Toronto Star

May. 14, 01:00 EDT

Spouse rule violates Charter, court says

Tracey Tyler
Toronto Star

Discriminating against people who receive social assistance is as illegal as discriminating on the basis of race or sex, Ontario's highest court has concluded in wiping the province's "spouse in the house" rule off the books.

In a unanimous and long-awaited decision released yesterday, the Ontario Court of Appeal said the rule discriminates against single parents many of them women on the basis of sex, marital status and receipt of social assistance, thereby violating their equality rights under the Charter.

The controversial rule, introduced by the province in 1995, has been used to determine whether single parents are eligible for assistance under Ontario's Family Benefits Act. Two people living together were presumed to be spouses unless they proved otherwise.

The result was that many single parents who moved in with a partner but had not yet decided to marry forfeited their right to receive family benefits as a sole support parent. Before 1995, single parents could live with a member of the opposite sex for up to three years and still collect full benefits.

The province argued that the change was made to ensure that unmarried couples living together were not entitled to benefits greater than those available to married couples.

But in a 2-0 ruling yesterday, the appeal court rejected that rationale, saying the rule perpetuates prejudice, stereotypes and undermines "human dignity."

Many women, including three of the four who were at the centre of the appeal, have been victimized by alcoholic or abusive partners, and the rule doesn't help them regain a sense of self-worth, the court said in upholding a 2-1 ruling by Ontario's Divisional Court in May, 2000, declaring the rule unconstitutional.

"Beyond purely financial concerns, more fundamental dignity interests of the respondents have been affected," said Mr. Justice John Laskin. "Being reclassified as a spouse forces the respondents and other single mothers in similar circumstances to give up either their financial independence or their relationship."

"Forcing them to become financially dependent on men with whom they have, at best, try-on relationships strikes at the core of their human dignity," he said, writing for Madam Justice Kathryn Feldman.

Moreover, the forced financial dependency probably has "a chilling effect" on the formation of relationships, he added.

Significantly, in examining if and how the rule was unconstitutional, the court concluded yesterday that those on social assistance are among the categories of people entitled to claim protection under the equality provisions of the Charter of Rights and Freedoms.

"This is the first time at this level the receipt of social assistance has been recognized as a ground of discrimination," said Raj Anand, one of the lawyers who represented the four single mothers involved in the appeal.

Big battles have been waged in the area of equality rights over what categories should be protected. Race and sex are obvious, "but to date, the courts have taken a very restrictive view of what other grounds also qualify," said Martin Doane, a lawyer representing the Canadian Civil Liberties Association in the appeal.

In its decision yesterday, the court also ruled in favour of Paul Thomas, a mentally disabled man who was denied social assistance benefits because he has lived for 10 years with a woman named Lucy Papizzo, a friend and caregiver. However, they were considered spouses by the director of the community and social services' ministry's income maintenance branch.

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