Runchey v. Canada (Attorney General)

Runchey v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2013-01-24
Neutral citation
2013 FCA 16
File numbers
A-393-11
Notes
Reported Decision
Decision Content
Date: 20130124
Docket: A-393-11
Citation: 2013 FCA 16
CORAM: DAWSON J.A.
GAUTHIER J.A.
STRATAS J.A.
BETWEEN:
DOUG RUNCHEY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
JUDITH WILSON
Respondent/Intervener
Heard at Vancouver, British Columbia, on June 21, 2012.
Judgment delivered at Ottawa, Ontario, on January 24, 2013.
REASONS FOR JUDGMENT BY: STRATAS J.A.
CONCURRED IN BY: DAWSON J.A.
GAUTHIER J.A.
Date: 20130124
Docket: A-393-11
Citation: 2013 FCA 16
CORAM: DAWSON J.A.
GAUTHIER J.A.
STRATAS J.A.
BETWEEN:
DOUG RUNCHEY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
JUDITH WILSON
Respondent/Intervener
REASONS FOR JUDGMENT
STRATAS J.A.
A. Introduction
[1] Mr. Runchey applies for judicial review from the decision dated September 8, 2011 of the Pension Appeals Board: 2011 LNCPEN 77 (Appeal CP27301). The Board dismissed Mr. Runchey’s appeal from the Review Tribunal.
[2] The Review Tribunal upheld a decision by the Minister of Human Resources and Skills Development to allow the application of Mr. Runchey’s ex-spouse for a division of pension credits under the Canada Pension Plan, R.S.C. 1985, c. C-8 (the “Plan”).
[3] The central issue in Mr. Runchey’s application for judicial review concerns the interaction of two sets of provisions in the Plan:
● The Division of Unadjusted Pensionable Earnings provisions of the Plan (the “DUPE provisions”). Under the DUPE provisions, certain pension credits may be divided between ex-spouses in certain circumstances: section 55.1 of the Plan.
● The Child-Rearing Provisions of the Plan (“CRP”). Under the CRP, parents who leave the workforce or reduce their participation in it for a period of time to raise their children are accommodated: sections 48 and 49 of the Plan.
The precise nature of these provisions and how they interact will be discussed below.
[4] In his application for judicial review and in the administrative proceedings below, Mr. Runchey maintains that these provisions interact in a manner that treats men differently from women and discriminates against men, contrary to the constitutional guarantee of equality contained in subsection 15(1) of the Charter.
[5] For the reasons that follow, I conclude that the provisions do not violate section 15 of the Charter. Accordingly, I would dismiss the application for judicial review with costs.
B. Background
[6] After 19 years of marriage, in April 1992, Mr. Runchey and Ms. Wilson (the named intervener in this Court) divorced. Before they divorced, they signed a separation agreement in which they agreed, among other things, to divide their existing Plan credits.
[7] Many years later, on April 15, 2008, Ms. Wilson applied to the Minister under the DUPE provisions of the Plan for a division of their unadjusted pensionable earnings – sometimes known as a credit split – for the period during which they cohabited during their marriage.
[8] Mr. Runchey was advised of Ms. Wilson’s application and was asked whether he agreed with the cohabitation period. Mr. Runchey agreed with the period but refused to agree to a division for any period of time that would be or had been excluded or dropped out of Ms. Wilson’s contributory period due to the CRP. The period that would be dropped out of Ms. Wilson’s contributory period under the CRP fell within May 1974 to October 1984.
[9] On June 18, 2008, the Minister decided to grant Ms. Wilson’s DUPE application for the period in question. The Minister did not accept Mr. Runchey’s position.
[10] Mr. Runchey asked the Minister to reconsider the decision. He asked that the DUPE division be reversed during the period of potential CRP eligibility (May 1974 to October 1984). He asked that both he and Ms. Wilson be allowed CRP eligibility for that period or that Ms. Wilson be disallowed from being able to claim CRP eligibility for that period.
[11] On December 19, 2008, the Minister rejected Mr. Runchey’s reconsideration request and confirmed the DUPE decision. The Minister also advised Mr. Runchey that the CRP could not be applied in his case because he had not applied for a Plan benefit.
[12] Mr. Runchey appealed to the Review Tribunal the Minister’s denial of his request for a reconsideration of the DUPE decision. Before the Review Tribunal, he argued that the interaction of the DUPE provisions and the CRP treated men differently from women and in a discriminatory way, contrary to subsection 15(1) of the Charter.
[13] On April 22, 2010, the Review Tribunal dismissed Mr. Runchey’s appeal. It held that it did not have jurisdiction to consider the Charter issue raised by Mr. Runchey because only the Minister’s decision concerning Ms. Wilson’s request for credit-splitting under DUPE was before it. It found that the DUPE provision, by itself, did not contravene the Charter.
[14] Mr. Runchey appealed to the Pension Appeals Board. He advanced substantially the same submissions he made before the Review Tribunal.
[15] The Board rejected Mr. Runchey’s submissions on the following bases:
● The Board’s jurisdiction under the Plan is limited to what the Review Tribunal could or could not do. In this case, the Board found that “the Review Tribunal correctly declined jurisdiction to deal with the Charter issue raised by Mr. Runchey because the only ministerial decision under review was the one mandated by the [Plan] (a DUPE distribution) which Mr. Runchey agrees was done correctly” (at paragraph 34).
● Even if the operation of the CRP in conjunction with the DUPE provisions could be considered by the Board, the Board found they did not discriminate against men under subsection 15(1) of the Charter (at paragraphs 36-48).
[16] As mentioned above, Mr. Runchey now brings an application for judicial review before this Court.
C. Preliminary objection by the Attorney General
[17] In this Court, the Attorney General maintains that the only matter before this Court is the Minister’s decision under the DUPE provisions. There is no decision concerning CRP before the Court. The Attorney General notes that Mr. Runchey concedes that the credit-splitting under the DUPE provisions was performed exactly according to the law as written. Therefore, the Attorney General says that the constitutional issue is not squarely before this Court in this application.
[18] I disagree. Mr. Runchey’s position, expressed in his notice of application, is that the Minister’s application of the DUPE provisions, as written, perpetuates a constitutional infirmity. That infirmity is the discrimination against men, contrary to subsection 15(1) of the Charter, caused by the interaction of the CRP and DUPE provisions. To address this infirmity, in his notice of application he claims, among other things, a declaration that he will have “equal access to the [CRP] as a result of the DUPE action, as does [Ms. Wilson].”
[19] Mr. Runchey’s notice of application is not drafted with precision. To some extent, the lack of precision of the notice of application is understandable because Mr. Runchey is a self-represented litigant. In this regard, I note that the Attorney General did not seek to clarify Mr. Runchey’s notice of application. From his memorandum and his argument in this Court, it was evident that the Attorney General appreciated exactly what Mr. Runchey was arguing in his application and was not prejudiced in any way.
[20] The effect of Mr. Runchey’s core submission is that by deciding Ms. Wilson’s request for credit-splitting under the DUPE provisions as written, those provisions being contrary to subsection 15(1) of the Charter, the Minister made an invalid decision.
[21] Therefore, I find that the constitutional issue raised by Mr. Runchey is squarely before the Court and must be determined.
[22] From this, it follows that the constitutional issue raised by Mr. Runchey was also squarely before the Pension Appeals Board. Although the Board had only Ms. Wilson’s application for credit-splitting under the DUPE provisions before it, Mr. Runchey’s constitutional argument, directed to the validity of the DUPE provisions to be applied by the Board, was also before the Board. It follows that the Board’s decision that it did not have jurisdiction to consider Mr. Runchey’s constitutional argument cannot stand. In the end, this does not matter, as the Board went on to consider and dismiss Mr. Runchey’s constitutional argument on its merits.
D. Mr. Runchey’s standing
[23] The Attorney General submitted that Mr. Runchey is not able to advance his constitutional challenge. Ms. Wilson was the only primary caregiver and so there are no circumstances where Mr. Runchey would be eligible for the CRP. Even if Mr. Runchey were able to establish that the interaction of the CRP and DUPE provisions creates a distinction between males and females, he is not personally affected.
[24] I disagree. Among other things, Mr. Runchey seeks a declaration that the interaction of the CRP and DUPE provisions infringes the Charter. The Attorney General requests that if this Court rules that the declaration should be granted, the declaration should be suspended so that Parliament, by legislative amendment, can fix the constitutional defect. That fix might change the basis upon which pension credits are split, affecting Mr. Runchey directly.
[25] Further, Mr. Runchey’s claim, as described above, smacks as a challenge brought not only on the basis of direct standing but also on the basis of public interest standing. Mr. Runchey, as a male, seeks to vindicate the equality rights of males, claiming that the interaction of the DUPE provisions and the CRP causes systemic discrimination contrary to section 15 of the Charter. The Attorney General did not take issue with Mr. Runchey’s standing to advance this claim as a public interest litigant.
[26] In these circumstances, I am prepared to accept that Mr. Runchey has standing as a public interest litigant to advance his constitutional challenge. I prefer to consider his challenge on its merits.
E. The evidentiary record before this Court
[27] In this Court, Mr. Runchey sought to introduce an affidavit in support of his application. The affidavit contains mainly statements of law and calculations of how the CRP and DUPE provisions might apply in certain circumstances.
[28] The Attorney General moves for exclusion of the affidavit. The Attorney General submits that Mr. Runchey’s affidavit is “replete with argument, opinions and conclusions that are entirely speculative and that are outside of his personal knowledge.” In response, Mr. Runchey concedes that some paragraphs in his affidavit should be struck, but insists that other paragraphs setting out factual matters were properly before the Court.
[29] I would grant the Attorney General’s motion. The affidavit is inadmissible in this Court.
[30] The statements of law are inadmissible: the place for those is the memorandum of fact and law.
[31] The calculations are based on factual matters to some extent not in evidence and the calculations, themselves, are factual matters. On judicial review, factual matters are determined by the administrative decision-maker, not the reviewing court. That is the place where proof of factual matters should be offered. It is trite that the evidentiary record in this Court normally consists of the evidentiary record before the administrative decision-maker being reviewed: Gitxsan Treaty Society v. Hospital Employees’ Union, [2000] 1 F.C. 135 at pages 144-45 (C.A.). There are narrow exceptions to this rule, none of which apply here.
[32] For Mr. Runchey’s benefit, I note that the exclusion of the affidavit did not affect the merits of his application for judicial review. The statements of law in his affidavit were largely explored in the parties’ memoranda of fact and law and, as will be evident in these reasons, this Court was able to identify and assess on the basis of the existing, proper evidentiary record, without assistance from the affidavit, how the CRP and DUPE provisions interact and the effects they cause.
F. The standard of review
[33] The Pension Appeals Board’s decision to dismiss Mr. Runchey’s constitutional argument is subject to correctness review in this Court: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 58.
G. Introduction to the analysis under subsection 15(1) of the Charter
[34] Faced with a claim that legislation infringes the constitutional guarantee of equality in subsection 15(1) of the Charter, the Court must consider the following two questions:
(1) Does the legislation create a distinction based on an enumerated or analogous ground?
(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? In other words, is there discrimination?
See generally Law v. Canada, [1999] 1 S.C.R. 497; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 at paragraph 17; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 at paragraph 30.
H. Does the legislation create a distinction based on an enumerated or analogous ground?
(1) Comparator groups
[35] In considering whether legislation creates a distinction, one must first ask, “A distinction between whom?” In the equality rights jurisprudence, this is often described as the issue of “comparator groups.”
[36] The selection of comparator groups can be controversial and in recent jurisprudence the Supreme Court has tried to reduce its importance in the overall analysis: Withler, supra. Fortunately, in benefits cases such as this, identifying the distinction and the comparator group is “relatively straightforward” because the ground for denying a benefit to a particular group is relatively clear: Withler, at paragraph 64. That is the case here.
[37] Mr. Runchey says that the interaction of the CRP and the DUPE provisions creates a distinction based on gender – men and women – and gender is an enumerated ground under subsection 15(1) of the Charter. While the Attorney General contests whether there is indeed a distinction, it concedes Mr. Runchey has founded his challenge upon an enumerated ground. In their oral and written arguments, the parties articulated the alleged distinction in terms of gender. For the purposes of this appeal, the comparator group need not be refined further.
(2) Examining the CRP and DUPE provisions and their interaction with each other to assess whether there is a distinction based on gender
[38] In his submissions, Mr. Runchey tended to characterize the distinction between men and women created by the CRP and DUPE provisions as being very significant, creating real differences in the size of benefits men could receive.
[39] In my view, there is a distinction, but it is qualitatively less significant than that urged by Mr. Runchey. Briefly, a distinction occurs because of the fact that, due to statutory presumptions regarding gender roles and childcare, men have greater difficulty than women in accessing the CRP. This initial distinction is carried through in the DUPE provisions, which, as we shall see, can have the effect of reducing one spouse’s pension without a corresponding increase to the other’s pension. Because of the distinction inherent in the CRP, men find themselves in this peculiar situation more frequently than women.
(a) General characteristics of the Plan
[40] As a general matter, the calculation of benefits under the Plan is affected by how much and how long people contribute to the Plan. More contributions generally result in greater benefits.
[41] The administrators of the Plan maintain a record of earnings for each person who has contributed to the Plan. For each year of contributions, the record lists the contributor’s unadjusted pensionable earnings (“pension credits”), as calculated under section 53 of the Plan. Contributors’ pension credits are used to calculate their average pensionable earnings: section 52 of the Plan.
[42] Generally, a contributor’s Plan entitlement is 25 per cent of his or her average pensionable earnings, adjusted to take into account the average of the contributor’s final five-year maximum pensionable earnings: section 46 of the Plan.
(b) The DUPE provisions
[43] Under section 55.1 of the Plan, married or common law couples who subsequently separate can split the pension credits they accumulated during the period they lived together. This action is known as a Division of Unadjusted Pensionable Earnings (DUPE), and is sometimes called “credit splitting.”
[44] This credit splitting is intended to provide the lower income-earning spouse with a measure of protection by potentially increasing his or her access to pension benefits in the event of marital breakdown.
[45] Subsection 55.1(1) of the Plan – what I have called the DUPE provisions – authorizes the Minister to perform a DUPE. It reads:
55.1. (1) Subject to this section and sections 55.2 and 55.3, a division of unadjusted pensionable earnings shall take place in the following circumstances:
(a) in the case of spouses, following the issuance of a decree absolute of divorce, a judgment granting a divorce under the Divorce Act or a judgment of nullity of the marriage, on the Minister’s being informed of the decree or judgment, as the case may be, and receiving the prescribed information;
(b) in the case of spouses, following the approval by the Minister of an application made by or on behalf of either spouse, by the estate or succession of either spouse or by any person that may be prescribed, if
(i) the spouses have been living separate and apart for a period of one year or more, and
(ii) in the event of the death of one of the spouses after they have been living separate and apart for a period of one year or more, the application is made within three years after the death; and
(c) in the case of common-law partners, following the approval by the Minister of an application made by or on behalf of either former common-law partner, by the estate or succession of one of those former common-law partners or by any person that may be prescribed, if
(i) the former common-law partners have been living separate and apart for a period of one year or more, or one of the former common-law partners has died during that period, and
(ii) the application is made within four years after the day on which the former common-law partners commenced to live separate and apart or, if both former common-law partners agree in writing, at any time after the end of that four-year period.
55.1. (1) Sous réserve des autres dispositions du présent article et des articles 55.2 et 55.3, il doit y avoir partage des gains non ajustés ouvrant droit à pension dans les circonstances suivantes :
a) dans le cas d’époux, lorsqu’est rendu un jugement irrévocable de divorce, un jugement accordant un divorce conformément à la Loi sur le divorce ou un jugement en nullité de mariage, dès que le ministre est informé du jugement et dès qu’il reçoit les renseignements prescrits;
b) dans le cas d’époux, à la suite de l’approbation par le ministre d’une demande faite par l’un ou l’autre de ceux-ci ou pour son compte, ou par sa succession ou encore par une personne visée par règlement, si les conditions suivantes sont réunies :
(i) les époux ont vécu séparément durant une période d’au moins un an,
(ii) dans les cas où l’un des époux meurt après que ceux-ci ont vécu séparément durant une période d’au moins un an, la demande est faite dans les trois ans suivant le décès;
c) dans le cas de conjoints de fait, à la suite de l’approbation par le ministre d’une demande faite par l’un ou l’autre des anciens conjoints de fait ou pour son compte, ou par sa succession ou encore par une personne visée par règlement, si les conditions suivantes sont réunies :
(i) soit les anciens conjoints de fait ont vécu séparément pendant une période d’au moins un an, soit l’un d’eux est décédé pendant cette période,
(ii) la demande est faite soit dans les quatre ans suivant le jour où les anciens conjoints de fait ont commencé à vivre séparément, soit après l’expiration de ce délai avec leur accord écrit.
[46] Credit splitting is mandatory and automatic for divorces and annulments occurring on or after January, 1987: paragraph 55.11(a) of the Plan (note that section 55 applies to divorces prior to 1987). In some provinces, couples can exclude credit splitting through written agreements: subsection 55.2(3) of the Plan. Credit splitting is also available to married couples who are separated and former common law partners, but only if they apply for it.
[47] In limited circumstances, the Minister may refuse to make a division, or may cancel a division. To do so, the Minister must be satisfied that: (i) both contributors subject to the division would be entitled to benefits; and (ii) a division would decrease the amount of both contributors’ benefits: subsection 55.1(5) of the Plan.
[48] The DUPE provisions otherwise operate in a straightforward way. They simply add together all pension credits of spouses for each year they cohabited, and then divide the total credits equally between them.
[49] The effect of the DUPE provisions is to transfer pension credits from the high income-earning spouse to the low earning spouse. The pension credits transferred under the DUPE provision are credited to the record of earnings of the low earning spouse. Therefore, the monetary value of the credit split depends on a number of other factors relevant to calculating a contributor’s Plan benefits, such as the contributors’ earning history, age at retirement, and the use of “drop out provisions.”
(c) The CRP: its general nature
[50] In certain situations, the Plan allows contributors to “drop out” low earning periods so that reduced earnings are removed from the calculation of benefits. These are governed by “drop out provisions” in the Plan.
[51] Most contributors are entitled to a “general low-earnings drop out”: subsection 48(4) of the Plan. This provision allows contributors to “drop out” a certain percentage of years when their contributions are low for any reason.
[52] In addition to this general drop out, the Plan also contains drop out provisions for specific cases.
[53] The CRP, sometimes also described as the Child Rearing Drop Out (CRDO), is one such provision. Under it, parents can remove from their calculation of benefits under the Plan time spent caring for young children. In this way, the CRP ensures that parents who leave or reduce their workforce participation to raise pre-school age children are not penalized in determining future pension benefits: Harris v. Canada (Minister of Human Resources and Skills Development), 2009 FCA 22 at paragraphs 89 and 101.
[54] Subsection 48(2) of the Plan is the general provision. It provides as follows:
48. (2) In calculating the average monthly pensionable earnings of a contributor in accordance with subsection (1) for the purpose of calculating or recalculating benefits payable for a month commencing on or after January 1, 1978, there may be deducted
(a) from the total number of months in a contributor’s contributory period, those months during which he was a family allowance recipient and during which his pensionable earnings were less than his average monthly pensionable earnings calculated without regard to subsections (3) and (4), but no such deduction shall reduce the number of months in his contributory period to less than the basic number of contributory months, except
(i) for the purpose of calculating a disability benefit in respect of a contributor who is deemed to have become disabled for the purposes of this Act after December 31, 1997, in which case the words “the basic number of contributory months” shall be read as “48 months”,
(i.1) for the purpose of calculating a disability benefit in respect of a contributor who is deemed to have become disabled for the purposes of this Act in 1997, in which case the words “the basic number of contributory months” shall be read as “24 months”, and
(ii) for the purpose of calculating a death benefit and a survivor’s pension, in which case the words “the basic number of contributory months” shall be read as “thirty-six months”; and
(b) from his total pensionable earnings, the aggregate of his pensionable earnings attributable to the months deducted pursuant to paragraph (a).
48. (2) Dans le calcul, conformément au paragraphe (1), de la moyenne mensuelle des gains d’un cotisant ouvrant droit à pension, il peut être déduit, dans le but de calculer ou recalculer les prestations payables à l’égard d’un mois à compter du 1er janvier 1978 :
a) du nombre total de mois dans la période cotisable d’un cotisant, les mois durant lesquels il était bénéficiaire d’une allocation familiale et au cours desquels ses gains ouvrant droit à pension étaient inférieurs à sa moyenne mensuelle des gains ouvrant droit à pension établie indépendamment des paragraphes (3) et (4), mais cette déduction ne peut cependant résulter en un nombre de mois de sa période cotisable inférieur au nombre de base des mois cotisables, sauf :
(i) pour le calcul d’une prestation d’invalidité d’un cotisant qui est réputé être devenu invalide, au titre de la présente loi, après le 31 décembre 1997, auquel cas « nombre de base des mois cotisables » s’interprète comme une mention de « quarante-huit mois »,
(i.1) pour le calcul d’une prestation d’invalidité d’un cotisant qui est réputé être devenu invalide, au titre de la présente loi, au cours de 1997, auquel cas « nombre de base des mois cotisables » s’interprète comme une mention de « vingt-quatre mois »,
(ii) pour le calcul d’une prestation de décès et d’une pension de survivant, et alors « nombre de base des mois cotisables » s’interprète comme une mention de « trente-six mois »;
b) du total de ses gains ouvrant droit à pension, l’ensemble de ces gains correspondant aux mois déduits en vertu de l’alinéa a).
[55] Paragraph (a) excludes months from the contributory period and paragraph (b) excludes earnings from total pensionable earnings. Thus, the combined effect of these paragraphs allows a contributor to “drop out” the child rearing years from his or her Plan benefit calculations.
[56] The CRP provision does not automatically exclude “child rearing” years from the qualifying parent’s benefit calculations. Periods are only dropped if doing so will result in higher pension benefits: paragraph 48(2)(a) of the Plan.
(d) The CRP: who qualifies?
[57] Paragraph 48(2)(a) of the Plan specifies that contributors only qualify for the CRP in months that they (i) are a “family allowance recipient” and (ii) have pensionable earnings that are “less than his [or her] average monthly pensionable earnings.”
[58] The first requirement, “family allowance recipient,” is defined in the Plan and the Plan Regulations, C.R.C., c. 385. As will be seen below, a parent is considered a “family allowance recipient” if he or she received a payment under the old Family Allowances Act or qualified for the Canada Child Tax Benefit. The definition also includes the spouse or partner of someone who received a payment under the old Family Allowances Act, but only if the recipient of the family allowance waives his or her entitlement to the CRP.
[59] The second requirement – earnings below average monthly pensionable earnings – ensures that the CRP does not drop out months that would otherwise increase the contributor’s pension benefits.
[60] Central to Mr. Runchey’s case is the first requirement – when a person is a “family allowance recipient” within the meaning of the CRP.
(e) “Family allowance recipient”: section 42 of the Plan
[61] Section 42 of the Plan defines “family allowance recipient” for the purposes of the CRP. It reads as follows:
42. “Family allowance recipient” means a person who received or is in receipt of an allowance or a family allowance pursuant to the Family Allowances Act, chapter F-1 of the Revised Statutes of Canada, 1970, as it read immediately before being repealed or the Family Allowances Act for that period prior to a child reaching seven years of age, and such other persons as may be prescribed by regulation;
42. « bénéficiaire d’une allocation familiale » La personne qui reçoit ou a reçu une allocation ou une allocation familiale en vertu de la Loi sur les allocations familiales, chapitre F-1 des Statuts revisés du Canada de 1970, telle qu’elle se lisait avant son abrogation, ou de la Loi sur les allocations familiales, durant la période précédant le moment où un enfant atteint l’âge de sept ans, et toute autre personne désignée par règlement.
[62] Under this definition, a “family allowance recipient” includes any contributor that received an allowance under the various versions of the Family Allowances Act before their child turned seven years of age. The most recent version of the Family Allowances Act (R.S.C. 1985, c. F-1) was repealed as of January 1, 1993: R.S. 1992, c. 48, s. 31. After this date, parents were not eligible for family allowances. Accordingly, family allowances are not relevant to defining “family allowance recipient” after 1993.
[63] As a result, the family allowance cannot be a basis for determining CRP eligibility after 1992. Section 42 of the Plan solves this problem by including in the definition of family allowance recipient “such other persons as may be prescribed by regulation.” A regulation has been enacted and lies at the heart of the gender distinction under attack in this case.
(f) Subsection 77(1) of the Plan Regulations
[64] Subsection 77(1) of the Plan Regulations expands the definition of “family allowance recipient.” In so doing, it adds new categories of contributors that are eligible for the CRP. This subsection states:
77. (1) For the purposes of the definition “family allowance recipient” in subsection 42(1) of the Act, family allowance recipient includes
(a) the spouse, former spouse, common-law partner or former common-law partner of a person who is described in that definition as having received or being in receipt of an allowance or a family allowance in respect of a child for any period before the child reached the age of seven, if that spouse, former spouse, common-law partner or former common-law partner remained at home during that period as the child’s primary caregiver and that period has not already been or cannot be excluded or deducted from the person’s contributory period under Part II of the Act;
(b) a member of the Canadian Armed Forces who, before 1973, was posted to serve outside Canada, or the spouse or former spouse of such a member, who, but for the posting, would have received an allowance or family allowance for a child under seven years of age;
(c) the person who, under section 122.62 of the Income Tax Act, is considered to be an eligible individual for the purposes of subdivision a.1 of Division E of Part I of that Act (Child Tax Benefit) in respect of a qualified dependant under seven years of age; and
(d) the person who would have been considered to be an eligible individual for the purposes of subdivision a.1 of Division E of Part I of the Income Tax Act (Child Tax Benefit) had a notice been filed under subsection 122.62(1) of that Act, where no person was considered to be an eligible individual in respect of the same qualified dependant under seven years of age.
77. (1) Pour l’application de la définition de « bénéficiaire d’une allocation familiale » au paragraphe 42(1) de la Loi, ce terme s’entend en outre :
a) de l’époux, de l’ancien époux, du conjoint de fait ou de l’ancien conjoint de fait d’une personne qui, selon cette définition, reçoit ou a reçu une allocation ou une allocation familiale à l’égard d’un enfant pour toute période précédant le moment où l’enfant atteint l’âge de sept ans si, pendant cette période, l’époux, l’ancien époux, le conjoint de fait ou l’ancien conjoint de fait restait à la maison et était la principale personne qui s’occupait de l’enfant et que cette période n’a pas déjà été exclue ou déduite de la période cotisable de la personne aux fins de l’application de la partie II de la Loi ou ne peut l’être;
b) du membre ou de son époux ou ancien époux, dans le cas d’un membre des Forces armées canadiennes qui était en poste à l’extérieur du Canada avant 1973, qui aurait reçu, n’eût été cette affectation, une allocation ou une allocation familiale pour un enfant âgé de moins de sept ans;
c) de la personne qui, aux termes de l’article 122.62 de la Loi de l’impôt sur le revenu, est considérée comme un particulier admissible pour l’application de la sous-section a.1 de la section E de la partie I de cette loi (prestation fiscale pour enfants) à l’égard d’une personne à charge admissible âgée de moins de sept ans;
d) de la personne qui aurait été considérée comme un particulier admissible pour l’application de la sous-section a.1 de la section E de la partie I de la Loi de l’impôt sur le revenu (prestation fiscale pour enfants) si elle avait présenté l’avis visé au paragraphe 122.62(1) de cette loi, lorsqu’aucune personne n’a été considérée comme un particulier admissible à l’égard de la même personne à charge admissible âgée de moins de sept ans.
[65] Paragraphs (c) and (d) of the provision extend the definition of family allowance recipient to the person eligible for the Canada Child Tax Benefit under Part I, Division E, subdivision a.1 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.).
[66] The Canada Child Tax Benefit was introduced in the 1992 Federal Budget, and replaced the Family Allowance in 1993: S.C. 1992, c. 48, s. 12; Wajchendler v. The Queen (2003), 56 D.T.C .3895 at paragraph 3. It provides a single non-taxable monthly payment to the custodial parent of a child. This payment is “intended to benefit the child by providing funds to the parent who primarily fulfilled the responsibility for the care and upbringing of the child”: S.R. v. The Queen, 2003 TCC 649 at paragraph 12.
[67] Paragraph 77(1)(a) further extends the definition to the spouses and common law partners of those who received a family allowance under the Family Allowances Act. It does so on two conditions: The spouse or common law partner must have remained at home as the primary caregiver of a child under the age of 7 and the “period has not already been or cannot be excluded or deducted from the [recipient of an allowance]’s contributory period under Part II of the Act.”
[68] Before this Court, the parties contested the meaning of this latter requirement.
[69] Mr. Runchey argued that a spouse or common law partner can only qualify under this extended definition if the person who received the family allowance waives his or her right to the CRP in favour of the contributor.
[70] The Attorney General disagrees and argues that a waiver is not necessary. According to the Attorney General, the waiver was introduced to enhance administrative efficiency. If a parent cannot obtain a waiver, subsection 53(g) of the Plan Regulations allows Plan administrators to determine which parent actually acted as the primary caregiver.
[71] The Plan and Plan Regulations favour the applicant’s interpretation. Paragraph 77(1)(a) says that the spouse or common law partner can only qualify for the CRP when the “period has not already been or cannot be excluded or deducted from the person’s contributory period under Part II of the Act.” The words “the person” refer to the parent who received an allowance under the Family Allowances Act. The CRP is an exclusion under Part II of the Plan. Therefore, a spouse or partner can only qualify for the CRP when the parent who received the family allowance does not.
[72] Thus, paragraph 77(1)(a) adds an important qualification to the definition of “family allowance recipient” and thus eligibility for the CRP. It recognizes that the eligibility criteria for the CRP are imperfect. That is, in some circumstances the person who received a family allowance was not the child’s primary caregiver. In these circumstances, paragraph 77(1)(a) allows the primary caregiver to access the CRP, but only if the other parent does not get access to the CRP. This can occur if the CRP would lower the amount of the parent’s pension, or if the parent waives his or her right to it.
[73] In sum, section 42 of the Plan and subsection 77(1) of the Plan Regulations establish three circumstances when a contributor is a “family allowance recipient”:
1. before 1992, he or she received a family allowance under the old Family Allowances Act; or
2. he or she remained at home as the primary caregiver of the child, he or she is the present or former spouse or common law partner of a person who received a family allowance, and the person who received a family allowance does not qualify or waives his or her right to the CRP; and
3. after 1992, he or she did or could qualify for the Canada Child Tax Benefit.
(g) Is there a gender-based distinction?
[74] The foregoing analysis shows that the CRP does not necessarily apply to the parent that had primary caregiving responsibility for the child or children. Because of the definition of “family allowance recipient,” eligibility for the CRP is generally limited to parents that, before 1992, qualified for a family allowance or, after 1992, the Canada Child Tax Benefit.
[75] While family allowances and Canada Child Tax Benefit will generally have gone to the parent with primary caregiving responsibility, this is not always the case. Rather, as we shall see, both programs presumptively apply to the female parent, except when the male parent has sole custody of the child or in other limited circumstances. Therefore, the CRP program favours women as a whole.
(i) Family Allowances
[76] The Family Allowances Act, R.S.C. 1970, c. F-1, as it read immediately before being repealed, and all subsequent versions of the Family Allowances Act are relevant to determining eligibility for the CRP. This particular case concerns the Family Allowances Act, S.C. 1973-74, c. 44 and subsequent versions.
[77] The Family Allowances Act and the associated regulations favoured women over men. The allowance was normally paid to the mother, the father being eligible to receive the benefit “only in exceptional and very precise circumstances”: Canada (Attorney General) v. Vincer, [1988] 1 F.C. 714 at page 720 (C.A.). The allowance was not divisible between the parents. As bluntly put by Pratte J.A. in Vincer, supra: “[c]learly [the Family Allowances Act and Regulations] make a distinction between women and men; clearly they treat women more favourably than men.”
[78] The relevant versions of the Family Allowances Act paid an allowance to the female parent, except as prescribed by regulations. The relevant provision read as follows:
7. (1) Where payment of a family allowance is approved, the allowance shall, in such manner and at such times as are prescribed, be paid to the female parent, if any, or to such parent or other person or such agency as is authorized by or pursuant to the regulations to receive it.
7. (1) Lorsque le versement d’use allocation familiale est approuvé, celle-ci doit être versée, de la manière et aux époques prescrites, au parent de sexe féminin, le case échéant, ou au parent ou autre personne ou à l’organisme qui est autorise à la recevoir par les règlements ou en vertu de ceux-ci.
See Family Allowances Act, S.C. 1973-74, c. 44, s. 7(1) and the Family Allowances Act, R.S.C. 1985, c. F-1, s. 7(1).
[79] Despite the presumption in favour of female parents, males could receive an allowance in certain limited circumstances. Section 10 of the Family Allowances Regulations, SOR/74-30 provided as follows:
10. (1) Where payment of a family allowance is approved, the allowance shall be paid to the male parent where
(a) there is no female parent; or
(b) the female parent and male parent are living separate and apart and the male parent has, in fact, custo