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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Discrimination, what constitutes

Monday, June 17, 2019 @ 11:14 AM  


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Appeal by the husband from a decision finding s. 112(3) of the Family Services Act, which required an unmarried spouse to file an application for spousal support within one year of the date of separation while no such time limit existed for a married spouse, unconstitutional. The motion judge concluded that s. 112(3) violated s. 15(1) of the Charter because it imposed a limitation period on applications for spousal support for common-law spouses which it did not impose on married spouses. The limitation period was discriminatory because it differentiated common-law spouses based on marital status. This violation of s. 15(1) did not meet the justification standard under s. 1 of the Charter because the deleterious effects of the limitation period imposed only on common-law spouses was not proportional to the objectives of the Act. To ground these conclusions, the judge relied on the 2001 Grover case which held that s. 112(3) of the Family Services Act violated s. 15(1) of the Charter and that such violation was not saved under s. 1. The motion judge declined to conduct a s. 1 analysis. Deferring to the analysis in Grover, he observed that, since the decision was not challenged, it could, therefore, be considered as the state of the law on this issue since that time.

HELD: Appeal allowed. The motion judge’s failure to conduct a full s. 15(1) analysis as well as his failure to perform a s. 1 analysis constituted reversible errors. The judge’s reliance on the Walsh case as support for the proposition that choice was a factor to be considered under s. 15(1) was incorrect. The factors of choice and personal autonomy to enter conjugal relationships, as opposed to marriage, were more properly considered under legislative purpose, a function of the analysis under s. 1 of the Charter. By deferring to Grover, the judge erred in law. He was required to conduct a full substantive equality analysis. If he found an infringement under s. 15(1), he was then required to conduct the analysis under s. 1. The failure to do this analysis constituted reversible error. There was very little, if any, evidence before him which would have permitted him to conduct the analysis. The mere assertion of discrimination was not enough. The wife’s affidavit was silent as to how, or on what basis, the legislation prejudiced, stereotyped or created disadvantage. There must be evidence of a correlation between the alleged discrimination and the negative effects the legislation had on the affected group. None of these were evident from the wife’s materials. There was no proof of the deleterious effects of the limitation period imposed only on common law spouses and that the effects were not proportionate to the objectives of the Act.

Johnston v. Meyer, [2019] N.B.J. NO. 117, New Brunswick Court of Appeal, K.A. Quigg, B.L. Baird and L.A. LaVigne JJ.A., May 16, 2019. Digest No. TLD-June172019002