Walsh v. Bona, (2002) 297 N.R. 203 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday December 19, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2002), 297 N.R. 203 (SCC);2002 SCC 83

Walsh v. Bona (2002), 297 N.R. 203 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.R. TBEd. DE.036

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 (intervenors)

(28179; 2002 SCC 83; 2002 CSC 83)

Indexed As: Walsh v. Bona

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

December 19, 2002.

Summary:

Common law spouses terminated their relationship after 10 years and two children. Although common law spouses could seek a share of "marital" property, they could not do so under the Matrimonial Property Act, which applied only to married spouses. The common law wife submitted that she was discriminated against on the basis of marital status contrary to s. 15(1) of the Charter of Rights and Freedoms.

The Nova Scotia Supreme Court, in a judgment reported 178 N.S.R.(2d) 151; 549 A.P.R. 151, held that the Act did not dis­criminate against common law spouses. Marriage was a consensual relationship of choice. Matrimonial property legislation should not be applied to common law spouses who choose not to marry. Marital status, in this instance, was not a personal characteristic qualifying as an analogous ground of discrimination. If the Act did discriminate against common law spouses, it would be saved as a reasonable limit pre­scribed by law under s. 1 of the Charter. The common law wife appealed.

The Nova Scotia Court of Appeal, in a judgment reported 183 N.S.R.(2d) 74; 568 A.P.R. 74, allowed the appeal. The common law wife was subjected to differential treat­ment on an analogous ground (marital status). The Act violated her equality rights by demeaning her human dignity. The exclu­sion of common law spouses from the Act was not saved as a reasonable limit pre­scribed by law under s. 1, where it was not established that their exclusion was a press­ing and substantial objective. The appropriate remedy was to declare s. 2(g) to be of no force and effect, but to suspend that declar­ation for one year to permit the province to devise new eligibility criteria for common law spouses. The court refused to read into the definition of spouse the spouse definition in the Family Maintenance Act, which included common law spouses. It was up to the legislature, not the courts, to define which common law spouses were to be included in the Matrimonial Property Act. The court, in a supplementary decision reported 185 N.S.R.(2d) 190; 575 A.P.R. 190, held that an individual remedy under s. 24 of the Charter was neither available nor appropriate. The court ordered that the mat­ter be remitted to the Supreme Court to be heard on a constructive trust basis. The Attorney General of Nova Scotia appealed the finding of discrimination.

The Supreme Court of Canada, L'Heureux-Dubé, J., dissenting, allowed the appeal. Section 2(g) of the Matrimonial Property Act did not discriminate against heterosexual unmarried cohabitants.

Civil Rights - Topic 925

Discrimination - Marital status - Common law relationships - Although common law spouses could seek a share of "marital" property, they could not do so under the Matrimonial Property Act, which applied only to married spouses - A common law wife submitted that she was discriminated against on the basis of marital status (Charter, s. 15(1)) - The Supreme Court of Canada held that excluding common law spouses was not discriminatory - The distinction reflected differences between married and unmarried relationships and respected the fundamental personal auton­omy and dignity of the individual - Bene­fits were not deprived on the basis of stereotypes or presumed characteristics perpetuating the idea that unmarried couples were less worthy of respect - Some persons in conjugal relationships specifically chose to avoid the institution of marriage and its legal consequences - Persons unwilling or unable to marry had alternative choices and remedies (e.g., unjust enrichment) - They could own property jointly, enter domestic contracts and unmarried spouses could access the benefits of the Act by registering their domestic partnership - The court stated that "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. ... The [Act] only protects persons who have demonstrated their intention to be bound by it and have exercised their right to choose." - See paragraphs 31 to 64.

Civil Rights - Topic 5516

Equality and protection of the law - Tests for inequality - General - The Supreme Court of Canada restated that determina­tion of a discrimination claim involved three broad inquiries: "(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteris­tics, or (b) fail 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? (B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and (C) 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?" - See paragraph 31.

Civil Rights - Topic 5679.10

Equality and protection of the law - Matri­monial regimes and marital property legis­lation - [See Civil Rights - Topic 925].

Family Law - Topic 681

Husband and wife - Property rights during and after common law marriage or rela­tionships - General - [See Civil Rights - Topic 925].

Cases Noticed:

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. 10].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 10].

Law v. Minister of Citizenship and Immi­gration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 20].

Clarke v. Clarke, [1990] 2 S.C.R. 795; 113 N.R. 321; 101 N.S.R.(2d) 1; 275 A.P.R. 1, refd to. [para. 23].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 26].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384, refd to. [para. 27].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, refd to. [para. 27].

Ardoch Algonquin First Nations 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. 37].

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

Rathwell v. Rathwell, [1978] 2 S.C.R. 436; 19 N.R. 91, refd to. [para. 61].

Sorochan v. Sorochan, [1986] 2 S.C.R. 38; 69 N.R. 81; 74 A.R. 67, refd to. [para. 61].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 63].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 63].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 63].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 89].

Lavoie et al. v. Canada et al. (2002), 284 N.R. 1 (S.C.C.), refd to. [para. 89].

Andrews v. Law Society of British Colum­bia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 92].

Gammans v. Ekins, [1950] 2 All E.R. 140 (C.A.), refd to. [para. 96].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 103].

Murdoch v. Murdoch, [1975] 1 S.C.R. 423, refd to. [para. 107].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 129].

Taylor v. Rossu (1998), 216 A.R. 348; 175 W.A.C. 348; 161 D.L.R.(4th) 266 (C.A.), refd to. [para. 155].

Woycenko Estate, Re (2002), 315 A.R. 291 (Q.B.), refd to. [para. 159].

C.L.W. v. G.C.W. (1999), 182 Sask.R. 237 (Q.B.), refd to. [para. 159].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, refd to. [para. 190].

Egan and Nesbitt v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 195].

Hyde v. Hyde (1866), L.R. 1 P. & D. 130, refd to. [para. 196].

Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R.(3d) 658 (Div. Ct.), refd to. [para. 196].

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329, refd to. [para. 205].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 8].

Matrimonial Property Act, R.S.N.S. 1989, c. 275, sect. 2, sect. 12(1) [para. 8].

United Nations, Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948), art. 16 [para. 193].

Authors and Works Noticed:

Alberta, University of Alberta Law Research and Reform Institute, Survey of Adult Living Arrangements: A Technical Report (1984), pp. 64 to 72 [para. 40].

Blumberg, Grace Ganz, The Regularization of Nonmarital Cohabitation: Rights and Responsibilities in the American Welfare State (2001), 76 Notre Dame L. Rev. 1265, p. 1266 [para. 117].

Brinton, C., French Revolutionary Legisla­tion on Illegitimacy 1789-1804 (1936), p. 83 [para. 95].

Canada, Law Reform Commission, Studies on Family Property Law, Working Paper (1975), p. 41 [para. 109].

Canada, Royal Commission on the Status of Women in Canada, Report of the Commission on the Status of Women in Canada (1970), p. 246 [para. 108].

Canada, Statistics Canada, 1996 Census: Marital Status, Common-law Unions and Families, Catalogue No. 11-001-E (1997), generally [para. 120].

Canada, Statistics Canada, Age, Sex, Mari­tal Status and Common-law Status, 1996 Census Technical Reports, Catalogue No. 92-353-XPB (1999), p. 40 [para. 97].

Canada, Statistics Canada, Profile of Cana­dian families and households: Diversifi­cation continues, Catalogue No. 96F0030XIE2001003 (2002), p. 24 [para. 124].

Canada, Statistics Canada, Report on the Demographic Situation in Canada 1996: Current Demographic Analysis, Cata­logue No. 91-209-XPE (1997), pp. 123, 124 [para. 96].

Des Rosier, Nathalie, Should Conjugality Matter in Law and Social Policy?, Remarks for a Keynote Address to the North American Regional Conference of the International Society of Family Law (2001), p. 3 [para. 132].

Eichler, Margrit, Family Shifts: Families, Policies and General Equality (1997), pp. 95 [para. 54]; 96 [paras. 43, 54].

Eisenberg, Marvin Aron, The Limits of Cognition and the Limits of Contract (1995), 47 Stan. L. Rev. 211, generally [para. 146].

Ellman, Ira Mark, "Contract Thinking" was Marvin's Fatal Flaw (2001), 76 Notre Dame L. Rev. 1365, pp. 1373, 1374 [para. 145].

Holland, Winifred H., Intimate Relation­ships in the New Millennium: The As­similation of Marriage and Cohabitation? (2000), 17 Can. J. Fam. L. 114, pp. 127 [para. 95]; 151, 152 [para. 134].

Holland, Winifred H., 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, p. 379 [para. 151].

Kuffner, Kara L., Common-Law and Same-Sex Relationships Under The Mat­rimonial Property Act (2000), 63 Sask. L. Rev. 237, p. 239 [para. 134].

Lempriere, T., A New Look at Poverty (1992), 16 Perceptions 18, pp. 19 to 20 [para. 116].

McLeod, James G., Annotation to Pettkus v. Becker (1981), 19 R.F.L.(2d) 165, p. 168 [para. 97].

MacLeod, James G., Annotation to Walsh v. Bona (2000), 5 R.F.L.(5th) 190, p. 191 [para. 134].

MacLeod, James G., Unequal Division of Property, in Special Lectures of the Law Society of Upper Canada, 1993 Family Law: Roles, Fairness and Equality (1994), pp. 154 to 156 [para. 139].

Mossman, Mary Jane, Running Hard to Stand Still: The Paradox of Family Law Reform (1994), 17 Dal. L.J. 5, p. 6 [para. 116].

New Brunswick, Department of Justice, Law Reform Division, Matrimonial Prop­erty Reform for New Brunswick, Dis­cussion Paper (1978), p. 24 [para. 97].

New Encyclopedia Britannica (15th Ed. 1990), vol. 19, pp. 59 to 83 [para. 192].

Nova Scotia, Hansard, House of Assembly Debates and Proceedings (May 8, 1980), p. 2001 [para. 45].

Nova Scotia, Law Reform Advisory Com­mission, Development of Matrimonial Property Law in England and Nova Scotia: An Historic Perspective (1975), pp. 2, 3 [para. 106].

Nova Scotia, Law Reform Commission, Discussion Paper on Matrimonial Prop­erty in Nova Scotia: Suggestions for a New Family Law Act (1996), p. 7 [para. 115].

Nova Scotia, Law Reform Commission, Final Report: Reform of the Law Dealing with Matrimonial Property in Nova Scotia (1997), p. 5 [para. 198].

Ontario, Law Reform Commission, Report on the Rights and Responsibilities of Cohabitants Under the Family Law Act (1993), p. 27 [para. 136].

Payne, Julien D., Legislative Amelioration of the Condition of the Common Law Illegitimate: The Legitimacy Act (Saskatchewan) 1961 (1961), 26 Sask. Bar Rev. 78, generally [para. 95].

Payne, Julien D., and Payne, Marilyn A., Canadian Family Law (2001), pp. 321 to 325 [para. 139].

Pineau, Jean, Mariage, séparation, divorce: L'état du droit du Québec (1976), p. 16 [para. 192].

Smart, Carol, Stories of Family Life: Co­habitation, Marriage and Social Change (2000), 17 Can. J. Fam. L. 20, p. 50 [para. 150].

Tasmania, Law Reform Commission, Report on Obligations Arising from De Facto Relationships, No. 36 (1977), p. 5 [para. 144].

Wu, Zheng, Cohabitation: An Alternative Form of Family Living (2000), pp. 105, 106, 116, 120, 121 [para. 40].

Counsel:

Edward A. Gores, for the appellant, Attor­ney General of Nova Scotia;

Katherine A. Briand and Stephen M. Robertson, for the respondent, Susan Walsh;

Christopher M. Rupar, for the intervenor, Attorney General of Canada;

Daniel Guttman and Sarah Kraicer, for the intervenor, Attorney General for Ontario;

Hugo Jean and Monique Rousseau, for the intervenor, Attorney General of Quebec;

Timothy P. Leadem, Q.C., for the intervenor, Attorney General of British Columbia;

Robert J. Normey, for the intervenor, Attorney General for Alberta.

Solicitors of Record:

Nova Scotia Department of Justice, Hali­fax, N.S., for the appellant, Attorney General of Nova Scotia;

Nova Scotia Legal Aid, New Glasgow, N.S., for the respondent, Susan Walsh;

Deputy Attorney General of Canada, Ottawa, Ontario, for the intervenor, Attorney General of Canada;

Ministry of the Attorney General, Toronto, Ontario, for the intervenor, Attorney General for Ontario;

Department of Justice, Ste-Foy, Quebec, for the intervenor, Attorney General of Quebec;

Ministry of the Attorney General, Victoria, B.C., for the intervenor, Attorney Gen­eral of British Columbia;

Alberta Justice, Edmonton, Alberta, for the intervenor, Attorney General for Alberta.

This appeal was heard on June 14, 2002, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

On December 19, 2002, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Bastarache, J. (McLachlin, C.J.C., Iaco­bucci, Major, Binnie, Arbour and Le­Bel, JJ., concurring) - see paragraphs 1 to 65;

L'Heureux-Dubé, J., dissenting - see paragraphs 66 to 189;

Gonthier, J. - see paragraphs 190 to 206.