Toronto Star

Jan. 31, 07:17 EDT

Queen's Park appeals to reinstate welfare law

Tories hope to resurrect 'spouse-in-the-house' rule

From Canadian Press
The Toronto Star

The Ontario government is appealing a lower court decision that declared its ''spouse-in-the-house rule'' - a social assistance rule mainly affecting single mothers - unconstitutional.

The rule, a 1995 amendment to social assistance laws, considers two people to be common-law spouses as soon as they move in together, and blocks them from receiving single-parent benefits.

In June, the amendment was deemed unconstitutional in a 2-1 ruling by the Ontario Divisional Court.

Janet Minor, a lawyer for the Ministry of the Attorney General, argued Wednesday in the Ontario Court of Appeal that the law tries to stop discrimination against married people, while providing assistance only to those who need it.

''(The question is) what criteria will get the right people in, and keep the wrong people out,'' she said.

Outside the courtroom, lawyer Chantal Tie, who represents four women who originally appealed the law to the Social Assistance Review Board, said it discriminates primarily against women.

''The group that were affected most were those on family benefits, the vast majority of whom were women,'' she said. ''If a woman is living with a man, he is essentially considered to be her spouse. It's instantaneous.''

Minor argued in court that the rule is not discriminatory, and is not unconstitutional because it is applied equally to men and women.

''It affects more women in raw numbers, but that doesn't mean in constitutional terms that a disproportionate number of women are affected.''

In her comments to Minor, Justice Kathryn Feldman questioned whether the law was effective in determining who is and is not in a common-law relationship.

She observed that the law will not consider as evidence any declaration by the recipients that they have a non-sexual relationship.

Tie said that exclusion of the couple's view of their relationship can lead to women being pushed off welfare rolls when they are getting no financial support.

''What their definition does is it presumes support where in fact, none exists,'' she said. She added the law is invasive because it presumes to define people's relationships for them.

Justice John Laskin questioned Minor about the purpose of a regulation which considers people to be spouses the moment they move in together.

''Is the definition intended to catch a boyfriend or girlfriend saying, let's try it out . . . but who haven't yet reached the level of commitment of married people?''

Minor responded, ''Yes ... living together indicates a serious life move.''

''Not necessarily - trust me,'' said Laskin.

Prior to the 1995 amendment, the Family Law Act stipulated that, for welfare purposes, people are considered spouses only after they have lived together for three years.

In June 1997, Tie's clients - four women who were on welfare when the amendment was passed - appealed the amendment to the Social Assistance Review Board.

In August 1998, the board ruled that the government's rule violated the Charter of Rights and Freedoms.

The government then appealed that decision to Ontario Divisional Court.

In June 2000, Justices Marion Lane and Donna Haley wrote that the regulation ''captures as part of a couple individuals who have not formed relationships of such relative permanence as to be comparable to marriage.''

When the Conservative government replaced the Family Law Act with the Ontario Works Act in 1995, it adopted the same ''spouse-in-the-house'' rule under the new legislation.

That means if the Court of Appeal upholds the Divisional Court decision, thousands of people now subject to the spouse-in-the-house rule would be affected.

The government has not yet indicated whether it will accept the appeal court's decision if it rules the regulation unconstitutional, and whether it would apply that ruling to the Ontario Works Act.

The hearing is scheduled to finish Thursday.

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