Weronski v. MNR, 91 DTC 1105, [1991] 2 CTC 2431 (TCC)

Christie, A.CJ.T.C.:—The first question that must be addressed and answered in determining this appeal is: Do its facts regarded in conjunction with paragraphs 60(b) and (c.1) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act") establish that there has been “discrimination” against the appellant within the meaning to be attributed to that word in subsection 15(1) of the Canadian Charter of Rights & Freedoms ("the Char- ter")? [1]

The appeal relates to 1985, 1986 and 1987. In computing his income for those years the appellant made these deductions: 1985-$3,640; 1986-$3,640; 1988- $3,145. In assessing the appellants liability to income tax the respondent disallowed them.

Both the appellant and Valerie Ball were residents of Ontario at all times relevant to this appeal. From January 1973 to October 1983 their domestic relationship was that of cohabitation. [2] Two children were born during this time, namely, Troy on May 13, 1979, and Tara on July 21, 1982. Two or three months prior to October 1983 the marriage of Valerie Ball to another was dissolved. The appellant was “single” during the period of his cohabitation with her. Since October 1983 they nave lived apart.

On April 8, 1984, they signed an agreement prepared by a lawyer dated March 20, 1984, that recites the fact of their having lived together in a commonlaw relationship; that the relationship terminated in October 1983 and that Troy and Tara were torn of that relationship. The operative clauses of the agreement read:

1. Valerie Ball shall have custody of the two children subject to reasonable access to John Weronski.

2. John Weronski shall pay the sum of $35 per week for the support of each of the aforementioned children (a total of $70 per week).

The agreement is witnessed.

The amounts sought to be deducted in the years referred to were paid under this agreement. But payments of that kind are only deductible if paid pursuant to an order made by a competent tribunal as provided under paragraph 60(c.1) of the Act. As originally enacted paragraph 60(c.1) read:

60. There may be deducted in computing a taxpayer's income for a taxation year such of the following amounts as are applicable:

(c.1) an amount paid by the taxpayer in the year, pursuant to an order made in accordance with the laws of a province by a competent tribunal, as an allowance payable on a periodic basis for the maintenance of the recipient thereof, children of the recipient, or both the recipient and children of the recipient if, at the time the payment was made and throughout the remainder of the year, he was living apart from the recipient who was an individual within a prescribed class of person described in the laws of the province;

Section 6502 of the Income Tax Regulations provides:

6502. For the purposes of paragraph 56(1)(c.1), section 56.1, paragraph 60(c.1) and section 60.1 of the Act, the class of individuals

(a) who were parties, whether in a personal capacity or by representation, to proceedings giving rise to an order made in accordance with the laws of the Province of Ontario, and

(b) who, at the time the application for the order was made, were persons described in subclause 14(b)(i) of the Family Law Reform Act, Revised Statutes of Ontario 1980, c. 152,

is prescribed as a class of persons described in the laws of a province.

Subclause 14(b)(i) provided:

14. In this Part,

(b) "spouse" means a spouse as defined in section 1, and in addition includes

(i) either of a man and woman not being married to each other who have cohabited,

(A) continuously for a period of not less than five years, or

(B) in a relationship of some permanence where there is a child born of whom they are the natural parents,

and have so cohabited within the preceding year,

Paragraph 60(c.1) was amended by Statutes of Canada 1988, c. 55, subsection 37(1) to read:

60. There may be deducted in computing a taxpayer's income for a taxation year such of the following amounts as are applicable:

(c.1) an amount paid by the taxpayer in the year, pursuant to an order made by a competent tribunal in accordance with the laws of a province, as an allowance payable on a periodic basis for the maintenance of the recipient thereof, children of the recipient, or both the recipient and children of the recipient if

(i) the order was made

(A) after February 10, 1988, or

(B) before February 11, 1988 and the taxpayer and the recipient jointly elected before the end of the year to have this paragraph and paragraph 56(1)(c.1) apply with respect to the payment,

(ii) at the time the payment was made and throughout the remainder of the year, the taxpayer was living apart from the recipient, and

(iii) the taxpayer required to pay the amount is an individual of the opposite sex who

(A) before the date of the order cohabited with the recipient in a conjugal relationship, or

(B) is the natural parent of a child of the recipient; [3]

There being no court order pursuant to which the payments for the maintenance of the children were made, both litigants agree that paragraph 60(c.1) in its original form or as amended cannot be invoked as authority for the deductions. The appellant relies, however, on a submission based upon paragraphs 60(b) and (c.1) of the Act in conjunction with subsection 15(1) of the Charter. Paragraph 60(c.1) has just been cited. Paragraph 60(b) and subsection 15(1) provide:

60. There may be deducted in computing a taxpayer's income for a taxation year such of the following amounts as are applicable:

(b) an amount paid by the taxpayer in the year, pursuant to a decree, order or judgment of a competent tribunal or pursuant to a written agreement, as alimony or other allowance payable on a periodic basis for the maintenance of the recipient thereof, children of the marriage, or both the recipient and children of the marriage, if he was living apart from, and was separated pursuant to a divorce, judicial separation or written separation agreement from, his spouse or former spouse to whom he was required to make the payment at the time the payment was made and throughout the remainder of the year; [4]

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.

Under paragraph 60(b) of the Act married parents of children can enter into an agreement for their maintenance and the amounts paid pursuant to that agreement are deductible in computing the payer's income thereunder if the other conditions stipulated therein are met about the amounts being an allowance payable on a periodic basis and the parties to the agreement living apart. These deductions can also be made under paragraph 60(b) if the amounts for maintenance are paid pursuant to a decree, order or judgment of a competent tribunal and the conditions referred to are complied with. On the other hand amounts paid as an allowance for the maintenance of children born in consequence of cohabitation are deductible in computing the payer's income under paragraph 60(c.1) only if they are paid pursuant to an order made in accordance with the laws of a province by a competent tribunal and if the other matters stipulated in the paragraph are complied with. A taxpayer who must rely on paragraph 60(c.1) to make deductions in computing his income does not have the option that is available under paragraph 60(b) of relying on a written separation agreement. This is the focal point of the alleged discrimination against the appellant.

Counsel for the appellant does not ask that this appeal be disposed of on the basis that paragraph 60(c.1) is "of no force or effect". [5] Obviously that would not achieve the purpose of her client in bringing this appeal. She requests instead that a remedy be granted under subsection 24(1) of the Charter that will have the effect of incorporating into paragraph 60(c.1) the provisions of paragraph 60(b) that authorizes a written agreement to form one of the primary bases for deductions in computing income. In short, what is sought is the amending of an Act of Parliament by judicial fiat. Subsection 24(1) provides:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

In Schachter v. Canada, [1990] 2 F.C. 129; 66 D.L.R. (4th) 635 (F.C.A.) what is now section 20 of the Unemployment Insurance Act, R.S.C. 1985, c. U-1, was under consideration. It entitles adoptive parents to payments in respect of time taken off work by fathers to look after adopted children after their arrival home. The same child care benefits are not available to natural parents. Mr. Justice Strayer of the Federal Court-Trial Division found that this provision of the Unemployment Insurance Act was inconsistent with subsection 15(1) of the Charter. Instead of disposing of the litigation on the basis that those provisions were without force or effect, he fashioned a remedy under section 24 of the Charter that is a declaration that a natural father or mother is entitled to the child care benefits referred to in the same manner as adoptive parents. Also a natural mother should not be precluded from entitlement to the child care benefits because she received pregnancy benefits during the same period. Mr. Justice Heald who delivered the judgment of the majority sustaining Strayer, J. said at pages 134-35 (D.L.R. 638) that the appeal raised squarely ". . . the role of the judiciary in circumstances where the granting of a Charter remedy results in a judicial amendment to the legislation and, as well, entails the appropriation of public moneys from the Consolidated Revenue Fund for a purpose not authorized by Parliament.” Mr. Justice Mahoney, dissenting, said, at page 153 (D.L.R. 653) that the appeal raised ”. . . in stark terms, a fundamental constitutional question. That is whether a competent Court, when it has found legislation to be inconsistent with a provision of the Constitution of Canada, has the power to grant a remedy which trespasses upon Parliament's jurisdiction to legislate and, in the present circumstances at least, to appropriate monies."

Schachter is under appeal to the Supreme Court of Canada. [6]

The appellant's submission is that he is being discriminated against in that had he and Valerie Ball been married while living together he could deduct the payments made for the maintenance of Troy and Tara under the agreement they entered into in that regard. In the course of argument his counsel said:

Besides what has already been indicated in the pleadings, [7] that getting a court order is costly and time consuming and ties up the resources of the Court, I would also point out that it is a question of privacy and confidentiality. I think it is invasive to have to put in the kind of pleadings in order to get to court with public documents. There may be a public hearing in fact in order to prove your entitlement to pay the support or to obtain the support and that is invasive and it is not something that married couples need go through. Why then should the lack of a solemnized marriage, a certificate, mean that common-law couples have to go through this breach of their private affairs and their confidentiality?

The current paramount authority on subsection 15(1) of the Charter is Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 56 D.L.R. (4th)

1. It was heard by seven judges but decided by six, Mr. Justice Le Dain having taken no part in the judgment. The judgment of Dickson, C.J. and Wilson and L'Heureux-Dube, JJ. was delivered by Wilson, J. who was in complete agreement with Mr. Justice McIntyre regarding the way in which subsection 15(1) should be interpreted and applied. But she disagreed with him on the application of section 1 of the Charter to this case, being of the opinion that it did not apply. Mcintyre, J., with whom Lamer, J. (now Chief Justice) concurred, was of the view that while section 42 of the Barristers and Solicitors Act of British Columbia that restricted admission to the practice of law to Canadian citizens infringed subsection 15(1) he regarded the citizenship requirement to be demonstrably justified in a free and democratic society within the meaning of section 1. Mr. Justice La Forest was in substantial agreement with McIntyre, J. regarding the meaning of subsection 15(1) insofar as it was relevant to the appeal. But he took the same position as Madam Justice Wilson regarding section 1. The consequence was the striking down of section 42.

McIntyre J. said at pages 178-81 (D.L.R. 21-23):

Three main approaches have been adopted in determining the role of s. 15(1), the meaning of discrimination set out in that section, and the relationship of s. 15(1) and s. 1. The first one which was advanced by Professor Peter Hogg in Constitutional Law of Canada, 2nd ed. (1985) would treat every distinction drawn by law as discrimination under s. 15(1). There would then follow a consideration of the distinction under the provisions of s. 1 of the Charter. He said, at pp. 88-801:

I conclude that s. 15 should be interpreted as providing for the universal application of every law. When a law draws a distinction between individuals, on any ground, that distinction is sufficient to constitute a breach of s. 15, and to move the constitutional issue to s. 1. The test of validity is that stipulated by s. 1, namely, whether the law comes within the phrase "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

He reached this conclusion on the basis that, where the Charter right is expressed in unqualified terms, s.1 supplies the standard of justification for any abridgment of the right. He argued that the word “discrimination” in s. 15(1) could be read as introducing a qualification in the section itself, but he preferred to read the word in a neutral sense because this reading would immediately send the matter to s. 1, which was included in the Charter for this purpose.

The second approach put forward by McLachlin J.A. in the Court of Appeal involved a consideration of the reasonableness and fairness of the impugned legislation under s. 15(1). She stated, as has been noted above, at p. 610:

The ultimate question is whether a fair-minded person, weighing the purposes of legislation against its effects on the individuals adversely affected, and giving due weight to the right of the Legislature to pass laws for the good of all, would conclude that the legislative means adopted are unreasonable or unfair.

She assigned a very minor role to s. 1 which would, it appears, be limited to allowing in times of emergency, war, or other crises the passage of discriminatory legislation which would normally be impermissible.

A third approach, sometimes described as an "enumerated or analogous grounds" approach, adopts the concept that discrimination is generally expressed by the enumerated grounds. Section 15(1) is designed to prevent discrimination based on these and analogous grounds. The approach is similar to that found in human rights and civil rights statutes which have been enacted throughout Canada in recent times. The following excerpts from the judgment of Hugessen J.A. in Smith, Kline & French Laboratories Ltd. v. A.-G. Canada, [1987] 2 F.C. 359, at pp. 367-69, illustrate this approach:

The rights which it [s. 15] guarantees not based on any concept of strict, numerical equality amongst all human beings. If they were, virtually all legislation, whose function it is, after all, to define, distinguish and make categories, would be in prima facie breach of section 15 and would require justification under section 1. This would be to turn the exception into the rule. Since courts would be obliged to look for and find section 1 justification for most legislation, the alternative being anarchy, there is a real risk of paradox: the broader the reach given to section 15 the more likely it is that it will be deprived of any real content.

The answer, in my view, is that the text of the section itself contains its own limitations. It only proscribes discrimination amongst the members of categories which are themselves similar. Thus the issue, for each case, will be to know which categories are permissible in determining similarity of situation and which are not. It is only in those cases where the categories themselves are not permissible, where equals are not treated equally, that there will be a breach of equality rights.

As far as the text of section 15 itself is concerned, one may look to whether or not there is “discrimination”, in the pejorative sense of that word, and as to whether the categories are based upon the grounds enumerated or grounds analogous to them. The inquiry, in effect, concentrates upon the personal characteristics of those who claim to have been unequally treated. Questions of stereotype of historical disadvantagement, in a word, of prejudice, are the focus and there may even be a recognition that for some people equality has a different meaning than for others.

The analysis of discrimination in this approach must take place within the context of the enumerated grounds and those analogous to them. The words "without discrimination” require more than a mere finding of distinction between the treatment of groups or individuals. Those words are a form of qualifier built into s. 15 itself and limit those distinctions which are forbidden by the section to those which involve prejudice or disadvantage.

His choice of approach is made at page 182 (D.L.R. 23):

The third or "enumerated and analogous grounds" approach most closely accords with the purposes of s. 15 and the definition of discrimination outlined above and leaves questions of justification to s. 1. However, in assessing whether a complainant's rights have been infringed under s. 15(1), it is not enough to focus only on the alleged ground of discrimination and decide whether or not it is an enumerated or analogous ground. The effect of the impugned distinction or classification on the complainant must be considered. Once it is accepted that not all distinctions and differentiations created by law are discriminatory, then a role must be assigned to s. 15(1) which goes beyond the mere recognition of a legal distinction. A complainant under s. 15(1) must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory.

Wilson, J., after noting that not every distinction between individuals and groups will violate subsection 15(1) went on at page 154 (D.L.R. 34):

If every distinction between individuals and groups gave rise to a violation of s. 15, then this standard might well be too stringent for application in all cases and might deny the community at large the benefits associated with sound and desirable social and economic legislation. This is not a concern, however, once the position that every distinction drawn by law constitutes discrimination is rejected as indeed it is in the judgment of my colleague, Mcintyre J.

La Forest, J. said at page 194 (D.L.R. 38):

. . . I am convinced that it was never intended in enacting s. 15 that it become a tool for the wholesale subjection to judicial scrutiny of variegated legislative choices in no way infringing on values fundamental to a free and democratic society. Like my colleague, I am not prepared to accept that all legislative classifications must be rationally supportable before the courts. Much economic and social policy-making is simply beyond the institutional competence of the courts: their role is to protect against incursions on fundamental values, not to second guess policy decisions.

I also refer to Rudolf Wolff & Co. v. Canada, [1990] 1 S.C.R. 695; 69 D.L.R. (4th) 392, [8] because I think it can be inferred from this decision that the fact that legislation is so structured that it has the potential for creating unnecessary hardship or expense to a taxpayer in establishing a right to deductions under the Act will not of itself afford the basis for a finding that there has been discrimination in contravention of subsection 15(1). In citing this authority I am not suggesting that in the case at hand it has been established that in fact paragraph 60(c.1) is the source of unnecessary hardship or expense.

In Rudolf Wolff the appellants brought an action against Her Majesty in the Supreme Court of Ontario for damages for alleged tortious conduct, breach of contract and breach of fiduciary duty by the Government of Canada in its capacity as a member of the International Tin Council, an unincorporated association consisting of 22 member states and the European Economic Community. The object of the Council was to support the market price of tin by buying this commodity on organized markets for the purpose of maintaining its price above a defined floor price. The proceedings were instituted in the provincial court with a view to the appellants preserving their right to bring claims against other prospective defendants. [9]

The Crown brought a motion to have the action dismissed for the reason that the Supreme Court of Ontario did not have jurisdiction to entertain it. In this regard reliance was placed on subsections 17(1) and (2) of the Federal Court Act and subsection 7(1) of the Crown Liability Act (now subsection 15(1) of that Act) which gave the Federal Court-Trial Division exclusive original jurisdiction to entertain the claims brought against the Crown by the appellants. The appellants contended that these provisions contravened subsection 15(1) of the Charter.

The judgment of the court was delivered by Mr. Justice Cory. He said at pages 700-703 (D.L.R. 396-99):

The manner in which a court must approach an alleged infringement of s. 15(1) was set forth by McIntyre J. in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. He made it clear, at p. 182; that one complaining of the violation of s. 15 ''must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory.” The appellants have not been able to satisfy either of these requirements.

With respect to the issue of whether the appellants have received unequal treatment, it must be apparent that the Crown cannot be equated with an individual. The Crown represents the State. It constitutes the means by which the federal aspect of our Canadian society functions. It must represent the interests of all members of Canadian society in court claims brought against the Crown in right of Canada. The interests and obligations of the Crown are vastly different from those of private litigants making claims against the Federal Government.

I agree with the words of Tarnopolsky J.A., speaking for the court in that case [R. v. Stoddart (1987), 37 C.C.C. (3d) 351], at pp. 362-63, where he stated:

The Crown is not an “individual” with whom a comparison can be made to determine a s. 15(1) violation.

. . . the Crown Attorney does not participate in a criminal trial as an "individual". He participates as a representative of the Crown, which in turn represents the state, i.e. organized society. It will be recalled that the Oxford English Dictionary defines an “individual” as “a single human being”, in contradistinction to “society”. Therefore, the accused, as an “individual”, cannot be compared with Crown counsel, as representative of our organized society, for the purpose of a s. 15(1) analysis.

Nor did the appellants demonstrate that if any inequality existed it was discriminatory. The impugned legislation granting the Federal Court exclusive jurisdiction over claims against the Crown in right of Canada does not distinguish between classes of individuals on the basis of any of the grounds enumerated in s. 15(1) nor on any analogous grounds. Certainly, it cannot be said that individuals claiming relief against the Federal Crown are in the words of Wilson J. in R. v. Turpin, [1989] 1 S.C.R. 1296, at p. 1333, a “discrete and insular minority” or "a disadvantaged group in Canadian society within the contemplation of s. 15". Rather, they are adisparate group with the sole common interest of seeking to bring a claim against the Crown before a court.

Before leaving this matter, I must observe that I sympathize with the appellants who found themselves in a difficult position through no fault of their own. There is no doubt that the impugned provisions of the Federal Court Act and Crown Liability Act can create unnecessary hardships, delays, and additional unnecessary expense for litigants.

I emphasize that Rudolf Wolff is not referred to as an authority that on its facts provides guidance in determining whether there has been discrimination in the appeal under consideration. Its importance, for present purposes, lies in the last paragraph cited from Mr. Justice Cory's reasons for judgment and its bearing on what was said by the appellant in his pleadings and in argument about the cost and inconvenience of obtaining a court order.

The appellant contends that while the discrimination against him was not based on a ground enumerated in subsection 15(1), it does rest on the analogous ground of “marital status". Mr. Olsson, appearing for the respondent, did not dispute that marital status could, in some circumstances, be an analogous ground of discrimination that is prohibited by subsection 15(1). I agree. But he made it perfectly certain that his position in opposing the appeal is that there is no such discrimination under the Act against the appellant.

It is important to bear in mind that both the father of a child born within marriage and the father of a child born of cohabitation are entitled in computing their incomes for income tax purposes to deduct amounts paid by them under a legal obligation to do so for the maintenance of these children. The only difference between paragraphs 60(b) and (c.1) that is germane to this appeal is that with respect to the father of a child born outside of marriage there must be a court order directing payment to entitle him to make the deductions. This goes to the procedure whereby the obligation to pay maintenance and the corresponding right to make deductions in computing income are to be established. The distinction is essentially a policy decision relating to an evidentiary requirement to entitlement under the Act to make the deductions and it is quite understandable.

Separation agreements have been identified with marriage for many decades. They are defined in Black's Law Dictionary, 5th (1979) ed. at page 1224 as: “Written arrangements concerning custody, child support, alimony and property division made by a married couple who are usually about to get a divorce or legal separation." The social institutions of marriage and cohabitation are not the same in the eyes of the law. Marriages solemnized under laws in force in Canada are a matter of public record. This is not so respecting cohabitation. The moment persons are married, matrimonial obligations and responsibilities are created. While some of the legal obligations and benefits of marriage can arise out of cohabitation this does not happen with the certainty and immediacy of marriage. The same assumptions that exist about legal relationships created by marriage cannot be made regarding cohabitation. In Holland & Stalbecker-Pountney Cohabitation: The Law in Canada this is said in paragraph 1.5:

Both marriage and cohabitation are changing; the former no longer necessarily involves a lifelong commitment while the latter is receiving increased legal recognition. However there are still significant differences in the legal treatment of the two types of relationship. Matrimonial property legislation across Canada does not apply to cohabitees; they are forced to rely on general legal remedies available in property disputes. The complexities, inconsistencies and inappropriateness of the remedies led to legislative reforms for married spouses. However, cohabitees continue to experience those difficulties.

Married spouses have support rights in all provinces (although these are becoming more limited in scope). Some provinces have provided for a support obligation between cohabitees, but the entitlement varies from province to province and the differences are often not based on any discernible principle.

Each province provides for married spouses when one dies intestate, but to date no province has extended intestacy provisions to cover cohabitees although the Alberta Law Reform Institute has recommended this step.

All provinces have provisions protecting occupational rights in the matrimonial home and preventing dealings with the home unless certain conditions are satisfied. However while some provinces provide for occupational rights for cohabitees in the family home, others leave the cohabitee unprotected.

Some provinces have enacted legislation dealing with cohabitation contracts, whereas all provinces made provision for domestic contracts for married spouses.

Many statutory remedies only apply to married spouses and do not extend to cohabitees.

As for the children of cohabitation relationships, some provinces have abolished the status of illegitimacy. In these provinces nuptial and exnuptial children are treated similarly in regard to support obligations, succession rights, and custody and access. However, there may still be problems in establishing paternity.

Reference is also made to one of the provisions of subsection 8(1) of the Children’s Law Reform Act, R.S.O. 1980, c. 68, having to do with recognition in law of parentage. Paragraph 1 of subsection 8(1) provides that unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and shall be recognized in law to be, the father of a child in this circumstance: the person is married to the mother of the child at the time of the birth of the child. This is essentially a recasting of the common law rule that a child born of a married woman during the subsistence of the marriage is prima facie legitimate.

In Cohabitation: The Law in Canada, it is said in chapter 5.3 that the legislatures of six provinces have made provision for cohabitation agreements which includes separation agreements between unmarried persons. Ontario is one of those provinces and I shall focus on the Family Law Act, 1986 of Ontario because this appeal arose in that province. Particular reference is made to subsection 1(1), sections 29, 30, 31, 35, 51, 54, 55 and 60.

What is relevant therein to these reasons provides that a man and a woman who cohabited in the sense of having lived together in a conjugal relationship outside marriage and who are living separate and apart may enter into a separation agreement in which they agree on their respective rights and obligations regarding support obligations and the right to custody of and access to their children. Such an agreement is unenforceable unless made in writing, signed by the parties and witnessed. Every spouse has an obligation to provide support for the other spouse in accordance with need and to the extent that he or she is capable of doing so. Spouse in this context includes either of a man and woman who are not married to each other and have cohabited continuously for a period of not less than three years, or in a relationship of some permanence, if they are the natural parents of a child. Every parent has an obligation to provide support, in accordance with need, for his or her unmarried child who is a minor to the extent that the parent is capable of doing so. But this obligation does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

A person who is a party to a separation agreement may file the agreement with the clerk of the Provincial Court (Family Division) or the Unified Family Court together with the person's affidavit stating that the agreement is in effect and has not been set aside or varied by a court or agreement. A provision for support or maintenance contained in an agreement that is filed in this manner may be enforced as if it were an order of the court where it is filed.

The provisions of the Family Law Act, 1986 apply in respect of separation agreements validly made before March 1, 1986, which is the date on which that Act came into force. I cannot accept that paragraphs 60(b) and (c.1) of the Act give rise to the kind of discrimination envisaged under subsection 15(1) of the Charter. As these reasons show, there are substantial legal differences between the relationships of marriage and cohabitation and there is no doubt in my mind that in legislating to provide for deductions of alimony or other outlays for maintenance in computing income Parliament was entitled to take this into consideration and, as well, the somewhat chequered pattern of provincial law regarding rights and obligations stemming from cohabitation. Further I believe the inference to be drawn from the wording of these provisions is that this occurred.

Even if an argument were advanced which a court found persuasive that reference to a written separation agreement could be included in paragraph 60(c.1) without adversely affecting the operation or administration of that aspect of the Act unduly, this would not alone provide a valid reason for declaring it to be of no force or effect or adding amending words. To do so would amount to the judiciary second guessing Parliament regarding a policy decision under the guise of protecting individuals against incursions on fundamental values. It is clear from what is said in Andrews v. Law Society of British Columbia, and most clearly in the passage cited from the reasons for judgment delivered by Mr. Justice La Forest, that this is not permitted because judicial scrutiny of this nature is not intended under subsection 15(1) of the Charter and this kind of decision falls within that area of policy making that His Lordship said is simply beyond the institutional competence of the courts.

The appeal is dismissed.

Appeal dismissed.