Roy v. R., 2002 FCT 233

Date: 20020301

Docket: T-3279-90

Neutral citation: 2002 FCT 233

BETWEEN:

                                                DIANNE ROY, MARY BALLANTYNE

                                                and CATHERINE PATTERSON-KIDD

                                                                                                                                                        Plaintiffs

                                                                              - and -

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                                        REASONS FOR JUDGMENT

McKEOWN J.

[1]                 The plaintiffs are all former wives of men who were members of the Canadian Armed Forces. Two of the wives were divorced and one is separated. One of the former husbands is dead. The plaintiffs claim that there are fundamental inequities in the military pension scheme and that they were denied benefits as former spouses on the basis of sex and marital status. The plaintiffs are seeking a declaration that sections 29 and 61 of the Canadian Forces Superannuation Act ("CFSA") are contrary to the Charter and are of no force or effect. They also seek a declaration that they are "survivors" under the CFSA and entitled to a percentage of the annual allowance. They also seek a declaration that section 25 of the Pension Benefit Division Act Regulations is contrary to the Charter and of no force or effect.

ISSUES:

[2]                 The issues are firstly, whether the plaintiffs, as members of a disadvantaged group, former wives of members of the Canadian Armed Forces, are not receiving equal treatment under section 15 of the Charter with respect to their ability to obtain benefits from the Armed Forces survivor benefits plan and the supplementary death benefits, and secondly, if there is a violation of section 15, whether it is justified under section 1.

FACTS:

[3]                 Ms. Patterson-Kidd and her husband were married for 25 years, and separated in 1982. They were divorced in 1986. There were four children of the marriage.

[4]                 Mr. Kidd began his service in the Canadian Armed Forces in 1952. He retired in 1983, and held the post of Colonel at that time. He died in1987. During his career he held various postings throughout Canada, and one in Washington, D.C.

[5]                 Ms. Patterson-Kidd testified that when her husband received a new posting, he would often have to leave before she did, leaving her with the responsibility of selling the house and organizing the family for the move. Often while at the postings her husband would be gone on field exercises for several weeks or months at a time. During this time she was responsible for the entire household.    She also testified that she was expected to attend many social events with her husband, and that they were perceived as a "team."

[6]                 Ms. Patterson-Kidd worked as a high school teacher in Ontario for three years. She had to stop working due to looking after the children and the move to Edmonton, as her qualifications were not recognized in Alberta. She experienced similar difficulties in Montreal, in addition to the language barriers. When they moved to Ottawa the first time she was able to find work as a supply teacher, but was unable to find full time work. She was also not permitted to work in the U.S. when the family moved there. She later taught adult education courses at Algonquin College in Ottawa, first as a supply teacher in 1975, and then as a full-time teacher. She obtained a teaching pension on her retirement in 1997.

[7]                 Ms. Patterson-Kidd also testified that her husband's pension benefits were always part of her planning for the future.

[8]                 Following their separation in 1982, Mr. Kidd began cohabiting with another woman.   

[9]                 Ms. Patterson-Kidd and her former husband entered into a separation agreement, which provided that Mr. Kidd would continue his group term life insurance, and that he would designate his wife as the irrevocable beneficiary of any life insurance and of the death benefit.    The agreement also provided that he would keep the pension, but that she would get the car, the house, bonds, and $20,000 in severance pay. He also paid her $2000 a month as support. These payments were later lowered to $1000 a month.

[10]            In the Minutes of Settlement which were incorporated into the Divorce Judgment, Ms. Patterson-Kidd released all further claims against Mr. Kidd.

[11]            When Mr. Kidd died in 1987, the supplementary death benefit did not go to her in accordance with the separation agreement, but went instead to his estate. Ms. Kidd made a claim for the benefit, and signed a release for 1/6 of the benefit, with the remaining shares going to her four children and his common law spouse.

[12]            Ms. Roy was married in 1961. The couple separated in 1985, and were divorced in 1987. There are three children of the marriage, and Ms. Roy had one child from a previous marriage. Mr. Roy is still alive and currently lives with a common law spouse.

[13]            Mr. Roy's service in the armed forces began in 1958, and ended on his retirement in 1982. At that time he held the post of Sergeant.    During his career he held postings in Shearwater, Nova Scotia, Bagotville, Quebec, and Comox, British Columbia.

[14]            Ms. Roy's work experience was as a teller and in customer service in banks and financial institutions. She did not have benefits with these jobs. She could not find work in Chicoutimi because she did not speak French, and had difficulty in other locations because of the remoteness of one of the postings. She retired in 1985. Her income consists of CPP and a division of the annuity worth $288 per month.

[15]            During the marriage, Ms. Roy had full responsibility of the house and the family. She understood that Mr. Roy's pension would be for both of them.

[16]            In 1986, Mr. Roy was ordered to pay to Ms. Roy as financial support the full amount of his annuity. The Court also directed an unequal distribution of the personal property in the family home in favour of Ms. Roy and the sale of the home with the net proceeds to be shared equally. In October 1986, Ms. Roy applied to the Minister of National Defence for a diversion to her of half of Mr. Roy's annuity, the full amount of which he had previously been paying to her directly. The diversion was approved and starting in January 1987, 50% of Mr. Roy's net annuity was diverted at source. The balance was paid by Mr. Roy directly to Ms. Roy.

[17]            In October 1994, the court varied this earlier order so that Mr. Roy would only be paying one half of his net pension benefit to Ms. Roy. In its reasons the court noted that Ms. Roy had significantly more income than Mr. Roy under the existing arrangement.

[18]            In 1996, Ms. Roy signed a separation agreement in which she agreed to a 35% lump sum division of Mr. Roy's pension benefits. They also agreed to end the diversion of Mr. Roy's annuity and Ms. Roy agreed to make no further claim against the annuity.

[19]            In July 1996, Ms. Roy applied to the Minister of National Defence for a division of Gerald Roy's pension benefits under the PBDA, relying on the agreement. The division was approved and the sum of $48,439.29 was transferred to Ms. Roy. This money was placed into a registered life income fund.

[20]            Ms. Ballantyne married in 1954. There were four children of the marriage (one of whom is now deceased). Mr. Ballantyne served with the armed forces beginning in 1954 until his retirement in 1987. At that time he held the post of Lieutenant-Colonel. The parties separated in 1987. Mr. Ballantyne is still alive, and the parties have not sought a divorce.

[21]            During the marriage Mr. Ballantyne held several postings throughout Canada and overseas, including in Korea, the United Kingdom and Holland.

[22]            Ms. Ballantyne was qualified as a teacher in Ontario and obtained work as a teacher in Ottawa, Kingston, the Middle East and the United Kingdom. She was unable to work as a teacher when the family moved to B.C.

[23]            During the marriage, she looked after the children and the house. She was also expected to attend social events and entertain, and to perform volunteer work. She testified that she was unaware of the exact benefits that her husband had, but was always told that the military would take care of her.

[24]            Ms. Ballantyne and her husband entered into a separation agreement in 1987. In it, the parties acknowledge that they are both financially independent and do not require financial assistance from the other. In return for a release of all her claims, Mr. Ballantyne agreed to pay Ms. Ballantyne the sum of $61,000.00. The parties also agreed that each would be entitled to receive a share of the retirement benefits payable to the other under the other's pension plan. They also agreed that the other would be considered the surviving spouse under the pension plan even if there was someone else who qualified as a spouse under the plan. The agreement did not require Mr. Ballantyne to maintain the supplementary death benefit under the CFSA or to designate Ms. Ballantyne as the beneficiary.

[25]            In 1996, Ms. Ballantyne applied under the PBDA for information on the amount she would receive on an equal division of Mr. Ballantyne's pension benefits. She was told that a division for her cohabitation period would result in a payment to her of approximately $240,082.40. She decided not to apply under the PBDA for a division of Mr. Ballantyne's pension benefits, because she would lose the death benefits if she did so.

[26]            Mr. Ballantyne has not entered into a spousal relationship with another person since his separation from Ms. Ballantyne, nor has he designated a beneficiary of his supplementary death benefit under the CFSA.

[27]            Ms. Harrison was an expert witness for the plaintiffs who has written extensively on military wives in Canada and women abuse in military communities. Her book, No Life Like It - Military Wives in Canada, was the result of a sociological study done of unpaid work performed by military wives in Canada. For the study she interviewed 112 military wives, and 48 additional members and administrators.

[28]            Counsel for the defendant objected to the witness being qualified as an expert on the grounds of lack of objectivity. It was pointed out that Ms. Harrison's co-collaborator for her book No Life Like It was Lucie Laliberte. Ms. Laliberte was the former lawyer of the plaintiffs in this action, and a co-founder of the Organization of Spouses of Military Members, which was one of the original plaintiffs in this action.

[29]            I ruled that the expert was qualified, but that any issue as to lack of objectivity would go to the weight of the evidence. Ms. Harrison was then qualified as a sociologist with expertise on military culture and the impact of that culture on spouses of members of the military.

[30]            Ms. Harrison's report concludes that military wives form a distinct and identifiable group, and that they are, as a group, economically vulnerable as they are more likely to be dependent on their husbands' pensions, and therefore to the extent that their husbands' or former husbands' pension benefits are not available to them, economically disadvantaged. She notes that the vast majority of military spouses are women, since the vast majority of members of the armed forces are men. Her report also notes that military wives rarely have the opportunity to pursue a career, as they are forced to leave employment whenever their husbands are posted to a new location. When the families are posted to remote or overseas locations, there are often few jobs for military wives to apply for. The wives that do find work are usually restricted to entry level positions. She also notes that the wives are expected to perform unpaid work on military bases. During their marriages, most military wives accumulate little equity in employment pension plans, and are for the most part thus solely dependent on their husbands' plans. The experience of the three plaintiffs confirms the foregoing findings and is credible evidence.

[31]            In her testimony, she stressed that their position is unique because the requirement of military combat-readiness necessitates that the organization have greater control over members and their spouses. Military wives have to live up to their husband's job in ways that no civilian spouse does. They are responsible for the home and the children, and are unable to get jobs with anywhere near the amount of earnings they could otherwise get.

[32]            I note that Ms. Harrison did not compare military wives with wives of men in any other lines of work.

LEGISLATIVE FACTS:

[33]            I will now examine the CFSA to determine the benefits payable thereunder. The CFSA provides a lifetime pension on retirement related to the member's income earned prior to retirement. This retirement income since 1999 is a percentage of the member's final average salary over the five consecutive highest-paid years. Normal retirement pensions are available under the CFSA at much earlier ages than the other federal pension plans, the Public Service Superannuation Act or the RCMP Superannuation Act (see sections 16 and 17 of the CFSA).

[34]            Another benefit provided by the pension scheme is the survivor pension. According to the defendant's expert, Ms. Lee, the subsidiary objective of the pension plan is to provide a continuation of income to the member's survivor after the member's death in recognition of the economic interdependence between the member and the person in such a relationship. Divorced spouses are not included in the definition of who is eligible to be a survivor, nor are spouses who married the member after the member turns 60 unless that spouse has agreed to take a reduced pension. Under section 25 of the CFSA, when a member receiving a pension dies, the survivor and children of the member are entitled to certain allowances set out therein. In section 2(1) "survivor" is defined as follows:

Subsection 29(1) refers to a person who is

Subsection 29(8) of the CFSA provides for apportionment if there is both a married spouse and a common law spouse alive at the date of death.

[35]            There are two commonly used methods of providing spousal survivor benefits. The one used in the CFSA and other federal pension plans is the additional or "add-on" survivor benefit method in which the level of basic pension income on retirement and until death is the same for married and single members, other factors being equal. On the death of the member, the survivor's benefit is payable only to someone coming within the definition of "survivor" or to the child of a contributor 'who at the time of the contributor's death was dependant on the contributor for support' as a reduced amount of the member's basic benefit.

[36]            The other method is commonly used in provincial plans and the private sector. This method provides survivor allowances through joint and survivor pensions. A member who at retirement is residing with his spouse or common law partner elects to receive a joint and survivor pension. Upon so electing, the member accepts a reduced pension so that upon his or her death, a survivor pension, which is a percentage of the member's pension, is payable to the member's survivor. The joint and survivor pension is at least 60% of the total pension and is payable until the death of the surviving spouse. See Tab 1, Volume 8, Ontario Law Reform Commission, Report on Pensions as Family Property: Valuation and Division (1995), at page 15. The survivor benefit is cost neutral for the pension plan unlike the case of plans with add-on survivor benefits. It is used in major federal plans only in respect of plan members who enter into a relationship with an eligible survivor after they cease to be active plan members, or in the case of the Canadian Forces and RCMP pension plans, after the member reaches the age of 60.

[37]            As stated above, the CFSA provides that a survivor's pension can be apportioned between two eligible survivors, that is, between a legal widow or widower and a surviving common law partner who meets the statutory conditions. This recognizes the continuation of an existing legal relationship while at the same time recognizing the member's current relationship. The amendments made by the 1999 pension reform legislation make the apportionment automatic, with the share of each survivor based on the period of co-habitation with the plan member. Prior to 1999, any apportionment was at the discretion of the Treasury Board. The CFSA and other federal pension plans are more generous to a married spouse who separates from a plan member before the member begins receiving his or her pension since in the provincial and other pension schemes such a person loses eligibility to receive a survivor pension and there is no provision for apportionment.

[38]            Under major federal plans survivor pensions are not available to divorced spouses of contributors. These individuals are no longer spouses either at law or de facto. This is true of pension plans in the private sector and the provincial sector as well. Under these latter plans, any divorced or separated spouse will not receive a survivor pension where the divorce or separation takes place before the member began receiving his or her pension.

[39]            Under Part II of the CFSA, members of the Canadian Forces are provided with a form of declining balance term life insurance. The designated beneficiary of the participant who dies while employed is entitled to a benefit equal to two times the participant's yearly salary. The benefit is the same regardless of how long the member has been employed. Once the plan participant reaches a certain age, the amount of the benefit is reduced. See CFSA, subsections 60(1) and 66(1) of the CFSA. Participants can continue to be covered by the Supplementary Death Benefit Plan after retirement upon application and payment of monthly premiums.

[40]            Participants are allowed to designate as their beneficiary their estate, any person 18 years of age or more at the time of the designation, any charitable or benevolent organization or institution, any religious or educational organization or institution that is supported by donations. In the event that the participant does not designate a beneficiary, the benefit is paid to the estate of the participant. See CFSA, s. 67 and Canadian Forces Superannuation Regulations, s. 54.

However, even if the participant has designated a beneficiary, no amount will be paid out unless the participant has continued to pay the premiums.

[41]            When the legislation was introduced in 1966, the beneficiary of a male was his widow. A female participant could leave it to her estate. In 1975 this was changed to say that it would go to the estate regardless of whether the participant was male or female if no beneficiary was designated. However, in light of the fact that widows had an expectation prior to the 1975 amendments that the benefit would be payable to the widow, subsection 67(2) of the CFSA provided that the benefit would remain payable to anyone who was married prior to December 20,1975 unless the participant had designated his estate, named another beneficiary, or his widow did not survive him.

[42]            It is important to note that subsection 67(2) of the CFSA is a transitional provision. The apportionment of the Supplementary Death Benefit between a separated spouse and a common law spouse provided for in section 61, applies only in those limited circumstances where the benefit would have been payable to a widow under subsection 67(2). There was no constitutional challenge to section 67 and no notice was given of a constitutional challenge so I cannot rule on the constitutionality of subsection 67(2). This Court cannot waive the requirement of notice of a constitutional question. Thus, section 61 only applies to persons named in 67(2) which is where a member dies and is in default of naming the beneficiary. There is a provision that the widow may receive the survivor death benefit.

[43]            I will now review the Pension Benefits Division Act (the "PBDA").    The PBDA was enacted in 1992 and came into force in September 1994. The Act provides that, on the breakdown of a marriage or common-law partnership, where there is either a court order or separation agreement, part of a member's pension benefit under federal government pension plans, including the CFSA, can be paid out in a lump sum payment to the non-member spouse.

[44]            The Act does not create any substantive rights, but simply provides a mechanism for transferring monies out of Federal Plans. Under the Act, the division of the pension benefit is mandatory once a properly completed application is filed, provided there are no grounds for objection established. The application is contingent upon there being a court order or separation agreement dividing the pension. The decision to apply for a division under the Act is at the discretion of the parties. Therefore, if the parties use another method to satisfy the splitting of the value of the pension benefit, no application need be made under the Act. The maximum amount that can be transferred in respect of a non-member spouse is 50% of the value of the pension benefit which relates to the period of cohabitation (see paragraph 8(1)(a)). Once a transfer is made, there is a consequent reduction in the pension benefits payable to the plan member because part of the member's pension asset has been transferred (see paragraph 8(1)(b) and the Pension Benefits Division Regulations, sections 20-21). The money transferred to the former or separated spouse is to be placed in a pension plan, registered savings plan, or with a financial institution, so that in effect that person now has their own pension.

[45]            Section 25 of the Pension Benefits Division Regulations is one of the provisions being challenged in this action. It provides that where a division of pension benefits is effected, the person in whose favour the division was effected is not entitled to a survivor pension for the period subject to division. It reads:

[46]            Counsel for the defendant stressed that the PBDA is ameliorative legislation, the purpose of which is to assist individuals during marriage breakdown to obtain a share of their former spouse's pension. The nature and purposes of the PBDA has been the subject of judicial comment in Shafer v. Shafer 25 R.F.L. (4^th) 410 (O.C.J. Gen. Div.), where Metiver J. stated at page 431:

... the Act remains merely a mechanism for transferring monies out of the plan. While the Pension Benefits Division Act provides for its own method of valuing pensions it does so for the federal government's own specific purposes. These include maintaining the integrity of the plan, benefiting the members as a whole, but again, only with a view to a mechanism for transferring out certain monies. These methods, however, have nothing to do with provincial laws relating to property rights and the disposition of those as between former spouses. In the Canada Gazette, Part II, Vol. 128, no. 21, the Regulations to the Pension Benefits Division Act are followed by a Regulatory Impact Analysis statement. Of interest is the following paragraph:

... It should be noted that the purpose of the Act and the regulations is to provide a mechanism for making payments out of the pension funds, not to fix the value of the pension as between spouses in property settlements made upon the breakdown of their relationship.

[47]            With respect to section 25 of the Regulations, the defendant submit that this section is necessary to prevent a situation where the former spouse is permitted to "double-dip", by obtaining both her own pension, and the survivor's death benefit. The defendant also points out that provincial benefits legislation contains similar restrictions on a former spouse's ability to receive a survivor allowance.

ANALYSIS:

Standing

[48]            The defendant challenged the standing of the plaintiffs in this case. She argued that the plaintiffs are challenging legislative provisions which were never engaged by their circumstances.    I disagree. I find that the plaintiffs in this case have a direct interest in the provisions at issue. None of the plaintiffs are automatically entitled to the supplementary death benefit. Ms. Patterson-Kidd will not receive the survivor benefits because she is divorced. Ms. Roy applied for a division under the PBDA, and so is disentitled from receiving the survivor's death benefit. Ms. Ballantyne is not yet divorced, but in terms of what choices she wishes to make in her personal life (eg. to get divorced, to apply for a division), there may be a financial penalty to them as a result of the legislation.

[49]            Since the plaintiffs have a direct interest in this case, I do not need to deal with the arguments that were made with respect to public interest standing.

Section 15

[50]            There have been a number of cases under section 15 which reviewed statutes which grant or withhold benefits to a spouse based on marital status. The Supreme Court of Canada has tended to say that marital status is an inappropriate ground on which to withhold benefits from people. The leading case is Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. In that case Justice Iacobucci summarized the guidelines for analysis under subsection 15(1) to be derived from the Court's jurisprudence. He pointed out that the guidelines were not a strict test but should be regarded as "points of reference for a court that is called upon to decide whether a claimant's right to equality without discrimination under the Charter has been infringed." At pages 548 to 552 he reviews ten points under the headings of General Approach, Purpose, and Context. It is particularly important in this case to keep in mind the tenth point at page 552 where he states:

(10)     Although the s. 15(1) claimant bears the onus of establishing an infringement of his or her equality rights in a purposive sense through reference to one or more contextual factors, it is not necessarily the case that the claimant must adduce evidence in order to show a violation of human dignity or freedom. Frequently, where differential treatment is based on one or more enumerated or analogous grounds, this will be sufficient to found an infringement of s. 15(1) in the sense that it will be evident on the basis of judicial notice and logical reasoning that the distinction is discriminatory within the meaning of the provision.

[51]            Rothstein J. in Collins v. Canada (1999), 178 F.T.R. 161 (T.D.) reviews a number of the guidelines and shows how the factors from Law should be applied. That case dealt with the spouses' allowance under the Old Age Security Act and it was not a case where a government program was deciding between two different persons. As Rothstein J. stated at paragraph 9:

... While there was recognition that there were needy individuals in these other statuses, the government, in view of its limited resources, determined that provincial social assistance would have to be the recourse for such individuals if they so qualified.

Rothstein J. then quotes, at paragraph 12, from Law, supra, where Iacobucci J. summarized the basic elements of the subsection 15(1) analysis as involving three broad inquiries. He stated:

First, 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? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated or analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historic disadvantage?

[52]            This is the general test to apply for the section 15 analysis. Before applying this test, however, I wish to address the issue of context. The defendant correctly submits that in engaging in a section 15 analysis, you must take into account the surrounding context of a claim. (See Law, supra at 531)

[53]            The defendant argues that the context in this case reveals that the substance of the plaintiffs' claim really involves matrimonial breakdown, and not pension legislation. Thus she argues that matrimonial property legislation should be taken into account in the section 15 analysis. The defendant argues that at the third stage of the section 15 analysis, the discrimination stage, you are allowed to take into account the entire legislative framework. She relies on the Supreme Court of Canada decision in Egan v. Canada, [1995] 2 S.C.R. 513, at page 592, where Cory J. and Iacobucci J. state:

Second, in seeking the answer as to whether or not there has been a denial of equal benefit of the law, it is of course appropriate to have regard to the entire statute which has been called into question. Obviously a benefit which is denied in one portion of an Act may be replaced by compensation provided for in another portion of the same Act. It may, as well, be appropriate and indeed necessary to look at other legislation from the same jurisdiction to determine the issue. Clearly a benefit denied in one federal statute may be replaced by compensation or a benefit provided in another federal statue.

However, it is inappropriate to look to provincial legislation to correct or rectify the denial of a benefit set out in a federal Act. Provincial legislatures have exclusive control over matters within their jurisdiction. It follows that the benefits which are enacted by those legislatures may well vary from province to province. Thus, it would only be appropriate to have regard to provincial legislation if the federal Act in question explicitly stated that the provincial law was incorporated into its provisions or that the benefits conferred under the federal and provincial statutes were to be coordinated.

Most importantly, the question as to how federal and provincial statutes interact should not be considered in a s. 15(1) analysis. It is a question which goes to the possible justification for an act which can only be addressed under s. 1 of the Charter: see Tetrault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, at p. 42; and Symes v. Canada, supra, at pp. 773-74. Postponing this inquiry to s. 1 is appropriate because, if a claimant has established that the challenged legislation has denied an equal benefit of the law, then the government would, under s. 1 of the Charter, bear the onus of demonstrating that the denial was offset and justified by benefits provided under other provincial legislation

The defendant focuses on the sentence "Thus, it would only be appropriate to have regard to provincial legislation if the federal Act in question explicitly stated that the provincial law was incorporated into its provisions or that the benefits conferred under the federal and provincial statutes were to be coordinated.", and submits that because the PBDA specifically refers to orders made under provincial law, then these laws can be looked to in the section 15 analysis. The defendant also relies on Thibaudeau v. Canada, [1995] 2 S.C.R. 627 at 684 where Gonthier J. states:

The parameters that make up the legal context vary from one case to another. They depend inter alia on the nature of the legislation and the wording of the impugned provision. Accordingly if the disputed section itself refers to other legislation or to other areas of law it will be relevant to look at these relationships under s. 15(1) of the Charter. In my view, for the legal context to be properly defined the review must consider at least two aspects: (1) analysis of the legislation as a whole, taking into account all of its provisions, and (2) analysis of the legislation in light of measures prescribed by other statutes, when the impugned provision refers directly to them. Such a review in fact derives from the general rule that a statutory provision does not operate in a vacuum.

He goes on at page 702:

In the present case, however, in determining whether the distinction has the effect of creating a burden, it is necessary to examine the interaction between ss. 56(1)(b) and 60(b) of the Income Tax Act and the family law regime. Unlike the situation presented in Symes and in Egan, the impugned provisions in this appeal explicitly incorporate and are dependent upon both federal and provincial legislative enactments and do not, by themselves, constitute a complete self-contained code. Therefore the Income Tax Act provisions must be looked at in conjunction with the federal and provincial statutes under which child support orders are issued in order to assess the effect upon the claimant.

In the present appeal, ss. 56(1)(b) and 60(b) of the Income Tax Act are triggered by the issuance of a support order pursuant to the Divorce Act, R.S.C. 1970, c. D-8. Accordingly the taxation provisions operate in close conjunction with family law... . If there is any disproportionate displacement of the tax liability between the former spouses (as appears to be the situation befalling Ms. Thibaudeau), the responsibility for this lies not in the Income Tax Act, but in the family law system and the procedures from which the support orders originally flow. This system provides avenues to revisit support orders that may erroneously have failed to take into account the tax consequences of the payments. Therefore, in light of the interaction between the Income Tax Act and the family law statutes, it cannot be said that s. 56(1)(b) of the Income Tax Act imposes a burden upon the respondent within the meaning of s. 15 jurisprudence.

[54]            Counsel for the plaintiffs also relied on Egan, but submitted that I should focus on the portion in which it is stated "Most importantly, the question as to how federal and provincial statues interact should not be considered in a s. 15(1) analysis. It is a question which goes to the possible justification for an act which can only be addressed under s. 1 of the Charter." (Emphasis added) They also rely on Collins, where Rothstein J. stated at paragraph 55:

While provincial social assistance may be an alternative, in Egan, Cory, J., found that, except in specific circumstances (e.g. provincial and federal legislation being expressly coordinated) it is inappropriate at the s. 15(1) stage, to see if provincial legislation corrects or rectifies the denial of a benefit under a federal Act:

Rothstein J. goes on to quote the sentence from Egan cited just above. The plaintiffs also submit that it is inappropriate to start blending one regime of legislative provisions into another, and that if you start doing this, then numerous statutes could be brought into play (for example, succession law statutes).

[55]            In my view, I should not be considering the family law legislation in the section 15 analysis. I do not believe this is a situation where the federal legislation has incorporated provincial laws by reference, as referred to in Egan and Thibaudeau. The CFSA does not incorporate any provincial laws. The only provision that does refer to them is the PBDA. However, even in that case, the challenged provision (section 25 of the Regulations) does not refer to provincial law. The only connection to provincial law is that the Act provides a method for splitting pensions which have been divided pursuant to a court order, which may be made under provincial law. This does not constitute the type of incorporation referred to in Egan.

[56]            Much of the defendant's other contextual arguments focussed on the legislative context, which I have already discussed above, under the heading "Legislative Facts." The defendant also addressed the cost of the plan, but this issue is more appropriately dealt with under section 1.

[57]            The defendant also stressed in its submissions on context that this issue is more appropriately dealt with in the matrimonial property law context, and that it is not the role of pension legislation to deal with the consequences of marital breakdown. Rather, pension legislation is designed to define who gets benefits and to ensure there is funding for the benefits.

[58]            I will now consider whether the survivor pension benefit violates section 15. I will then go on to consider the supplementary death benefit, and section 25 of the PBDA Regulations.

Survivor Pension Benefit

[59]            With respect to the survivor benefit, the first stage of the section 15 test is met. The legislation draws a distinction based on a personal characteristic, that of being divorced. The defendant conceded that being divorced is a personal characteristic.     

[60]            With respect to the second stage, the defendant submits that the real ground being advanced focuses on the former occupation of the plaintiffs' husbands, which is not a personal characteristic and not an analogous ground. I disagree with this submission. The distinction in this case is based on marital status, whether one is married or divorced. While it is true that only spouses of members of the armed forces are affected, this is not the ground on which the statute differentiates.    The legislation in this case distinguishes between spouses who are divorced and those who are not. It is clear that being divorced is a form of marital status. The Supreme Court of Canada has held that marital status is an analogous ground in Miron v. Trudel, [1995] 2 S.C.R. 418.   

[61]            The defendant argues that marital status is not necessarily an analogous ground, and that the fact that unmarried cohabitants comprise a group identified as an analogous ground in Miron does not mean that all of the other possible marital status groups, which could include single, married, or widowed people, are automatically entitled to section 15(1) protection. I disagree with this submission. In Collins, Rothstein J. relies on the decision in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, which held that once something is found to be an analogous ground, it is so in all cases. There McLachlin and Bastarache JJ. state at page 217, paragraph 8:

Just as we do not speak of enumerated grounds existing in one circumstance and not another, we should not speak of analogous grounds existing in one circumstance and not another. The enumerated and analogous grounds stand as constant markers of suspect decision making or potential discrimination. What varies is whether they amount to discrimination in the particular circumstances of the case.

We therefore disagree with the view that a marker of discrimination can change from case to case, depending on the government action challenged. It seems to us that it is not the ground that varies from case to case, but the determination of whether a distinction on the basis of a constitutionally cognizable ground is discriminatory. Sex will always be a ground, although sex-based legislative distinctions may not always be discriminatory.

Since marital status was found to be a ground in Miron, I find that it is a ground in this case as well. The real issue is whether it is discriminatory, which is addressed in the third stage of the analysis.

[62]            There were also arguments made with respect to whether the claimants were also subject to differential treatment on the basis of sex, since the evidence indicated that the vast majority of divorced spouses affected by this legislation are women. However, in view of my finding that they are subject to differential treatment on the basis of marital status, I do not need to decide this issue.

[63]            With respect to the third stage, Rothstein J. in Collins at paragraphs 34-35 outlines the comments of Iacobucci J. in Law focussing on the purpose of section 15(1):

In Law, supra, Iacobucci J. explained the overarching purpose of s. 15(1), which is to be kept in mind when analyzing whether a legislative distinction based upon an enumerated or analogous ground is discriminatory in the substantive sense. He stated:

It may be said that the purpose of s. 15(1) is to prevent violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. (Emphasis added)

Human dignity may be harmed by the unfair treatment or devaluing of individuals or groups, or by a failure to take account of an individual's or group's actual circumstances when applying the law. As Iacobucci, J., stated in Law,

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law? (emphasis added)

In my view, the law does treat divorced spouses unfairly in this case. The evidence indicated that the nature of their husband's occupation requires military wives to make many sacrifices and forgo career opportunities to support their husband's career. Yet, under the legislation, even though a wife may be married for the entire time her husband is in the armed forces, if they later divorce, she is disqualified from receiving the survivor pension.

[64]            Collins goes on to list the four contextual factors discussed in Law which may demonstrate that the legislation has the effect of demeaning a person's dignity in a manner which violates the purpose of s. 15(1). Iacobucci J. cautioned, however, that this list is not closed. He states, at 550:

The contextual factors which determine whether legislation has the effect of demeaning a claimant's dignity must be construed and examined from the perspective of the claimant. The focus of the inquiry is both subjective and objective. The relevant point of view is that of the reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim.

There is a variety of factors which may be referred to by a s. 15(1) claimant in order to demonstrate that legislation demeans his or her dignity. The list of factors is not closed. Guidance as to these factors may be found in the jurisprudence of this Court, and by analogy to recognized factors.

He then goes on to list four factors:

a) Is there pre-existing disadvantage, stereotyping, prejudice or vulnerability experienced by the individual or group at issue?

b) Is there correspondence, or lack of it, between the ground on which a claim is based and the actual need, capacity or circumstances of the claimant or others?

c) Does the legislation have an ameliorative purpose or effect for a group which has been historically disadvantaged in the context of the legislation?

d) What is the nature of the interest affected by the legislation?

[65]            With respect to the first factor, the defendant argues that the plaintiffs have not shown that divorced or separated spouses are disadvantaged groups, or that the legislation at issue exacerbates such disadvantage, especially in light of the access to matrimonial property and support regime and to the PBDA. I disagree. We have direct evidence in this case that divorced spouses do suffer disadvantage under this legislation. They may spend their lives sacrificing career opportunities and moving from place to place in order to further their husband's career, and yet if they divorce, they receive no survivor benefit. Further, as set out more fully above, Egan establishes that one should not look at other legislation in the section 15 analysis.

[66]            With respect to the second factor, I believe that the comments of Rothstein J. in Collins at paragraphs 49-50 are applicable:

Given this connection between marital status and one's capacity and circumstances, what is the effect upon the claimant of her exclusion from the SPA? On this point, Iacobucci, J., in Law, supra, referring to Andrews, supra, and Eaton v. Board of Education of Brant County, stated that:

.. legislation which takes into account the actual needs, capacity, or circumstances of the claimant and others with similar traits in a manner that respects their value as human beings and members of Canadian society will be less likely to have a negative effect on human dignity.

The question is whether the provisions of the Act which provide the SPA to non-separated spouses but deny it to spouses who are separated solely on that ground, takes into account the actual needs and circumstances of Mrs. Collins and other separated spouses who would otherwise qualify for the benefit. The SPA is a means of income support. The needs in question, therefore, are the financial needs of separated spouses who have limited means. There is no indication that the actual needs of such separated spouses are recognized, addressed or accommodated in any way by the legislation which denies them the SPA.

Similarly, in this case, there is no indication that the actual needs of the divorced spouses are recognized or accommodated in any way by the legislation, which in turn denies them benefits.

[67]            With respect to the third factor, while it could be said that the legislation has an ameliorative purpose, that is, to provide a benefits scheme to members of the armed forces and their spouses, I do not believe it could be characterized as such in this context, since it excludes, rather than assists, the historically disadvantaged group of military spouses. In Collins Rothstein J. comes to a similar conclusion. He quotes from Iacobucci J. in paragraph 51:

I emphasize that this factor will only be relevant where the person or group that is excluded from the scope of ameliorative legislation or other state action is more advantaged in a relative sense. Underinclusive ameliorative legislation that excludes from its scope the members of an historically disadvantaged group will rarely escape the charge of discrimination: see Vriend, supra, at paras. 94-104, per Cory, J.

In this case, those who are excluded from the legislation, divorced spouses, could not be said to be relatively more advantaged than those who are included.   

[68]            The defendant argues that Rothstein J. should not be followed in this case, since the decision was written before the Supreme Court of Canada decision in Lovelace v. Ontario, [2000] 1 S.C.R. 950. She argues that Lovelace establishes that when a program is targeted, the focus of the analysis is on whether the program is targeted at ameliorating the conditions of a specific disadvantaged group. In this case, the defendant argues that the survivor pension attempts to assist persons whose economic circumstances deteriorate because of a spouse's death. In Lovelace, Iacobucci J. commented at page 999, in discussing this fourth factor:

This appeal raises yet another situation where both the claimant and the targeted group are equally disadvantaged, and although this scenario was not adverted to in Law, I think it is appropriate to extend the ameliorative purpose analysis to situations where disadvantage, stereotyping, prejudice or vulnerability describes the excluded group or individual. Taking such an approach ensures that the analysis remains focused on whether the exclusion conflicts with the purpose of s. 15(1), and directs us away from reducing the equality analysis to a simplistic measuring or balancing of relative disadvantage. Here, the focus of analysis is not the fact that the appellant and respondent groups are equally disadvantaged, but that the program in question was targeted at ameliorating the conditions of a specific disadvantaged group rather than at disadvantage potentially experienced by any member of society. In other words, we are dealing here with a targeted ameliorative program which is alleged to be underinclusive, rather than a more comprehensive ameliorative program alleged to be underinclusive.

Having said this, one must recognize that exclusion from a targeted or partnership program is less likely to be associated with stereotyping or stigmatization or conveying the message that the excluded group is less worthy of recognition and participation in the larger society.

The ameliorative purpose of the overall casino project and the related First Nations Fund has clearly been established. In particular, the First Nations Fund will provide bands with resources in order to ameliorate specifically social, health, cultural, education, and economic disadvantages. It is anticipated that the bands will be able to target the allocation of these monies within these specified areas, thereby increasing the fiscal autonomy of the bands. This aspect of the First Nations Fund is consistent with the related ameliorative purpose of supporting the bands in achieving self-government and self-reliance. Without a doubt, this program has been designed to redress historical disadvantage and contribute to enhancing the dignity and recognition of bands in Canadian society. Furthermore, both of the above ameliorative objectives can be met while, at the same time, ensuring that on-reserve commercial casino gaming is undertaken in compliance with the strict regulations applicable to the supervision of gaming activities. The First Nations Fund has, therefore, a purpose that is consistent with s. 15(1) of the Charter and the exclusion of the appellants does not undermine this purpose since it is not associated with a misconception as to their actual needs, capacities and circumstances.

[69]            In my view, the pension benefits scheme in this case cannot be construed as a targeted ameliorative program within the meaning in Lovelace. Unlike in Lovelace, the benefits that are being provided in this case are available because of the very efforts of the spouse during the period of contribution. In Lovelace, by contrast, it was essentially found money that was being given to certain groups of Aboriginals and not others.

[70]            On the fourth factor, the nature of the interest affected, I believe there is also discrimination. In this case it is the economic interest of divorced spouses that is affected.    Again I believe the comments of Rothstein J. in Collins at paragraph 54 are applicable:

Separated spouses are specifically excluded from the benefit, notwithstanding that they may require it. The exclusion of separated spouses from the SPA benefit denies them access to a basic component of federal government assistance which is available to some other older Canadians. It implies that separated spouses are less in need of this type of income support regardless of their actual circumstances. As L'Heureux-Dube J. recognized in Thibaudeau, supra, "the economic well-being of family units, whatever their form, is an important social interest. Although subsistence will always be possible, the impugned distinction may visit significant economic hardship upon the affected group." Here, the economic hardship of separated spouses who would otherwise qualify for the SPA is not recognized by the legislation.

In conclusion, then, I find that section 29 of the CFSA is in violation of section 15 of the Charter.

Supplementary Death Benefit

[71]            In my view, the supplementary death benefit provision (section 61) of the CFSA does not violate section 15. The first stage of the test is not met. As discussed above, the supplementary death benefit is like a form of life insurance. The member may designate whomever he chooses to receive it. Thus he may or may not choose to designate his divorced spouse. The legislation is neutral in this regard, and does not differentiate based on marital status. The plaintiffs submit that the death benefit affords differential treatment on the basis of whether or not you have been designated. While this is true, it is clear that being designated under a benefits plan does not constitute a personal characteristic. I do not have to proceed to the other stages in the analysis.

PBDA Regulations - Section 25

[72]            As previously discussed, section 25 of the PBDA Regulations provides that where a division of pension benefits is effected, the person in whose favour the division was effected is not entitled to a survivor pension for the period subject to division. In my view, this provision also does not meet the first stage of the test, since the distinction is not based on a personal characteristic. The plaintiffs argue that it does make a distinction based on being a former spouse, because it "piggybacks" on the CFSA. It applies to divisions of annuities under the CFSA, then says that if you get that division, any benefit that you as a spouse or former spouse would have received, is gone. I disagree. There is no distinction based on marital status because only the group of separated and divorced spouses can apply for a division in the first place. Further, the defining feature is not being separated or divorced, but rather being separated or divorced and having the court order and the separation agreement. The fact of having a court order or separation agreement is clearly not a personal characteristic.

Section 1

[73]            Before I begin the section 1 analysis, I will review the evidence that was led on this point. I have already discussed the legislative facts adduced above, which are also relevant to the section 1 inquiry.

[74]            The defendant's expert actuary, Mr. Hebert, testified with respect to the cost to the government of paying these survivor benefits. He was asked to provide a report valuing the financial impact as at March 31, 2000 on both the accrued liability (the amount of money the government needs to set aside in order to provide for benefits that have accrued up to a certain date) and the normal cost (the amount of money the government will need to set aside for each year following a specific date in order to provide for benefits that will accrue in those specific years) of the three major public pension plans (the Public Service, the Canadian Forces, and the Royal Canadian Mounted Police) as a result of continuing survivor benefit coverage to former spouses of active or retired members, married or divorced at the time of death.

[75]            The report estimated that for the CFSA, the accrued liability would be $206,721,000, and the normal cost would be $3,573,000, if the former spouses were to receive the full survivor benefit. If, however, it was adjusted to take into account only the period of cohabitation, the accrued liability for the CFSA would be $99,226,080, and the normal cost would be $1,715,040. The report also notes that it did not consider the members who have died since 1985 and who have a former spouse. Mr. Hebert estimated that this would double the accrued liability. I note that the plan currently has a surplus of $15 billion.

[76]            The section 1 test was summarized in Egan, supra at 605. There Cory and Iacobucci JJ. state:

Section 1 allows Charter violations to be upheld if these violations are reasonably justifiable in a free and democratic society. The test to establish whether a statutory provision constitutes a reasonable limit was first advanced by former Chief Justice Dickson in R. v. Oakes, supra, at pp. 138-139. A limitation to a constitutional guarantee will be sustained once two conditions are met. First, the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable and demonstrably justified in a free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) there must be a proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right. In all s. 1 cases the burden of proof is with the government to show on a balance of probabilities that the violation is justifiable.

In Collins, supra, Rothstein J. also notes at paragraph 81 that courts do not require scientific proof, and that common sense may be relied upon. He goes on to note that the test must be applied flexibly, with regard to the factual and social context of the case. Then at paragraph 83 Rothstein J comments on the deference to be given to the legislature under section 1:

In M. v. H., supra, Iacobucci, J., confirmed that the role of the legislature demands deference from the courts to those types of policy decisions that the legislature is best placed to make. Deference is a consideration that can enter into the discussion of whether the legislature has discharged its burden at any of the stages in the s. 1 analysis. However, deference at the s. 1 stage should not be determined in a general sense at the outset. In other words, deference must be considered, when appropriate, under the specific steps of the s. 1 analysis.

[77]            Turning to the first prong of the test, Rothstein J. sets out the proper approach to considering the objective of the legislation at paragraph 84:

In Vriend, supra, Iacobucci, J., set out the approach in cases where a law has been found to violate the Charter owing to underinclusion. He stated:

"In my view, where, as here, a law has been found to violate the Charter owing to underinclusion, the legislation as a whole, the impugned provisions, and the omission itself are all properly considered."

This approach was adopted by the majority of the court in M. v. H., where Iacobucci, J., stated that "the first stage of the s. 1 analysis is properly concerned with the object of the legislation as a whole, the impugned provisions of the Act, and the omission itself."

...

The case at bar is not one of a legislative omission. On the contrary, the limitation on the Charter right - exclusion of separated persons from the SPA benefit - is expressly set out in the legislation. In this case, therefore, the analysis must recognize that exclusion from the SPA benefit is a result of an express provision - specifically s. 19(1)(a). Since in this case we are not dealing with a legislative omission, it is appropriate to consider whether the exclusion of separated persons in s. 19(1)(a) from the SPA has a pressing and substantial objective.

[78]            I note as well the comments of Chief Justice Lamer in Schachter v. Canada, [1992] 2 S.C.R. 679 at 721:

It will be a rare occasion when a benefit conferring scheme is found to have an unconstitutional purpose.

[79]            Following the approach set out by Rothstein J. above, I must first examine the legislation as a whole. I am in agreement with the defendant that the objective of the CFSA is, as part of Canada's retirement income system, designed to relieve poverty amongst the elderly. The CFSA itself is in the second tier of that system and it is designed to replace pre-retirement income with a pension. The survivor benefits are ancillary benefits designed to replace income to survivors on the death of a plan member. The survivors are those who are economically, or to be assumed to be economically interdependent with the plan member at the time of death, by virtue of having a relationship at that point in time. I find that these objectives are pressing and substantial.

[80]            With respect to the objectives of the impugned provisions, the defendant argued that the exclusion of divorced spouses is consistent with the overall objective of the pension scheme which is designed to provide benefits for those who have a relationship at the time of death. It is not designed to be a universal scheme providing benefits to everyone who has had a relationship with the plan member. The objective of the apportionment formula for separated spouses under subsection 29(8) of the CFSA is to ensure that cohabitant unmarried couples be treated in the same way as married couples. The defendant argued that the apportionment formula is pressing and substantial because there has to be a means of dividing up the benefit in a way that it does not affect other plan members by giving too much money out, and which is fair to the two individuals. Counsel also referred me to Sutherland v. Canada (1997), 208 N.R. 1 (F.C.A.), in which Isaac C.J. stated at page 20, paragraph 91 that cost containment and plan integrity were pressing and substantial objectives.    Again, I agree that these objectives are pressing and substantial.

[81]            Whether the objective of the exclusion of divorced spouses is pressing and substantial is a more difficult question. I believe on this point that the comments of Rothstein J. in Collins are applicable. Rothstein J. first considers whether the exclusion in the Old Age Security Act is the antithesis of the legislation as a whole, as was the case in Vriend. He finds that it is not, and at paragraphs 103 and 104 states:

While the exclusion of separated spouses from the SPA in this case is direct and deliberate, such exclusion is consistent with the focussed objective of the program as a supplementary benefit. This is not to ignore the fact that there are separated spouses of pensioners who are in financial need. However, earlier I noted that the OAC Act was not intended to provide a broad income assistance program for all older Canadians who are in financial need until they become eligible as pensioners at age 65. Had the OAS provided broad income assistance at age 60, exclusion of separated spouses from such a comprehensive benefit program could not be described as pressing and substantial. Such circumstances would resemble those in Vriend, supra, where the legislation was a comprehensive human rights protection scheme for all Albertans, but left out sexual orientation as a basis for protection of those rights.

On the contrary, OAS/GIS pension benefits are provided to pensioners 65 and over and in relation to that group, the SPA is specifically focussed on a group considered to be particularly disadvantaged - cohabiting 60 - 64 year-old dependent spouses of such pensioners. For the plaintiff to bring this case in line with Vriend, i.e., that the exclusion was the antithesis of either the legislation as a whole or the SPA specifically, would require a recharacterization of the SPA as a comprehensive benefit program for all those in financial need between the ages of 60-64. Clearly the object of the SPA is not that broad.

Similarly, in this case, one cannot say that the exclusion of divorced spouses is the very antithesis of the legislation as a whole, as the legislation was not intended to be a comprehensive benefit program for all those in financial need because of some relationship at some time with a plan member.

[82]            Rothstein J. goes on to consider two objectives of the exclusion. The direct objective is to deny benefits to separated persons, an objective which he finds not to be, in isolation, pressing and substantial. He finds that the other objective is to provide a supplementary benefit program to a group that Parliament considered was particularly disadvantaged. He goes on to discuss the history of the legislation, and states at paragraph 108:

It is apparent that Parliament was not unaware of the claims of groups excluded from the SPA when it created the program, nor in the years following when changes to OAS pension and supplementary benefits were debated and enacted. Yet it is also apparent that if the SPA program as legislated was to be provided at all, it would have to be on a restricted basis. As the legislated program has been found to be pressing and substantial and its provision being contingent upon there being exclusions, the exclusions must also be pressing and substantial.

In the recent case of Delisle v. Canada (Attorney General) et al., Iacobucci and Cory, JJ., addressed the question of legislation that has two objectives, one of which is pressing and substantial and the other being contrary to the Charter. In such circumstances, they said that it would be contrary to the purpose of s. 1 to find that even though legislation serves a demonstrably justified purpose, it should be deemed not to have such a purpose for other reasons.

Similarly, in this case I believe that one of the objectives for the exclusion could be characterized as ensuring there are sufficient funds to enable the survivor pension to be provided at all. Thus I find the objective of the exclusions to be also pressing and substantial.

[83]            I will now proceed to the proportionality stage of the analysis. The first question at this stage is whether there is a rational connection between the goal of the legislation and the means chosen by government to implement its objective. I find that the answer must be in the affirmative. I am in agreement with the defendant's submission that the provision of survivor pension benefits to those who are in a relationship with a plan member at the time of the member's death logically furthers the overall goal of alleviating poverty amongst the elderly by addressing those with needs at that time. I also agree with the comments in Collins, where Rothstein J. stated at paragraph 121:

As I have already stated, although some separated individuals undoubtedly experience financial hardship, the SPA benefit is not a comprehensive income support program. It is, therefore, rational that the government would exclude separated spouses from the benefit of the SPA legislation.

Before this, at paragraph 120, Rothstein J. states:

Rather, the restriction of the SPA benefit to non-separated spouses is rationally connected to the objective of the legislation, which is to ensure that when one person in the couple retires and becomes a pensioner, the couple will continue to receive income equivalent to the amount if both members of the couple were pensioners. It is, therefore, rational that a program designed to benefit couples in such circumstances would be focused on cohabiting spouses.

[84]            The plaintiffs submit that there cannot be a rational connection between the aims of this legislation and these provisions, and that if there was a rational connection then separated spouses would also be excluded. However, I agree with the defendant that the inclusion of separated spouses represents a policy choice that favours the possibility for reconciliation of separated spouses. I also note that several cases have held that Parliament does not have to engage in meticulous line-drawing to comply with the Charter, and that it is entitled to room to manoeuvre in attempting to fulfil its objectives, especially when those objectives are ameliorative. (See eg. Egan, supra, at 538 and Law, supra, at 106.) In my view, there is a rational connection between the means and the objectives of this legislation.

[85]            I will now turn to the minimal impairment stage. Rothstein J. in Collins describes this stage of the analysis, at paragraph 122, as follows:

At this stage of the analysis, the government must demonstrate that there has been only a minimal impairment of the Charter right at issue. The burden upon the government is to demonstrate that its actions infringe the Charter right in question no more than is reasonably necessary to achieve the goals of the legislation. The test encompasses not just the effects of the Charter violation on the claimant, but also considers whether the government had a "reasonable basis" to determine that its course of action would result in a minimal impairment of a Charter right. In M v. H., supra, the s. 1 analysis was, like the case before this court, in the context of underinclusive legislation which violated s. 15(1). The majority in M. v. H. phrased the minimal impairment test as requiring the government to show that "it had a reasonable basis for concluding that the rights of same-sex couples were impaired no more than was reasonably necessary to achieve its goals".

In RJR-MacDonald, supra, McLachlin, J., described the nature of the onus upon government on the issue of minimal impairment.

The impairment must be 'minimal', that is, the law must be carefully tailored so that rights are impugned no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement.

Rothstein J. goes on to discuss several factors suggesting that deference be shown to the legislature at this stage of the analysis. At paragraph 127 he notes that:

In a number of cases where the impugned legislation has involved the balancing of claims of competing groups in respect of the distribution of scarce resources, the Supreme Court has said that Parliament and the legislatures must be afforded "wide latitude" to determine the reconciliation of such claims and the appropriate distribution of resources in society.

The defendant submits that in this case there are interests other than those of the plaintiffs in this case, such as the interests of other pensioners, the interest of the present contributors and the interest of the taxpayers of Canada.

[86]            Rothstein J. then notes a second factor, at paragraph 128. That is where Parliament is trying to mediate competing interests. In such cases it will be difficult to apply formal legal tests with any degree of certainty as to correct conclusions. He goes on at paragraph 129:

In Eldridge, supra, La Forest J., reiterated this principle and stated it was especially applicable where Parliament is faced with making choices among disadvantaged groups in the allocation of social benefits:

It is also clear that while financial considerations alone may not justify Charter infringements (Schachter, supra, at p. 709), governments must be afforded wide latitude to determine the proper distribution of resources in society; see McKinney, p. 288, and Egan, at para. 104 (per Sopinka, J.). This is especially true where Parliament, in providing specific social benefits, has to choose between disadvantaged groups; see Egan, at para. 105-110 (per Sopinka, J.)

In particular with respect to benefits programs, at paragraph 131 he cites Lamer, C.J. in Reference Re Remuneration of Judges of the Provincial Court (PEI), [1997] 3 S.C.R. 3, where he states:

Where purely financial considerations are not sufficient to justify the infringement of Charter rights, they are relevant to determining the standard of deference for the test of minimal impairment when reviewing legislation which is enacted for a purpose which is not financial. Thus, in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 994, the court stated that 'the distribution of scarce resources' was a reason to relax the strict approach to minimal impairment taken in R v. Oakes [1986] 1 S.C.R. 103; the impugned legislation was aimed at the protection of children. In McKinney v. University of Guelph, [1990] 3 S.C.R. 229, where the issue was the constitutionality of a provision in provincial human rights legislation, La Forest stated at p. 288 that 'the proper distribution of scarce resources must be weighed in a s. 1 analysis'. Finally, in Egan v. Canada, [1995] 2 S.C.R. 513, where a scheme for pension benefits was under attack, Sopinka J., stated at para. 104 that

'government must be accorded some flexibility in extending social benefits ... It is not realistic for the court to assume that there are unlimited funds to address the needs of all.' (emphasis added)

[87]            Rothstein J. goes on to review the competing factors in that case and concludes, at paragraph 135:

I think these conflicting interests make it obvious that the policy choices involved are of a type that Parliament is in a better position than the courts to make; the court would be overstepping the bounds of its institutional competence to rigorously review Parliament's approach to provide in the SPA in attempting to ascertain whether the least drastic means has been chosen to achieve the legislative objective.

Furthermore, in Sutherland, supra, at paragraph 92, Isaac, C.J. states:

The legal conclusion of the trial judge that the legislation was adopted in order to extend more generous benefits to retired military personnel than would otherwise be available should weigh as an importance consideration in the s. 1 analysis. Moreover, Parliament has sought, through the impugned provisions of the DSPCA and the CFSA, to distribute limited resources among competing groups, including current contributors, former contributors and their surviving spouses and dependents. Deference to Parliament is appropriate in a case such as this one. In such circumstances, the proportionality test is satisfied if the government has demonstrated a "reasonable basis" for the age-based limitation. (See Irwin Toy Ltd. v. Quebec (Procureur general), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2.)

[88]            There are five reasons for deference in this case. Firstly, the goal of the CFSA is to assist a particular group that Parliament has identified as requiring assistance, namely survivors of plan members who suffer a loss of income on the member's death. Secondly, the survivor's allowance was enacted based upon Parliament's perception of a social and economic problem: the drop in family income when a retired plan member died. Thirdly, Parliament is not obliged to target all groups, only to make a reasonable assessment of need in enacting legislation. Fourthly, changing to whom a survivor's allowance is payable would represent a fundamental change in the nature of the plan and involve substantial costs. Finally, the social and economic implications of fundamentally changing the nature of the survivors allowance under the CFSA and other federal pension plans suggests deference.

[89]            In Collins, supra, Rothstein J. notes at paragraph 162 that, in the context of looking at minimal impairment, "It is appropriate to look at the provincial social assistance which the individual would have received from the separated spouse." In this case, then, it is appropriate to look to see what the spouses could get under matrimonial property legislation, and what they can get under divorce legislation.   

[90]            The plaintiffs submit that there is no minimal impairment. While they agree that deference should be shown to Parliament to a certain extent, they argue that when there is a complete denial in the face of reasonable alternatives there cannot be minimal impairment. In this case they rely on certain excerpts from the Lee report to submit that there was a consideration of alternatives. In particular, they cite a letter from Commodore Berryman, the Director General Compensation and Benefits in the Department of National Defence, to the Assistant Secretary, Pensions and Special Projects Division of Treasury Board, which states:

The matter of pension splitting on separation or divorce of Canadian Forces members has been a relatively prominent issue over recent weeks.

...

After considerable thought and debate on the matter of how to determine an equitable split of pension credits, we have concluded that pension plan administrators should not be charged with this responsibility. Rather, it was our consensus [sic] that the determination of the apportionment of an annuity is properly the responsibility of either the courts or the principals involved. Accordingly, legislation to the effect that benefits payable may be split either by mutual consent or by valid court order would suffice.

The plaintiffs also point to an extract from an internal briefing book of the Pensions Division of Treasury Board Secretariat on the individual issues that were to be addressed in connection with the new credit splitting scheme:

Issue: Should spouses be able to receive both a credit split and a survivor's benefit in respect of the same period of cohabitation?

Concern has been expressed that spouses who receive a credit split in respect of a particular period of cohabitation, may in some cases also be eligible to receive a survivors pension in respect of the same period of cohabitation. This could occur in situations where a credit split is made to a separated legal spouse. ...

Decision:

It was decided by JFL on Feb. 7, 1991, that a provision would be included in the Public Sector Pension Reform Act to preclude this specific circumstance. ...

Possible Problems:

- there may be some criticism over the loss of survivors protection in respect of the contributor's credits which remain for the period subject to division; however, this loss of protection is only applicable to the spouse who received the credits in respect of this period. A second spouse would have such protection;

- it may, as a consequence, become necessary to include a "survivors" component in the value of the pension credit in order to justify this policy.

[91]          In my view, there is minimal impairment in this case. As mentioned, the nature of the legislation, a benefits-conferring scheme in which Parliament is seeking to mediate between competing interests and to allocate scarce resources, suggests that deference ought to be shown to the policy choices Parliament has made. While the plaintiffs are correct that the choice made by Parliament was not the only one that was open to it, in my view the government did have a reasonable basis for concluding that the rights of divorced spouses were impaired no more than reasonably necessary to achieve its goals. It is important to note as well that although the spouses may be unable to obtain the survivor's pension under the CFSA, they are not without redress. Under the federal divorce and provincial matrimonial property regimes, they are still able to seek and obtain an equitable division of assets, which can take into account the fact that they will not receive the survivor's pension. Indeed, with respect to the plaintiffs in this action, I see nothing inequitable in the settlements they have been able to obtain under the family law regime.

Proportionality of Effects:

[92]            Rothstein J. describes this stage of the analysis as follows at paragraph 165 of Collins as follows:

As I understand this stage of the proportionality test, it requires a weighing, first of the objective of the legislation against the deleterious effects of the Charter violation, and second, the salutary effects of the legislation against the deleterious effects of the Charter violation. In his majority reasons in Thomson Newspapers v. Canada, supra, Bastarache, J., states that the weighing of the objective against the deleterious effects of the legislation is effectively accomplished in the rational connection and minimal impairment stages of the Oakes test ...

Therefore, the fact that the impugned provisions of the SPA pass the rational connection and minimal impairment tests is also indicative that the objective of the legislation is not outweighed by its deleterious effects. The determining question at this stage thus becomes whether the salutary effects of the legislation outweigh the deleterious effects of exclusion from the SPA benefit.

The plaintiffs submit that, on balance, given the financial considerations already alluded to, the salutary effects of the legislation do not outweigh the deleterious effects. The defendant submits that the salutary effects of the survivor's benefit is that it provides survivor benefits to those who qualify for them. She cites Rothstein J. in Collins at paragraph 166:

In this case, the salutary effect of the SPA program coincides with its objectives. The SPA provides financial support to qualified recipients, which is its objective.

Then at paragraph 167 Rothstein J. discusses the deleterious effects. He states:

The deleterious effect of denying the SPA to separated spouses is that these individuals are denied this federal financial assistance when they would, having regard to all other requirements, qualify for it. However, denial of the SPA does not mean that separated persons have no means of support. Given that they are, by definition, persons of low income, in order to meet their basic needs, they must resort to employment, family support, or provincial social assistance. Obtaining income or having one's needs provided from these other sources will alleviate the financial consequences of exclusion from the SPA.

Thus, the defendant argues that you can look again at the provincial legislation. At paragraph 168 Rothstein J. states:

That separated persons may avail themselves of other means of support mitigates the deleterious financial effect of being denied the SPA.

[93]            I am in agreement with the defendant that the salutary effects of the legislation in this case outweigh the deleterious effects. Like the situation in Collins, the CFSA provides survivors benefits to those who qualify for them. The deleterious effect of excluding divorced spouses is that the spouses do not receive the benefits.    However, they are able to alleviate the financial consequences of this exclusion through the family law regime.    Thus, the legislation in question before me is saved by section 1 of the Charter. The plaintiffs' action is dismissed.

REMEDY

[94]            In the event that I am wrong in finding that the defendant is not liable, I will review the amount of damages payable.

[95]            The plaintiffs indicated in oral argument that they were seeking damages only for Ms. Patterson-Kidd, for the pro-rated amount of the survivor allowance and supplementary death benefit. They were not seeking damages for Ms. Roy or Ms. Ballantyne, as their husbands had not yet passed away.

[96]            In support of the plaintiffs' claim for damages, the plaintiffs' expert actuary, Guy Martel, valued the survivor benefit and supplemental death benefit for each of the plaintiffs as at December 1, 2001, calculated both on the basis of the entire benefit, and as pro-rated on service during the marriage.

[97]            For Ms. Patterson-Kidd, whose former husband died in 1987, the pro-rated amount for the survivor allowance that she should have received would be equal to $254,047 before pre-judgment interest, and $417,608 with pre-judgment interest. The present value for future losses, pro-rated, would be $249,136. It is this amount that the plaintiffs are seeking with respect to the allowance.

[98]            With respect to the supplemental death benefit, Ms. Patterson-Kidd received 1/6 of the supplemental death benefit, the total amount of which was $57,000. The pro-rated amount of the benefit loss if she were entitled to the entire amount would be $37, 072 as of 1987, which with interest would now be $89,228.    It is this figure that the plaintiffs are seeking for the death benefit.

[99]            These amounts were not adjusted to reflect income tax considerations.

[100]        In rebuttal to this evidence, the defendant's expert actuary, Mr. Hebert, stated that in his opinion the supplementary death benefit should be treated differently than the survivor pension, since it does not accrue throughout the member's working life, and the member may designate whomever he wishes.

[101]        The defendant also pointed out that the report did not apportion any of the values for the survivor allowance with a common law spouse, despite the fact that section 29(8) of the CFSA specifically sets out a method of apportionment. Further, the amounts should have been adjusted to take into account income tax considerations.

[102]        In the event that the defendant is found to be liable and that this is one of the rare cases under s. 24 of the Charter where damages are appropriate, I find that the damages payable to Ms. Patterson-Kidd would be $249,136 for the survivor allowance, and $89,228 for the death benefit, with a 25% reduction in both these figures to reflect income tax considerations. Since no tax figures were provided, I have arbitrarily used the 25% figure. I agree with Ms. Patterson-Kidd that the common law spouse is not entitled to the supplementary death benefit. Therefore, if damages are found to be payable, the damages payable to Ms. Patterson-Kidd would be $186,852 for the survivor allowance and $66,921 for the death benefit.

[103]        The plaintiffs' action is dismissed. Their request for a declaration that sections 29 and 61 of the CFSA are contrary to the Charter and of no force or effect is dismissed. Their request for a declaration that they are "survivors" under the CFSA and entitled to a percentage of the annual allowance is dismissed. Their request for a declaration that section 25 of the PBDA Regulations is contrary to the Charter and of no force or effect is also dismissed.

[104]        If the parties are unable to agree on costs, they may make written submissions to me.      

                                                                                      "W.P. McKeown"

                                                                                                       JUDGE

OTTAWA, ONTARIO

March 1, 2002