Ballantyne v. Canada, 2003 FCA 320

Date: 20030815

Docket: A-185-02

Citation: 2003 FCA 320

CORAM:        LÉTOURNEAU J.A.

EVANS J.A.

SHARLOW J.A.

BETWEEN:

                                                       MARY BALLANTYNE and

                                                CATHERINE PATTERSON-KIDD

                                                                                                                                          Appellants

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                              Heard at Ottawa, Ontario on Ottawa, Ontario on June 3, 2003.

                                 Judgment delivered at Ottawa, Ontario on August 15, 2003.

REASONS FOR JUDGMENT BY:                                                                           SHARLOW J.A.

CONCURRING REASONS BY:                                                                                     EVANS J.A.

                                                                                                                           LÉTOURNEAU J.A.

Date: 20030815

Docket: A-185-02

Citation: 2003 FCA 320

CORAM:        LÉTOURNEAU J.A.

EVANS J.A.

SHARLOW J.A.

BETWEEN:

                                                       MARY BALLANTYNE and

                                                CATHERINE PATTERSON-KIDD

                                                                                                                                          Appellants

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

SHARLOW J.A.

[1]                This is an appeal from a judgment, reported as Roy v. Canada (T.D.), [2002] 4 F.C. 451, dismissing the claim of the appellants that certain provisions of the Canadian Forces Superannuation Act, R.S.C., 1985, c. C-17, discriminate against them on grounds of marital status and sex contrary to section 15 of the Canadian Charter of Rights and Freedoms. Their complaint is that the wife of a military member or pensioner loses entitlement to a survivor pension if she is divorced from him. Their case is based on the undeniable fact that the Canadian Forces Superannuation Act gives an economic advantage to the separated spouse of a contributor that is denied to the divorced spouse of a contributor

History of the legislation

[2]                Statutory pensions have been provided to the survivors of military officers for over a century, and to the survivors of enlisted personnel for nearly sixty years. Originally, the pension entitlement of widows was subject to considerable government discretion, and survivor pensions were denied to widowers. Over the years, the discretionary aspects of survivor pensions and the distinctions based on sex have disappeared. However, entitlement to a survivor pension has always been denied to the divorced spouse of a member or pensioner.

[3]                Before 1901, the widow of a military officer or militiaman could be awarded a pension only by Royal Warrant in the event of a service related death. In 1901, the Militia Pension Act, 1901, S.C. 1901, c. 17, was enacted to permit the payment of a pension upon the retirement of a member of the militia, if the Minister was satisfied with the member's service, based on a formula that varied with length of service and rank. Section 17 of the Militia Pension Act, 1901 authorized the Governor in Council to grant a pension to the widow of an officer of the militia who had completed twenty years of service and was at the time of his death on full pay or in receipt of a pension. The amount of the widow's pension depended on the rank of the officer (section 19). There was no provision for a pension for the widow of a militia member who was not an officer.

[4]                The Militia Pension Act, 1901 limited the authority of the government to pay a pension to the widow of an officer. According to section 18, for example, no pension could be paid to a widow who was unworthy of it, to a widow who was already wealthy, to the widow of an officer who had married after retirement, to a widow of an officer who had married after the age of sixty years, to the widow of an officer who was married to a person more than twenty-five years younger, or to the widow of an officer who died within one year of his marriage, unless the officer was in good health at the time of his marriage and death was caused by a disease or injury that was not caused by the officer himself. In addition, section 22 provided that the widow's pension would be stopped if the widow became unworthy of it, or became wealthy. Under subsection 22(2), if the widow remarried, the widow's pension would be suspended but could be restored if the new spouse died and the widow otherwise qualified for the pension.

[5]                Many amendments had been made to the Militia Pension Act, 1901 by the time of the 1927 consolidation of federal statutes, when the Militia Pension Act, 1901 became the Militia Pension Act, R.S.C. 1927, c. 133. Provisions were made to take into account pensionable service in government, in the Royal Canadian Mounted Police, and in military organizations other than the militia (sections 6, 7 and 8). For the first time, a pension could be paid in certain circumstances to an officer with ten years of service (subsection 4(2)). A widow's pension could be paid if the officer had completed twenty years of service and died while on full pay, or was a pensioner who had completed ten years of service (section 25). The amount of the widow's pension was one-half of the pension to which the officer was entitled (section 27). It remained the case that a widow's pension could be paid only to the widow of an officer.

[6]                Substantial amendments were made in 1946 to the Militia Pension Act (S.C. 1946, c. 59). One important change permitted a widow's pension to be paid to the widow of a militiaman. The restrictions on the authority of the government to pay a widow's pension were relaxed in certain respects. However, it remained the case that the widow's pension could not be paid if the widow was unworthy, if the member was over the age of sixty at the time of his marriage, or if the member died within one year of the marriage unless the member was in good health at the time of the marriage (amended subsection 51(1)). If the age difference between the member and the widow was more than twenty years, the widow's pension could be reduced by a prescribed amount (amended subsection 51(2)). And the widow's pension could be suspended or discontinued if the widow became unworthy of it (subsection 51(3)). The 1946 amendments also included a provision that permitted the Treasury Board to direct a member's pension to his wife in certain circumstances. For example, this could be done if the member had left his family without any means of support, or was incapable of managing his own affairs (section 54).

[7]                The first version of the Canadian Forces Superannuation Act was enacted in 1959 (S.C. 1959, c. 21) and came into effect in 1960. By these amendments, pensions for the first time became a statutory entitlement for military members and their survivors. Another important change made by these amendments was the limited recognition of conjugal relationships other than a legal marriage. A woman could be treated as the widow of a member if she could establish that, for a number of years before his death, she had lived with him and been maintained and represented as his wife (subsection 12(4)). The number of years was stipulated to be seven if the parties were prohibited from marrying because of an existing marriage, and was unspecified if the parties were free to marry. The statute did not deal with the situation that could arise if a pensioner died when he was legally married to one person but was cohabiting in a conjugal relationship with another. However, it did stipulate that if a woman was married to a member but separated from him, and there were circumstances that would preclude her from entitlement to an order for separate maintenance under the applicable provincial law, the Minister could treat her as having predeceased the member, thus denying her a widow's pension (subsection 12(5)).

[8]                Many of the limitations that formerly applied to widows' pensions disappeared in the 1960 amendments. There was no longer a disentitlement for unworthiness. However, it remained the case that the widow's pension would be suspended upon her remarriage, and reinstated if her new spouse died (subsection 12(2)). The widow of a member was entitled to no pension if the member was more than sixty years of age at the time of the marriage, but an exception was made if the member became or continued to be a member after that time (subsection 13(1)). If the member died within five years of the marriage, the amount of the widow's pension could be reduced if the impending death was a factor in the decision to marry (subsection 13(3)). And, if there were more than twenty years between the age of the member and the age of the spouse, the widow's pension would be reduced (subsection 13(4)).

[9]                By the time of the 1970 consolidation of federal statutes, the legislation had been further amended: Canadian Forces Superannuation Act, R.S.C. 1970, c. C-9. Some of the changes were required to integrate the military pension with the Canada Pension Plan (now R.S.C. 1985, c. C-8) and analogous provincial statutes. The limitations on the widow's pension had been changed to remove the provision relating to the death of the member within five years of marriage. It was replaced with a provision that, in the event of the death of the member within one year of the marriage, the widow's pension would not be paid unless the member had a reasonable expectation, at the time of the marriage, of surviving for at least one year (subsection 14(3)).

[10]            In 1975, the Canadian Forces Superannuation Act and the other federal pension statutes were amended by the Statute Law (Superannuation) Amendment Act, 1975, S.C. 1974-75-76, c. 81 to provide for the equality of status of male and female members, and male and female survivors. Prior to 1975, female members made smaller contributions than their male counterparts, and there was no provision for survivor benefits to widowers.

[11]            Several changes were made at this time to make it easier to obtain recognition of cohabitation in a conjugal relationship as equivalent to marriage. The period required for the recognition of a cohabiting partner as a spouse, if the parties were barred from marrying because one of them was married to someone else, was reduced to three years (R.S.C. 1985, c. C-17, paragraph 29(a)). In the case of a cohabiting couple who were not barred from marrying, the required period of cohabitation was reduced to one year (paragraph 29(b)). The authority of the Treasury Board to treat a surviving spouse as having predeceased the member was broadened to cover any situation where the member and his spouse were separated at the time of his death (subsection 30(1)). If more than one person was entitled to a survivor pension, the Treasury Board could order apportionment (subsection 30(2)).

[12]            Further amendments to the Canadian Forces Superannuation Act were made in 1992 (S.C. 1992, c. 46, sections 32 to 59). One of the amendments established one year of cohabitation as the required period for recognition of a relationship as a marriage, regardless of the circumstances (amended subsection 29(1) and (2)). These amendments also introduced what became the Pension Benefits Division Act, which came into effect in 1994 (S.C. 1992, c. 46, Schedule II). That statute for the first time permitted the formal division of federal statutory pensions upon marriage breakdown, if there was a court order or written agreement that specified the division.

[13]            In 1999, section 29 of the Canadian Forces Superannuation Act was amended to provide for the automatic recognition of cohabiting partners who met the statutory conditions, thus removing all discretion in such matters. Another amendment removed the discretion to deem a separated spouse to have predeceased a member. The apportionment of the survivor pension between an eligible surviving spouse and an eligible cohabiting partner became automatic rather than discretionary. Survivor benefits were extended to the same sex partner of a deceased member (S.C. 1999, c. 34, s. 136).

The current Canadian Forces Superannuation Act

[14]            The Canadian Forces Superannuation Act, like its statutory predecessors, provides members of the Canadian Forces with an income after retirement. Members are required to contribute to the pension from the salaries paid to them during their period of service, and for that reason they are referred to as "contributors". Broadly speaking, in any case where the contributions made by a member exceed the benefits payable in respect of the member, the excess is paid to the member, the member's surviving spouse or the children or the member's estate, depending upon the circumstances. Thus, the Canadian Forces Superannuation Plan is both an arrangement for deferred remuneration for military service, and a forced saving plan for contributors.

[15]            In most respects, the scheme of the Canadian Forces Superannuation Act is similar to the scheme of the Public Service Superannuation Act, R.S.C., 1985, c. P-36, and the Royal Canada Mounted Police Superannuation Act, R.S.C., 1985, c. R-11, the two other major federal public service pension laws. One difference is that retirement pensions under the Canadian Forces Superannuation Act generally are payable at an earlier age.

[16]            The nature and amount of the benefits payable to a contributor under the Canadian Forces Superannuation Act vary with the length of service (section 16). Generally, if the length of service is less than three years, the contributor receives a return of contributions. If the length of service is more than three years but less than ten years, the contributor receives a cash termination allowance equal to one month's pay for each year of pensionable service. In any other case, the contributor receives a lifetime pension payable on retirement. In certain situations, a contributor who is not eligible to receive an immediate annuity may elect to receive an annuity upon reaching age sixty instead of a return of contributions (sections 17, 18 and 19). The retirement pension is a function of the contributor's final average salary over the contributor's five highest paid years (section 15). When the contributor dies, certain benefits are payable to the surviving family or the contributor's estate (sections 25 to 32). If the contributor was or would have been entitled to a pension, a survivor pension may be paid to the survivor of the contributor, or to or for the benefit of the children of the contributor who were dependent upon the contributor for support (section 25).

[17]            The term "survivor" is defined as the person who was married to the contributor at the time of the contributor's death, or who cohabited with the contributor in a relationship of a conjugal nature for at least one year immediately before the contributor's death (sections 2 and 29). If there are two eligible survivors, the survivor pension is apportioned between them based on their years of cohabitation (subsection 29(8)). Divorced spouses are not included in the definition of "survivor". No survivor pension is payable if the contributor marries after age sixty (section 31), or if the contributor dies within one year of marriage, unless the health of the contributor was such that the contributor had an expectation of surviving for one year after the marriage (section 32).

[18]            The survivor pension payable under the Canadian Forces Superannuation Act is referred to as an "add-on" benefit because the contributions and entitlement of a contributor who has a survivor are the same as the contributions and entitlement of a contributor who has no survivor. Put another way, the fact that survivor benefits are an "add-on" means that the amount of survivor benefits paid in excess of member contributions represent an advantage to contributors who have survivors that is denied to contributors who do not have survivors.

[19]            This may be contrasted with the joint-and-survivor pension benefit that is commonly used in provincial statutory plans and in the private sector, which is cost-neutral to the pension plan. Under a joint-and-survivor pension arrangement, a contributor who at retirement is residing with his or her spouse or cohabiting partner may elect to receive a joint and survivor pension. Upon so electing, the contributor accepts a reduced pension so that a lifetime pension is payable to the contributor's survivor. Under the Canadian Forces Superannuation Act, a joint-and-survivor pension is available only to contributors who enter into a relationship with an eligible survivor after the contributor's retirement, or after the contributor reaches the age of sixty.

[20]            The Public Pensions Reporting Act, R.S.C. 1985, c. 13 (2^nd supp.) requires the Chief Actuary of the Office of the Superintendent of Financial Institutions Canada to prepare an actuarial report every three years on the federal pension plans, including the pension plan established by the Canadian Forces Superannuation Act. The most recent report presents information as of March 31, 2000 (Appeal Book, Volume 5, page 1212-1288). The balance sheet of the plan as of that date is as follows (page 1217):

[21]            The actuarial report also indicates that for the years 2001, 2002 and 2003, the ratio of government contributions to member contributions is approximately 3.5.

[22]            The record does not disclose more current information about the financial state of the plan. In particular, it is not known whether and to what extent the decline in financial markets in recent years has affected the plan.

[23]            An actuary, Mr. Hébert, gave expert evidence of the estimated cost, as of March 31, 2000, of paying a survivor benefit to divorced spouses of contributors or pensioners who had not remarried (the assumption being that, for those who had remarried, the survivor pension payable to the new spouse or cohabiting partner would simply be apportioned at no additional cost to the plan). Mr. Hébert estimated both the increased accrued liability (the amount of money required to provide for all accrued benefits) and the increased normal cost (the amount of money required in a specified year to provide for the benefits that accrue in that year). Mr. Hébert's report covered the three major public pension plans (the Public Service Superannuation Act, the Canadian Forces Superannuation Act, and the Royal Canadian Mounted Police Superannuation Act). The three plans are sufficiently similar that it was assumed that if one of them must be changed for constitutional reasons, they would all have to be changed.

[24]            Mr. Hébert's conclusions are summarized in the following table (Appeal Book, Volume V, page 920):

[25]            Mr. Hébert also estimated that if the survivor pension were adjusted to take into account only the period of cohabitation, the increased accrued liability under the Canadian Forces Superannuation Act would be reduced by approximately one-half. The report takes into account only contributors and pensioners who died in and before 1985. Mr. Hébert estimated that the increased liability would be doubled if he were to take account those who have died since 1985.

Facts: Mary Ballantyne

[26]            Mary Ballantyne married Ian Ballantyne in 1954, almost three months after Mr. Ballantyne enlisted in the military. They had four children. They separated in 1986 but they have not divorced. Mr. Ballantyne retired in 1987 as a Lieutenant-Colonel. Mr. Ballantyne is still alive and is not cohabiting with another partner.

[27]            Mr. Ballantyne and his family had numerous postings throughout his military career, some in other countries. Throughout that time, Ms. Ballantyne looked after the children and the family home. She was also expected to attend social events, entertain, and perform volunteer work. She qualified as a teacher in Ontario, and worked as a teacher in Ontario and in some of the foreign countries to which Mr. Ballantyne and his family were posted. Ms. Ballantyne was eligible for a pension when she retired from teaching.

[28]            In 1987, Ms. Ballantyne and Mr. Ballantyne entered into a separation agreement. The agreement states among other things that each of them was financially independent of the other and required no support from the other. They agreed that each would be entitled to a share of the other's pension. They also agreed that for purposes of survivor benefits under their respective pensions, each would be considered the surviving spouse of the other even if there was someone else who qualified as a spouse. They recognized the possibility of legislative changes relating to survivor benefits, and agreed to review that issue in the event of such a change. The agreement states that it is a final settlement of all claims relating to the division of property, and each released the other from all such claims and from any claims for maintenance.

[29]            In 1996, Ms. Ballantyne sought information about a division of Mr. Ballantyne's pension benefits under the Pension Benefits Division Act. Based on what she was told, she concluded that a division would result in a payment to her of approximately $240,000. She did not apply for a division because the division would result in the loss of entitlement to a survivor's pension (Pension Benefits Division Regulations, SOR/94-612, section 25). It is not clear how Ms. Ballantyne could obtain such a division without breaching the separation agreement. Nor is it clear whether, if Ms. Ballantyne could obtain a division of Mr. Ballantyne's pension, he would be entitled to a like division under Ms. Ballantyne's teacher's pension.

[30]            As things now stand, Ms. Ballantyne will be entitled to a survivor's pension under the Canadian Forces Superannuation Act if she survives her husband. She will lose that entitlement if they are divorced. According to information obtained by Ms. Ballantyne from the administrator of the Ontario Teacher's Pension Plan in connection with this case, if Mr. Ballantyne survives Ms. Ballantyne, he will not be entitled to a similar benefit under her pension plan because they were separated before she became entitled to her pension.

[31]            Ms. Ballantyne feels aggrieved because, even though she was legally married to a military officer throughout the period in which he contributed to his pension and when he became a pensioner, she will not be entitled to a survivor's pension if they divorce. Also, if Mr. Ballantyne cohabits with another person for one year immediately prior to his death, she will be obliged to share the survivor pension with that other person.

[32]            There is no evidence that Ms. Ballantyne or Mr. Ballantyne wish to divorce, or that Ms. Ballantyne would seek or agree to a divorce if she could be assured of entitlement to a survivor's pension. Nor is there evidence that Mr. Ballantyne is considering cohabiting with another person. However, the Trial Judge concluded that Ms. Ballantyne had the status to bring this action because the legislation could affect a potential future decision about divorce. That conclusion of the Trial Judge is not challenged.

Facts: Catherine Patterson-Kidd

[33]            Ms. Patterson-Kidd married Donald Andrew Kidd in 1957. They had four children. They separated in 1982. After the separation, Mr. Kidd began cohabiting with another woman. Mr. Kidd and Ms. Patterson-Kidd divorced in 1986. Mr. Kidd died in 1987.

[34]            Mr. Kidd began his military service in 1952, retiring in 1983 with the rank of Colonel. During his career he had postings throughout Canada, and one in Washington, D.C. Ms. Patterson-Kidd qualified as a teacher in Ontario, but was unable to work as a teacher in many of the locations to which Mr. Kidd and his family were posted. However, she was able to work enough to be eligible for a pension when she retired in 1997 at the age of 65. Ms. Patterson-Kidd testified that during her marriage, she was often left to manage the household alone because Mr. Kidd was required to leave for postings before the family, and also because he was sometimes assigned to field exercises for weeks or months at a time. She also testified that she was expected to attend many social functions, and that she and Mr. Kidd were perceived as a "team".

[35]            In 1982, Ms. Patterson-Kidd and Mr. Kidd entered into a separation agreement that was intended to finally dispose of all issues relating to the division of property and support. Mr. Kidd was obliged to pay maintenance of $2,000 per month. By a 1984 amending agreement, the maintenance was reduced to $1,000 per month payable until June 1, 1990. Mr. Kidd was also obliged to designate Ms. Patterson-Kidd as the irrevocable beneficiary of any life insurance and death benefits. However, as events transpired, the life insurance benefits under the Canadian Forces Superannuation Act were paid to Mr. Kidd's estate. Ms. Patterson-Kidd made a claim against the estate, which was settled for a payment of 1/6 of the benefit.

[36]            Ms. Patterson-Kidd is not entitled to a survivor's pension under theCanadian Forces Superannuation Act because she was divorced from Mr. Kidd at the time of his death. However, the woman with whom Mr. Kidd was cohabiting at the time of his death was granted a survivor's pension under the statutory provisions then in force that permitted the Treasury Board to recognize their cohabitation as the equivalent of marriage.

[37]            Ms. Patterson-Kidd feels aggrieved because, although she was legally married to a military officer and living with him throughout the period in which he contributed to his pension, she was deprived of entitlement to the survivor's pension because she was divorced from him. Even without the divorce, she would have been compelled to share the survivor pension with his cohabiting partner on the basis of their respective years of cohabitation.

Remedy sought

[38]            The appellants believe that entitlement to the survivor pension should not depend upon their marital status at the date of the death of the contributor, but should instead more directly recognize the years of their marriage that coincided with the period during which contributions were made.

[39]            Both appellants seek a declaration that section 29 of the Canadian Forces Superannuation Act (which extends the definition of "spouse" to a cohabiting partner) is contrary to the Charter and of no force and effect.

[40]            Both appellants also seek a declaration that, to the extent section 29 is constitutionally valid, they should each be considered to meet the definition of "survivor" and should be entitled to a portion of the survivor benefit based on their years of cohabitation with their respective spouses during the period of contribution. Such a declaration would implicitly require an amendment to the definition of "survivor" to include the divorced spouse of a contributor.

[41]            Ms. Patterson-Kidd also seeks a monetary award equal to the amount of money that would have been payable to her by virtue of the declarations referred to above, together with pre-judgment interest and post-judgment interest. However, she concedes that such an award of damages should not deprive Mr. Kidd's cohabiting partner of benefits.

Trial decision

[42]            The Trial Judge, using the analytical framework in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, concluded that the legislation discriminates against the appellants on the basis of marital status, contrary to subsection 15(1) of the Charter, but that the discrimination is justified by section 1 of the Charter. His analysis is lengthy and detailed. The portions relevant to this appeal are discussed below.

Analysis

[43]            There is a considerable body of jurisprudence dealing with claims of discrimination contrary to section 15 of the Charter, including Law, which establishes the analytical framework that the Supreme Court of Canada has found to be appropriate in dealing with questions of Charter discrimination.

[44]            Before discussing the Law analysis, I will deal with a preliminary point arising from the first remedy sought by the appellants. I refer to the request for a declaration that section 29 of the Canadian Forces Superannuation Act is invalid. Section 29 is the provision that includes cohabiting partners within the definition of "survivor", if the requisite one year of cohabitation is established. If section 29 is declared invalid as the appellants request, entitlement to the survivor pension will be denied to anyone who is not legally married to the contributor at the time of the contributor's death.

[45]            I am unable to see how the requested declaration could possibly be made in the face of Miron v. Trudel, [1995] 2 S.C.R. 418. The issue in that case was whether a claim of discrimination was made out in relation to legislation that extended certain automobile insurance benefits to the "spouse" of an insured person. The claim was asserted by a person who was not legally married to the insured person, but was cohabiting in a conjugal relationship with that person. The legislation could not be interpreted to include a cohabiting partner within the definition of "spouse". The majority of the Supreme Court of Canada held that marital status is an analogous ground for the purpose of section 15 of the Charter, and that the legislation contravened the Charter because it discriminated unjustifiably against the unmarried but cohabiting partner of an insured person. In my view, the same objection could be made in respect of the Canadian Forces Superannuation Act, if section 29 were held to be of no force and effect.

[46]            The recent case of 2002 SCC 83">Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, does not limit the force of the reasoning in Miron v. Trudel, or its jurisprudential authority. The 2002 SCC 83">Walsh case involved a challenge to provincial legislation that mandated a division of family assets upon the breakdown of a legal marriage, but not upon the breakdown of an analogous relationship between unmarried habiting partners. Mr. Justice Bastarache, writing for the majority, found that the legislation did not offend the discrimination guarantee in the Charter. He did not say or suggest that Miron v. Trudel is no longer good law. Rather, he distinguished Miron v. Trudel on the basis that the legislation challenged in that case concerned the relationship of a couple as a unit vis-à-vis third parties, while the legislation challenged in 2002 SCC 83">Walsh was directed at regulating the economic aspects of the marriage relationship itself. The presumption underlying the legislation in 2002 SCC 83">Walsh was that persons who marry have a mutual intention to share their economic resources. He concluded that the Charter should not be used to impose the same sharing upon couples who choose to cohabit without marrying (refer to paragraphs 53 and 54).

[47]            I note also that the appellants do not suggest that a cohabiting partner should not be entitled to a survivor pension merely because there is no legal marriage. Rather, the focus of the appellants' principal argument is that a divorced spouse not be disentitled from receiving a survivor pension. They also argue, on the assumption that their principal argument is accepted, that if a contributor has two eligible survivors, any apportionment should be on the basis of years of cohabitation during the contribution period, which they believe is more rationally connected to indirect spousal contributions.

[48]            For the foregoing reasons, I have concluded that the appellants cannot possibly succeed in obtaining the first remedy they seek. The remainder of my analysis will focus on the argument in relation to the other remedies the appellants are seeking.

Section 15: Whether there is discrimination

[49]            The appellants, of course, do not challenge the decision of the Trial Judge that there is a breach of subsection 15(1) of the Charter. However, the Crown challenges that conclusion, and therefore it must be considered. The relevant principle, from Law, is that there is no breach of subsection 15(1) of the Charter unless the purpose or effect of the impugned law conflicts with the purpose of subsection 15(1), which is to "prevent the 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" (paragraph 51).

[50]            Here the impugned law is challenged as underinclusive, because it excludes divorced spouses from eligibility for survivor benefits. There is no dispute that the statutory exclusion imposes differential treatment on the basis of a personal characteristic, because divorced spouses are denied a statutory benefit to which separated spouses are entitled. Also, there is no dispute that the differential treatment is based on an enumerated or analogous ground, that of marital status. However, the Crown argues that there is no substantive discrimination within the meaning of subsection 15(1) of the Charter, because the impugned law does not perpetuate or promote the view that divorced persons are less capable or worthy of recognition or value as human beings, or as members of Canadian society, equally deserving of concern, respect and consideration.

[51]            In determining whether a statute discriminates in the substantive sense, it is necessary to consider the entire statute in its legislative context: Egan v. Canada, [1995] 2 S.C.R. 513 at page 592. The factors to be taken into consideration in determining whether there is substantive discrimination, as established in the Law case, are (1) pre-existing disadvantage, prejudice or vulnerability experienced by the individual or group; (2) correspondence between the grounds on which the claim is based and the actual needs, capacity or circumstances of the claimant or others, (3) the ameliorative purpose or effect of the impugned law upon a more disadvantaged person or group in society, and (4) the nature and scope of the interest affected by the impugned law. These factors must be considered from the perspective of the claimant, but must be based on an objective rational foundation in the sense that a reasonable person who is similarly situated would feel the same way: Lavoie v. Canada, [2002] 1 S.C.R. 769, at paragraphs 46 and 47.

[52]            The Crown's submission that the Trial Judge erred in finding discrimination is based primarily on its view of the purpose of the legislative scheme and, in particular, the purpose of the survivor pension. The argument is put in a number of different ways to bring it within the various factors in Law, but the basic proposition propounded by the Crown is this: when the entire legislative scheme is considered, the exclusion of divorced spouses from entitlement to the survivor pension is not discriminatory because divorced spouses obtain other financial advantages upon divorce. Fundamentally what Ms. Ballantyne is being denied is the option of choosing divorce without having to surrender entitlement to the survivor pension if that is to her financial advantage. The position of the Crown is that mere denial of that option cannot be seen as a denial of essential human dignity.

[53]            The Canadian Forces Superannuation Act is part of Canada's income retirement system, which also includes the Old Age Security Act, R.S.C. 1985, c. O-9, the Canada Pension Plan, the Public Service Superannuation Act, the Royal Canada Mounted Police Superannuation Act, and other statutes that either provide retirement pensions for those who work in the public sector, or regulate private sector pensions. The Trial Judge concluded that the general purpose of the income retirement system is to alleviate poverty among the elderly. It is probably more accurate to say that the purpose of all of these statutes (except the Old Age Pension Act) is to alleviate poverty among those who are retired from the paid workforce, or who are dependent upon someone who is retired from the paid workforce. That would include many individuals who are not elderly, especially those who are retired from military service.

[54]            The Canadian Forces Superannuation Act is also an integral element of the remuneration package for members of the Canadian Forces. In providing contributors with an income after retirement, and in providing survivor benefits to those with a specified familial relationship with the contributor at the time of death, the Canadian Forces Superannuation Act works to the advantage of military members who would otherwise be obliged to fund their own retirement and provide for their survivors through private insurance or other means. That also serves the public interest, because it enhances the stability of the military workforce.

[55]            The purpose of the survivor pension in the Canadian Forces Superannuation Act is a matter of some dispute. The appellants believe that the survivor pension is or should be a device to recognize and provide some compensation for the sacrifices and hardship suffered by military wives, and their expected but unpaid contribution to military life. These aspects of the lives of military wives are described in the evidence of an expert witness, Deborah Harrison, summarized by the Trial Judge in paragraphs 27 to 31 of his reasons. However, there is no evidence that Parliament has ever viewed the survivor pension as any kind of reward or compensation as envisaged by the appellants.

[56]            In my view, the purpose of the survivor pension should be inferred from the statute itself. Its purpose is to provide some economic support, upon the death of a contributor, to the spouse or cohabiting partner of a deceased contributor, who is or may be presumed to be economically dependent upon the contributor at the time of his death. The Crown adopts that position, and also submits that this purpose would not be served by extending entitlement to the survivor pension to divorced spouses. According to the Crown, the economic issues arising upon a divorce are better dealt with by recourse to the relevant family law, including the spousal support provisions in the Divorce Act, R.S.C. 1985, c. 3 (2^nd supp.) and the related provincial and territorial laws regarding the division of family property (which in all jurisdictions now includes pensions).

[57]            Put another way, the argument of the Crown is that the Canadian Forces Superannuation Act should not be held to discriminate against divorced spouses because there is a legislative scheme, operating independently of the Canadian Forces Superannuation Act, by which a person who is divorced from a contributor may have recourse to the financial resources of the contributor, including the contributor's pension, to compensate for their contributions to the marriage and to alleviate the economic hardship of the divorce.

[58]            There is considerable force in the Crown's position. Courts should be reluctant to conclude that the lines drawn by Parliament around statutory financial benefits infringe subsection 15(1) because they are either over or under inclusive. I also agree with the Crown that the financial provisions in question should be viewed as part of complex web of federal and provincial law, which would include federal legislation dealing with pensions and remuneration for persons employed in the service of the government, and would also include the federal and provincial laws dealing with the economic consequences of changes in family relationships.

[59]            However, it is my view that the critical question is whether the availability of economic relief under the Divorce Act and the matrimonial property laws can answer the appellants' claim of discrimination in the matter of entitlement to survivor pensions under the Canadian Forces Superannuation Act, or whether those laws are relevant only in the context of the justification analysis in section 1 of the Charter. The Trial Judge believed that the latter, and I agree. In my view, the Trial Judge did not err in finding that the exclusion of divorced spouses from entitlement to the survivor pension is discrimination on the basis of marital status, contrary to subsection 15(1) of the Charter.

[60]            Like the Trial Judge, I see no point in reaching any conclusion as to whether the impugned provisions also discriminate on the basis of sex. However, I note that the appellants' case in that regard is weakened considerably by section 3 of the Canadian Forces Superannuation Act, which removes all formal distinctions based on sex, and also by the absence of any evidence that compares the situation of military wives to that of other military spouses.

Justification: section 1 of the Charter

[61]            The appellants argue that the Trial Judge erred in finding that the discrimination that they suffered by their exclusion from the survivor benefit is justified by section 1 of the Charter.

[62]            The applicable principles are derived from Egan v. Canada (cited above) and R. v. Oakes, [1986] 1 S.C.R. 103, and are not in dispute: (a) the objective of the Canadian Forces Superannuation Act, the survivor pension, and the exclusion of divorced spouses from the survivor pension must be pressing and substantial, (b) the exclusion of divorced spouses must be rationally connected to the aim of the Canadian Forces Superannuation Act; (c) the exclusion of divorced spouses must be no more than a minimal impairment of the Charter guarantee against discrimination on grounds of marital status; and (d) there must be proportionality between the effect of the exclusion and its objective so that the attainment of the objective is outweighed by the discrimination.

[63]            The most important of the appellants' challenges to the decision of the Trial Judge is that he misapprehended the purpose of the legislation and the impugned provision, which led him to err in reaching conclusions favourable to the Crown on each of these questions.

[64]            As indicated above, the purpose of the Canadian Forces Superannuation Act is to alleviate poverty among retired members of the Canadian Forces and their families, and to enhance the remuneration for service in the Canadian Forces. The Trial Judge found that the objective of the legislation is pressing and substantial. That conclusion is not challenged, and is obviously correct.

[65]            As to the purpose of the survivor pension, again I refer to the discussion above. The record supports what is apparent from the legislation itself, that survivor benefits are intended to provide economic support to those who are or who may be presumed to be economically dependent upon a contributor or pensioner at the time of his death. Divorced spouses are not among those who are intended to benefit from the survivor provisions because divorce is generally presumed to sever whatever relationship of dependency might have existed in the marriage, and to the extent that is not the case, recourse may be had to the Divorce Act and related matrimonial property statutes.

[66]            There is no evidence that Parliament views the survivor pension as a reward or as compensation to military wives, as suggested by the appellants. Entitlement to the survivor pension in a particular case does not depend upon whether or not the survivor has actually suffered such a hardship or made such a contribution; disentitlement for unworthiness disappeared from the statutory scheme more than 40 years ago.

[67]            I find no error in the conclusion of the Trial Judge that the purpose of the survivor pension, and the exclusion of divorced spouses from eligibility, is pressing and substantial.

Rational connection

[68]            The appellants argue that there is no rational connection between the objective of relieving poverty and the exclusion of divorced spouses from entitlement to the survivor pension. It is true that entitlement to the survivor pension is a function of the family relationships of the contributor at the time of his or her death, and does not depend in any way upon actual need. However, the objective of the legislation, as stated above, is not simply the relief of poverty. The Canadian Forces Superannuation Act is not social welfare legislation, but legislation that is intended to provide remuneration for the services of members of the Canadian Forces.

[69]            It is reasonable (and normal) for retirement pensions, including survivor benefits, to be designed on the basis of broad general assumptions so that they provide the economic support that is most likely to be appropriate in most cases, even though the situation of a particular contributor's family might be improved by a different approach. Divorced spouses are not among those who are intended to benefit from the survivor provisions because divorce severs the familial tie between the parties, and also results in the possibility of recourse to matrimonial support and property laws to alleviate the hardship resulting from legal termination of the marriage. In my view, the Trial Judge did not err in finding a rational connection between the objective of the legislation and the exclusion of divorced spouses from entitlement to the survivor pension.

[70]            Even if the objective of the alleviation of poverty ought to be paramount, as the appellants sometimes appear to suggest, the solution they propose, which is to share the survivor benefit between the divorced spouse and any current cohabiting partner, is no better than the current state of affairs. That solution would work to the advantage of the appellants in this case, but it could represent a significant disadvantage to other potential claimants to the survivor benefit. I can imagine no policy solution, short of an income test, that would ensure that the survivor benefit is always distributed on the basis of financial need. However, the appellants are not proposing that kind of solution.

Minimal impairment

[71]            In his discussion of minimal impairment, the Trial Judge concluded that the Court ought to defer to the decision of Parliament to exclude divorced spouses from entitlement to the survivor pension (see paragraph 88 of his reasons).    He reaches this conclusion essentially because the impugned legislation represents an array of policy choices that are more appropriately weighed and balanced by Parliament than the court. I agree with him on that point.

[72]            The appellants argue that the Trial Judge's analysis of this issue is also based on his conclusion that extending the survivor pension to divorced spouses would involve substantial costs. The appellants point out that the additional liability of $206.7 million that, under the Canadian Forces Superannuation Act, would result from extending the survivor pension to divorced spouses represents an increase in the total liabilities of the plan of only .625%, which would be covered easily by the surplus (refer to the actuarial evidence summarized above). The Trial Judge characterized the potential cost increase as "substantial". However, when his reasons are read in their entirety, it seems to me that cost was a relatively minor factor.

[73]            Even if the Trial Judge gave the question of cost more weight that seems apparent to me, I cannot conclude that the Trial Judge was wrong in his characterizing of the estimated cost increase as substantial. $200 million is a considerable sum, and it must be recalled that the estimated total increased liability for all three of the major federal statutory pension plans is more than $440 million. It should also be noted that there is no guarantee that any increased cost resulting from extending the survivor pension to divorced spouses would be borne by the Crown, particularly if the actuarial surplus has declined since March 31, 2002 because of poor financial market conditions. If Parliament were to consider it unacceptable to impose the increased cost on taxpayers, it might choose to increase member contributions.

Proportionality

[74]            The Trial Judge concluded that the salutary effects of the Canadian Forces Superannuation Act to contributors and their families outweigh the deleterious effects suffered by divorced spouses, who lose entitlement to the survivor pension upon divorce, because they are able to alleviate the financial consequences of this exclusion through the family law regime. The appellants argue that the family law regime is not a complete answer because, as suggested above, the survivor benefit disappears upon divorce and so cannot be taken into account in assessing spousal maintenance under the Divorce Act or the division of matrimonial property. I agree that the family law regime is not a complete answer. It is however a partial answer, and in my view it is a sufficient answer. The Charter does not require Parliament to devise perfect solutions, only reasonable ones.

Conclusion

[75]            For the foregoing reasons, this appeal should be dismissed. The Crown has sought costs against the appellants. The appellants seek relief against an award of costs because the Crown was not granted costs at trial, although they were sought, and the issue in this case raises an important constitutional point of little tangible value to the appellants. I am not persuaded that this is an appropriate case in which to depart from the general rule that costs follow the event. Therefore, the Crown should be entitled to its costs of the appeal.

                                                                                                                                        "K. Sharlow"                  

                                                                                                                                                      J.A.

EVANS J.A.(concurring)

[76]            I have had the benefit of reading the reasons of Sharlow J.A. and I agree that the appeal should be dismissed. However, I do not share the confidence of my colleague that the legislation is discriminatory within the meaning of subsection 15(1) of the Charter and do not endorse that aspect of her reasons. The reasons for my doubts are as follows.

[77]            First, counsel stated that it was central to the appellants' case that the benefit payable to the surviving spouse of a contributor was to compensate military spouses for the contribution that spouses typically make to military careers, and for the hardships caused to them by military postings away from home, including domestic disruptions and the difficulties that military spouses commonly experience in pursuing their own careers. It was consequently a denial of essential human dignity for a former spouse of a member of the armed forces to be statutorily denied the benefit of this earned benefit as a result of the contributor's unilateral decision to obtain a divorce, or for a spouse to have to take into account the loss of the survivor's benefit when deciding whether to remain married to the contributor.

[78]            Sharlow J.A. has concluded that this is not the rationale of the legislation. I agree. Spousal contributions to the parties' material success is recognized through divorce law and provincial family property law. The survivor's benefit is better regarded as part of a contributor's remuneration package that is designed to encourage the recruitment and retention of military personnel by relieving them of anxiety about the plight of a financially dependent surviving spouse, or of the need to make provision for their survivor from income, by purchasing life insurance, for example.

[79]            Consequently, in my opinion, reasonable persons in the position of the divorced appellant, Ms. Patterson-Kidd, who are aware of both the true rationale of the benefit and the remedies available on divorce under federal divorce law and provincial family property law, would not think that Parliament's exclusion of them from entitlement to the survivor's benefit was an affront to their essential human dignity. Upon divorce, a contributor's legal obligation to provide for a former spouse flows from the terms of the order made at the time of the divorce respecting the division of matrimonial property, including the contributor's pension, and support and maintenance payments. These statutory regimes also take account of the consequences of the financial dependency of one spouse upon the other. Moreover, it is a reasonable assumption that most contributors do not feel morally bound to provide for their ex-spouses, by purchasing life insurance or otherwise. The exclusion of divorced spouses is thus consistent with the legislative reasons for Parliament's providing the survivor's benefit as part of a contributor's remuneration package.

[80]            Second, I do not share my colleague's view that Parliament's failure to treat separated spouses in the same way as divorced spouses demonstrates that it is a breach of subsection 15(1) to deny a survivor's benefit to a divorced spouse. The argument is that divorced and separated spouses are similarly situated since both are entitled to support and maintenance payments and a division of matrimonial assets, subject to some adjustments to take account of subsequent events. Therefore, the exclusion of only divorced spouses from eligibility has no rational basis in the statutory purposes.

[81]            However, all separated spouse are not in law similarly situated. In particular, many non-cohabiting spouses do not formalize their status. For them, the financial obligations of marriage continue to flow from the marriage itself, rather than from any court-ordered support or maintenance payments, or division of assets. In these circumstances, if Parliament had not included non-cohabiting spouses as eligible for the survivor's benefit, a contributor might well have felt obliged to provide for a surviving spouse from income, pending a formal separation or the dissolution of the marriage by divorce.

[82]            Hence, since not all separations are either formal or permanent, Parliament's decision to extend the survivor's benefit to separated spouses, subject to the diminution of its value if the contributor cohabits with another in a conjugal relationship, is not necessarily inconsistent with the legislative purposes for providing survivor benefits: saving the contributor the expense of providing for a surviving spouse and alleviating the consequences of the spousal financial dependency.

[83]            The fact that some separated spouses have formalized their separation and obtained court-ordered financial and property settlements, and thus may be somewhat similarly situated to divorced spouses, does not render a denial of the benefit to the divorced spouse discriminatory in the constitutional sense. Non-cohabiting spouses who have made either no arrangements, or only informal ones, remain subject to all the legal rights and duties of marriage relating to financial support. Parliament is not required by the constitution to ensure that a legislative scheme is perfectly consistent with the underlying statutory purpose.

[84]            Third, I well understand why, when contemplating a divorce, a separated spouse, such as Ms. Ballantyne, would like the option on divorce of deciding whether to receive either a division of the contributor's pension or the survivor's benefit. However, I find it difficult to accept that denying a person the opportunity to calculate which would be more financially advantageous constitutes, in the circumstances of this case, a denial of essential human dignity so as to warrant a finding that the legislation infringes subsection 15(1) and to require the Government to shoulder the burden of justifying it under section 1.

[85]            Fourth, save for the most egregious cases, courts should be very reluctant to conclude that the lines inevitably drawn around statutory financial benefits infringe subsection 15(1) because they are either over or under inclusive. It is very dangerous to view one set of financial provisions in isolation, rather than as part of a complex web of federal (divorce law) and provincial (family property laws) legislation that deal with the class of persons (divorced spouses) who are ineligible under the impugned programme. Eligibility lines drawn by Parliament by reference to characteristics identified in subsection 15(1), or analogous thereto, may lose any discriminatory sting when viewed in the context of the related benefits available to those ineligible under the impugned statutory provisions and thus not infringe subsection 15(1).

[86]            However, in view of the conclusion reached by Sharlow J.A., I do not feel obliged definitively to resolve these doubts. I am therefore willing to assume for the purpose of dismissing this appeal that the legislation is in breach of subsection 15(1) as my colleague has held, but is saved by section 1.

                                                                                                                                   "John M. Evans"                

                                                                                                                                                      J.A.

"I agree

Gilles Létourneau J.A."

                                                 FEDERAL COURT OF APPEAL

                           NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                      A-185-02

APPEAL FROM THE ORDER OF THE TRIAL DIVISION DATED MARCH 1, 2002, TRIAL DIVISION FILE NO. T-3279-90

STYLE OF CAUSE:                                     MARY BALLANTYNE and CATHERINE PATTERSON-KIDD v. HER MAJESTY THE QUEEN

PLACE OF HEARING:                                Ottawa, Ontario

DATE OF HEARING:                                   June 3, 2003

REASONS FOR JUDGMENT BY:            SHARLOW J.A.

CONCURRING REASONS BY:                EVANS J.A.

LÉTOURNEAU J.A.

DATED:                                                          August 15, 2003

APPEARANCES:

Mr. Martin W. Mason                                                             for the Appellants

Ms. Ritu Gambhir

Mr. Brian J. Saunders                                                            for the Respondent

Ms. Linda J. Wall

SOLICITORS OF RECORD:

Gowling Lafleur Henderson LLP                                          for the Appellants

Ottawa, Ontario

Mr. Morris Rosenberg                                                           for the Respondent

Deputy Attorney General of Canada