Hodge v. Canada (Minister of Human Resources Development), 2002 FCA 243

                                                                                                                                            Date: 20020614

                                                                                                                                          Docket: A-77-01

                                                                                                                Neutral citation: 2002 FCA 243

CORAM:        LINDEN J.A.

EVANS J.A.

MALONE J.A.

BETWEEN:

                                                                     BETTY HODGE

                                                                                                                                                       Applicant

                                                                                 and

                              MINISTER OF HUMAN RESOURCES DEVELOPMENT

                                                                                                                                                   Respondent

                                               Heard at Ottawa, Ontario on May 14, 2002.

                                    Judgment delivered at Ottawa, Ontario, on June 14, 2002.

REASONS FOR JUDGMENT BY:                                                                                    MALONE J.A.

CONCURRED IN BY:                                                                                                         LINDEN J.A.

                                                                                                                                                   EVANS J.A.

Date: 20020614

Docket: A-77-01

Neutral citation: 2002 FCA 243

CORAM:        LINDEN J.A.

EVANS J.A.

MALONE J.A.

BETWEEN:

                                                                     BETTY HODGE

                                                                                                                                                       Applicant

                                                                                 and

                              MINISTER OF HUMAN RESOURCES DEVELOPMENT

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

MALONE J.A.

INTRODUCTION

[1]                 To be eligible for a survivor's pension under section 44 of the Canada Pension Plan, R.S.C., 1985, c. C-8 (the CPP), a person must have been the spouse of the contributor at the time of the latter's death. The sole issue in this application is whether the definition of "spouse" in subsection 2(1) is invalidated by section 15 of the Canadian Charter of Rights and Freedoms (the Charter) because it requires a common-law spouse, but not a married spouse, to have resided with the contributor at the date of the contributor's death.

FACTS

[2]                 In 1991, Betty Hodge was found to be disabled for the purposes of the CPP, and was granted disability benefits. From 1972, she had lived in a common-law relationship with Ronald B. Bickell (the contributor), but in March of 1993 the couple separated. The separation followed years of verbal and physical abuse that Ms. Hodge said she had suffered at the hands of the contributor. A brief reconciliation in January and February of 1994 failed, and it is agreed that when Ms. Hodge left, she intended to end the relationship. Ms. Hodge did not seek support or a division of assets from the contributor, who was then without means, having filed an assignment in bankruptcy.

[3]                 The contributor died on July 1, 1994, some four months after Ms. Hodge left. The applicant immediately applied for both a survivor's pension and a division of unadjusted pensionable earnings. The pension application was denied, while the application for the division of unadjusted pension earnings was granted. As a result of this division, the applicant's disability and CPP retirement pensions were increased.

[4]                 The applicant appealed the denial of the survivor's pension to a CPP Review Tribunal (the Tribunal). It held that the definition of "spouse" in subsection 2(1) breached the equality provisions in section 15 of the Charter because it excluded the applicant on the basis that she did not reside with her common-law husband for the twelve months immediately prior to his death. Consequently, the Tribunal declared the offending parts of subparagraph 2(1)(a)(ii) to be of no force or effect and allowed the appeal. In addition, since Ms. Hodge was only refused a survivor's pension because she was not cohabiting with the contributor when he died, the Tribunal held that she was entitled to the pension.

[5]                 The Minister then appealed the Tribunal's decision to the Pension Appeals Board (the Board), which unanimously allowed the appeal on the ground that the statutory residence requirement did not violate Ms. Hodge's rights under section 15 of the Charter. Writing for the majority, Killeen J. concluded that the residence requirement was a reasonable attempt by Parliament to accommodate common-law spouses without permitting multiple claims. Accordingly, the statutory scheme could not be said to demean the human dignity of Ms. Hodge and others in a similar situation, nor to cast doubt on their individual worth.

[6]                 Concurring in the result, Cameron J. A. held that Ms. Hodge's common-law relationship had ended by the time that the contributor died, so that, as a former spouse she was not treated differently from former spouses whose marriage is ended by divorce. Hence, the residence requirement did not differentiate between Ms. Hodge and other former spouses so as to result in unequal treatment.

[7]                 The applicant now seeks an order under subsection 24(1) of the Charter declaring that the residence requirement in the definition of "spouse" violates section 15 of the Charter, as well as an order setting aside the Board's decision and affirming the decision of the Tribunal.

LEGISLATION

[8]                 The overall purpose of the CPP, and the survivor's pension in particular, has been defined in Law v. Canada, [1999] 1 S.C.R. 497 at para. 103, as the enhancement of personal dignity and freedom by ensuring a basic level of long-term financial security to persons whose personal situation makes them unable to achieve this goal, so important to quality of life and dignity. The case at bar must be resolved with reference to the constitutional objective of enhancing human dignity (see also Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703 at paras. 56-8).

[9]                 The definition of "spouse" contained in the version of subsection 2(1) applicable to the case at bar is as follows:

[10]            Section 44 provides for the survivor's pension. It read as follows at the relevant time:

[11]            Section 55.1 provides for the division of unadjusted pensionable earnings (credit splitting) where both spouses have contributed to the CPP. It reads as follows:

[12]            Section 15 of the Charter reads as follows:

[13]            In summary, a common-law spouse is defined as a person of the opposite sex who cohabited with the contributor in a conjugal relationship for at least one year, ending at the contributor's death. However, under the credit-splitting provision, the common-law spouse must have been living separate and apart from the contributor for at least one year.

[14]            A married spouse continues to be eligible to collect a survivor's pension, provided that the marriage has not been dissolved by divorce, or the contributor has not resided in a conjugal relationship with another person for at least one year. In short, a common-law spouse, but not a spouse by marriage, must have lived with the contributor at the time of the contributor's death in order to qualify for a survivor's pension.

ALLEGED BOARD ERRORS

[15]            The applicant's submission is that the Board erred in two broad respects:

a.         The Board's finding that the scheme provided a "measured and balanced formula for entitlement" was wrong in law, since there was no evidence before the Board that the exclusion related to or advanced the statutory purpose of the survivor's pension. Further, such a discussion is more appropriate to a section 1 analysis, which was not undertaken; and

b.         In choosing the appropriate comparator group, the Board gave insufficient weight to the applicant's perspective, contrary to the teaching of the Supreme Court of Canada in Egan v. Canada, [1995] 2 S.C.R. 513 at paragraph 136.

ANALYSIS

I.          Section 15

[16]            In Law, supra, Iacobucci J. outlined the steps that must be taken to determine whether the definition of "spouse" offends the equality provision contained in section 15 of the Charter. In that case, the appellant challenged the provisions in section 44 of the CPP excluding her from benefits because of her age, thus infringing her section 15 equality rights. Iacobucci J. outlined the following analysis, which has three components:

A.        Does the impugned law

i.          draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or

ii.          fail to take into account the claimant's already disadvantaged position in Canadian society, resulting in substantially differential treatment between the claimant or others on the basis of one or more personal characteristics?

B.         If such differential treatment is found, is it on the basis of one or more enumerated or analogous grounds?

C.        If so, does the differential treatment discriminate in the substantive sense, which is to say, does it violate basic values of human dignity and self-worth?

[17]            This approach was confirmed and followed by the Supreme Court of Canada in Granovsky, supra, and in Lovelace v. Ontario, [2000] 1 S.C.R. 950 at paras. 53-4, where Iacobucci J. wrote that this three-staged inquiry is not to be undertaken according to a fixed formula or a rigid test. Rather, section 15 is to be interpreted in a purposive and contextual manner in order to permit the realization of the provision's strong remedial purpose, and to avoid the pitfalls of a formalistic or mechanical approach. The main focus of the inquiry is to establish whether a conflict exists between the purpose or effect of an impugned law and the purpose of section 15. I turn now to an analysis following these guidelines.

Inquiry One: Differential treatment on the basis of one or more personal characteristics

[18]            The applicant argues that the definition of "spouse" draws a formal distinction between the applicant and others on three grounds. First, the definition distinguishes between common-law spouses who have ceased to cohabit with the contributor and married spouses who have separated from the contributor. Only the former are denied the survivor's pension. Second, the applicant states that the distinction is also based on sex and age, since the evidence indicates that: most surviving spouses are women; the proportion of survivors who are women grows steadily with age; and elderly single women are at an extreme risk of poverty as a result of historical patterns of social disadvantage.

[19]            The Minister submits that the applicant's analysis is flawed because she has chosen the wrong comparator group. The Minister asserts that, when the contributor died, Ms. Hodge belonged to the class of former common-law spouses, and that the appropriate comparator group was former married spouses, that is, spouses whose marriage has been dissolved by divorce or annulment. In contrast, married spouses who are living apart at the time of the contributor's death remain spouses by marriage.

[20]            A direction on the selection of the proper comparator group was given by Iacobucci J. in Law, supra, at para. 58, where he wrote:

When identifying the relevant comparator, the natural starting point is to consider the claimant's view. It is the claimant who generally chooses the person, group, or groups with whom he or she wishes to be compared for the purpose of the discrimination inquiry, thus setting the parameters of the alleged differential treatment that he or she wishes to challenge. However, the claimant's characterization of the comparison may not always be sufficient. It may be that the differential treatment is not between the groups identified by the claimant, but rather between other groups. Clearly a court cannot, ex proprio motu, evaluate a ground of discrimination not pleaded by the parties and in relation to which no evidence has been adduced... However, within the scope of the ground or grounds pleaded, I would not close the door on the power of a court to refine the comparison presented by the claimant where warranted.

[emphasis added]

[21]            In assessing the propriety of interfering with the claimant's characterization of the comparator group, the Court must consider a variety of factors, including the subject-matter, and the purpose and effect of the legislation. Other contextual factors, such as biological, historical, and sociological similarities or dissimilarities may also be relevant in establishing the relevant comparator (Law, supra, at para. 60).

[22]            It is worth noting at this juncture that a married couple can normally only be divorced after a year-long period of separation. Ms. Hodge left the contributor less than six months before he died, with the intention of ending the relationship once and for all. It follows that, had Ms. Hodge and the contributor been legally married at the time the relationship terminated, it is unlikely that a divorce could have been completed by the time of the contributor's death. Under these hypothetical circumstances, her entitlement to the survivor's benefit would not be in dispute. Given this disparity in eligibility arising from Ms. Hodge's marital status at the date of the contributor's death, I cannot agree with the Minister that formerly married spouses, as a class, constitutes the appropriate comparator group within which to include the applicant.

[23]            In my view, Law, supra, at para. 58, requires that this Court adopt the comparator group chosen by the applicant unless it can be shown that there is a paucity of evidence or a failure to plead that comparator. Those circumstances are not apparent in this record. Therefore, I conclude that there is a formal distinction drawn between the applicant and others on the basis of a personal characteristic, namely that she is a common-law spouse who had ceased to cohabit with the contributor at the time of his death. The Minister conceded both here and below that if the applicant's choice of comparator group is correct, then a formal distinction was in fact drawn by the impugned statutory provisions. It follows that no error was committed by the Board at this stage of the analysis.

[24]            With respect to the differential treatment alleged by the applicant on the grounds of age and sex, the record prima facie establishes the claims made by the applicant. However, in light of my ultimate conclusion in relation to the marital status distinction, I propose to leave the issue of differential treatment based on age and sex to another panel and another day, especially since the exclusion applies to all women, including those who have divorced.

Inquiry Two: Enumerated or Analogous Grounds

[25]            The second element of the inquiry is readily established. The Supreme Court of Canada stated clearly in Miron v. Trudel, [1995] 2 S.C.R. 418, that marital status is an analogous ground for the purposes of a section 15 analysis. The parties agree that should this Court determine that there is differential treatment on the basis of a personal characteristic, then that personal characteristic is marital status. As such, this branch of the inquiry is met, and it follows that the Board committed no error in this respect.

Inquiry Three: Discrimination

[26]            This final stage of the section 15 analysis reflects the ultimate purpose underlying that section, namely, the protection of the claimant's human dignity (see Lovelace, supra, at para. 54; Granovsky, supra, at paras. 56-8). Binnie J. summarized the analysis in Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120 at para. 110, where he said:

The third stage requires the claimant to establish that the differentiation amounts to a form of discrimination that has the effect of demeaning the claimant's human dignity. The "dignity" aspect of the test is designed to weed out trivial or other complaints that do not engage the purpose of the equality provision.

[emphasis added]

[27]            Further, Iacobucci J.'s oft-cited discussion of what "human dignity" entails is found in Law, supra, at para. 53, where he wrote as follows:

What is human dignity?... As noted by Lamer C.J. in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 554, the equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. 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]

[28]            Hence, the question is whether the requirement in the CPP's survivor's pension provision that common-law spouses, but not separated married spouses, must have resided with the contributor for a year preceding the time of death, marginalizes, ignores, or devalues the applicant's human dignity in purpose or effect, or otherwise perpetuates the view that such persons are less worthy of value or recognition as human beings.

[29]            The Board found that this was not the case since Parliament had devised a balanced and measured approach to providing for common-law spouses in the CPP, and that the carefully crafted definition of "spouse" is not, perhaps, perfect, but nonetheless "has tried to show respect and concern for the status of common law partners...".

[30]            Ms. Hodge submits that this conclusion is in error, in both result and reasoning. The applicant relies on Law, supra, for the proposition that the survivor's benefit is directly linked to the preservation of human dignity through financial security and that, given this purpose, the exclusion of a class of surviving spouses inherently infringes the human dignity of those persons excluded.

[31]            The Minister, on the other hand, argues that the residence requirement is neither based on, nor promotes, prejudices or stereotypes common-law spouses. Instead, the Minister submits that the provisions were amended to include common-law spouses as a result of the recognition that such relationships, and the people engaging in them, were equally worthy of respect and protection, and to deal with the difficult question of when a common-law relationship ends.

[32]            The Minister submits that, unlike legal marriages, it is difficult to define when common-law relationships end since they are de facto in nature. Accordingly, a distinction based on the institutional differences between marriage and common-law relationships does not go to human dignity, but rather reflects the nature of the relationships and provides an appropriate solution to a difficult issue. Otherwise, in the Minister's submission, once a couple has lived in a conjugal relationship, the survivor would still be entitled to a survivor's pension, regardless of how long before the contributor's death the parties had lived separate and apart.

[33]            In my opinion, most of the Minister's arguments are more appropriate as part of a section 1 analysis. However, the issue of present concern is not whether the specific statutory criteria of eligibility for a survivor's benefit were expedient or carefully crafted, but whether the distinction between common-law and married spouses affects the applicant's dignity.

[34]            In Law, supra, the overriding purpose and emphasis of the CPP, and notably the survivor's benefit, was said to be the enhancement of dignity by ensuring a basic level of long-term financial security of the elderly and of surviving spouses in particular. But for the residence requirement set out in the definition of "spouse", the applicant would be entitled to the protection afforded by the survivor's pension. In order to receive the benefit, the applicant had only two choices: either marry the contributor, a choice intrinsic to an individual's personal autonomy, or remain in a relationship, described by Ms. Hodge as abusive, until the contributor died; again, a decision going to the very heart of her personal integrity, empowerment, and safety.

[35]            I would also make reference to the recent decision of this Court in Collins v. Canada, 2002 FCA 82, which dealt with a claim of discrimination by a separated spouse who was denied benefits under the Old Age Security Act. In that case, the appellant married in 1951 and separated from her husband in 1975. They remained separated until his death in 1998. If Ms. Collins had not been separated from her husband, she would have been entitled to a monthly "spouse's allowance" under section 19 of the Old Age Security Act beginning in November of 1985, when she became sixty years of age, and continuing until she became entitled to the old age pension in her own right at age sixty-five.

[36]            Residence was at the heart of the requirement for eligibility in Collins, supra. With regard to whether discrimination resulted from the distinction drawn between a cohabiting spouse and a separated spouse in similar financial circumstances, Sharlow J.A. wrote as follows at paras. 37 and 38:

In his concluding remarks about the applicability of subsection 15(1), the Trial Judge referred to the following comments of McLachlin J. in [Thibaudeau v. Canada, [1995] 2 S.C.R. 627] at paragraph 207:

One's status vis-à-vis one's former spouse involves the individual's freedom to form family relationships and touches on matters so intrinsically human, personal and relational that a distinction based on this ground must often violate a person's dignity.

The validity of this comment seems obvious to me.

I am of the view that the Trial Judge did not err in concluding that a statute granting an income tested allowance to a cohabiting spouse, while denying it to a separated spouse in similar financial circumstances, is discriminatory in that it creates a distinction based on a personal characteristic intrinsic to human dignity. Thus, despite the paucity of evidence of historical disadvantage or vulnerability, I am not prepared to reverse the decision of the Trial Judge that the impugned legislation is discriminatory within the meaning of subsection 15(1) of the Charter.

[37]            Following Sharlow J.A.'s analysis, and despite the Minister's concern that the record contains little evidence to establish an affront to the applicant's human dignity, I am satisfied that the Board erred in failing to find discrimination for the purpose of section 15. The distinction drawn goes to an intrinsic personal element, i.e., the formation and maintenance of deeply personal relationships, which, when compromised, can only lead to the conclusion that the dignity interest is engaged.

[38]            As a result, I am satisfied that the statutory definition of "spouse" violates section 15 because it distinguishes between common-law spouses and married spouses who do not cohabit with the contributor at the time of the contributor's death, and that persons in the applicant's position are treated in a manner which constitutes an affront to their human dignity, self worth, and ability to make important life-decisions. The question remains whether this breach of section 15 can be justified under section 1 of the Charter. I turn now to that analysis.

II.         Section 1

[39]            Once a discrimination is established, discrimination is identified, the onus then shifts to the party supporting the impugned law, in this case the Minister, to prove that the limitation is reasonable and demonstrably justified in a free and democratic society. If the Minister fails to do so, the impugned law will be of no force or effect by virtue of section 52 of the Charter.

[40]            The now familiar section 1 test, first prescribed by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103, has been restated on numerous occasions and may be summarized as follows:

1.         Does the objective or goal of the legislation relate to concerns which are pressing and substantial in a free and democratic society?

2.         If so, are the means chosen to attain that goal proportional to one another, in that

a.         the connection between the objective of the legislation and the discriminatory distinction is rational;

b.         the law impairs the right as minimally as possible; and

c.         if both these conditions are met, the benefits of the legislation must be weighed with its deleterious effects to determine whether, overall, they are proportionate.

Pressing and Substantial Objective

[41]            Both parties agree that the goals of the CPP as a whole, and the survivor's pension in particular, are pressing and substantial. The Minister submits that the purpose of the residence requirement is also pressing and substantial, since it operates to preserve the priority of a legal spouse to the survivor's benefit, in the absence of a common-law spouse. The applicant asserts that, while the goals of the legislation are pressing and substantial, namely the preservation of the dignity and independence of survivors, the exclusion of persons in the applicant's position defeats that purpose, and thus cannot be pressing and substantial. The applicant relies on Vriend v. Alberta, [1998] 1 S.C.R. 493 at para. 116, for this proposition. In that case, the legislature's failure to include in human rights legislation sexual orientation as a prescribed ground of discrimination was said to constitute the very antithesis of the principles embodied in the legislation as a whole. As such, the objective behind the omission did not relate to concerns that were pressing and substantial.

[42]            In my view, the overall objective of the legislation in the case at bar is, as the applicant states, to preserve the dignity and self-realization of persons who would not otherwise be able to do so (see paragraph [7], supra). This is uncontroversial. However, the scheme itself requires limits. In drafting the definition of "spouse," Parliament had the task of defining the parameters of a common-law spouse's rights, so as to prevent multiple claims and to set out the priorities by which claims would be judged. This is, in itself, a pressing and substantial objective sufficient for present purposes. Accordingly, I now turn to the second part of the Oakes test to determine whether the limits chosen are proportionate to the benefits the legislation is intended to confer.

Proportionality Test

rational connection

[43]            The Minister submits that the need to define the limits of eligibility, namely through the residence requirement in the definition of "spouse", is rationally connected to the objective of providing a measure of security to the contributor's spouse upon his or her death. This is so since the residence requirement ensures that a single spouse, as defined, will be eligible for the benefit. The Minister asserts that, in so doing, Parliament was neither arbitrary nor capricious. The applicant, on the other hand, argues that the limitation operates to exclude certain common-law spouses. As such, since the provision exists to ameliorate the position of common-law spouses whose partner had died, the exclusion of some members of that class cannot be connected rationally to the same objective.

[44]            In my analysis, the limitation defining the parameters of eligibility for the survivor's pension is designed to meet both the objective of the survivor benefit itself, and the overall objective of the CPP. The residence requirement is designed to limit the class of persons who may be entitled to protection, and exists to provide coverage to persons in a common-law relationship who have demonstrated the existence of that relationship by the objective marker of conjugal cohabitation for a continuous period of twelve months. In essence, the exclusion of common-law spouses who cease to cohabit with the contributor is rationally connected to the objective of the legislation, i.e., the provision of financial security for surviving spouses, because it defines the point at which a spousal relationship ends. This limitation has been crafted as a response to the need to carefully define the limits of who is, and who is not, a common-law spouse for the purposes of the survivor's benefit. As such, I can only conclude that there is a rational connection between the legislation and its objective. However, it remains to be determined if the limitation chosen by Parliament, though rationally connected to the objective of the legislation, is unreasonable or impairs more than minimally the applicant's equality interest.

minimal impairment

[45]            When the focus of the minimal impairment analysis is a legislative provision which deals with socio-economic factors, i.e., where Parliament allocates scarce resources among different groups, and thereby makes choices as to eligibility for benefits, the question is not whether there are alternatives to the measure taken, but rather whether Parliament acted reasonably in setting the limitations it did. Deference is appropriate where Parliament has balanced competing social interests and less so when the government has acted as a singular antagonist of the individual whose right has been infringed (see Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. 927 at para. 80).

[46]            Thus, deference at the minimal impairment stage may be accorded to Parliament in polycentric situations, meaning that issues which involve a large number of interlocking and interacting interests and considerations must be weighed (see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at para. 36). In such situations, the Court must recognize the democratically representative role of Parliament in mediating various claims, and the fact that the Court is not in a position to ascertain with some certainty whether the least drastic means has been chosen to achieve a desired objective (see McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at para. 68).

[47]            With respect to minimal impairment and the legislator's choice regarding eligibility for benefits, McLachlin J. wrote as follows in Miron, supra, at para. 167:

The marker chosen by the legislator may be only tangentially relevant to the legislative goal, as citizenship was found to be to the determination of ability to practise law in Andrews. In such cases, we say it is a poor marker; one which excessively impairs the equality rights.    Although it may eliminate some people who may legitimately be excluded, it also excludes many who, given the goal of the legislation, should not be excluded. In contrast, a good marker excludes most people who should be excluded given the goal of the legislation, and only a few who should not. The standard which the legislator must meet is not perfection, but reasonableness. Of necessity laws use group criteria; and of necessity there are sometimes individual members of the group chosen who do not conform to the usual profile of the group and with respect to whom, viewed individually, even a relevant legislative marker may be irrelevant. ...[I]f more reasonable markers are available, the law may be invalid because it impairs the right more than reasonably necessary to achieve the legislative goal.

[emphasis added]

[48]            To summarize, then, in choosing the residence requirement as a line of demarcation for eligibility for the survivor's pension, Parliament need not have been perfect, but must have been reasonable. Some deference is due to Parliament's choice in this case, since it involves the balancing of competing interests and the allocation of scarce resources. Hence, while the Court may not be in a position to determine whether less drastic means were available to meet the legislative goal, it must nonetheless assess whether more reasonable, but not necessarily perfect, markers are available that are consistent with achieving the legislative goal. As a result, if Parliament was unreasonable in its choice of the residency requirement for common-law spouses, or if other, more reasonable alternatives were available, then the limitation may be said to impair the applicant's right in more than a minimal way.

[49]            In my view, cohabitation at the date of death is an insufficiently accurate surrogate for determining financial dependence. This demarcation excludes from the spouse's pension all common-law spouses who have an ongoing financial dependence after separation, including those who can establish financial dependence pursuant to court orders under provincial legislation. Even those common-law spouses are excluded who, after years of cohabiting with the contributor, exhibit characteristics which are precise markers of dependence, such as age, the presence of dependent children or disability. Indeed, in this case the applicant was sixty-one years of age and disabled at the time of her application for the survivor's pension. Residence is also a poor marker for eligibility, since it ignores the contributions made by the applicant to the common-law relationship, and ignores the often onerous financial and social obligations which continue even after cohabitation ceases. It is simply unreasonable to assume that these ongoing obligations and dependencies, be they financial, legal or otherwise, are extinguished upon cessation of residence.

[50]            There are, of course, other means by which Parliament could have achieved its goal. It could have instituted a grace period following the cessation of cohabitation in which eligibility would continue. A period of a year less a day might well be appropriate, since it would preclude, by definition, a claim for a survivor's pension by another common-law spouse who became involved with the contributor. Such an alternative would recognize the ongoing nature of the dependencies and obligations inherent in conjugal relationships, and would meet the primary objective of the survivor's pension. Indeed, in New Brunswick, the definition of "spouse" in the Pension Benefits Act, S.N.B. 1990, c. P-5.1, subsection 1(1), follows this approach, providing benefits to common-law spouses who have cohabited within the year preceding the time of the relevant incident. The New Brunswick approach offers a period in which those obligations and dependencies may be resolved, and relies on a line of demarcation more reflective of the reality of conjugal relationships. This approach is a more reasonable alternative than that adopted by Parliament, in that it recognizes the continuing nature of the obligations and dependencies inherent in spousal relationships, whether marriage or common-law.

[51]            Parliament could also have chosen to treat common-law spouses in the same way as married spouses who remained legally married at the contributor's death. The problem of multiple claimants would be dealt with in the same way for both groups, that is, the spouse's entitlement would continue until the contributor established a subsequent qualifying conjugal relationship. Parliament could also have chosen to rate the benefits as between spouses, both married and common-law, depending on the length of the relationship. Each of these options would impair the applicant's right to equality less than the residency requirement presently contained in subsection 2(1).

[52]            While the Supreme Court of Canada has directed that the cost of implementing a non-discriminatory program may be a factor at this stage of the section 1 analysis (see Reference re Provincial Court Judges, [1997] 3 S.C.R. 3 at paras. 281-4), I note that no clear evidence was advanced by the parties on the financial impact of a declaration in the appellant's favour. The only evidence offered was directed to the possibility that, if the applicant was successful, multiple claims for a survivor's benefit could be established on the death of a contributor. In my view, to allow Ms. Hodge's claim would not open the door to multiple claims any more than the present law does with respect to married spouses.

[53]            As such, it is my view that the Minister has not demonstrated that the applicant's equality right has been impaired in a reasonable manner and has failed to discharge the onus under the minimal impairment inquiry.                

overall proportionality

[54]            Parliament has chosen to implement its pressing and substantial objectives by limiting the access of separated common-law spouses to those same public objectives. Where, as here, separated common-law spouses are excluded from the benefit, the effect of the discrimination is not proportional to the objectives. As the Minister has failed to justify the section 15 infringement, the applicant is entitled to a remedy.

CONCLUSIONS

[55]            The definition of "spouse" for the purpose of the survivor's pension under the CPP is discriminatory, and is not justified under section 1 of the Charter, since it does not constitute a minimal impairment of the applicant's section 15 rights, and is disproportionate to the benefits received.

[56]            I would therefore declare the definition of "spouse" to be of no force or effect to the extent that it infringes the section 15 rights of common-law spouses who have ceased cohabitation with the contributor at the time of the contributor's death. However, in fashioning an appropriate remedy to correct an unconstitutional aspect of a statutory benefit scheme, the Court has a number of choices. As I have indicated, the constitutional problem that I have identified in subparagraph 2(1)(a)(ii) could be corrected in several different ways. Given the inherent difficulties and interrelated policy options in creating and administering a complex scheme of social security, and the need to consult the Provinces before the CPP is amended, it is the role of Parliament, not the Court, to choose how best to meet its constitutional obligations and to craft the necessary statutory provisions.

[57]            If the Court were simply to declare invalid the impugned provision in subparagraph 2(1)(a)(ii), it would thereby amend the legislation so as to provide that non-married spouses are to be treated in exactly the same way as the married, in the sense that a common-law relationship only ends for survivor benefit purposes when the contributor establishes another qualifying conjugal relationship. To do this would be a usurpation of Parliament's function. As the Ontario Court of Appeal recently stated in Falkiner v. Ontario (Ministry of Community and Social Services, Income Maintenance Branch), [2002] O.J. No. 1771 at para. 116, Parliament's task is to design the scheme, and the Court's to determine its constitutionality.

[58]            In my view, this is one of those cases in which it is appropriate to suspend the operation of the declaration that subparagraph 2(1)(a)(ii) is of no force and effect for a period of twelve months so that, in consultation with the Provinces, Parliament may decide how best to remedy the constitutional defect in the definition of "spouse".

[59]            Without more, however, this remedy would be of no assistance to Ms. Hodge and would make her victory decidedly hollow. In my opinion, this is a suitable case for ensuring that the litigant reaps the benefit of having instituted proceedings that have successfully challenged the constitutionality of the impugned aspect of the cohabitation requirement. An award of costs would be an inadequate recognition of Ms. Hodge's success.

[60]            Granting a remedy to a successful litigant that, during the suspension of the declaration, will not be available to others who are similarly situated can create inequities: Miron v. Trudel, [1995] 2 S.C.R. 418 at para. 179, per McLachlin J. (as she then was) dissenting. However, on the facts of this case, it is my opinion that the degree of arbitrariness inevitably involved in awarding the remedy that I propose is a less undesirable consequence than either denying a remedy to Ms. Hodge, or pursuing any of the other remedial options available to the Court. Moreover, any anomalies that arise during the period of temporary validity as a result of awarding Ms. Hodge a remedy may be addressed by administrative action or by the amended legislation.

[61]            Accordingly, I would grant a declaration that subparagraph 2(1)(a)(ii) is of no force or effect in so far as it violates Ms. Hodge's right under section 15 of the Charter to be free from discrimination on the ground of marital status by disentitling her to the survivor's benefit to which she would have been entitled if she had been married to Mr. Bickell.

[62]            This conclusion is supported by the general acknowledgement of the broad and flexible remedial power that subsection 24(1) of the Charter confers on the courts: Peter W. Hogg, Constitutional Law of Canada, loose-leaf ed. (Toronto, Ont.: Carswell, 1992), 37-28-28.2. More particularly, when discussing suspended remedies, such as the declaration of invalidity that I would grant in this case, Kent Roach, Constitutional Remedies in Canada, looseleaf (Aurora, Ont.: Canada Law Book, 1994), 14-101, observes:

The general rule established by the Supreme Court is that successful applicants should be exempted from the period of delay.

Thus, Lamer C.J. said in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of the Provincial Court of Prince Edward Island, [1998] 1 S.C.R. 3 at para 20:

In the rare cases in which this Court makes a prospective ruling, it has always allowed the party bringing the case to take advantage of the finding of unconstitutionality.

[63]            For these reasons, I would allow the application for judicial review with costs, set aside the decision of the Pension Appeals Board, restore the decision of the Review Tribunal to allow the appeal from the Minister and declare that:

a) the definition of "spouse" in subparagraph 2(1)(a)(ii) of the Canada Pension Plan is of no force or effect in so far as it violates the applicant's right under section 15 of the Canadian Charter of Rights and Freedoms to be free from discrimination on the ground of marital status by disentitling her to the survivor's benefit that she would have received if she had been married to the contributor;

            b) the definition of spouse in subparagraph 2(1)(a)(ii) of the Canada Pension Plan is invalid and of no force or effect by virtue of section 15 of the Canadian Charter of Rights and Freedoms in so far as it requires a non-married spouse to be cohabiting with the contributor at the time of the contributor's death in order to be eligible for a survivor's benefit; and

            c) the declaration in b) above shall come into effect twelve months from the date of this order and, until then, paragraph 2(1)(a)(ii) shall be temporarily valid.

                                                                                              "B. Malone"                 

                                                                                                              J.A.                      

"I agree

A.M. Linden

J.A."

"I agree

John M. Evans

J.A."