Nova Scotia (Attorney General) v. Walsh

Nova Scotia (Attorney General) v. Walsh
Collection
Supreme Court Judgments
Date
2002-12-19
Neutral citation
2002 SCC 83
Report
[2002] 4 SCR 325
Case number
28179
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Nova Scotia
Subjects
Constitutional law
Family law
Notes
SCC Case Information: 28179
Decision Content
Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, 2002 SCC 83
The Attorney General of Nova Scotia Appellant
v.
Susan Walsh and Wayne Bona Respondents
and
The Attorney General of Canada, the Attorney General for Ontario,
the Attorney General of Quebec, the Attorney General of British Columbia
and the Attorney General for Alberta Interveners
Indexed as: Nova Scotia (Attorney General) v. Walsh
Neutral citation: 2002 SCC 83.
File No.: 28179.
2002: June 14; 2002: December 19.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for nova scotia
Constitutional law — Charter of Rights — Equality rights — Division of matrimonial property — Definition of “spouse” — Definition of “spouse” in matrimonial property legislation limited to a man and a woman who are married to each other — Whether exclusion of unmarried cohabiting opposite sex couples discriminatory within meaning of s. 15(1) of Canadian Charter of Rights and Freedoms — Matrimonial Property Act, R.S.N.S. 1989, c. 275, s. 2(g).
Family law — Division of matrimonial property — Definition of “spouse” — Definition of “spouse” in matrimonial property legislation limited to a man and a woman who are married to each other — Whether exclusion of unmarried cohabiting opposite sex couples from definition of spouse constitutional — Canadian Charter of Rights and Freedoms, s. 15(1) — Matrimonial Property Act, R.S.N.S. 1989, c. 275, s. 2(g).
The parties, B and W, cohabited for approximately 10 years. W applied for spousal support, child support and a declaration that the definition of “spouse” in s. 2(g) of Nova Scotia Matrimonial Property Act (“MPA”) was unconstitutional for failing to provide her with the presumption, applicable to married spouses, of an equal division of matrimonial property, in violation of s. 15(1) of the Canadian Charter of Rights and Freedoms . The trial judge held that the exclusion of common law spouses from the definition of “spouse” did not constitute discrimination within the meaning of s. 15(1) . The Court of Appeal set aside the decision, concluding that the legislation infringed s. 15(1) and that the infringement was not justifiable under s. 1 of the Charter .
Held (L’Heureux‑Dubé J. dissenting): The appeal should be allowed. The exclusion from the MPA of unmarried cohabiting persons of the opposite sex is not discriminatory within the meaning of s. 15(1) of the Charter . The distinction does not affect the dignity of these persons and does not deny them access to a benefit or advantage available to married persons.
Per McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.: The three‑part test for determining whether an impugned statute violates the s. 15(1) equality guarantee was set out in Law. With respect to the first two inquiries, the Crown conceded that the MPA provides differential treatment for the purpose of s. 15(1) and that marital status is an analogous ground of discrimination. With respect to the third inquiry, it can be stated, in the present case, as 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.
The equality guarantee is a comparative concept. The comparator groups in this case are married and unmarried heterosexual cohabitants. Although in some cases certain functional similarities between these two groups may be substantial, it would be wrong here to ignore the significant heterogeneity that exists within the claimant’s comparator group. Reliance solely on certain “functional similarities” between the two groups does not adequately address the full range of traits, history and circumstances of the comparator group of which the claimant is a member.
Although the courts and legislatures have recognized the historical disadvantages suffered by unmarried cohabiting couples, where legislation has the effect of dramatically altering the legal obligations of partners, choice must be paramount. The decision to marry or not is intensely personal. Many opposite sex individuals in conjugal relationships of some permanence have chosen to avoid marriage and the legal consequences that flow from it. To ignore the differences among cohabiting couples presumes a commonality of intention and understanding that simply does not exist. This effectively nullifies the individual’s freedom to choose alternative family forms and to have that choice respected by the state.
Examination of the context in which the discrimination claim arises also involves a consideration of the relationship between the grounds and the claimant’s characteristics or circumstances. The MPA deems married persons to have agreed to an economic partnership wherein both pecuniary and non‑pecuniary contributions to the marriage partnership are considered to be of equal worth entitling each spouse, inter alia, to an equal division of a pool of assets upon marriage breakdown. The MPA also confers other benefits and imposes other obligations on the spouses. The decision to marry, which requires the consent of each spouse, encapsulates within it the spouses’ consent to be bound by the MPA proprietary regime. Unmarried cohabitants, on the other hand, maintain their respective proprietary rights and interests throughout the duration of their relationship and at its end. If they so choose, however, they are able to access all of the benefits applicable to married couples under the MPA. They are free to marry, enter into domestic contracts, own property jointly or register as domestic partners. There is thus no discriminatory denial of a benefit in this case because those who do not marry are free to take steps to deal with their personal property in such a way as to create an equal partnership between them.
The decision to live together is insufficiently indicative of an intention to contribute to and share in each other’s assets and liabilities. While many unmarried cohabitants have agreed as between themselves to live as economic partners for the duration of their relationship, it does not necessarily follow that these same persons would agree to restrict their ability to deal with their own property during the relationship or to share in all of the other’s assets and liabilities following the end of the relationship. People who marry can be said to freely accept mutual rights and obligations. A decision not to marry should be respected because it also stems from a conscious choice of the parties.
Even if the freedom to marry is sometimes illusory, it does not warrant setting aside an individual’s freedom of choice and imposing on that individual a regime that was designed for persons who have made an unequivocal commitment encompassing the equal partnership described in the MPA. While inequities may exist in certain unmarried cohabiting relationships which may result in unfairness on relationship breakdown, there is no constitutional requirement that the state extend the protections of the MPA to those persons. Alternative choices and remedies are available to persons unwilling or unable to marry.
In sum, the application of the MPA to married persons only is not discriminatory in this case as the distinction reflects and corresponds to the differences between those relationships and as it respects the fundamental personal autonomy and dignity of the individual. In this context, the dignity of common law spouses cannot be said to be affected adversely. There is no deprivation of a benefit based on stereotype or presumed characteristics perpetuating the idea that unmarried couples are less worthy of respect or valued as members of Canadian society. All cohabitants are deemed to have the liberty to make fundamental choices in their lives. The object of s. 15(1) is respected. Moreover, the discriminatory aspect of the legislative distinction must be determined in light of Charter values. One of these essential values is liberty, basically defined as the absence of coercion and the ability to make fundamental choices with regard to one’s life. Limitations imposed by this Court that serve to restrict this freedom of choice among persons in conjugal relationships would be contrary to the liberty interest.
Per Gonthier J.: There is agreement with the majority reasons. Legislative provisions that attach burdens and advantages to marriage are not discriminatory in and of themselves. Legislatures are entitled to define and promote fundamental institutions such as marriage, which is founded on the consent of the parties and is contractual in nature. It is therefore fitting that certain attributes, rights and obligations which serve to give marriage its unique character are not conferred on unmarried couples.
The Charter does not require that the legislature treat married and unmarried couples identically. The right to equality is a comparative right requiring reference to an appropriate comparator group. The purpose of such a comparison is to determine whether the person invoking s. 15(1) of the Charter is subject to differential treatment sufficient to constitute a violation of the equality right. The situation of couples who have chosen life commitment through marriage is not comparable to that of unmarried couples when one considers that with married couples, there is a permanent and reciprocal life commitment, to which the legislature has attached, among other things, a presumption of equal division of matrimonial assets. Unmarried couples do not make that same commitment, and rights and duties akin to marriage should not as a result follow. The fundamental differences between common law and married couples make them inappropriate comparator groups in this respect. The fact that some unmarried couples have relationships similar to those of married couples does not undermine the central distinguishing feature of the institution of marriage: permanent contractual commitment. When couples marry, they commit to respect the consequences and obligations flowing from their choice. It is this choice that legitimates the system of benefits and obligations attached to marriage generally, and, in particular, those relating to matrimonial assets. To extend the presumption of equal division of matrimonial assets to common law couples would be to intrude into the most personal and intimate of life choices by imposing a system of obligations on people who never consented to such a system. To presume that common law couples want to be bound by the same obligations as married couples is contrary to their choice to live in a common law relationship without the obligations of marriage.
Although there has been growing recognition that common law spouses should be subject to the same spousal support regime as married spouses, this recognition does not extend to a division of matrimonial property, as different principles underlie the two regimes. The objective of matrimonial property division is to divide assets according to a property regime chosen by the parties, either directly by contract or indirectly by the fact of marriage, while the main objective of support is to meet the needs of spouses and their children. The support obligation is non‑ contractual and responds to situations of dependency that may occur in common law relationships.
Per L’Heureux‑Dubé J. (dissenting): In conducting the three‑stage analysis set out in Law to determine whether legislation infringes s. 15(1) , it must be remembered that fundamental to the equality rights guarantee is its broad remedial purpose to recognize the innate dignity of each human being in society. This fundamental purpose is violated whenever a sufficient distinction is drawn between individuals or groups on an enumerated or analogous ground in such a way as to reflect the stereotypical application of presumed group or personal characteristics or so as to create the effect of perpetuating or promoting the view that the claimant is less capable, or less worthy, of recognition or value as a human being. In this case, the Court is required to identify differential treatment by observing the way the legislation treats two comparator groups: heterosexual married cohabitants and heterosexual unmarried cohabitants. The question is whether a person reflecting objectively on the claimant’s situation would regard the exclusion of all heterosexual unmarried cohabitants as being a violation of the claimant’s dignity.
With respect to the first two steps of the Law analysis, the Crown conceded that the MPA draws a distinction between married and heterosexual unmarried cohabitants in the definition of spouse and that the distinction is based on the personal characteristic of marital status, which constitutes an analoguous ground of discrimination under s. 15(1) . Since formal discrimination has been established, it is left to determine whether the distinction violates the purpose of s. 15(1) by diminishing the claimant’s dignity by promoting the view that she is less capable or worthy of recognition or value as a human being. A number of contextual factors must inform this analysis, to ensure that the claim is situated in its full legal, social and historical context in order to serve the broad remedial purpose of s. 15(1) . The four factors enumerated in Law, the purpose of the MPA and other relevant considerations lead to the conclusion that the distinction drawn in the MPA has the effect of diminishing the claimant’s dignity.
Heterosexual unmarried cohabitants have historically faced disadvantages through a legal system that fails to acknowledge them as legitimate family forms. This pre‑existing disadvantage has abated in recent years but remains exacerbated by the denial of equal treatment in the MPA. In failing to account for these people, the MPA does not serve a justifiable ameliorative purpose, nor does it provide a remedy in response to the actual needs of unmarried people. The prima facie right to an equal division of property and assets is of fundamental importance and the most expedient means of resolving the very difficult matters associated with the dissolution of a long‑term relationship at a time where patience and emotional stability are at a premium. The failure to provide the benefits of the MPA to heterosexual unmarried cohabitants thus constitutes a failure to provide a fundamental benefit at a time when it is most needed. In doing so, the legislature draws a distinction based on a status wholly unrelated to the actual needs of people whose relationships of interdependence have come to an end and who, as a result, require redistribution of economic resources through property equalization and support. Heterosexual unmarried cohabitants experience similar needs as their married counterparts when the relationship comes to an end. In this sense, the relationships are functionally equivalent. Each of these relationships performs the same valuable functions and the law should apply equally to both. Since the purpose of the MPA is to recognize this need and to alleviate it, limiting the recognition to married cohabitants implies that the needs of heterosexual unmarried cohabitants are not worthy of the same recognition solely because the people in need have not married. Further, the MPA equal presumption is based on the recognition of the contribution made by both spouses to the family. Functionally, spouses contribute to various types of families. The MPA’s refusal to recognize the contributions made by non‑married persons to their relationships sends the message that, by virtue of their marital status alone, their relationship is less worthy of respect and value.
Although unmarried cohabitants have relationships, on average, of shorter duration, the MPA has built-in devices to allow the court to rebut the presumption of equal sharing where appropriate. It is no excuse to deny the benefit of equal sharing to all heterosexual unmarried cohabitants simply because some members of the group do not deserve or want this equal division. The legislature is in the best position to craft legislation that takes into account the difficulties associated with extending the benefit.
The dignity of the members of the claimant’s group is further attacked by claims that the MPA is designed to give effect to the intentions of married and unmarried persons at the outset of their relationships. The MPA has nothing to do with choice or consensus, and everything to do with recognizing the needs of spouses at the end of the relationship. Initial intentions are, therefore, of little consequence. People are often unaware of their legal rights and obligations and do not organize their personal lives in a manner to achieve specific legal consequences. Matrimonial property legislation imposes a wealth distribution regime on marriage dissolution without regard for the wishes of married cohabitants at the outset of their relationship, not on some pre‑conceived consensus. Furthermore, many heterosexual unmarried cohabitants cohabit not out of choice but out of necessity. For many, choice is denied them by virtue of the wishes of the other partner. To deny them a remedy because the other partner chose to avoid certain consequences creates a situation of exploitation. Even if research were to show that unmarried cohabitants choose to cohabit in order to avoid the legal consequences of marriage, those findings would be irrelevant as it is the reality of the relationship at its termination that the MPA addresses, not the intentions of the parties at its outset.
Courts and legislatures in this country have also recognized that denying certain benefits to a class of persons on the basis of their marital status is unjust where the need for these benefits is felt by both unmarried and married cohabitants equally. Both courts and legislatures have extended certain benefits to heterosexual unmarried cohabitants. The appreciation of an injustice and the resulting actions reinforce the view that the denial of marital property benefits demeans the dignity of heterosexual unmarried cohabitants. The steps taken constitute an acknowledgement of an historic attack upon the dignity of these individuals. Lastly, the MPA cannot survive a s. 15(1) scrutiny because of the availability of alternative remedies. These remedies are inadequate relative to those accorded spouses under the MPA. The claimant’s dignity is demeaned by offering her remedies that are greatly deficient relative to the legislated property regime.
Given these conclusions, it follows that the MPA infringes s. 15(1) . This infringement cannot be saved by s. 1 of the Charter . There does not appear to be a pressing and substantial objective for the omission of heterosexual unmarried cohabitants from the MPA. Taken as a whole, the true objective of the MPA is the protection of married individuals from the harmful effects following the breakdown of the marriage to the exclusion of all non‑married cohabitants. This is not a constitutional objective. Assuming that the objectives of the MPA are pressing and subtantial and justify a breach of a constitutional right, the means chosen are not proportional to the objectives considered due to the absence of any rational connection between the exclusion of heterosexual unmarried cohabitants from the MPA and the purported purpose of the statute.
Cases Cited
By Bastarache J.
Applied: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Miron v. Trudel, [1995] 2 S.C.R. 418; Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37; referred to: M. v. H., [1999] 2 S.C.R. 3; Clarke v. Clarke, [1990] 2 S.C.R. 795; Vriend v. Alberta, [1998] 1 S.C.R. 493; Pettkus v. Becker, [1980] 2 S.C.R. 834; Peter v. Beblow, [1993] 1 S.C.R. 980; Rathwell v. Rathwell, [1978] 2 S.C.R. 436; Sorochan v. Sorochan, [1986] 2 S.C.R. 38; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Oakes, [1986] 1 S.C.R. 103; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46.
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Distinguished: M. v. H., [1999] 2 S.C.R. 3; referred to: R. v. Turpin, [1989] 1 S.C.R. 1296; Moge v. Moge, [1992] 3 S.C.R. 813; Egan v. Canada, [1995] 2 S.C.R. 513; Hyde v. Hyde (1866), L.R. 1 P. & D. 130; Layland v. Ontario (Minister of Consumer & Commercial Relations) (1993), 14 O.R. (3d) 658; Miron v. Trudel, [1995] 2 S.C.R. 418; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28.
By L’Heureux‑Dubé J. (dissenting)
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; M. v. H., [1999] 2 S.C.R. 3; Egan v. Canada, [1995] 2 S.C.R. 513; Miron v. Trudel, [1995] 2 S.C.R. 418; Vriend v. Alberta, [1998] 1 S.C.R. 493; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Lavoie v. Canada, [2001] 1 S.C.R. 769, 2002 SCC 23; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Gammans v. Ekins, [1950] 2 All E.R. 140; Peter v. Beblow, [1993] 1 S.C.R. 980; Moge v. Moge, [1992] 3 S.C.R. 813; Murdoch v. Murdoch, [1975] 1 S.C.R. 423; Rathwell v. Rathwell, [1978] 2 S.C.R. 436; Clarke v. Clarke, [1990] 2 S.C.R. 795; Pettkus v. Becker, [1980] 2 S.C.R. 834; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Taylor v. Rossu (1998), 161 D.L.R. (4th) 266; Woycenko Estate, Re (2002), 315 A.R. 291, 2002 ABQB 640; C.L.W. v. G.C.W. (1999), 182 Sask. R. 237; Sorochan v. Sorochan, [1986] 2 S.C.R. 38; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.
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APPEAL from a judgment of the Nova Scotia Court of Appeal (2000), 183 N.S.R. (2d) 74, 568 A.P.R. 74, 5 R.F.L. (5th) 188, 186 D.L.R. (4th) 50, [2000] N.S.J. No. 117 (QL), 2000 NSCA 53, with supplementary reasons (2000), 185 N.S.R. (2d) 190, 575 A.P.R. 190, 7 R.F.L. (5th) 451, 186 D.L.R. (4th) 83, [2000] N.S.J. No. 173 (QL), 2000 NSCA 73, setting aside a decision of the Nova Scotia Supreme Court (1999), 178 N.S.R. (2d) 151, 549 A.P.R. 151, 67 C.R.R. (2d) 297, [1999] N.S.J. No. 290 (QL). Appeal allowed, L’Heureux‑Dubé J. dissenting.
Edward A. Gores, for the appellant.
Katherine A. Briand and Stephen M. Robertson, for the respondent Susan Walsh.
No one appeared for the respondent Wayne Bona.
Christopher M. Rupar, for the intervener the Attorney General of Canada.
Sarah Kraicer and Daniel Guttman, for the intervener the Attorney General for Ontario.
Hugo Jean and Monique Rousseau, for the intervener the Attorney General of Quebec.
Timothy P. Leadem, Q.C., for the intervener the Attorney General of British Columbia.
Robert J. Normey, for the intervener the Attorney General for Alberta.
The judgment of McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. was delivered by
Bastarache J. —
I. Introduction
1 This case involves a Charter challenge to the Nova Scotia Matrimonial Property Act, R.S.N.S. 1989, c. 275 (“MPA”), and asks whether its failure to include unmarried cohabiting opposite sex couples from its ambit violates s. 15(1) of the Canadian Charter of Rights and Freedoms . The challenge revolves around the definition of “spouse” in s. 2(g) of the MPA, which is limited to a man and a woman who are married to each other.
2 The question before this Court, then, is whether the exclusion from the MPA of unmarried cohabiting persons of the opposite sex is discriminatory. In my view, it is not. The distinction chosen by the legislature does not affect the dignity of unmarried persons who have formed relationships of some permanence and does not deny them access to a benefit or advantage available to married persons. It is, therefore, not discriminatory within the meaning of s. 15(1) .
II. Factual Background
3 Susan Walsh and Wayne Bona lived together in a cohabiting relationship for a period of 10 years, ending in 1995. Two children were born out of this relationship, in 1988 and 1990 respectively. Walsh and Bona owned a home as joint tenants, in which Bona continued to reside after the separation, assuming the debts and expenses associated with the property. In 1983, Bona received as a gift from his father a cottage property which was sold after separation for $20,000. Approximately $10,000 was used to pay off the respondents’ debts. Bona also retained 13 acres of surrounding woodland in his own name, valued at $6,500. The total value of assets retained by Bona at the date of separation including the house, cottage, lot, vehicle, pensions and RRSPs, was $116,000, less “matrimonial” debts of $50,000, for a net value of $66,000.
4 The respondent Walsh claimed support for herself and the two children. She further sought a declaration that the Nova Scotia MPA was unconstitutional in failing to furnish her with the presumption, applicable to married spouses, of an equal division of matrimonial property. Her claim for a declaration was rejected by the chambers judge, whose decision was reversed on appeal.
5 My colleague, Justice L’Heureux-Dubé, chooses not to make reference to the Law Reform (2000) Act, S.N.S. 2000, c. 29 (“LRA”), in the course of her analysis. I mention it as a new contextual consideration but, as will become clear below, my conclusion on the constitutionality of the MPA does not depend on the existence of the LRA.
6 In response to the Court of Appeal judgment, the Nova Scotia legislature introduced legislation, Bill 75, An Act to Comply with Certain Court Decisions and to Modernize and Reform Laws in the Province (now the LRA), on November 6, 2000, that effectively amends the definition of “spouse” to “common-law partner”. Heterosexual and same sex partners are both included in the definition of “common-law partner”, and these may be either registered under the Vital Statistics Act, R.S.N.S. 1989, c. 494, or unregistered. Only registered partnerships are eligible for the benefits of the MPA and other legislation: LRA.
7 Walsh’s counsel advised the Court that subsequent to leave to appeal having been granted ([2001] 1 S.C.R. vi), Walsh and Bona have settled the litigation between them respecting the division of property.
III. Relevant Statutory Provisions
8 Matrimonial Property Act, R.S.N.S. 1989, c. 275
2 In this Act,
. . .
(g) “spouse” means either of a man and woman who
(i) are married to each other,
(ii) are married to each other by a marriage that is voidable and has not been annulled by a declaration of nullity, or
(iii) have gone through a form of marriage with each other, in good faith, that is void and are cohabiting or have cohabited within the preceding year,
and for the purposes of an application under this Act includes a widow or widower.
12 (1) Where
(a) a petition for divorce is filed;
(b) an application is filed for a declaration of nullity;
(c) the spouses have been living separate and apart and there is no reasonable prospect of the resumption of cohabitation; or
(d) one of the spouses has died,
either spouse is entitled to apply to the court to have the matrimonial assets divided in equal shares, notwithstanding the ownership of these assets, and the court may order such a division.
Canadian Charter of Rights and Freedoms
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
IV. Judicial History
A. Supreme Court of Nova Scotia (1999), 178 N.S.R. (2d) 151
9 The matter came before Haliburton J. as a Charter application, as the respondent Walsh alleged that she had suffered discrimination under the MPA because the presumption of equal division of matrimonial property applicable to married spouses did not apply to her as a common law spouse. Instead, the onus was on her, by way of constructive trust, to prove the extent, if any, to which she might have been entitled to a share in property held in Bona’s name alone.
10 Haliburton J. first considered whether there was discrimination under s. 15(1) of the Charter , noting that the section prohibits discrimination on the basis of certain personal characteristics. Applying the analysis sanctioned in Miron v. Trudel, [1995] 2 S.C.R. 418, then in M. v. H., [1999] 2 S.C.R. 3, he first found that there was no question that married and unmarried spouses are treated differently with respect to the onus of proof required to establish an interest in property under the MPA. Next, Haliburton J. considered whether that difference resulted from discrimination as defined by s. 15(1) on the basis of an enumerated or analogous ground. In Miron, supra, this Court held that an unmarried spouse was entitled to insurance benefits because she had lived in a relationship analogous to marriage.
11 Haliburton J. noted the strong dissent in Miron, supra, and distinguished it on the basis that it involved all-encompassing legislation, to which the distinction complained of was incidental; whereas in the present case, the distinction is a specific incident governing the rights of married persons to a division of matrimonial property. “Secondly, the contest is between the parties themselves and reflects directly their decision, whether individually or jointly, to marry or not to marry” (para. 17). Haliburton J. observed from s. 12 of the MPA that the legislators had only contemplated that it would apply to couples who were legally married. In his view, extending the provisions of the MPA to unmarried couples would create uncertainty, injustice, and impediments to property transactions and the rights of third parties because married couples relinquish the right to deal with their property as sole owners upon marriage.
12 Haliburton J. considered the concept of marriage in our society, approving of the explanation made in the Miron dissent, where it was described as an institution and the basic framework upon which our society rests. He concluded that the distinction drawn between married and unmarried spouses was one that certainly created a disadvantage for those unmarried, and then assessed whether the distinction was based on irrelevant personal characteristics such as those enumerated in s. 15(1) of the Charter .
13 Relying upon the Miron dissent concerning marriage, he also acknowledged the majority comment that the failure of the parties to marry may not be a matter of free and independent choice and stated at para. 21:
I would argue, nonetheless, that as a general rule, it is a matter of freedom of choice. There are certain attributes of “marriage” which have existed not only in our society but in all societies since time out of memory. Such attributes encompass the public acknowledgment in the presence of community and family by two persons who enter into a binding, lifetime relationship.
14 After reviewing the history of matrimonial property legislation, he observed that married women have been deprived of their independence and interest in their property in the past but that men and women fare equally well under the MPA. “To impose the regime created by this statute upon a person who chooses not to marry and to do so retroactively would be as likely to create injustice as to resolve it” (para. 22 (emphasis in original)). He referred to my reasoning in M. v. H., supra, where I observed at para. 289: “The comparison is best made, not with married couples, whose status was consensually acquired, but with unmarried cohabiting couples.” He stated at para. 23:
From that brief quotation, I would argue that the property regime imposed by the Matrimonial Property Act is one which is or ought to be consciously acquired by the consent of the parties contracting to marry and knowing the statutory and other legal implications of doing so.
15 Although he concluded that Walsh had not suffered discrimination on the basis of s. 15(1) , Haliburton J. considered, at para. 26, whether the impugned section would be saved by s. 1 of the Charter , employing the Oakes test ®. v. Oakes, [1986] 1 S.C.R. 103), as recently reiterated in M. v. H., supra:
The principle is that the objective of the legislation must be of sufficient importance to override the constitutional right which is impaired by the statute. The objective must be “pressing and substantial” and must be evaluated or weighed in terms of the importance of these two competing values. Specifically referring to M. v. H., the court has said where the violation results from “underinclusion”, the ob