Falkiner v. Ontario (Ministry of Community and Social Services)

Falkiner et al. v. Director, Income Maintenance Branch, Ministry of Community and Social Services et al.; Canadian Civil Liberties Association et al., Intervenors Thomas v. Director of Income and Maintenance Branch of the Ministry of Community and Social Services [Indexed as: Falkiner v. Ontario (Ministry of Community and Social Services)]

59 O.R. (3d) 481

[2002] O.J. No. 1771

Docket Nos. C35052 and C34983

Court of Appeal for Ontario,

Osborne A.C.J.O.,** Laskin and Feldman JJ.A.

May 13, 2002

• Application for leave to appeal to the Supreme Court of Canada was granted with costs March 20, 2003 (McLachlin C.J., Bastarache and Deschamps JJ.). S.C.C. File No. 29294. S.C.C. Bulletin, 2003, p. 441.

** Note: Osborne A.C.J.O. did not take part in this decision.

Charter of Rights and Freedoms -- Equality rights -- Discrimination -- Enumerated and analogous grounds -- Receipt of social assistance constituting analogous ground of discrimination under s. 15(1) of Charter -- Canadian Charter of Rights and Freedoms, s. 15(1).

Charter of Rights and Freedoms -- Equality rights -- Social assistance -- Definition of spouse in Regulation under Family Benefits Act capturing relationships that are not spousal -- Definition discriminating on grounds of sex, marital status and receipt of social assistance -- Violation of s. 15 of Charter not justified under s. 1 of Charter -- Canadian Charter of Rights and Freedoms, ss. 1, 15(1) -- Family Benefits Act, R.S.O. 1990, c. F.2 -- R.R.O. 1990, Reg. 366, s. 1(1)(d).

Social assistance -- Interpretation -- "Spouse" -- Disabled recipient of benefits under Family Benefits Act living with friend of opposite sex -- Social Assistance Review Board erring in finding that relationship between recipient and his friend amounted to cohabitation for purposes of definition of "spouse" in Regulation under Family Benefits Act -- Board erring in focusing on amount of time recipient and friend spent together and in failing to consider whether relationship was truly marriage-like -- Board also erring in failing to consider whether recipient's disability explained why he and friend spent so much time together -- Family Benefits Act, R.S.O. 1990, c. F.2 -- R.R.O. 1990, Reg. 366, s. 1(1)(d).

Between 1987 and 1995, the definition of "spouse" in the Regulations under the Family Benefits Act mirrored the definition of "spouse" under the Family Law Act, R.S.O. 1990, c. F.3. Persons were deemed to be spouses if they had lived together continuously for at least three years. In 1995, the definition of spouse in s. 1(1)(d) of Regulation 366 under the Family Benefits Act was amended. The amendment defined spouse to include persons of the opposite sex living in the same place who had "a mutual agreement or arrangement regarding their financial affairs" and a relationship that amounted to cohabitation. Under this amended definition, once persons of the opposite sex began living together, they were presumed to be spouses unless they provided evidence to the contrary. Each of the respondents in the F appeal was an unmarried woman with a dependent child or children and was in a "try on" relationship with a man with whom she had lived for less than a year. Each respondent had rec eived social assistance until the 1995 definition of "spouse" came [page482] into effect, whereupon the Director of the Income Maintenance Branch of the Ministry of Community and Social Services reclassified each respondent as a spouse, and each respondent lost her eligibility to receive family benefits as a "sole support parent". The respondents' appeal to the Social Assistance Review Board was allowed. The Board held that the 1995 definition of spouse infringed s. 15 of the Canadian Charter of Rights and Freedoms and could not be justified under s. 1. The Divisional Court affirmed that decision. The Director and the Attorney General appealed.

In the related T appeal, T was mentally disabled and permanently unemployable. He lived with a woman, P, whom he called a friend and caregiver. They shared some expenses, but did not have any agreement to support each other. The Director concluded that T and P were spouses and that he was ineligible for benefits under the Act because of P's assets. The Board dismissed T's appeal, concluding that he and P had a mutual arrangement regarding their financial affairs and that, since they spent almost all their time together, their relationship amounted to cohabitation. The Divisional Court dismissed T's appeal. T appealed.

Held, the F appeal should be dismissed; the T appeal should be allowed.

In T's case, the Board erred in concluding that T's relationship with P amounted to cohabitation. For the purpose of determining whether a relationship is spousal, cohabitation must mean more than spending time together. In focusing on the amount of time T and P spent together as the principal indicator of whether they had a spousal relationship, the Board erroneously failed to consider whether they interrelated as a couple, that is, whether their relationship was truly marriage- like. The Board also erred in its interpretation of cohabitation in that it did not adequately take account of whether T's disability explained why he and P spent so much time together. The evidence before the Board suggested that T needed a caregiver and could not live on his own. The Board's errors amounted to errors of law in the interpretation of "spouse". As the Divisional Court did no more than affirm the Board's conclusion on cohabitation, the decision of the Divisional Court could not stand.

The definition of "spouse" in s. 1(1)(d) of the Regulation captures relationships that are not spousal or marriage-like. The definition captures relationships lacking in the permanence, the commitment, the legal obligation to support, the legal right to claim support, even the meaningful actual support that characterizes spousal or marriage-like relationships. The economic interdependence called for by the definition, that is, "a mutual agreement or arrangement regarding . . . financial affairs", is not strong enough to make the definition a reasonably accurate proxy for a spousal relationship. The definition is overly broad.

The respondents in the F appeal received differential treatment on the basis of sex, an enumerated ground of discrimination under s. 15(1) of the Charter, and marital status, an analogous ground. They also received differential treatment on the basis of receipt of social assistance, which should be recognized as an analogous ground of discrimination under s. 15(1). The effect of the differential treatment amounted to discrimination. The distinction reflects and reinforces existing disadvantages, stereotypes and prejudice. Social assistance recipients are an historically disadvantaged group, and the definition of spouse in s. 1(1)(d) of the Regulation perpetuates this historical disadvantage. It creates financial stress from the beginning of the relationship, reinforces the stereotypical assumption that a woman will be supported by the man with whom she cohabits and will have access to his resources, and devalues women's desire for financial independence. This is not a situation where the differential treatment is necessary to achieve equality. The impugned definition of spouse is not excused merely because it occurs within an otherwise ameliorative program. To the extent that the impugned definition of [page483] spouse has a chilling effect on relationship formation, it interferes with the respondents' highly personal choices and affects interests that go to the core of their human dignity. Finally, the administration of the definition is highly intrusive of the privacy of single persons on social assistance. The 1995 definition of "spouse" in s. 1(1)(d)(iii) of Regulation 366 violates s. 15 of the Charter.

The government's two stated objectives in passing s. 1(1)(d) of the Regulation are to treat married and unmarried couples alike and to allocate public funds to those most in need by ensuring that individuals use private resources before resorting to social assistance. These objectives are pressing and substantial. However, the government's justification of the definition fails on the proportionality branch of the s. 1 test. Given its overbreadth, the definition of spouse is not rationally connected to the government's objective of treating married and unmarried spouses alike. Because the definition is overly broad, it does not satisfy the minimal impairment component of the s. 1 test. Finally, the negative effects of the definition outweigh its positive effects. The s. 15 violation is not justified under s. 1 of the Charter.

APPEAL by Ontario from a judgment of the Divisional Court (Lane, Haley and Belleghem JJ.) (2000), 188 D.L.R. (4th) 52, 75 C.R.R. (2d) 1 affirming decisions of the Social Assistance Review Board; APPEAL by an individual from a judgment of the Divisional Court affirming a decision of the Social Assistance Review Board.

Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1, 236 N.R. 1, 60 C.R.R. (2d) 1, 43 C.C.E.L. (2d) 49, apld Other cases referred to Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 34 B.C.L.R. (2d) 273, 56 D.L.R. (4th) 1, 91 N.R. 255, [1989] 2 W.W.R. 289, 36 C.R.R. 193, 25 C.C.E.L. 255; Corbiere v. Canada (Minister of Indian and Northern Affairs) (1999), 163 F.T.R. 284n, [1999] 2 S.C.R. 203, 173 D.L.R. (4th) 1, 239 N.R. 1, 61 C.R.R. (2d) 189 (sub nom. Batchewana Indian Band (Non-Resident Members) v. Batchewana Indian Band); Dartmouth/Halifax County Regional Housing Authority v. Sparks (1993), 1993 NSCA 13, 119 N.S.R. (2d) 91, 101 D.L.R. (4th) 224, 330 A.P.R. 91, 30 R.P.R. (2d) 146 (C.A.); Falkiner v. Ontario (1996), 140 D.L.R. (4th) 115, 40 C.R.R. (2d) 316 (Ont. Div. Ct.); Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703, 186 D.L.R. (4th) 1, 253 N.R. 329, 74 C.R.R. (2d) 1, 50 C.C.E.L. (2d) 177; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950, 48 O.R. (3d) 735n, 188 D.L.R. (4th) 193, 255 N.R. 1, 75 C.R.R. (2d) 189 (sub nom. Ardoch Algonquin First Nation v. Ontario); M. v. H., [1999] 2 S.C.R. 3, 43 O.R. (3d) 254n, 171 D.L.R. (4th) 577, 238 N.R. 179, 62 C.R.R. (2d) 1, 46 R.F.L. (4th) 32; Masse v. Ontario (Ministry of Community and Social Services) (1996), 134 D.L.R. (4th) 20, 35 C.R.R. (2d) 44 (Ont. Div. Ct.) [Leave to appeal to S.C.C. refused (1996), 39 C.R.R. (2d) 375n]; Miron v. Trudel, [1995] 2 S.C.R. 418, 23 O.R. (3d) 160n, 124 D.L.R. (4th) 693, 181 N.R. 253, 29 C.R.R. (2d) 189, [1995] I.L.R. 1-3185, 10 M.V.R. (3d) 151, 13 R.F.L. (4th) 1; R. v. Oakes, [1986] 1 S.C.R. 103, 53 O.R. (2d) 719n, 14 O.A.C. 335, 26 D.L.R. (4th) 200, 65 N.R. 87, 19 C.R.R. 308, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1; R. v. Rehberg (1994), 127 N.S.R. (2d) 331, 111 D.L.R. (4th) 336, 355 A.P.R. 331, 19 C.R.R. (2d) 242 (S.C.); Schachter v. R., [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1, 139 N.R. 1, 10 C.R.R. (2d) 1, 92 C.L.L.C. 14,036 (sub nom. ubSchachter v. Canada, Schachter v. Canada) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 7, 15 Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 10 Family Benefits Act, R.S.O. 1990, c. F.2, s. 15(1) Family Law Act, R.S.O. 1990, c. F.3, s. 29 General Welfare Assistance Act, R.S.O. 1990, c. G.6 Human Rights Act, R.S.N.S. 1989, c. 214, s. 5(1)(t) Human Rights Act, R.S.P.E.I. 1988, c. H-12, s. 1(1)(d) Human Rights Code, R.S.N. 1990, c. H-14, ss. 6(1), 7(1), 8, 9, 12, 14 Human Rights Code, R.S.O. 1990, c. H.19, s. 2(1), (2) [page484] Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, ss. 3(1), 4, 5, 7(1), 8(1), 9 Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B Ontario Works Act, 1997, S.O. 1997, c. 25, Sch. A Social Assistance Reform Act, 1997, S.O. 1997, c. 25 The Human Rights Code, C.C.S.M., c. H175, s. 9(2)(j) The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 2(1)(m.01) Rules and regulations referred to O. Reg. 134/98 ("Ontario Works Act, 1997"), s. 1(1)(d) O. Reg. 222/98 ("Ontario Disability Support Program Act, 1997"), s. 1(1)(d) R.R.O. 1990, Reg. 366, s. 1, 3(2)(c)

Janet E. Minor and Sarah Kraicer, for appellants. Raj Anand, M. Kate Stephenson and Chantal Tie, for respondents in appeal. Martin Doane, for the Canadian Civil Liberties Association. Fay Faraday and Kerri Froc, for the Women's Legal Education and Action Fund. Charlotte McQuade, for appellant. Rebecca J. Givens, for respondent.

The judgment of the court was delivered by

LASKIN J.A.: --

A. INTRODUCTION

[1] These two appeals concern the interpretation and constitutional validity of the definition of "spouse" under Ontario's social assistance legislation.

[2] Between 1987 and 1995, the definition of spouse in the Regulations under the Family Benefits Act [See Note 1 at end of document] mirrored the definition of spouse under the Family Law Act. [See Note 2 at end of document] Persons were deemed to be spouses if they had lived together continuously for at least three years. In 1995, however, the definition of spouse in s. 1(1)(d) of Regulation 366 [See Note 3 at end of document] under the Family Benefits Act was amended. [page485] The amendment defined spouse to include persons of the opposite sex living in the same place who had "a mutual agreement or arrangement regarding their financial affairs" and a relationship that amounted to "cohabitation". Under this amended definition, once persons of the opposite sex began living together they were presumed to be spouses unless they provided evidence to the contrary. It is this 1995 definition of spouse that is in issue in these appeals. It is colloquially called the "spouse in the house" rule.

[3] In the Falkiner appeal, each of the respondents was an unmarried woman, had a dependent child or children, and was in a "try on" relationship with a man with whom she had lived for less than a year. Before 1995, each was receiving social assistance as a single mother. When the 1995 definition came into effect, the Director of the Income Maintenance Branch of the Ministry of Community and Social Services reclassified each respondent as a spouse. This reclassification meant that each respondent lost her eligibility to receive family benefits as a "sole support parent".

[4] The respondents in Falkiner appealed to the Social Assistance Review Board (the "Board"), which allowed their appeal, holding that the 1995 definition of spouse infringed ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and could not be justified under s. 1. The Director and the Attorney General of Ontario's appeal to the Divisional Court was dismissed. The majority of the Divisional Court concluded that the definition of spouse infringed the equality rights of women and sole support mothers on social assistance contrary to s. 15(1) of the Charter and could not be saved under s. 1. The Director and the Attorney General now appeal to this court. Their motion to stay the decision of the Divisional Court pending their appeal was granted on terms by Osborne A.C.J.O. but later set aside on review by a panel of this court.

[5] The Falkiner appeal raises questions of both statutory interpretation and constitutionality, and focuses on the phrase "a mutual agreement or arrangement regarding their financial affairs" in the definition of spouse. At bottom, the Ontario Government contends that the 1995 definition was intended to legislate equality between married and common law couples and to allocate social assistance to those most in need. They submit that the definition promotes -- not undermines -- equality.

[6] The respondents in Falkiner and the intervenors claim that the government's approach fails to take account of the respondents' perspective or of the effect of the definition. They say that the definition captures many relationships that are not spousal. They submit that the definition distinguishes between social assistance recipients and all others, and between women and single mothers on social assistance and others on social [page486] assistance. These distinctions, they contend, discriminate on the enumerated ground of sex and also impose special burdens on two groups whose personal characteristics constitute analogous grounds: social assistance recipients generally and single mothers on social assistance more particularly. According to the respondents, the definition is discriminatory because it reinforces stereotypes against women, especially single mothers on social assistance, and perpetuates their pre-existing disadvantage.

[7] In the related Thomas appeal, Mr. Thomas is mentally disabled and permanently unemployable. For ten years he has lived with Lucy Papizzo, whom he calls a friend and caregiver. The Director concluded that he and Ms. Papizzo were spouses and that he was ineligible for benefits under the Family Benefits Act because of Ms. Papizzo's assets. Mr. Thomas' appeal to the Board was dismissed, as was his further appeal to the Divisional Court. He now appeals to this court.

[8] The Thomas appeal raises only an issue of statutory interpretation and focuses on the meaning of "cohabitation" in the definition of spouse. Mr. Thomas argues that the Board and the Divisional Court erred in their interpretation of cohabitation, particularly because their interpretation did not take account of his disability. The government responds by submitting that on the facts found by the Board, Mr. Thomas and Ms. Papizzo were cohabiting.

[9] Before addressing the argument in these two appeals, I will briefly review the legislative and regulatory regime.

B. THE LEGISLATIVE AND REGULATORY REGIME

1. Legislative History

[10] At all relevant times, the regulation in issue on these appeals, Regulation 366 under the Family Benefits Act, governed social assistance in Ontario for specific categories of persons in need, including single parents and their children, the aged, the disabled and the permanently unemployable. The General Welfare Assistance Act [See Note 4 at end of document] provided social assistance to persons not within the categories set out in Regulation 366. Although the Family Benefits Act and Regulation 366 are still in force, the General Welfare Assistance Act has been repealed and new social assistance legislation was introduced in 1998. The new legislation uses substantially the same definition of "spouse" as the Family Benefits Act.

[11] Social assistance is last resort funding to persons "in need". The determination of who was a person "in need" was similar under [page487] the Family Benefits Act and the General Welfare Assistance Act. Essentially, a person in need had budgetary requirements exceeding his or her income and was not otherwise ineligible. A couple or family was ineligible for social assistance if one of the adults was a student, was self- employed or did not fulfill the regulatory requirements, for example, by failing to make complete financial disclosure.

[12] Social assistance was delivered to individuals or to couples. Individuals who were co-residing but not in a spousal relationship -- for example roommates, boarders and lodgers -- had their needs and means assessed individually, though the financial contributions of the co-resident were taken into account. If two persons were in a spousal relationship, their entitlement to social assistance depended on whether they as a couple were "in need". Their means and needs were assessed together. The use of a couple in a spousal relationship as a benefit unit to deliver social assistance is not disputed in these appeals. What is disputed is whether the definition of spouse captures relationships that are not spousal.

2. The Definition of Spouse

[13] Up until 1986, the definition of spouse under social assistance legislation required a determination of whether opposite sex co-residents were living together as "husband and wife". A Charter challenge to this definition prompted the government to bring in an interim definition in 1986 and a new definition in 1987. The 1987 definition provided that a person was a spouse where he or she self-declared, was required by order or agreement to support the social assistance applicant or recipient, had an obligation to support the applicant or recipient under the Family Law Act despite any agreement to the contrary, or, importantly, was "a person of the opposite sex to the applicant or recipient who has resided continuously with the applicant or recipient for a period of not less than three years". This so-called "three-year rule" paralleled s. 29 of the Family Law Act, which recognizes as spouses unmarried couples who have cohabited for at least three years.

[14] Thus, under the 1987 definition, an individual welfare recipient cohabiting with a person of the opposite sex had a grace period of up to three years before being considered a spouse. After three years, to maintain an individual entitlement to social assistance, the recipient had to produce evidence to show that the social, familial and economic aspects of the relationship did not amount to cohabitation. No legal challenge was made to the 1987 definition.

[15] In 1995, the Ontario government replaced the 1987 definition of spouse with a new definition in s. 1(1) of Regulation 366. Under the 1995 definition, a person could be a spouse in one of four ways. Three of those ways were similar to the previous [page488] definition: a person could be a spouse by self-declaration, by being required to pay support under a court order or domestic contract, and by having a support obligation under the Family Law Act. But in s. 1(1)(d) -- the fourth way a person could be a spouse and the provision in issue in these appeals -- the Ontario government defined spouse more expansively than it had in the past:

1(1) . . . "spouse" means,

(d) a person of the opposite sex to the applicant or recipient who is residing in the same dwelling place as the applicant or recipient if,

(i) the person is providing financial support to the applicant or recipient,

(ii) the applicant or recipient is providing financial support to the person, or

(iii) the person and the applicant or recipient have a mutual agreement or arrangement regarding their financial affairs, and

the social and familial aspects of the relationship between the person and the applicant or recipient amount to cohabitation.

[16] This 1995 definition remains in force in substantially the same form. [See Note 5 at end of document] It has also been substantially adopted in subsequently enacted social assistance legislation. [See Note 6 at end of document] [page489]

[17] The three parts of s. 1(1)(d) are disjunctive and in each case must be accompanied by a relationship amounting to cohabitation. The respondents in Falkiner largely accept that s. 1(1)(d)(i) and (ii) capture only spousal relationships. But they contend that though they each cohabit, s. 1(1)(d)(iii) captures relationships like their own, which are not spousal. Mr. Thomas, on the other hand, contends that he does not cohabit with Ms. Papizzo.

[18] In addition to the spousal definition itself, two other parts of the 1995 version of Regulation 366 are material to these appeals. Under s. 1(2), as in previous definitions since 1986, sexual factors were not to be considered in determining whether a person was a spouse. Under s. 1(3), once two persons of the opposite sex began living together they were presumed to be spouses unless they provided evidence to the contrary. Subsection 1(3) was revoked in 2000, but s. 1(2) remains in force. These two subsections provided in full:

1(2) In determining whether or not a person is a spouse within the meaning of this Regulation, sexual factors shall not be investigated or considered.

(3) For the purposes of clause (d) of the definition of "spouse" in subsection (1), unless the applicant or recipient provides evidence to satisfy the Director to the contrary, it is presumed that if a person of the opposite sex to the applicant or recipient is residing in the same dwelling place as the applicant or recipient, the person is the spouse of the applicant or recipient.

Because of the presumption in s. 1(3), each of the respondents in Falkiner was deemed to be a spouse instead of a sole support parent when the 1995 spousal definition came into effect.

3. Administration of the Social Assistance Regime

[19] The Family Benefits Act was administered by the Ministry of Community and Social Services through the Director of the Income Maintenance Branch; the General Welfare Assistance Act [page490] was administered by municipalities through municipal welfare administrators. Under the Family Benefits Act, the Director determined whether a person applying for an allowance was a spouse. Persons co-residing were asked to fill out a detailed questionnaire aimed at determining whether and to what extent certain residential, social, economic, and familial factors were present in a relationship. Ministry guidelines, directives and training materials required that co- residents have economic or financial interdependence, hold themselves out as a couple and function like a family to be called spouses. The Ministry maintains that it interpreted the economic criteria and the definition of spouse to require interdependence that was more than trivial. The appellants claim in their factum that two persons living together who shared expenses in accordance with their consumption -- that is who "fair shared" -- had no financial interdependence and would not be considered spouses.

[20] But the appellants also emphasize that persons who shared expenses equally might still be determined to be spouses. Indeed, one of the Ministry's witnesses seemed to indicate in cross-examination that fair sharing arrangements could be caught by the definition. In all cases, determinations are made by caseworkers and reviewed by supervisors. When the 1995 definition took effect, persons aggrieved by a Ministry determination had a right of appeal to the Social Assistance Review Board and a further right of appeal to the Divisional Court. [See Note 7 at end of document]

4. The Current Social Assistance Regime

[21] In 1998, the Ontario government implemented far-reaching changes to the social assistance regime. The Social Assistance Reform Act, 1997 [See Note 8 at end of document] provides for the repeal of the Family Benefits Act and the General Welfare Assistance Act and the enactment of the Ontario Works Act, 1997 [See Note 9 at end of document] and the Ontario Disability Support Program Act, 1997. [See Note 10 at end of document] Both new Acts have come into force but only the General Welfare Assistance Act has been repealed. As I indicated above, both new Acts use substantially the same definition of spouse as the one in issue on these appeals. The regulations under the new Acts and Regulation 366 under the Family Benefits Act [page491] were amended in 2000 to include a definition of "same sex partner" paralleling the definition of spouse.

[22] I turn now to the two appeals. Because the Thomas appeal is narrower in scope, I will deal with it first.

C. THE THOMAS APPEAL

[23] The respondent Director concluded that Mr. Thomas is "permanently unemployable", as that term is defined in s. 1(5) of Regulation 366 under the Family Benefits Act. He is "a person who is unable to engage in remunerative employment for a prolonged period of time as verified by objective medical findings accepted by the medical advisory board". A permanently unemployable person is eligible for an allowance under the Act if he or she is a person in need. But, under s. 3(2)(c) of Regulation 366, an applicant is not eligible for an allowance if he or she is "a person who resides in the same dwelling place as his or her spouse and has liquid assets that together with the liquid assets of his or her spouse exceed $5,500 in value". Both the Board and the Divisional Court concluded that Mr. Thomas and Ms. Papizzo were "spouses" and that he was ineligible for an allowance because she had assets exceeding the allowable amount.

[24] Mr. Thomas submits that the Board erred in its interpretation of cohabitation, especially because its interpretation failed to take account of his disability. He also submits that the Divisional Court perpetuated the Board's error by wrongly concluding that the meaning of cohabitation was not in dispute. The respondent Director contends that the Board's finding that Mr. Thomas and Ms. Papizzo cohabited and were therefore spouses was amply supported by the evidence. The Director acknowledges that cohabitation was not conceded before the Divisional Court but says that the Board's finding was, nonetheless, unassailable.

[25] Whether Mr. Thomas is in a spousal relationship with Ms. Papizzo and is thus ineligible for an allowance turns on the part of the definition of spouse in s. 1(1)(d)(iii) of Regulation 366. This part of the definition has three components. Mr. Thomas and Ms. Papizzo must be residing in the same dwelling place, they must have a mutual agreement or arrangement regarding their financial affairs, and the social and familial aspects of the relationship must amount to cohabitation.

[26] The first component was unquestionably met. Mr. Thomas and Ms. Papizzo were living in the same house. On the financial component, the evidence before the Board was that in 1988 Ms. [page492] Papizzo invited Mr. Thomas to share her house because she needed help with the rent. Except for a two-month period, they lived together continuously for ten years. They do not, however, have any agreement to support each other. Indeed, Ms. Papizzo testified that she felt responsible for Mr. Thomas as a friend but would not live with him if she had to support him.

[27] Still Mr. Thomas paid for half the rent and utilities. And although they kept their finances separate, and for example did not have a joint bank account or credit card, they shared gas and repair expenses for a truck owned by Mr. Thomas' parents and used by both Mr. Thomas and Ms. Papizzo.

[28] The Board rejected the view put forward by Mr. Thomas' representative that the economic component contained in s. 1(1) (d)(iii) requires economic interdependence that is more than trivial. Instead, the Board concluded that any agreement or arrangement between the parties regarding their financial affairs satisfies this economic component. On the evidence, the Board concluded that Mr. Thomas and Ms. Papizzo had a mutual agreement or arrangement regarding their financial affairs.

[29] The Divisional Court agreed. Whether or not the economic interdependence required by the definition of spouse had to be more than trivial -- a divergence of view reflected in some Board decisions -- the Divisional Court held that it existed in this case. Mr. Thomas accepts that on any test for economic interdependence, he and Ms. Papizzo have a mutual arrangement regarding their financial affairs that satisfies the definition of spouse. Moreover, unlike the respondents in Falkiner, he does not challenge the constitutionality of the definition.

[30] He does, however, challenge the finding of the Board and the Divisional Court on the cohabitation component of the definition. The evidence before the Board disclosed that Mr. Thomas and Ms. Papizzo spent almost all of their free time together. They ate together, they did their grocery shopping together, they vacationed together, they visited mutual friends together and they visited each other's families. Also, Ms. Papizzo did Mr. Thomas' laundry. In concluding that their relationship amounted to cohabitation, the Board [made] this key finding:

The Board considers that while the appellant's disabilities explain the reasons why his roommate shops and cleans for him, it remains clear that they spend most or all of their spare time together which describes the relationship of spouses rather than roommates.

[31] I agree with Mr. Thomas that this finding reflects a misinterpretation of cohabitation in the definition of spouse. In my view, the Board's interpretation is wrong in two related ways. [page493] First, it is wrong because for the purpose of determining whether a relationship is spousal, cohabitation must mean more than spending time together. It must include interrelating with each other and with family, friends and the community as a couple. Second, it is wrong because for Mr. Thomas -- and others like him -- the interpretation of cohabitation must take account of his disability.

[32] Both Mr. Thomas and the Director accept the definition of a relationship amounting to cohabitation used by the Board in its decision P1032-22:

The concept of circumstances that "amount to cohabitation" includes circumstances that show the relationship to be marriage-like. The Board's interpretation is that the social and familial aspects amount to cohabitation if there is evidence that, on the whole, the co-residents live and interrelate with family, friends and community as a couple rather than as two individuals sharing a residence.

[33] I accept this statement as a reasonable working definition of cohabitation, while acknowledging that its generality will likely produce some hard cases at the margins. At least this definition reflects a level of commitment that is inherent in a marriage-like relationship but is not present when two people simply spend a lot of time together. Indeed, two people may live together and spend nearly all of their time together for many reasons other than because they are spouses. Some of these reasons might be close friendship, economics or simply a lack of alternatives.

[34] In focusing on the amount of time Mr. Thomas and Ms. Papizzo spent together as the principal indicator of whether they had a spousal relationship, the Board erroneously failed to consider whether they interrelated as a couple -- in other words, whether their relationship was truly marriage-like. The line between what amounts to cohabitation under the definition and what is no more than close friendship may be difficult to draw in some cases, especially as the Director is precluded for reasons of privacy from investigating or considering sexual factors. But the difficulty of drawing the distinction is not an excuse for ignoring it. The Board did ignore the distinction in this case and it was wrong to do so.

[35] The Board erred in its interpretation of cohabitation in a second way. It did not adequately take account of whether Mr. Thomas' disability explained [page494] why he and Ms. Papizzo spent so much time together. The Board did make passing reference to Mr. Thomas' disability. But, in its view, his disability explained only why Ms. Papizzo shopped and cleaned for him. The Board did not consider at all whether Mr. Thomas' disability explained why he and Ms. Papizzo -- in the words of the Board -- "spend most or all of their spare time together".

[36] Certainly persons with disabilities are capable of forming spousal relationships and capable of doing so with persons who are not disabled. But the Board should have considered whether Mr. Thomas' disability explained the social and familial aspects of his relationship with Ms. Papizzo, aspects that in another context might well amount to cohabitation. The evidence before the Board suggested that Mr. Thomas needed a caregiver and that he could not live on his own. Either may have provided a plausible alternative explanation for why he and Ms. Papizzo were together all the time. The Board never considered these alternatives. Nor did the Board consider the evidence of the parties themselves, which eloquently described not a spousal relationship but one based on friendship and need. Both Mr. Thomas and Ms. Papizzo testified before the Board and a Board member took notes on their testimony. These notes record the following words of Mr. Thomas:

I have no friends. Just family -- brothers, parents. Holiday at parents' places -- She's just my friend. I need her. Would be in jail or on street. Can't wash clothes. Family lives close to Cobourg. Brother in Oshawa. Lucy the only one who helps me out.

The notes also record the following testimony from Ms. Papizzo:

I feel responsible for him as a friend -- 10 years. I wouldn't live with him if I had to support him. When he moved out because I couldn't take it I remained friends & said come back. Ridiculous. I have to make sure he stays clean & doesn't get mixed up with drunks or I couldn't be friends.

[37] In my view, the Board's errors amounted to errors in law in the interpretation of the definition of spouse. Under s. 15(1) of the Family Benefits Act, Mr. Thomas had a right of appeal to the Divisional Court on "a question that is not a question of fact alone". Therefore, the Divisional Court had jurisdiction to consider his appeal. That court, however, dismissed Mr. Thomas' submission on the cohabitation component of the definition of spouse in two sentences:

The evidence before the Board was that the appellant had lived with a person of the opposite sex for at least ten years in circumstances which clearly warranted the finding of the Board that their relationship amounted to cohabitation. That is not in dispute.

[38] Mr. Thomas claims that the Divisional Court erroneously thought he was not challenging the Board's finding of cohabitation, when, in fact, he was indeed challenging it. The Director maintains that when the Divisional Court used the words "That is not in dispute", it was merely emphasizing that the Board's [page495] finding was unassailable. On either view, the Divisional Court did no more than affirm the Board's conclusion on cohabitation. Just as the Board's conclusion cannot stand, neither can the Divisional Court's conclusion.

[39] I would therefore set aside the order of the Divisional Court and the decision of the Board. I would remit to the Director Mr. Thomas' application for an allowance under the Family Benefits Act as a single "permanently unemployable person", effective October 1, 1996, with the direction that his application be reconsidered in the light of my reasons.

D. THE FALKINER APPEAL

1. Background

[40] As I said in the introduction, the Falkiner appeal raises both statutory interpretation and constitutional issues. The statutory interpretation issue centres on whether the definition of spouse in s. 1(1)(d) of Regulation 366 under the Family Benefits Act captures only marriage-like relationships, as the Attorney General contends. The respondents contend that the definition includes relationships that are not functionally spousal and not characterized by economic interdependence: relationships, like theirs, best characterized as casual boyfriend-girlfriend or "try on". The constitutional issue centres on whether the definition of spouse violates the respondents' equality rights either on the enumerated ground of sex or on one or more analogous grounds. The parties have raised four possible analogous grounds: marital status, receipt of social assistance, single mothers and single mothers on social assistance. A second constitutional question is whether any infringement of s. 15(1) of the Charter can be justified under s. 1. A subsidiary constitutional issue is whether the definition of spouse violates s. 7 of the Charter.

[41] For convenience, I reproduce s. 1(1)(d) of Regulation 366:

1(1) . . . "spouse" means,

(d) a person of the opposite sex to the applicant or recipient who is residing in the same dwelling place as the applicant or recipient if,

(i) the person is providing financial support to the applicant or recipient,

(ii) the applicant or recipient is providing financial support to the person, or

(iii) the person and the applicant or recipient have a mutual agreement or arrangement regarding their financial affairs, and [page496]

the social and familial aspects of the relationship between the person and the applicant or recipient amount to cohabitation.

[42] To put the competing positions on the interpretation and constitutionality of the definition of spouse in context, I will briefly summarize the factual background and the decisions of the Board and the Divisional Court.

[43] The relevant facts pertaining to each respondent are similar. Each respondent had experienced a close family or intimate relationship with an alcoholic or abusive man. Each was the sole support of a child or children, and before the 1995 definition of spouse, each was receiving social assistance as a single mother.

[44] In the year before the 1995 definition came into effect, each respondent began residing with a man. Each respondent considered her male co-resident a boyfriend. Some hoped for a long-term relationship. Ms. Falkiner, for example, began living with her co-resident as an "experiment", hoping it would lead to a permanent relationship in the future. All of the respondents acknowledged that the social and familial aspects of their relationships amounted to cohabitation. But none of the respondents considered that she was in a spousal relationship with her co-resident.

[45] Each of the respondents, however, had a financial arrangement with her co-resident, with the latter paying a portion of the rent, food and other household expenses. But each respondent maintained her financial independence as much as possible. And none of the male co-residents had a legal obligation to support either the respondent he was living with or her children.

[46] When the 1995 definition of spouse came into effect, the Director reclassified each respondent as a spouse, forcing each to rely on her co-resident for financial support if she wanted to continue the relationship. The respondents appealed the Director's reclassifications to the Board and also sought judicial review of the new definition of spouse, contending that it was unconstitutional. The Divisional Court dismissed the judicial review application as premature because the respondents had not exhausted their appeal rights. See Falkiner v. Ontario (1996), 140 D.L.R. (4th) 115, 40 C.R.R. (2d) 316 (Ont. Div. Ct.).

[47] On the appeal, the Board bifurcated its proceedings into non-Charter hearings and a consolidated Charter hearing. In its non-Charter decisions, the Board concluded that each respondent was a spouse under the 1995 definition. In so concluding, the Board gave its interpretation of the financial component of the definition. The majority held that "a mutual agreement or [page497] arrangement regarding their financial affairs" in s. 1(1)(d)(iii) of the definition requires "economic interdependence between the parties" that is "more than trivial". In the majority's view,

Economic interdependence covers financial arrangements which go beyond what would be normal in a simple roommate-type relationship. It includes the pooling of money or assets, cross-subsidization and other kinds of indirect support between the parties.

[48] In a concurring opinion, one Board member took a slightly different view, a view similar to that of the Board in Thomas. She held that clause (iii) of s. 1(1)(d) meant simply an agreement about money:

If the legislature intended that the provision of financial support or an agreement about money between co-residents meant "economic subsidization or interdependence that is more than trivial", then the legislature could have clearly and explicitly said this in its laws. In this Board member's view, it did not do so.

[49] In its Charter hearing, the Board concluded that the 1995 definition of spouse infringed both s. 15(1) and s. 7 of the Charter and was not justified under s. 1. The Board found that the definition discriminated against sole support parents on social assistance, an analogous ground under s. 15(1), and that the definition violated the respondents' s. 7 rights to personal autonomy and freedom from state-imposed psychological stress, contrary to the principles of fundamental justice because of its over-breadth. The Board therefore held that s. 1(1)(d) of Regulation 366 should not be applied to the three respondents.

[50] Neither side appealed the Board's interpretation of the definition of spouse. The Divisional Court accepted that the financial component of the definition in clause (iii) required economic interdependence that was more than trivial. In this court, the appellants urged us to accept the interpretation given by the majority of the Board. While the respondents question whether s. 1(1)(d) requires economic interdependence that is more than trivial, they submit that even if this interpretation is adopted, the threshold level of economic interaction is very low.

[51] The real dispute between the parties concerns the Board's Charter decision, which the Director and the Attorney General appealed to the Divisional Court. The majority, Lane and Haley JJ., dismissed the appeal but for reasons that differed from those of the Board. The majority concluded that the definition of spouse in s. 1(1)(d) infringed s. 15(1) of the Charter because it discriminated on the enumerated ground of sex and the analogous ground of sole support mothers on social assistance. The infringement could not be justified under s. 1. Because the [page498] majority found a violation of s. 15, it chose not to consider s. 7 of the Charter. Belleghem J., in dissent, would have found no constitutional violation.

[52] The government appeals from the judgment of the Divisional Court. I turn now to the issues in this appeal.

2. The Interpretation of Spouse

[53] In broad terms, the Board made two decisions: one on the interpretation of the definition of spouse; the other on the constitutionality of the definition. The Ontario government appealed the latter decision but not the former. Nonetheless, it seems to me that its constitutional appeal depends critically on the meaning of spouse, on the reach of the definition. The respondents acknowledge that the government is legally entitled to deliver social assistance benefits to an individual or to a couple, that is, a spousal benefit unit. Therefore, if the definition of spouse captures only co- residency relationships that are functionally similar to a marriage, that are truly spousal or marriage-like, then I do not see how it can be constitutionally vulnerable. If, on the other hand, the definition embraces relationships that are not marriage-like, it may well be constitutionally infirm.

[54] As with any question of statutory interpretation, the court must interpret the provision in issue in its total context. The court's interpretation should comply with the legislative text and promote the legislative purpose. The purpose of the definition is to capture spousal relationships. The interpretation issue is whether the definition as written fulfills this purpose by drawing a reasonably accurate distinction between spousal or marriage-like relationships and other relationships.

[55] Any definition of a spousal relationship should take into account -- as s. 1(1)(d) does -- social, familial and economic factors. The provision in issue in this appeal is the economic component of the definition of spouse in clause (iii) of s. 1(1)(d) of Regulation 366: "The person and the applicant or recipient have a mutual agreement or arrangement regarding their financial affairs." Although the economic component is only one aspect of a spousal relationship, that component is crucial in this case because the consequences of being categorized as a spouse are economic in nature. Thus, the definition of spouse cannot be said to capture spousal relationships reasonably accurately if it embraces many relationships that are not marriage-like in their economic component.

[56] The economic component of a spousal relationship is generally characterized by support or a support obligation, or by [page499] financial interdependence. See M. v. H., [1999] 2 S.C.R. 3, 171 D.L.R. (4th) 577 and Miron v. Trudel, [1995] 2 S.C.R. 418, 124 D.L.R. (4th) 693. Other parts of the definition of spouse in s. 1(1) reasonably accurately capture spousal relationships in which actual support or support obligations exist. The question here is whether clause (iii) reasonably accurately captures relationships in which financial interdependence exists.

[57] As I said earlier, the majority of [the] Board in the Falkiner case interpreted this clause to require economic interdependence that is more than trivial. By contrast, the Board in Thomas interpreted the clause to mean what it says: any agreement or arrangement regarding financial affairs, which presumably would include an agreement in which financial interdependence is trivial or non-existent.

[58] The Board's view in Thomas is more faithful to the words used in the regulation. But even accepting the purposive view adopted by the Board in Falkiner -- that a mutual agreement or arrangement requires more than trivial economic interdependence -- the threshold for the economic component is so low that the definition will capture many relationships that are not spousal or marriage-like. In short, the definition will include many relationships that lack the meaningful financial interdependence characteristic of a spousal relationship.

[59] It will include a try-on relationship like Ms. Falkiner's, where her co-resident contributed to rent and a few other expenses, or a boyfriend and girlfriend who have decided to cohabit and share expenses equally, or potentially even a casual cohabitation arrangement where the couple "fair share" expenses but each maintains financial independence. The definition will thus capture relationships lacking in the permanence, the commitment, the legal obligation to support, the legal right to claim support, even the meaningful actual support that characterizes spousal or marriage-like relationships. Even accepting the Board's interpretation in Falkiner, the economic interdependence called for by clause (iii) is not strong enough to make the definition a reasonably accurate proxy for a spousal relationship. Thus, clause (iii) makes the definition of spouse overly broad.

[60] Therefore, I agree with the majority of the Divisional Court that the definition wrongly "assumes equivalency between a co-habitant who has support obligations . . . and one who does not" and "does not distinguish between those financial arrangements that resemble marriage . . . and those that do not". The majority elaborated on this view in para. 69 of their reasons, which I endorse: [page500]

The Regulation captures as part of a "couple", individuals who have not formed relationships of such relative permanence as to be comparable to marriage, whether formal or common law. It makes couples, or family units, out of individuals like the Respondents who have made no commitment to each other, with accompanying voluntary assumption of economic interdependence. There is all the difference in the world between a person, with her own money, sharing accommodation in the hope that an inchoate relationship may flourish, versus a person whose financial support is largely in the hands of her co-habitant who has no legal obligations towards her and her children.

[61] The government submits, however, that the 1995 definition is at least an improvement on its predecessor, which mirrored the three-year rule in the Family Law Act definition of spouse. The government points out that any time period will be arbitrary and that requiring a three-year cohabitation period to be a spouse gives unmarried couples a grace period unrelated to the actual circumstances of their relationship. Thus, the government says that the former definition created inequities between married and unmarried couples. That may be so. But while the three-year period was perhaps arbitrary, at least it was a bright line test that was easy to administer and generally accepted. I do not suggest that the Family Law Act model is the only solution to the government's drafting problem. I recognize that the purposes of the Family Law Act regime and the social assistance regime are different. These different purposes may argue for different definitions of a spousal relationship. I simply say that the current definition of spouse in s. 1(1)(d) of Regulation 366 under the Family Benefits Act is too broad to capture only spousal or marriage- like relationships.

3. The Definition of Spouse Violates Section 15(1) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

(a) The Law framework

[62] Section 15(1) of the Charter states:

15(1) 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 on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[63] In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at pp. 548-49, 170 D.L.R. (4th) 1, a unanimous Supreme Court of Canada set out a three-step framework for analyzing a claim of discrimination under s. 15(1):

(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively [page501] differential treatment between the claimant and others on the basis of one or more personal characteristics?

(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?

and

(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

[64] The Supreme Court has followed the framework it first set out in Law in several subsequent decisions: M. v. H., supra; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, 173 D.L.R. (4th) 1; Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703, 186 D.L.R. (4th) 1; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950, 188 D.L.R. (4th) 193. It is within this framework that the respondents' s. 15 claim must be assessed.

[65] The Supreme Court has also given extensive guidance on the application of this framework. Of particular relevance to this case are the following four principles of s. 15 analysis. First, the claim must be considered from the perspective of the claimant. The discrimination inquiry is both subjective and objective. As the Supreme Court affirmed in Law at p. 533 S.C.R., "the relevant point of view is that of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant". Second, the court must consider the effect of the challenged law in determining whether it violates s. 15. Thus, the court must determine not just the law's intended impact but also its actual impact on those subject to it and on those excluded from its application. Third, the three-step framework in Law must be applied in the light of the purpose of the equality guarantee in s. 15, which focuses on protecting human dignity. In the words of Iacobucci J. in Law at pp. 529-30 S.C.R.,

It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration . . . Human dignity means that an individual or group feels self-respect and self-worth. [page502]

And fourth, the three-step framework offers guidelines for analysis, not a rigid test to be applied mechanically. As Iacobucci J. said in Law at p. 547 S.C.R., "these guidelines should not be seen as a strict test, but rather should be understood as points of reference".

[66] On the basis of the Law framework and these general principles, I will now consider whether the definition of spouse in s. 1(1)(d) offends s. 15(1).

(b) The definition of spouse differentiates between the respondents and others on the basis of one or more personal characteristics

[67] Under the first step of the Law framework, the court must determine whether the definition of spouse imposes differential treatment on the basis of one or more personal characteristics. Central to this determination is defining the comparator groups. This is not an easy task.

[68] The government submits that the appropriate comparison is between those who are included in the impugned definition of spouse and those who are excluded. According to the government, defining the comparator groups in this way accurately distinguishes between those who are and those who are not in spousal relationships. But I have already rejected this latter contention. I have found that the definition is overly broad and captures many relationships that are not spousal or marriage-like.

[69] Moreover, I do not think the comparator groups should be defined by reference to the formal distinction drawn by the definition of spouse in Regulation 366. Defining the comparison in this way would be inconsistent with the jurisprudence, which emphasizes that the s. 15(1) analysis must be considered from the perspective of the claimant and must take into account the effect of the legislation in question. Because differential treatment is a substantive notion, a formal legislative distinction may have to yield to the underlying differences imposed by the legislation. As Iacobucci J. said in Law at pp. 517-18 S.C.R.:

The main consideration . . . must be the impact of the law upon the individual or group to whom it applies, as well as upon those whom it excludes from its application . . . Hence, equality in s. 15 must be viewed as a substantive concept. Differential treatment, in a substantive sense, can be brought about either by a formal legislative distinction, or by a failure to take into account the underlying differences between individuals in society.

(Emphasis in original) [page503]

[70] From the respondents' perspective, the comparison urged by the government does not accurately reflect the differential treatment imposed by clause (iii) of s. 1(1) and complained of in this case. The respondents contend that they have been subjected to differential treatment on the basis that they are single mothers on social assistance. That is the group with which they identify themselves. Put another way, the respondents share three relevant characteristics: they are women, they are single mothers solely responsible for the support of their children and they are social assistance recipients. They argue that the differential treatment imposed on them by the definition of spouse flows from these three characteristics.

[71] Because the respondents assert that they have been discriminated against on the basis of more than one personal characteristic, no single comparator group will capture all of the differential treatment complained of in this case. Instead, the respondents urge us to undertake a set of comparisons, each one bringing into focus a separate form of differential treatment. The respondents claim three forms of differential treatment and thus use three comparator groups. First, they compare themselves with persons who are not on social assistance. Second, they contrast the effect of the definition on women on social assistance and its effect on male social assistance recipients. Finally, they offer a variation on this latter comparison by contrasting the effect of the definition on single mothers on social assistance and its effect on other social assistance recipients.

[72] Because the respondents' equality claim alleges differential treatment on the basis of an interlocking set of personal characteristics, I think their general approach is appropriate. Multiple comparator groups are needed to bring into focus the multiple forms of differential treatment alleged. Even accepting this general approach, however, the court is still entitled to refine the complainants' chosen comparisons to more accurately reflect the subject-matter of the complaint. See Law at p. 532 S.C.R.; Granovsky, supra, at p. 730 S.C.R. As will become apparent, I think some refinement of the comparator groups is warranted in this case. I now deal with the alleged differential treatment.

[73] First, the respondents allege that they have been treated unequally on the basis of the personal characteristic of being a social assistance recipient. As I stated above, the respondents urge a comparison between themselves and persons who are not on social assistance. In my view, the respondents' claim of differential treatment on the basis of being a social assistance recipient can best be assessed by comparing their treatment to the treatment of single persons not on social assistance. Framing the [page504] comparison in this way shows that the respondents have been treated unequally. They have suffered adverse state-imposed financial consequences because they began living in try-on relationships. By contrast, single people who are not on social assistance are free to have these relationships without attracting any kind of state-imposed financial consequences. These adverse consequences visited on the respondents represent one aspect of the differential treatment they have received.

[74] Second, the respondents allege that they have been treated differentially on the basis that they are women, and in particular single mothers. This alleged differential treatment on the basis of sex can best be assessed by comparing the impact of the definition of spouse on the respondents with its impact on single men on social assistance.

[75] Admittedly, the definition of spouse challenged in this case applies equally to men and women, to single fathers and single mothers. It is neutral on its face. And even though more of those affected by the definition are women, that fact alone does not establish differential treatment on the basis of sex. But a facially neutral provision may still give rise to differential treatment on the basis of sex if the provision has a disproportionate adverse or negative effect on women. A disproportionate adverse effect is itself a form of differential treatment.

[76] Thus, the question is whether the definition of spouse disproportionately adversely affects women. The answer to that question depends on the statistics in the record on the effect of the definition. These statistics are found primarily in two exhibits to the affidavit of the respondents' witness Nancy Vander Plaats, a community legal worker with experience as a social assistance caseworker and as a member of a project team struck to advise the Minister on social assistance legislation. The Ministry compiled the statistics and both the appellants and the respondents rely upon them. Each side claims that the statistical evidence supports its position.

[77] In my view, the statistics unequivocally demonstrate that both women and single mothers are disproportionately adversely affected by the definition of spouse. The chart below makes this point by showing that although women accounted for only 54 per cent of those receiving social assistance and only 60 per cent of single persons receiving benefits, they accounted for nearly 90 per cent of those whose benefits were terminated by the definition of spouse. The corresponding figures for single mothers also show the definition's disproportionate impact on that group. [page505]

GROUP Group as per cent Group as per Group as per cent of persons on cent of single of person whose social assistance persons on social benefits were assistance terminated by the definition of spouse

Women 54.2 60.2 88.8 Single mothers 27.7 33.1 76.0

The respondents have therefore been subjected to differential treatment on the basis of sex.

[78] Thus, I am satisfied that the respondents have established differential treatment on the basis of two of the personal characteristics on which they rely: receipt of social assistance and sex. But they also claim to have been subjected to a third form of differential treatment: differential treatment on the basis of being single mothers. This claim can be understood in two ways. Because single mothers are a subgroup of women, the respondents' assertion that they have been treated differentially on the basis that they are single mothers can be taken as a part of their claim of differential treatment on the basis of sex. The evidence showing the definition's differential treatment on the basis of sex also