysis in detail. I also agree with her that there is a
rational connection, given that even a tenuous connection will satisfy the
constitutional requirement in this regard. Since the obligation of support is
mandatory for married and civil union spouses, the exclusion of de facto
spouses means that those who do not wish to be bound by such an obligation are
able to avoid it. This is the confirmation of a situation that, although
undesirable in cases in which interdependence is the cause of the vulnerability
of the spouse in need, constitutes a form of autonomy nonetheless.
[395]
However, I cannot agree that this measure meets
the minimal impairment test. The affected interest is vital to persons who
have been in a relationship of interdependence. I will take the liberty of
adapting the following comment of Cory and Iacobucci JJ. in M. v.
H., [1999] 2 S.C.R. 3, at para. 72, to the context of the case at
bar:
. . . the
interest protected by [support] is fundamental, namely the ability to meet
basic financial needs following the breakdown of a relationship characterized
by intimacy and economic dependence. Members of [unmarried] couples are
entirely ignored by the statute, notwithstanding the undeniable importance to
them of the benefits accorded by the statute.
[396]
The rationale for awarding support on a non‑compensatory
basis applies equally to persons who are married or in a civil union and to de
facto spouses. If the legal justification for support is based on, among
other things, the satisfaction of needs resulting from the breakdown of a
relationship of interdependence created while the spouses lived together, it is
difficult to see why a de facto spouse who may not have been free to
choose to have the relationship with his or her spouse made official through
marriage or a civil union, but who otherwise lives with the latter in a “family
unit”, would not be entitled to support. For someone in such a position, the
possibility the parties have, according to the Attorney General, of choosing to
marry or to enter into a civil union does not really exist. As the majority of
the Court recognized in Miron, it is possible for a couple to remain
unmarried contrary to the ardent wish of one of its members, the vulnerable
one. As McLachlin J. said, freedom of choice is, or may be, theoretical.
[397]
The Quebec government’s decision to take care of
persons in need by providing them with social assistance benefits is not likely
to make up for the exclusion of de facto spouses from the protection of
support. Minimalist assistance such as this is not an adequate response.
Social assistance is intended to be a measure of last resort and is not a
reasonable substitute for support from a spouse who can afford to pay it.
[398]
In Walsh, since the Court was not dealing
with the issue of exclusion from support, it did not enquire into either the
bases for the obligation of support or the fact that a relationship of
interdependence may develop and be imposed on one of the parties without his or
her having made a personal choice in this regard. That case is therefore of no
assistance on this aspect of the instant case.
[399]
The concept of “mutual obligation” as the non‑compensatory
basis for the obligation of support must guide legislators in seeking ways to
promote the autonomy of the parties while interfering as little as reasonably possible
with the right to support itself. A total exclusion from the right to support
benefits only de facto spouses who want to avoid the obligation of
support, and it impairs the interests of dependent and vulnerable former
spouses to a disproportionate extent. The legislature could, for example, have
imposed on the parties an obligation to resolve their separation fairly and
imposed on the dissatisfied party the burden of proving that the conditions of
separation are unfair. Such a requirement would respect the autonomy of the
parties while preventing abuse. This is only one of a number of possible
solutions, and I mention it only to illustrate the fact that the legislature
has less intrusive means at its disposal. The finding that there is a total exclusion
from support without any mitigation of the effects of that exclusion is
sufficient for me to conclude, like the Court of Appeal, that this measure is
not justified under s. 1 of the Charter .
III. Measures Related to Rights of Ownership
[400]
In my opinion, I must accept, as in the case of
support, that the objective of promoting the autonomy of the parties is
pressing and substantial and that a rational connection has been established.
[401]
Regarding the compensatory allowance, I find
that the exclusion of de facto spouses from this measure represents a
minimal impairment. On the one hand, the right is in effect patrimonial in
nature. In this regard, I take into account my conclusion that a spouse who
can afford to do so must pay support to a spouse who needs it. The negation of
this protective measure therefore does not compromise the basic ability of the
former spouse to survive the breakdown of the relationship of interdependence
with as much dignity as possible. On the other hand, although the legislature
did not eliminate this measure, the debate that preceded the enactment of the
provisions on the family patrimony shows that it was dissatisfied with
decisions in which courts had failed to give sufficient recognition to the
spouses’ respective contributions. That debate should provide the courts with
a sound basis for interpreting the Civil Code’s provisions on unjust
enrichment in a manner consistent with the concept of equality entrenched in
the Charter . Although total exclusion was certainly not the only
possible solution for the legislature, the means that are still available to
the vulnerable party are sufficient to meet the minimal impairment and balance
of convenience tests.
[402]
As for the partnership of acquests — the legal
matrimonial regime — I find that this measure is also justified. First, this
right too is patrimonial in nature. Unlike support, this measure does not
relate to the ability of vulnerable persons to meet their basic needs. Next,
participation in the legal regime requires a positive action by the parties.
It is not a state resulting solely from the passage of time like the state of
dependency that can gradually take hold in the parties’ relationship. Although
it is not a contract, the formalization of a union through a marriage or civil
union ceremony nevertheless constitutes consent that is given at a specific
time, most often before a relationship of interdependence develops. In seeking
ways to promote the autonomy of the parties, it was difficult for the
legislature to avoid providing for, in parallel with the conventional regimes
and the legal regime, a “no regime” option. In addition, like married and
civil union spouses who opt for the legal regime, de facto spouses,
while living together, remain completely autonomous and retain full ownership
of the property they acquire. Of course, some de facto spouses will not
be concerned about maintaining a fair division of the property acquired during
the time they live together. If one spouse has been unjustly enriched at the
other’s expense, however, this could be rectified by an action for unjust
enrichment, interpreted, as I mentioned above, generously and in a manner
consistent with the Charter .
[403]
My reasons for concluding that the exclusion of de
facto spouses from the protection of the family patrimony is justified are
similar to those set out above. First, the affected interest is once again
patrimonial in nature. Next, property becomes part of the family patrimony
because the parties have deliberately decided to acquire it. Neither a
residence nor movable property becomes part of a party’s patrimony over time
without concrete action being taken. Unlike the interdependence that sometimes
steals into conjugal life, over which the parties have no real control, the
acquisition of patrimonial property results from decisions regarding which the
government is justified in respecting the autonomy of the parties. The rules
on the family patrimony were not established without causing a stir in Quebec
society. At the time when they were adopted, there were transitional measures
allowing married spouses to opt out of the protection so that they could not
complain that their property had been “expropriated”. In the future,
individuals would be able to opt out of these rules by not marrying.
[404]
I recognize that support and the division of
assets are both measures that make it possible to ease the burden created by
the breakdown of a relationship of economic interdependence. However, the
division of patrimonial property on the basis of an economic union in which
each party is entitled to an equal share is based first and foremost on a
laudable objective pursued by the legislature. The government had the power to
impose measures of patrimonial protection on a given group, and it was not
obliged to impose them on everyone. Those who are excluded from the
application of these measures nevertheless do not lack ways to form an economic
union analogous to the one imposed on persons who are married or in a civil
union; they can, for example, purchase their residence jointly. There are
protections that apply to spouses even if they have not formalized their
relationship by choosing a protected form of union. As I mentioned above, a
vulnerable spouse who is in need could be awarded support. Thus, in assessing
what the debtor of support can afford to pay, the court must take all the
debtor’s resources, including patrimonial property, into account. To ensure
that the needs of the spouse in need are met, the court does not necessarily
have to make an award of patrimonial property.
[405]
In light of the objective of promoting the
autonomy of the parties, the positive actions the parties must take to acquire
family property and the flexibility the courts have in assessing the resources
available for the payment of support, I find that the exclusion of de facto spouses
from the protection of the family patrimony satisfies the minimal impairment
requirement.
[406]
The disadvantages of this measure do not
outweigh its advantages, since, although the parties do not have an automatic
right, there are nevertheless other ways for them to obtain sufficient
protection.
[407]
One issue remains: that of the family
residence. Although this protection was originally adopted as a separate
measure from the protection of the family patrimony, there are now a number of
ways in which these two measures overlap, so I do not intend to engage in a
separate analysis. However, I would note that the courts have taken a flexible
approach, exercising their incidental powers with regard to the family
residence. Indeed, an order to that effect was made in the instant case.
[408]
In summary, I conclude that the exclusion of de
facto spouses from support is not justified, but that their exclusion from
the patrimonial measures is justified.
[409]
For these reasons, I would dismiss the appeals
and affirm the decision of the Court of Appeal to suspend the declaration of
constitutional invalidity of art. 585 C.C.Q. for a period of 12
months, without costs.
The following are the reasons
delivered by
[410]
The Chief Justice — One of the responsibilities of provincial legislatures across Canada is to provide laws to deal
with disputes concerning support and property of couples in conjugal
relationships. In the old days, the problem was seen as simple; most couples
were married, and it sufficed — or was thought to suffice — to pass laws
regulating what happened when married couples separated.
[411]
No longer are matters so simple. Increasingly,
in all parts of Canada, couples are choosing to live together without being
married. The stigma that once attached to these relationships has faded. The
law has recognized that married couples and unmarried couples are entitled to
equal treatment, for example with respect to insurance regime benefits, and
that treating married couples differently from unmarried couples may be
discriminatory and violate the equality guarantee of s. 15 of the Canadian
Charter of Rights and Freedoms : Miron v. Trudel, [1985] 2 S.C.R.
418.
[412]
The legislatures of different provinces have
responded to this challenge in different ways. In many parts of Canada, the
choice has been to apply to de facto spouses an attenuated version of
the mandatory regime that applies to married couples, unless the de facto
couple formally chooses to opt out. For example, some provinces apply to de
facto spouses the spousal support aspects of the mandatory regime
applicable to married spouses. The Province of Quebec has chosen a different
approach. Its law contemplates two completely different and distinct legal
regimes — one for married couples and couples in civil unions, and one for de
facto spouses. Couples who choose to marry or to enter into a civil union
are subject to a mandatory regime governing both property and support (the
“mandatory regime”). Upon separation, the family patrimony is divided between the
spouses, and one spouse may be ordered to make support payments to the other.
Couples who choose not to marry or to enter into a civil union — and this
category is much larger in Quebec than in other provinces — are not subject to
the mandatory regime that applies to married and civil union couples, and are
free to craft whatever arrangements suit them. Unless they provide otherwise,
each partner holds his or her property as an individual, and cannot be ordered
to divide it with the other partner on separation. Nor, subject to exceptions
related to children, can one partner be ordered to pay support to the other
partner.
[413]
Underlying the Quebec policy is the desire to
enhance the right of Quebec couples to choose the regime they prefer, the one
that best suits their particular needs. The policy is aimed at enhancing their
choice and autonomy. Instead of a single norm based on the mandatory regime,
there is a distinct choice between two different regimes: the mandatory regime,
providing for a division of property and spousal support upon the dissolution
of marriage or civil union, and a regime of full autonomy, allowing de facto
spouses complete freedom to provide for the consequences of a break-up.
The evidence is clear that this dual regime approach enjoys wide popularity in
Quebec; many couples deliberately choose not to marry or to enter into a civil
union in order to avoid the mandatory regime. If a couple does not marry or
enter into a civil union, they will not be required to share their property or
pay spousal support if the relationship ends. No special opt-out agreement is
required, unlike in other provinces. The Quebec approach is grounded in
Quebec’s unique history and social situation, as my colleague LeBel J.
explains.
[414]
The issue in this case is whether the Province
of Quebec can maintain the dual regime approach that its legislature has
adopted. A argues that this approach is unconstitutional because it
unjustifiably discriminates against de facto spouses by denying them
access to the more protective mandatory regime that applies to married and
civil union couples. Accordingly, she argues that the Quebec law must be
struck down and replaced by a regime that treats married, civil union and de
facto spouses the same with respect to property division and spousal
support upon separation.
[415]
I agree with LeBel J. that the Quebec dual
regime approach is constitutional. Unlike LeBel J., I conclude — as do my
colleagues Deschamps J. and Abella J. — that the law violates the equality
guarantee in s. 15 of the Charter . However, I find that the limit on the
equality right of de facto spouses imposed by the law is reasonable and
justifiable in a free and democratic society. Quebec’s goal is to enhance the
choice and autonomy of couples in conjugal relationships. This policy goal is
important to Quebec. Treating de facto spouses differently from married
and civil union spouses enhances this goal, and does so in a proportionate
way. The fact that Quebec has chosen a different policy than other provinces
in keeping with its own history and social values does not make the law
unconstitutional.
I. Section 15 : Does the
Quebec Law Discriminate Against De Facto Spouses?
A. The Section 15 Analysis
[416]
I agree with the s. 15 analysis set out in
Abella J.’s reasons, which flows from the refinements to the s. 15 analysis
that the Court made in R. v. Kapp, 2008 SCC 41, [2008]
2 S.C.R. 483, and Withler v. Canada (Attorney
General), 2011 SCC 12, [2011] 1 S.C.R. 396. I
disagree, however, as to whether the legislative scheme is justified under s. 1
of the Charter .
[417]
Section 15 of the Charter protects against discrimination
on the basis of personal characteristics, the enumerated or analogous grounds.
Marital status is such a ground. To constitute discrimination, the impugned
law must have the purpose or effect “of perpetuating or promoting the view that
the individual is less capable or worthy of recognition or value as a human
being or as a member of Canadian society, equally deserving of concern,
respect, and consideration”: Law v. Canada (Minister of
Employment and Immigration), [1999] 1 S.C.R. 497,
at para. 88(3) (C); see also Andrews v. Law Society of British
Columbia, [1989] 1 S.C.R.
143, at p. 171.
[418]
Most recently, this Court has articulated
the approach in terms of two steps: (1) Does the law create a distinction based
on an enumerated or analogous ground? (2) Does the distinction create a
disadvantage by perpetuating prejudice or false stereotyping?: Kapp, at
para. 17; Withler, at para. 30. While the promotion or the perpetuation
of prejudice, on the one hand, and false stereotyping, on the other, are useful
guides, what constitutes discrimination requires a contextual analysis, taking
into account matters such as pre-existing disadvantage of the claimant group,
the degree of correspondence between the differential treatment and the claimant
group’s reality, the ameliorative impact or purpose of the law, and the nature
of the interests affected: Withler, at para. 38; Kapp, at para.
19.
[419]
A few further points that touch on differences
between my reasons and those of LeBel J. bear noting. First, the issue of
whether the law is discriminatory must be considered from the point of view of
“the reasonable person, dispassionate and fully apprised of the circumstances,
possessed of similar attributes to, and under similar circumstances as, the
claimant”: Law, at para. 60.
[420]
Second, a legal distinction can be
discriminatory either in purpose or in effect. As a practical matter,
legislatures seldom set out to discriminate on purpose; discrimination when it
occurs is usually a matter of unintended effect.
[421]
Finally, and related to
this, it is important to maintain the analytical distinction between s. 15 and
s. 1 . While the public policy basis for legislation has a limited relevance to
the s. 15 analysis, it is central to the s. 1 inquiry: see Andrews, at
pp. 177-78. This flows from the two-stage model of constitutional review
inherent in the Charter . As Aharon Barak, former President of the
Supreme Court of Israel, puts it:
. . . what is the case when
the legal system has adopted a two-stage model [of constitutional review], such
as in Germany, Canada, South Africa, and Israel? . . . Should public interest
considerations be included in the first stage or the second or in both stages?
Should public interest considerations affect the determination of the right’s
scope, or should consideration of these interests be postponed to the stage of
. . . the discussion regarding proportionality?
. . .
The proper location
for public interest considerations is in the second stage of the constitutional
review, as part of the discussion of the justification of the limitation on the
constitutional right.
(Proportionality:
Constitutional Rights and their Limitations (2012), at pp. 75-76)
B. Application of the Section 15 Framework to A’s Claim of
Discrimination
[422]
The first question is whether this Court’s
decision in Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002]
4 S.C.R. 325, resolves this appeal. Like my colleague Abella J., I am of the
view that Walsh does not bind this Court in the present case. Walsh involved
different issues (division of property only) and was decided at an earlier
point in our evolving appreciation of s. 15 . More fundamentally, however, I
agree with Abella J. that freedom of choice and individual autonomy, which were
held in Walsh to negate a breach of s. 15 , are better considered at the
s. 1 stage of the analysis. Freedom of choice and autonomy are public interest
considerations. They are relied on by Quebec to justify the obvious fact that
its law may disadvantage some de facto spouses by denying claims to
property division and support in circumstances where they may not have truly
chosen to forego the protections of the mandatory regime, but rather have been
unable to access them due to their partner’s refusal to marry. As discussed
above, under s. 15 of the Charter , public policy considerations
should be considered at the second stage of the constitutional analysis.
[423]
In my view, the Quebec
dual regime approach makes discriminatory distinctions that limit the s. 15
equality right of de facto spouses. All the elements of a s. 15
violation are present. The law denies de facto spouses protections
available to married and civil union spouses. These distinctions are made on
the basis of the analogous ground of marital status: Miron. The
distinctions create a disadvantage: de facto spouses do not
automatically benefit from a series of provisions that ensure an equitable
division of property and continued financial support at the end of a
relationship characterized by financial interdependence (Civil Code of
Québec, S.Q. 1991, c. 64, arts. 401 et seq., 414 et seq., 427
et seq., 432 and 585). Finally, the disadvantage is discriminatory from
the point of view of a reasonable person placed in circumstances similar to
those of A. The law in fact shows less concern for people in A’s position than
for married and civil union spouses on break-up of the relationship. As it
applies to people in A’s situation, it perpetuates the effects of historical
disadvantage rooted in prejudice and rests on a false stereotype of
choice rather than on the reality of the claimant’s situation.
[424]
LeBel J.’s review of the
relevant legislative history demonstrates that the purpose and intent animating
the impugned provisions are not discriminatory. The Quebec legislature did not
view de facto spouses as inferior or second-class spouses.
[425]
However, this does not
end the inquiry. It is necessary to go on to ask whether the adverse
distinctions made by the law against de facto spouses discriminate
against them in effect, on the approach to s. 15 set out above.
[426]
In its effect, the
Quebec scheme denies separated de facto partners important protections
that it accords to separated married and civil union partners, despite the fact
that they may not have meaningfully exercised a choice of regime. It is
reasonable to infer from this, subject to a full analysis of the relevant contextual
factors, that the law that denies them these protections treats them as less
deserving of concern, respect and consideration.
[427]
A reasonable person in
A’s situation would conclude that the law perpetuates pre-existing
disadvantage. De facto spouses in Quebec suffer from significant
pre-existing disadvantage. Until the enactment of the family law reform in
1980, the legislation actively discouraged and marginalized de facto
spousal relationships, by prohibiting de facto spouses from
contractually agreeing to obligations stemming from their relationships and by
de-legitimizing their offspring. While the legislative animus that underlay
those measures has disappeared, the present law continues to exclude de
facto spouses from the protective schemes of Quebec family law.
[428]
Equally, a reasonable person in A’s position
would conclude that in denying her recourse to spousal support and equitable
property division, the law relies on false stereotypes. The law assumes that de
facto partners choose to forego the protections it offers to married and
civil union partners. Yet people in A’s situation have not in fact chosen to
forego the protections of the mandatory regime. A’s real choice was of a
different nature: she could either remain in a de facto relationship
with B, or walk away from it after having become accustomed to the lifestyle
she shared with him. More broadly, the law rests on the assumption that de
facto partners will provide for their needs by making their own agreements
or arrangements for property and support. Again, for claimants in A’s
situation, this assumption fails to accord with the reality of their situation.
[429]
What then of context? Quebec’s argument is that when the denial of protection to de facto partners
is considered in the context of the absence of prejudice against de facto
partners in Quebec and the desire to enhance the choice and autonomy of Quebec
couples, the denial does not promote the view that de facto partners are
less worthy of concern and protection than married and civil union partners,
and hence is not discriminatory.
[430]
The first difficulty with this argument is that it does not consider the distinction from the perspective
of a reasonable person in the claimant’s position, as the equality
jurisprudence requires. It may be that some de facto spouses are not
prejudiced by the law because they choose to be unmarried and make alternate
agreements or arrangements that suit them. But from the perspective of a
person in the claimant’s position, who has as a matter of fact been denied the
right to choose, it is reasonable to view the law as treating her as less
deserving of concern and consideration than married and civil union spouses.
[431]
The second and related difficulty with Quebec’s
argument is that it imports public interest considerations — the goal of
maximizing choice and autonomy for conjugal partners as a whole — into the s.
15 analysis. Such interests, as I discussed above, should not be considered at
the first stage of determining whether a right has been limited, but at the
second stage of determining whether the limitation on the right is justified.
II. Is the Breach of Section 15 Justified Under
Section 1 of the Charter ?
[432]
The equality analysis under the Charter
is a two-stage process. The first stage asks whether the law limits the right
at issue. The second stage asks whether that limit is reasonable and justified
in a free and democratic society (s. 1 ).
[433]
For the reasons just discussed, I conclude that
the dual regime approach — which denies de facto spouses the protections
of the mandatory regime accorded to married and civil union spouses — treats de
facto spouses unequally and discriminates against them contrary to s. 15 of
the Charter . The remaining question is whether this limit on the
equality right of de facto spouses is justified under s. 1 of the Charter .
[434]
The state bears the burden of establishing
justification on a balance of probabilities. The state must demonstrate (1) a
sufficiently important objective to justify an infringement of a Charter right,
(2) a rational connection between that objective and the means chosen by the
state, (3) that the means are minimally impairing of the right at issue, and
(4) that the measure’s effects on the Charter -protected right are
proportionate to the state objective: R. v. Oakes, [1986] 1 S.C.R. 103.
A. An Important Objective
[435]
The objective of the distinction between de
facto spouses and married or civil union couples made by the Quebec dual
regime approach is to promote choice and autonomy for all Quebec spouses
with respect to property division and support. Those who choose to marry
choose the protections — but also the responsibilities — associated with that
status. Those who choose not to marry avoid these state-imposed
responsibilities and protections, and gain the opportunity to structure their
relationship outside the confines of the mandatory regime applicable to married
and civil union spouses.
[436]
The legislature pursued this objective in
response to rapidly changing attitudes in Quebec with respect to marriage,
namely a rejection of the gender inequalities associated with the tradition of
marriage, a shift away from the influence of the Church and the assertion of
values linked to individualism: B. Moore, “Culture et droit de la famille: de
l’institution à l’autonomie individuelle” (2009), 54 McGill L.J. 257, at
p. 268. The legislator sought to accommodate the social rejection of the
traditional control by the state and the Church over intimate relationships. When
the family patrimony provisions were adopted in Quebec, the responsible
Minister stated that a harmonization of the legislative treatment of marriage
and of de facto spousal relationships [translation]
“would not be without consequences, for what then would be the meaning
of marriage or the value in the civil context of religious marriage, and what
would be the form of union developed by those who do not want to be regulated?”:
National Assembly, Journal des débats, vol. 30, No. 125, 2nd Sess., 33rd
Leg., June 8, 1989, p. 6487 (emphasis added).
[437]
The objective of the law is sufficiently
important to justify an infringement of the right to equality.
B. Rational Connection
[438]
The distinction made by the law between married,
civil union and de facto spouses is rationally connected to the state
objective of preserving the autonomy and freedom of choice of Quebec spouses.
Without this distinction, the clear choice between a regime of division of
property and support on the one hand, and a regime of full autonomy on the
other hand, would be absent. The Quebec approach only imposes state-mandated
obligations on spouses who have made a conscious and active choice to accept
those obligations. The requirement of an active choice to undertake obligations
is consistent with the objective of enhancing autonomy.
C. Minimum
Impairment
[439]
The Oakes test requires that impugned provisions impair the infringed right
“as little as is reasonably possible”: R. v. Edwards Books and Art Ltd.,
[1986] 2 S.C.R. 713, at p. 772. This Court has recognized that the state must
have a margin of appreciation in selecting the means to achieve its objective: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 999; Alberta
v. Hutterian Brethren of Wilson Colony, 2009 SCC
37, [2009] 2 S.C.R. 567, at paras. 35 and 53; Edwards Books and Art.
The question is whether the impugned provisions fall within a range of
reasonable alternatives: Lavoie v. Canada, 2002 SCC 23, [2002] 1 S.C.R. 769, at para. 61; RJR-MacDonald
Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160; McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at pp. 285-86;
Hutterian Brethren, at para. 37. This is particularly the case where the
impugned measures “attempt to strike a balance between the claims of legitimate
but competing social values”: McKinney, at p. 285; Hutterian Brethren,
at para. 53.
[440]
In addition, the minimum
impairment test is informed by the values of federalism. “The uniformity of
provincial laws that would be entailed by a stringent requirement of least
drastic means is in conflict with the federal values of distinctiveness,
diversity and experimentation”: P. W. Hogg, Constitutional Law of
Canada (5th ed. Supp. (loose-leaf)), vol. 2, p. 38-39; see also R. v.
Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209, at
para. 275. The test must not be applied in a manner that amounts to
identifying the Canadian province that has adopted the “preferable” approach to
a social issue and requiring that all other provinces follow suit.
[441]
A argues that the Quebec
dual regime approach does not minimally impair the equality right of de
facto spouses. She argues that choice and autonomy can be respected
without excluding de facto spouses entirely from the mandatory regime
applicable to married and civil union spouses. She points to other provinces,
where aspects of the mandatory regime apply to de facto spouses, unless
they have formally opted out of that regime. Under such schemes, de facto
spouses are denied protection only if they have agreed to that result. Unlike
A, they are not effectively left unprotected because their partner did not
consent to marriage. She also argues that a scheme that allowed for judicial
intervention where property division and/or support are warranted would be less
impairing of her equality right than the current scheme.
[442]
There is no doubt that schemes can be conceived
— and indeed have been adopted in other provinces — that impair the equality
right of de facto spouses to a lesser degree than the Quebec scheme.
However — and this is the important point — such approaches would be less
effective in promoting the goals of the Quebec scheme of maximizing choice and
autonomy for couples in Quebec. The question at the minimum impairment stage
is whether the limit imposed by the law goes too far in relation to the goal
the legislature seeks to achieve. “Less drastic means which do not actually
achieve the government’s objective are not considered at this stage”: Hutterian
Brethren, at para. 54.
[443]
A presumptive scheme
that applied the mandatory regime to all spouses, subject to the right to opt
out, would automatically sweep in all couples. Even if de facto spouses
were given the opportunity to opt out, this scheme would offer a narrower
conception of choice than does Quebec’s current approach. Indeed, opting out
would require agreement and positive action on the part of de facto spouses.
The Quebec scheme, by contrast, allows couples to avoid state-imposed
obligations simply by not marrying. The state-free zone created by the Quebec
scheme is thus broader than under a presumptive regime.
[444]
The Quebec scheme has
the benefit of giving spouses the opportunity to perform a cost-benefit
analysis of staying in a de facto relationship that does not confer any
rights upon them, but that correlatively does not impose any legal
obligations on them: R. Leckey, “Chosen Discrimination” (2002), 18 S.C.L.R.
(2d) 445, at p. 458. The legislature has chosen to avoid mandatory protective
provisions that important segments of the population may view as paternalistic,
by instead allowing spouses to weigh the consequences of their choices and to
make decisions accordingly.
[445]
What then of the absence of judicial recourse?
Quebec is the only province that provides for no court intervention whatsoever
to ensure that de facto spouses exercised a meaningful choice to forego
legal protection of their interests in the event of a breakdown of the
relationship. Permitting judges to intervene and make orders for property and
support for de facto spouses would obviously be less impairing of their
equality right than the Quebec regime. However, again there would be a
trade-off in diminished choice and autonomy. The Quebec scheme leaves it up to
partners to choose whether to opt into the mandatory regime and leaves them the
discretion to manage their independence if they do not opt in. Allowing judges
to make orders would limit those choices, and result in individuals who thought
they were free to structure their affairs finding themselves bound by
judicially imposed obligations.
[446]
Finally, it is suggested
that the law does not meet the minimal impairment requirement because it
affects support as well as property. For the reasons just discussed, allowing
judges to award support would undermine the legislative goal of maximizing
choice and autonomy. A judge, not the parties, would decide. The question at
this stage of the analysis is whether the legislative goal could be achieved in
a way that impacts the right less, not whether the legislative goal should be
altered. Moreover, the protective effects of support and property division are
intertwined and cannot be readily separated.
[447]
For these reasons, I
conclude that the Quebec law falls within a range of reasonable alternatives
for maximizing choice and autonomy in the matter of family assets and support.
D. Proportionality
[448]
Ultimately, the infringement of a protected
right must be proportionate to the benefits of pursuing the state objective,
having regard to the impact of the law on the exercise of the right and the
broader public benefits it seeks to achieve.
[449]
The impact of the Quebec scheme on the exercise
and enjoyment of the equality right is significant. However, the
discriminatory effects of the exclusion of de facto spouses from the
mandatory regime are attenuated in the modern era, as compared to earlier
points in Quebec’s history. The impugned provisions do not appear to perpetuate
animus against de facto spouses. All parties to this appeal agreed that
the de facto spousal relationship is a popular form of relationship in
Quebec. There is no longer any stigma attached to de facto spousal
relationships. Many spouses in Quebec appreciate and take advantage of the
ability to structure their relationship outside the traditional strictures of
marriage. The impugned provisions enhance the freedom of choice and autonomy of
many spouses as well as their ability to give personal meaning to their
relationship. Against this must be weighed the cost of infringing the equality
right of people like A, who have not been able to make a meaningful choice.
Critics can say and have said that the situation of women like A suggests that
the legislation achieves only a formalistic autonomy and an illusory freedom.
However, the question for this Court is whether the unfortunate dilemma faced
by women such as A is disproportionate to the overall benefits of the
legislation, so as to make it unconstitutional. Having regard to the need to
allow legislatures a margin of appreciation on difficult social issues and the
need to be sensitive to the constitutional responsibility of each province to
legislate for its population, the answer to this question is no.
III. Conclusion
[450]
I would allow the appeals of B and the Attorney
General of Quebec and find the Quebec scheme to be constitutional. I would
dismiss A’s appeal and would not award costs.
Appeals of the Attorney
General of Quebec and B allowed, appeal of A dismissed, Deschamps, Cromwell and Karakatsanis JJ. dissenting in
part in the result, Abella J.
dissenting in the result.
Solicitors for the
appellant/respondent the Attorney General of Quebec: Bernard, Roy
& Associés, Montréal.
Solicitors for the appellant/respondent
A: Borden Ladner Gervais, Montréal.
Solicitors for the
appellant/respondent B: Norton Rose Canada, Montréal; Suzanne H.
Pringle, Montréal.
Solicitor for the intervener the
Attorney General of New Brunswick: Attorney General of New
Brunswick, Fredericton.
Solicitor for the intervener the
Attorney General of Alberta: Attorney General of Alberta, Edmonton.
Solicitors for the intervener Fédération des
associations de familles monoparentales et recomposées du Québec: Garneau,
Verdon, Michaud, Samson, Québec.
Solicitors for the intervener the Women’s
Legal Education and Action Fund: Martha McCarthy & Company, Toronto; O’Hanlon, Sanders, Teixeira, Montréal.