National Post

Saturday, December 21, 2002

Two good decisions

National Post

On Thursday, the Supreme Court of Canada handed down a pair of welcome, if surprising, decisions. The two areas of law at issue were very different. Yet the decisions are similar in that they both appear to recognize that the nanny state has limits -- and that Canadians have an obligation to live with the consequences of their choices. By an eight-to-one margin, the justices ruled that lawmakers need not afford common-law spouses all the same legal protections and benefits as married couples. By a narrower five-to-four margin, they also established that Canadians enjoy no constitutional right to secure income -- i.e. welfare -- from the state.

The common-law spouse decision stems from a Nova Scotia case in which a couple, "B. and W., cohabitated for 10 years." When their relationship dissolved, the common-law wife, W., sought spousal support, child support and half of her the couple's "matrimonial property." Her argument was that Nova Scotia law stipulates that when a married couple divorces, husband and wife must divide evenly the property they acquired while married. It was discriminatory, she alleged, that common-law spouses received lesser treatment.

Wisely, the Supreme Court disagreed. To treat all couples -- married and common law -- alike, the majority reasoned, would be to narrow "the individual's freedom to choose alternative family forms and to have that choice respected and legitimated by the state." Sure, the judges acknowledged, the aggrieved W.'s of the world may wish their relationships had the same status as marriages. They might even feel cheated that married women receive larger divorce settlements. But "simultaneously, it cannot be ignored that many persons in circumstances similar to those of the parties ... have chosen to avoid the institution of marriage and the legal consequences that flow from it." To force on common law couples the same legal obligations as marriage couples must meet would be to ride roughshod over the intention of the contracting -- or, in this case, non-contracting -- parties.

The lone dissenting judge, the now retired Claire L'Heureux-Dubé, insisted that common-law wives would be exploited by the majority position. It is unfair, she said, to victimize women who find themselves in relationships in which their partner refuses to tie the knot.

But clearly, it is unfair only insofar as life is unfair. All choices carry consequences. Any woman can leave her man if he refuses to propose. While it may sadden Ms. L'Heureux-Dubé's heart that many women do not exercise this right, it is not the government's place to extract from a man a romantic/financial commitment that he would not make of his own accord. The majority understood this: "The decision to marry or not is intensely person and engages a complex interplay of social, political, religious and financial considerations by the individual."

In ruling that Quebec was within its rights to pay less welfare to claimants under 30 than it did to those over 30 (a practice the province discontinued more than a decade ago), Chief Justice Beverley McLaughlin properly concluded that there may be valid public policy reasons for treating categories of welfare claimants differently. Quebec had intended that lower welfare rates for younger recipients spur them to take training and seek employment before they developed a life-long dependency on social assistance. Thus the discrimination was designed to help young people "live fuller, more independent lives," rather than punish them, and the Court sensibly recognized the distinction.

Unfortunately, Judge McLaughlin left open the door for the eventual grant of a right to a guaranteed income or to welfare -- noting that the Charter of Rights and Freedoms is not "frozen." As provincial rights codes evolve, so too may the Court's attitude "develop incrementally."

That would be a shame. Eight of 10 provinces already include welfare status as a protected category, along with sex, age, religion, national origin and so on. And the vast, government-funded welfare lobby is constantly pushing for ever more welfare rights. It would be an error for this court, or any future court, to hamstring legislators' abilities to devise programs aimed at lifting welfare recipients off the dole. Elected representatives, not judges, should make such calls, since they are the ones who collect taxes, set budgets and are otherwise answerable to voters and the public. Individuals, in the meantime, should have an obligation to be as self-sufficient and as little burden to their fellow citizens as possible. An unquestioned right to welfare would encourage tens of thousands of Canadians, perhaps more, to forget working for a living entirely.

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