Walsh v. Bona

16 February 2003
February 16, 2003

Releasing its decision in Walsh v. Bona on December 19, 2002, the majority of the Supreme Court of Canada ruled that it is not discriminatory for the Nova Scotia Matrimonial Property Act (MPA) to exclude common law couples from the definition of “spouse.”

Individuals will continue to face the increased burden of proving equitable claims in order to achieve a division of assets on the dissolution of their common law relationships. Katherine Briand, counsel for the claimant, fears the negative impact of this decision. “I think there’s going to be a lot more poverty for women and children,” she says.

Susan Walsh and Wayne Bona lived together in a common-law relationship for approximately 10 years. The couple had two sons together who continued to reside with their mother when the parties separated in 1995.

After the relationship ended, Walsh sought child and spousal support. She also brought a Charter challenge to the definition of “spouse” in the MPA, which is limited to married couples. The MPA provides for the division of matrimonial assets on the dissolution of marriage, or on the death of one spouse. It also establishes interim remedies such as exclusive possession of the family home. Walsh claimed that the similarities between common law couples and married couples are such that the exclusion of common law couples from the definition of spouse violates her human dignity.

Walsh lost at trial, but was successful in her appeal to the Nova Scotia Court of Appeal. The Nova Scotia provincial government successfully appealed to the Supreme Court of Canada.

There were two constitutional questions before the Court. First, whether the definition of spouse violated the s.15(1) equality provisions in the Charter of Rights and Freedoms by discriminating against heterosexual unmarried cohabitants. If the answer to that question was yes, then the Court had to decide whether the discrimination could be saved under s.1 as demonstrably justified in a free and democratic society.

Writing for himself and six other justices, Bastarache J. found that the dignity of unmarried persons living in common law relationships was not affected by their exclusion from the operation of the MPA.

Bastarache J. applied the three-part test set out by the SCC in Law v. Canada (Minister of Employment and Immigration) ([1999] 1 S.C.R. 497) to find there was no discrimination under s.15(1). The Crown conceded that the first two parts of the test were met by acknowledging that the MPA results in differential treatment of common law couples based on their marital status, which the Court has found is an analogous ground of discrimination under s.15(1).

This left the Court to decide whether the differential treatment was discriminatory. Bastarache J. framed the question as “whether a reasonable heterosexual unmarried cohabiting person, taking into account all the relevant contextual factors, would find the MPA’s failure to include him or her in its ambit has the effect of demeaning his of her dignity.” The majority boiled the answer to this question down to one main element: choice. That is, the choice whether or not to marry.

The majority found that because common law couples are free to choose whether to marry (and have the MPA apply to their relationship) their exclusion from the operation of the MPA is not discriminatory. In fact, the requirement to choose to marry before the MPA applies was seen by the majority as enhancing a person’s autonomy and self-determination. This upsets Briand, “One thing that really irritates me about it is that the freedom of choice thing is even admitted by the majority decision to be illusory in a great deal of the cases. Nevertheless that’s what they hung their hat on.”

The majority’s approach in Walsh v. Bona is the opposite to that taken in earlier decisions such as Miron v. Trudel ([1995] 2 S. C.R. 418) where the Court recognized discrimination on the basis of marital status when a common law partner was denied spousal insurance benefits after a car accident. The insurance policy was based on a standard automobile policy prescribed by the Ontario Insurance Act.

Bastarache J. distinguished Miron v. Trudel because that case involved the relationship of the common law couple (as a unit) to a third party (the insurer), rather than to one another. The only way for the couple to access automobile insurance benefits was to marry.

Walsh v. Bona represents a significant departure from the Court’s recent expanding view of families, as seen in decisions such as Miron v. Trudel and M. v. H. ([1999] 2 S.C.R. 3). The question is why?

The answer appears to be related in part to the subject matter of the MPA: property rights. Bastarache J. stated that the MPA significantly alters “the status quo of an individual’s proprietary rights and obligations.” Briand notes the special treatment accorded property rights: “I think property has always had a much more protected status in the common law than any other aspect of people’s lives.” Briand says that this decision might be a carry over of that view.

The fact that other remedies are available to common law couples also played a role in the majority’s decision. Bastarache J. noted the availability of maintenance or support through provincial legislation, as well as equitable remedies such as the constructive trust. “In my view, where the multiplicity of benefits and protections are tailored to the particular needs and circumstances of the individuals, the essential human dignity of unmarried persons is not violated,” he wrote.

Briand was surprised by the majority’s decision. She had hoped that gains made in earlier decisions such as Peter v. Beblow ([1993] 1 S.C.R. 980) and Pettkus v. Becker ([1980] 2 S.C.R. 834) would have continued. “Those constructive trust cases were breakthrough cases because it was the first time that the Supreme Court ever recognized that you could, as a common law partner, have a claim on property.” The question left outstanding from those decisions was whether or not it would amount to an equal share of property. Briand viewed Walsh’s claim for half to be the next logical step for the Court.

Unfortunately the Court’s decision now leaves an inconsistent approach to common law couples. Briand thinks that this will lead to more litigation, “Now that the Supreme Court of Canada has said governments have no right or place to force spousal obligations of this sort on people who have chosen, consciously chosen, not to be spouses, how soon is it going to be before somebody challenges the Income Tax Act? That would be my first thing to do.” Briand feels that provincial spousal maintenance or support obligations are at risk too.

Gonthier J. wrote concurring reasons focussing on the role of marriage in society and its contractual nature, including the choice of whether to marry. Gonthier J. found a distinction between provincial spousal support legislation, which applies to common law couples, and property division based on their different objectives. Spousal support has social objectives and is meant to address need and dependency, whereas the division of assets pursuant to the MPA is the result of parties choosing to enter a specific regime. Gonthier J. also found distinctions between married and common law couples such that they are not appropriate comparator groups under s. 15(1) of the Charter.

Briand says that anybody who wants to know what the case was about will have to read Justice L’Heureux-Dubé’s dissent. “She’s the only one who really addressed any of the other issues.” L’Heureux-Dubé J. reviewed numerous legal, social and historical factors to conclude that the exclusion of common law couples from the application of the MPA is discriminatory and not saved by s.1 of the Charter.

Notwithstanding the recent gains for common law couples, L’Heureux-Dubé J. found that they are still a disadvantaged group. She reviewed the inadequate remedies available to Walsh and others like her at the end of common law relationships, noting the lack of access to the most expedient property remedies under the MPA. Her conclusion was that this lack of access violates Walsh ‘s human dignity.

L’Heureux-Dubé J. followed the Court’s approach in M. v. H., finding the under-inclusiveness of the MPA problematic even though its purpose is ameliorative. She also found that the nature of interests at stake (meeting one’s financial needs after the breakdown of a relationship of intimacy and economic interdependence) are the same as those enumerated by the Court in M. v. H., which dealt with access to spousal support for same-sex couples. She concluded that common law couples and married couples are similar, with similar needs on the dissolution of their relationships.

Most interesting is Justice L’Heureux-Dubé’s review of the development of family law legislation in Canada and its remedial nature. In Murdoch v. Murdoch ([1975] 1S.C.R. 423) the Court applied the common law doctrine of separate property and prohibited a wife of 25 years from obtaining any interest in her husband’s property. Responding to public pressure, provinces across the country introduced legislation ensuring the equal division of property in recognition of the contribution made by each person to the relationship and family.

L’Heureux-Dubé J. questioned the Crown’s argument that choice is the main factor affecting the structure of people’s relationships. Noting that “most people are not lawyers”, she rejected the notion that when people are deciding whether to marry they are fully aware of the legal consequences. Further, she accepted that the choice to marry or not is often illusory. Briand calls the majority ruling a reactionary decision, “It opens the door for a lot of people to make a lot of claims that are going to adversely affect women and children–they can say what they want about things being gender neutral, but the fact of the matter is that’s who it’s going to effect.” Briand calls on women’s groups across the country to pressure provincial governments to take action where the majority of the Court failed to do so.

Lara J. Morris is a lawyer and freelance writer living in Halifax.

about NAWL
The National Association of Women and the Law is a not-for-profit feminist organization that promotes the equality rights of women through legal education, research and law reform advocacy.
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