In determining whether existing property legislation would survive a Charter challenge, there is a two stage inquiry. Firstly, it must be determined whether the impugned legislation breaches the equality rights set out in section 15(1) of the Charter.

Section 15(1) of the Charter provides:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based upon race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The person who challenges the legislation has the onus of proving the breach of s. 15(1). If this breach is proven, then the onus switches to the government to prove, pursuant to section 1 of the Charter, that the impugned legislation should be saved.

Section 1 of the Charter provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

I will examine firstly whether the provisions of various property legislation which excludes common-law partners from the right and responsibility to provide for their partner during the relationship and upon separation or death, offend section 15(1) of the Charter and, if I conclude that they do so offend section 15(1), then I will examine whether they can nonetheless be saved by the provisions of section 1 of the Charter.

The essential requirements of a s. 15(1) analysis are satisfied by two inquiries:

1. whether there is a distinction which results in the denial of equal benefit of the law; and
2. whether the denial constitutes discrimination on the basis of an enumerated or analogous ground.

As discussed in my Charter analysis on adoption law, supra, although s. 15(1) does not specifically include sexual orientation as a ground of discrimination, it is well-settled law that sexual orientation is included under s. 15(1) of the Charter as an "analogous" ground. Further, I am of the view that our property legislation, which creates differential treatment based on marital statues, would also offend section 15(1) equality rights.

In the case of Miron v. Trudel ⁽¹³⁶⁾ the majority of the Supreme Court concluded that although s.15(1) does not specifically include marital status as a ground of discrimination, it is an analogous ground. In that case Mr. Miron was injured while a passenger in an uninsured motor vehicle driven by an uninsured driver. After the accident he was no longer able to work or contribute to his family's financial support. His claim for accident benefits for loss and damages under his common-law partners' insurance policy was denied because he did not fit within the definition of spouse in the Insurance Act which, at the time, included only persons married to each other. The Supreme Court determined that the definition of spouse violated section 15(1) because it discriminated on the basis of marital status which was not saved by section 1. As concluded by Justice McLachlin (as she then was), writing for the majority:

The essential elements necessary to engage the overarching purpose of s.15(1) - violation of dignity and freedom, an historical group disadvantage, and the danger of stereotypical group-based decision-making - are present and discrimination is made out. ⁽¹³⁷⁾

I would conclude with respect to the first inquiry, that Manitoba's current property legislation does draw a distinction which results in the denial of equal benefit of the law under the Charter. It does this by specifically according rights to individual members of married partnerships, which by omission it fails to accord to individual members of unmarried partnerships.

The next step is to determine whether the legislation can be saved by section 1 of the Charter by determining whether the impugned distinction is "demonstrably justified in a free and democratic society". This involves two inquiries. Firstly, is the goal of the legislation of "pressing and substantial" importance? And if it is, then is the connection between the goal and the discriminatory distinction rational and proportionate to the benefit achieved?

In Walsh v. Bona the Crown argued that the goal of the property sharing legislation was to strengthen the role of the family in society and to promote marriage and that the provisions excluding unmarried couples promoted that goal. But the court found that including common-law relationships in the provisions of the Act would have no financial impact on government and no negative impact on married persons.

It is difficult to articulate a policy basis for distinguishing between married couples and common-law couples. Although in Pettkus v. Becker ⁽¹³⁸⁾ the Supreme Court was not considering property legislation, but rather common law rights to property, the Court articulated its policy approach to this area of law. After awarding a common-law partner one half of her partner's lands and business on the basis of a constructive trust, Dickson, J. writing for the majority concluded:

I see no basis for any distinction, in dividing property and assets, between marital relationships and those more informal relationships which subsist for a lengthy period.

In the case of Peter v. Beblow ⁽¹³⁹⁾ the Supreme Court again had an opportunity to articulate it's policy approach to common-law relationships and property rights. In that case the parties had lived together for some 12 years, with the woman doing the work within the home and the man being the owner of the property. Cory, J., writing for the majority, noted:

Business relationships concerned with commercial affairs may, as a result of the conduct of one of the corporations involved, result in a court's granting a constructive trust remedy….. Yet how much closer and trusting must be a long term common law relationship. In marriages or marriage-like relationships commercial matters and a great deal more will be involved…. Just as much as parties to a formal marriage, the partners in a long term common law relationship will base their actions on mutual love and trust. They too are entitled, in appropriate circumstances, to the relief provided by the remedy of constructive trust. ⁽¹⁴⁰⁾

As can be seen from the above excerpts, the jurisprudence from the Supreme Court has been consistently evolving towards greater recognition of unmarried unions. I am of the opinion that the government would be unable to discharge its onus to prove that the exclusion of cohabiting couples from the marital property regime is justified under section 1.

If the government wishes to be more certain on this point prior to proceeding with new property legislation, the Walsh v. Bona case is anticipated to be heard during the Spring, 2002 session. Although a ruling could be made from the bench, it is likely in a case as important as this one, that it will be reserved and recent experience suggests that it could take approximately 1 year before a decision is rendered. Notwithstanding the wait, however, the case will be very instructive for Manitoba since the Nova Scotia legislation is similar in its scope to our Marital Property Act.

It is true that even if the Supreme Court were to uphold the Appeal Court and declare the Nova Scotia legislation as it then was unconstitutional, our legislation would continue to be binding until declared otherwise. However, it can be anticipated that it would not be long before a litigant sought to have it declared unconstitutional. Indeed, this issue is currently before the Manitoba Court in the case of Spiwak v. Palaschuk ⁽¹⁴¹⁾ wherein a common-law partner is challenging the provisions of the Marital Property Act which exclude her from the right to apply for an accounting and equalization of assets. Counsel advises that the matter is in case management and expects that it will proceed forward in the New Year with court dates. If the government seeks to defend its legislation and is unsuccessful, costs could be significant.

Footnotes

136. Miron v. Trudel [1995] 2 S.C.R. 418.
137. Ibid, paragraph 156.
138. Pettkus v. Becker [1980] 2 S.C.R. 834.
139. Peter v. Beblow [1993] 1 S.C.R. 980.
140. Ibid, at paragraph 74.
141. Spiwak, Shirley v. Palaschuk, Gregory, Court of Queen's Bench, Winnipeg Centre, Suit No. CI01-01-22345.

Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. - Volume 1 The Impact of the Charter of Rights
V b) Submissions and Consultations	V d) Legislative Approaches in Other Jurisdictions
Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. Volume 1 Volume 2 (proposed Statute Amendments) Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. Final Report