Shaw v. Stein et al., 2004 SKQB 194

• Judge: R.S. Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 04, 2004
• Jurisdiction: Saskatchewan
• Citations: 2004 SKQB 194;(2004), 248 Sask.R. 23 (FD)

Shaw v. Stein (2004), 248 Sask.R. 23 (FD)

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. MY.057

Sinda Shaw (petitioner) v. Michael Stein (respondent) and Attorney General for Saskatchewan (intervener)

(2002 F.L.D. No. 505; 2004 SKQB 194)

Indexed As: Shaw v. Stein et al.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

R.S. Smith, J.

May 4, 2004.

Summary:

Shaw and Stein cohabited from 1996 to 2002. In 2001, certain provisions of the Family Property Act were amended to retroactively deem individuals who cohabited with one another to be spouses. Shaw petitioned for relief under the Act. Stein, inter alia, filed a Notice of Constitutional Question, asserting that the amendments to the Act infringed his right to liberty under s. 7 of the Charter. The Crown intervened and moved to dismiss Stein's Notice of Constitutional Question on the ground that it disclosed no cause of action.

The Saskatchewan Court of Queen's Bench, Family Law Division, allowed the Crown's motion.

Civil Rights - Topic 783

Liberty - Particular rights - Economic or property rights - In 2001, certain provisions of the Family Property Act were amended to retroactively deem individuals who cohabited with one another to be spouses - Stein filed a Notice of Constitutional Question, arguing that the amendments constituted an intrusion into his personal autonomy, specifically his decision not to marry and, therefore, infringed his right to liberty under s. 7 of the Charter - The Saskatchewan Court of Queen's Bench, Family Law Division, struck out the Notice of Constitutional Question as disclosing no cause of action - The focus of the Act as amended was to determine the property rights of individuals who were married or had cohabited for two years - Section 7 of the Charter could not be employed to protect an economic or property right - See paragraphs 8 to 39.

Civil Rights - Topic 8552

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Rule of law - Preamble - In 2001, certain provisions of the Family Property Act were amended to retroactively deem individuals who cohabited with one another to be spouses - Stein argued that retroactivity was an affront to the rule of law - The Saskatchewan Court of Queen's Bench, Family Law Division, noted that retroactivity had long been accepted as the privilege of the legislature as long as it was expressed clearly - The court referred to Kelln v. Walker (Sask. Q.B.) where it was held that the language of retroactivity in the amendments to the Act (s. 3) was clear - Bacon et al. v. Saskatchewan Crop Insurance Corp. et al. (Sask. C.A.) held that a reference of the rule of law in the preamble of the Charter could not be used as an independent ground to review retroactive legislation - Absent a specific protection for property rights in the Charter, the reference to the rule of law in the preamble did not create a substantive right - The court held that the rationale in Kelln and Bacon disposed of Stein's argument on retroactivity - See paragraphs 40 to 47.

Constitutional Law - Topic 482

Powers of parliament and the legislatures - Limitations on powers of parliament - Rule of law - [See Civil Rights - Topic 8552 ].

Family Law - Topic 1002

Common law, same-sex or adult interdependent relationships - Spouse - Meaning of - [See Civil Rights - Topic 783 and Civil Rights - Topic 8552 ].

Statutes - Topic 6701

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - General - [See Civil Rights - Topic 8552 ].

Cases Noticed:

Cherkewich Yost & Heffernan Law Office v. Green Lake (Northern Village) (2000), 196 Sask.R. 13; 2000 SKQB 306, refd to. [para. 8].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 8].

Motz v. Saskatchewan, [2001] S.J. No. 801; 2001 SKQB 565, refd to. [para. 8].

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 9].

Kieling et al. v. Saskatchewan Wheat Pool (1992), 105 Sask.R. 11; 32 W.A.C. 11 (C.A.), refd to. [para. 9].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 14].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 16].

Nova Scotia (Attorney General) v. Walsh - see Walsh v. Bona.

Walsh v. Bona (2002), 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273; 221 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 17].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 26].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 27].

Whitbread v. Walley et al., [1990] 3 S.C.R. 1273; 120 N.R. 109, refd to. [para. 28].

Siemens et al. v. Manitoba (Attorney General) et al., [2003] 1 S.C.R. 6; 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1, refd to. [para. 29].

Constitutional Questions Act, Re (1981), 13 Sask.R. 100 (C.A.), refd to. [para. 34].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 43].

Kelln v. Walker (2002), 33 R.F.L.(5th) 91; 2002 SKQB 360, folld. [para. 44].

Bacon et al. v. Saskatchewan Crop Insurance Corp. et al., [1999] 11 W.W.R. 51; 180 Sask.R. 20; 205 W.A.C. 20 (C.A.), folld. [para. 46].

Statutes Noticed:

Family Property Act, S.S. 1997, C. F-6.3, sect. 2(1) [para. 10]; sect. 3 [para. 44].

Counsel:

D.J. Kendall, for the petitioner;

G.G. Walen, Q.C., for the respondent;

T.J. Irvine, for the Attorney General of Saskatchewan.

This motion was heard by R.S. Smith, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following fiat on May 4, 2004.