Falkiner et al. v. Director of Income Maintenance (Ont.) et al., (2002) 159 O.A.C. 135 (CA)

• Judge: Osborne, A.C.J.O., Laskin and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 13, 2002
• Jurisdiction: Ontario
• Citations: (2002), 159 O.A.C. 135 (CA)

Falkiner v. Income Maintenance Dir. (2002), 159 O.A.C. 135 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. MY.022

Sandra Falkiner, Deborah Sears, Cynthia Johnston-Pepping and Claude Marie Cadieux (appellants/respondents in appeal) v. Director, Income Maintenance Branch, Ministry of Community and Social Services and Attorney General of Ontario (respondents/appellants) and Canadian Civil Liberties Association and Women's Legal Education and Action Fund (interveners)

(C35052)

Paul Thomas (appellant/appellant) v. Director of Income Maintenance Branch of the Ministry of Community and Social Services (respondent/respondent in appeal)

(C34983)

Indexed As: Falkiner et al. v. Director of Income Maintenance (Ont.) et al.

Ontario Court of Appeal

Osborne, A.C.J.O., Laskin and Feldman, JJ.A.

May 13, 2002.

Summary:

The four claimants who were sole support mothers of dependent children lived with men who were not the children's fathers. The Director of Income Maintenance ruled that the claimants were "spouses" and therefore lost their eligibility to receive benefits as sole support parents after 1995 amendments to the definition of spouse in the Family Benefits Act Regulations and General Welfare Assistance Act Regulations, which affected cohabiting couples. Three claimants sought a review by the Social Assistance Review Board (SARB) of the decision finding them ineligible for benefits. While the review was pending, the claimants commenced judicial review proceedings, submitting that the amended regulations were ultra vires the enabling legislation and contrary to ss. 7 and 15(1) of the Charter.

The Ontario Divisional Court, Rosenberg, J., dissenting, in a judgment reported 94 O.A.C. 109, dismissed the application. The impugned regulations were intra vires the Family Benefits Act and the General Welfare Assistance Act. The court, Rosenberg, J., dissenting on this point, held that the claimants' Charter challenge was premature because the right of appeal to the SARB had not been exhausted. The SARB thereafter overturned the decisions of the Director and ordered that the claimants' benefits be reinstated. The SARB held that the claimants fell within the definition of "spouse". However, the definition violated ss. 7 and 15 of the Charter and was not justified under s. 1. The Province appealed.

The Ontario Divisional Court, Belleghem, J., dissenting, in a judgment reported 134 O.A.C. 324 (Falkiner appeal), dismissed the appeal. The definition of "spouse" discriminated on the basis of sex, violated the equality rights of single support mothers on social assistance and could not be saved under s. 1 of the Charter. The Director and Province appealed.

In a related appeal (Thomas v. Director of Income Maintenance (Ont.) et al. (not reported in this series of reports)), Thomas appealed the interpretation by the SARB and the Divisional Court of "cohabitation" in the "spouse" definition. The two appeals were heard together.

The Ontario Court of Appeal dismissed the Falkiner appeal, affirming that the definition of "spouse" violated equality rights and was not saved under s. 1. The court allowed the Thomas appeal, remitting the matter to the Director on the basis that Thomas was a single "permanently unemployable person". The court rejected a request to suspend the declaration of invalidity.

Civil Rights - Topic 921

Discrimination - Marital status - General - [See Civil Rights - Topic 5648 ].

Civil Rights - Topic 1066

Discrimination - By sex - What constitutes - [See Civil Rights - Topic 5648 ].

Civil Rights - Topic 5648

Equality and protection of the law - Social assistance legislation - 1995 amendments to Regulations under the Family Benefits Act and General Welfare Assistance Act changed the definition of "spouse", disentitling four sole support mothers to benefits based on their cohabitation with men who were not the fathers of their children in "try on" relationships - The definition caught relationships that lacked the meaningful financial interdependence of a spousal relationship, including men and women sharing rent but otherwise independent (spouse in the house rule) - The Ontario Court of Appeal affirmed that the amended definition of "spouse" discriminated against the mothers on the basis of sex, marital status and receipt of social assistance - The definition was overly broad - The equality rights denial was not a reasonable limit prescribed by law under s. 1 of the Charter - Although the objective of the legislation was substantial and pressing, it failed the proportionality test - The amended definition was not rationally connected to the objectives, did not impair rights as little as possible and its positive effects were outweighed by the negative effects - See paragraphs 53 to 111.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 5648 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See Civil Rights - Topic 5648 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous categories - The Ontario Court of Appeal held that receipt of social assistance was an analogous ground under s. 15 of the Charter - See paragraph 84.

Social Assistance - Topic 852

Claims - Benefits - Entitlement - Bars - Cohabitation - [See Civil Rights - Topic 5648 ].

Social Assistance - Topic 852

Claims - Benefits - Entitlement - Bars - Cohabitation - Section 1(1)(d) of the Family Benefits Act Regulations defined a "spouse" as a person of the opposite sex to the applicant who resided in the same dwelling and the social and familial aspects of the relationship amounted to "cohabitation" - Thomas was disabled and in receipt of benefits as a "permanently unemployable person" - Thomas moved in with a woman friend to share expenses and because he needed help - The Board found the woman to be a "spouse", noting, inter alia, that they spent nearly all of their spare time together - Thomas was denied further benefits because the spouse's assets exceeded the allowable amount - The Divisional Court affirmed the finding - The Ontario Court of Appeal held that Thomas and the woman were not spouses - It was an error to equate a spousal relationship with spending time together - The persons must interrelate with each other, family, friends and the community as a couple - Given Thomas' disability, spending time together was based on need and not indicative of a marriage-like relationship - See paragraphs 23 to 39.

Social Assistance - Topic 853

Claims - Benefits - Entitlement - Bars - Spousal relationship - [See Civil Rights - Topic 5648 and Social Assistance - Topic 852 ].

Social Assistance - Topic 950

Claims - Bars - Mother (claimant) living with another person as husband and wife - [See Civil Rights - Topic 5648 and Social Assistance - Topic 852 ].

Cases Noticed:

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 56].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 56].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 63].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 64].

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 203; 253 N.R. 329, refd to. [para. 64].

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201, refd to. [para. 64].

Lovelace v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Masse et al. v. Ontario (Minister of Community and Social Services) (1996), 89 O.A.C. 81; 134 D.L.R.(4th) 20 (Div. Ct.), disagreed with [para. 84].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 85].

R. v. Rehberg (J.) (1994), 127 N.S.R.(2d) 331; 355 A.P.R. 331; 111 D.L.R.(4th) 336 (S.C.), refd to. [para. 88].

Dartmouth/Halifax County Regional Housing Authority v. Sparks (1993), 119 N.S.R.(2d) 91; 330 A.P.R. 91; 101 D.L.R.(4th) 244 (C.A.), refd to. [para. 88].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 106].

Schachter v. Canada, [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 117].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 62].

Family Benefits Act Regulations (Ont.), R.R.O. 1990, Reg. 366, sect. 1(1)(d) [para. 15]; sect. 1(2), sect. 1(3) [para. 18].

Counsel:

Janet E. Minor and Sarah Kraicer, for the appellants;

Raj Anand, M. Kate Stephenson and Chantal Tie, for the respondents in appeal;

Martin Doane, for the Canadian Civil Liberties Association;

Fay Faraday and Kerri Froc, for the Women's Legal Education and Action Fund.

These appeals were heard on January 31 to February 2, 2001, before Osborne, A.C.J.O.*, Laskin and Feldman, JJ.A., of the Ontario Court of Appeal.

On May 13, 2002, Laskin, J.A., released the following judgment for the Court of Appeal.

* Osborne, A.C.J.O., did not take part in the decision.