Federal Court of Appeal Decisions

Date: 20020301

Docket: A-753-99

Neutral citation: 2002 FCA 82

CORAM:        STRAYER J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                                 MARY T. COLLINS

                                                                                                                                                       Appellant

                                                                                 and

                                HER MAJESTY THE QUEEN IN RIGHT OF CANADA

                                                                                                                                                   Respondent

                                    Heard at Fredericton, New Brunswick, December 3, 2001

                                      Judgment delivered at Ottawa, Ontario, March 1, 2002

REASONS FOR JUDGMENT BY:                                                                               SHARLOW J.A.

CONCURRED IN BY:                                                                                                       STRAYER J.A.

                                                                                                                                              MALONE J.A.

                                                                                                                                            Date: 20020301

                                                                                                                                        Docket: A-753-99

                                                                                                                  Neutral citation: 2002 FCA 82

CORAM:        STRAYER J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                                 MARY T. COLLINS

                                                                                                                                                       Appellant

                                                                                 and

                                HER MAJESTY THE QUEEN IN RIGHT OF CANADA

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

SHARLOW J.A.

[1]                 In 1988 Mary Collins commenced an action against the Crown on the basis that subsection 15(1) of the Canadian Charter of Rights and Freedoms is infringed by the provisions of the Old Age Security Act, R.S.C. 1985, c. 0-9, that exclude separated spouses from entitlement to the spouse's allowance. The action was dismissed in a decision reported as Collins v. Canada, [2000] 2 F.C. 3 (T.D.). The Trial Judge gave lengthy and detailed reasons for holding that the provision was discriminatory but was justified under section 1 of the Charter. Ms. Collins now appeals that decision, arguing that the Trial Judge erred on the issue of justification. The Crown argues that the Trial Judge erred in finding the provision discriminatory, but if it was discriminatory, then the Trial Judge was correct to find justification.

[2]                 The relevant statutory provisions as in force in 1988 read as follows:

Facts

[3]                 The appellant Mary Collins married Henry Collins in 1951. She separated from him in 1975. The separation continued until his death in 1998. Ms. Collins received no maintenance from him after the separation.

[4]                 In 1984 when Mr. Collins became sixty-five years of age, he received benefits under the Old Age Security Act, as then in effect, in the form of a pension referred to as the "old age pension". His entitlement to the pension was based on his age and the fact that he met the statutory residence requirements. Because his income fell below the statutory threshold, he also received the "guaranteed income supplement" under the Old Age Security Act.

[5]                 But for the fact that Ms. Collins was separated from her husband, she would have been entitled to a monthly "spouse's allowance" under section 19 of the Old Age Security Act beginning on November 21, 1985, when she became sixty years of age, until she became entitled to the old age pension in her own right at the age of sixty-five.

[6]                 Ms. Collins became entitled to the old age pension on November 21, 1990. She also became entitled to the guaranteed income supplement because her income fell below the statutory threshold. Before that, she received income assistance from the Province of Nova Scotia, where she resided. The record does not disclose the basis upon which that financial assistance was provided, but in any event she received slightly more from the Province of Nova Scotia than she would have received if she had been entitled to the spouse's allowance. Her provincial entitlement would have been reduced, dollar for dollar, for any spouse's allowance she received.

[7]                 In 1988 Ms. Collins commenced an action alleging that the provision of the Old Age Security Act that barred separated spouses from claiming the spouse's allowance discriminated against her on the basis of marital status, contrary to subsection 15(1) of the Canadian Charter of Rights and Freedoms. In addition to declaratory relief, she claimed damages in the amount of the spouse's allowance for the relevant period, plus interest.

Statutory history

[8]                 To put this issue in context, it is helpful to consider certain aspects of the history of the Old Age Security Act.

[9]                 The statutory predecessor to the Old Age Security Act was The Old Age Pensions Act, 1927, S.C. 1926-27, c. 35 (R.S.C. 1927, c. 156). Under that statute, the federal government reimbursed the provinces for 50% of pensions paid to certain Canadian residents aged seventy or over. The reimbursement was increased to 75% in 1931 (S.C. 1931, c. 42). Entitlement was based on an income test or, as it was then referred to, a "means test".

[10]            Effective January 1, 1952, the Old Age Pensions Act, 1927 was replaced by the Old Age Security Act, S.C. 1951 (2^nd session), c. 18. It provided a pension to all persons aged seventy or over, subject to certain requirements as to residence in Canada. The benefit was provided as of right, with no income test. It continued to be referred to as the old age pension.

[11]            The enactment of the Canada Pension Plan, S.C. 1964-65, c. 51 led to a number of changes to the old age pension scheme. The Canada Pension Plan provides for a contributory pension based on income from employment and self-employment. The normal retirement age in the Canada Pension Plan was set at age sixty-five. In order to coordinate the operation of the Canada Pension Plan with that of the Old Age Security Act, the age of entitlement under the latter statute was reduced annually by one year starting in 1966, so that by 1970 it was reduced to age sixty-five.

[12]            To provide benefits under the Old Age Security Act to those who reached the age of 65 before 1976, when the first full benefits would become available under the Canada Pension Plan, a limited form of guaranteed income supplement was added to the Old Age Security Act. Entitlement to the guaranteed income supplement was based on an income test.

[13]            In 1971 the federal government introduced a permanent guaranteed income supplement for pensioners (S.C. 1970-71-72, c. 9 and R.S.C. 1970 (2^nd Supp.), c. 21). The guaranteed income supplement was subject to an income test and was indexed to reflect increases in the cost of living. It provided a higher supplement to a pensioner living alone than to each member of a two-pensioner couple. Initially the higher rate was payable to a married pensioner with a cohabiting non-pensioner spouse, but that was no longer the case after 1973, when the basic old age pension rate was increased and indexed.

[14]            The spouse's allowance was added to the Old Age Security Act effective October 1, 1975 (S.C. 1974-75-76, c. 58). It was payable, subject to an income test and certain requirements as to residence in Canada, to anyone sixty years of age or over but not yet sixty-five years of age, who was the spouse of a pensioner with whom he or she lived. Cohabiting couples were considered spouses for the purposes of this provision, if they publicly represented themselves as husband and wife for one year if neither had a legal spouse, or three years if one of them had a legal spouse.

[15]            The spouse's allowance was intended to alleviate the financial hardship suffered by couples who had been living on the income of one working spouse. If the non-working spouse was not then sixty-five, the couple would be compelled to live on a single old age pension and guaranteed income supplement when the working spouse retired at age sixty-five. The spouse's allowance was set at a rate that ensured that a couple consisting of a pensioner and a non-pensioner would together receive the same amount as if they were both pensioners.

[16]            Effective January 1, 1979, the Old Age Security Act was amended to permit the continuation of the spouse's allowance for six months after the death of the pensioner (S.C. 1978-79, c. 3). The six-month limitation was soon altered so that the allowance would continue until the surviving spouse became sixty-five years of age, remarried or died (S.C. 1979, c. 4).

[17]            Effective September 1, 1985, the survivor's allowance was introduced (S.C. 1985, c. 30). It was equivalent in amount to the spouse's allowance. The survivor's allowance was made available, subject to an income test and to certain requirements as to residence in Canada, to persons between the ages of sixty and sixty-five whose spouse had died and who had not thereafter become the spouse of another person. It did not matter whether the deceased spouse had ever been a pensioner.

[18]            In the same legislation, the term "spouse" was redefined to include couples who had lived together for one year and who publicly represented themselves as man and wife. This eliminated the three-year requirement for persons cohabiting with someone other than a legal spouse.

[19]            As a result of the most recent changes which took effect on July 1, 1999, same sex partners are given the same entitlements as spouses, and a person in receipt of a spouse's allowance may continue to receive it for a period of three months after separation or divorce (S.C. 1998, c. 21). The latter amendment represents the only attempt to alleviate the financial hardship associated with marital breakdown.

[20]            Constitutional amendments were required to permit the federal government to provide old age pensions. There is also provincial legislation that is substantially equivalent to the Canada Pension Plan Act, R.S.C. 1985, c. C-8. Nothing turns on them in the present case.

[21]            For the same reason I have disregarded a number of statutory amendments that increased pension rates, and the income tax regime relating to pensions. It is sufficient to note that pension rates have increased over time and that the income tax rules relating to amounts received under the Old Age Security Act are relatively less favourable to those with higher incomes.

[22]            By way of summary, the original objective of the Old Age Security Act was to alleviate poverty among retired persons (originally those over seventy and then those over sixty-five). In 1975, Parliament extended benefits under the Old Age Security Act to low income persons who were over the age of sixty but not yet sixty-five who were spouses of pensioners, but not to persons in that age group who were separated, whose spousal relationship had ended in divorce or the death of the spouse, or who had never been anyone's spouse. In 1985, widows and widowers were included among persons between sixty and sixty-five years of age who could qualify for an income tested allowance.

[23]            Ms. Collins falls into the category of persons who did not qualify for the spouse's allowance when she became sixty years of age because she was by then separated from her spouse. Thus, although her entitlement under the Old Age Security Act is the same as those of persons of the same age and income level who are single because they have never become anyone's spouse, it is less than that of persons of the same age and income level who cohabit with their spouse or whose spouse has died. It is on the basis of the statutory distinction between cohabiting and separated spouses that Ms. Collins asserts a claim under subsection 15(1) of the Charter.

Subsection 15(1) of the Charter

[24]            There may be many grounds on which one could criticize Parliament, having established the spouse's allowance for some but not all persons between the ages of sixty and sixty-five, for drawing the line where it did in 1975, or where it did in 1985. Any low income person in one of the excluded categories might fairly complain that their financial need is the same as that of a person entitled to an allowance.

[25]            However, the Charter does not require Parliament, upon undertaking an old age pension scheme, to provide the same benefit to everyone. Distinctions may be made, as long as the distinctions do not amount to discrimination within the meaning of subsection 15(1) of the Charter, or can be justified under section 1.

[26]            In determining whether the exclusion of separated spouses from entitlement to the spouse's allowance brings into play subsection 15(1) of the Charter in remedying such social ills as prejudice, stereotyping, and historical disadvantage, the main consideration is whether there is any basis for concluding that the statutory distinction is an affront to the dignity, intrinsic worthiness or self-respect of persons who are not cohabiting with their spouses.    If not, then, the differential treatment of which Ms. Collins complains is not discriminatory in the Charter sense.

[27]            The Trial Judge concluded that the exclusion of separated spouses is discriminatory in the Charter sense. That conclusion is supported by Ms. Collins and challenged by the Crown in this appeal.

[28]            The Crown's argument is based primarily on the decision of the Supreme Court of Canada in Lovelace v. Ontario, [2000] 1 S.C.R. 950. The Crown argues that if Lovelace had been decided before the Trial Judge had rendered his decision in this case, he would have concluded that the exclusion of separated spouses from eligibility for the spouse's allowance is not discriminatory within the meaning of subsection 15(1) of the Charter. The Crown argues that the scheme of pensions and allowances in the Old Age Security Act is intended to ameliorate hardship among persons in a disadvantaged group, and that according to Lovelace, such a scheme does not infringe subsection 15(1) of the Charter merely because it excludes an equally or more disadvantaged group.

[29]            In Lovelace, the Supreme Court of Canada held that a program established by the Ontario government did not offend section 15 of the Charter. However, there is little similarity between this case and Lovelace. Under the government program considered in Lovelace, the profits of casinos on reserve lands in Ontario were maintained in a special fund. The fund was used to benefit Ontario First Nations communities that have reserve lands by virtue of being registered as "bands" under the Indian Act, R.S.C. 1985, c. I-5. The constitutionality of the program was challenged on the basis that it did not benefit unregistered First Nations groups or individuals. The program was held to be targeted and ameliorative, in that it was designed to relieve the social, health and other disadvantages suffered by reserve communities. However, that is not why the Court found no infringement of subsection 15(1) of the Charter. Rather, the Court held that in benefiting only registered bands the program did not, in purpose or result, perpetuate a stereotype or offend the essential human dignity of unregistered bands or those who are members of unregistered bands.

[30]            In my view, to read Lovelace as establishing a principle as broad as the Crown now propounds would be inconsistent with Egan v. Canada, [1995] 2 S.C.R. 513, in which the majority found that the exclusion of same sex couples from entitlement to the spouse's allowance was discriminatory. I do not read Lovelace as contradicting the conclusion of the Trial Judge in this case with respect to the scope and application of subsection 15(1) of the Charter. On the contrary Iacobucci J., speaking for the Court in Lovelace, confirmed at paragraph 61 that even a targeted ameliorative program may infringe subsection 15(1) of the Charter.

[31]            I turn now to a more general review of the subsection 15(1) analysis of the Trial Judge. He begins with the factors listed by Iacobucci J. in Law v. Canada, [1999] 1 S.C.R. 497 at paragraphs 59-75. One factor is whether separated spouses suffer from some pre-existing disadvantage, vulnerability, stereotyping or prejudice. On that point there was little evidence before the Trial Judge. However, he considered three decisions of the Supreme Court of Canada that he said indicated an emerging recognition that the separated as a group, and particularly separated women, constitute a disadvantaged and vulnerable group. The cases are Moge v. Moge, [1992] 3 S.C.R. 813, Marzetti v. Marzetti, [1994] 2 S.C.R. 765 and Thibaudeau v. Canada, [1995] 2 S.C.R. 627.

[32]            Moge was a case that required consideration of the principles upon which spousal support should be required after marital breakdown. These comments of L'Heureux-Dube J. appear at page 861:

Women have tended to suffer economic disadvantages and hardships from marriage or its breakdown because of the traditional division of labour within that institution. Historically, or at least in recent history, the contributions made by women to the marital partnership were non-monetary and came in the form of work at home, such as taking care of the household, raising children, and so on.

and at page 862:

... once the marriage dissolves, the kinds of non-monetary contributions made by the wife may result in significant market disabilities. The sacrifices she has made at home catch up with her and the balance shifts in favour of the husband who has remained in the work force and focussed his attention outside the home. In effect, she is left with a diminished earning capacity and may have conferred upon her husband an embellished one.

[33]            Marzetti involved the interpretation of the Bankruptcy Act, R.S.C. 1985, c. B-3. One of the policy issues identified as relevant to the interpretive exercise was the need to balance family obligations against the claims of creditors. Iacobucci J., speaking for the Court, confirmed the recognition in Moge, that divorce and its economic effects are playing a role in the feminization of poverty. On a similar theme are the following words of McLachlin J. (as she then was) in Thibaudeau (in dissent), at paragraph 208:

Second, separated ... custodial parents considered as a group have historically been subject to disadvantageous treatment. The social opprobrium to which this group has been subjected over the years may have lessened with time. Nevertheless, even today evidence of disadvantage suffered by such persons is overwhelming.

[34]            It seems to me incorrect to treat these judicial comments as evidence, and in any event they fall short of establishing that separated spouses generally are subject to the kind of historical disadvantage or vulnerability that could support a Charter claim. The Trial Judge, however, seems to have given this factor little weight. Further, it is clear from Law that the failure to prove historical disadvantage or vulnerability is not by itself fatal to a claim under subsection 15(1) of the Charter, because the other factors must also be taken into account.

[35]            In considering the other factors the Trial Judge reached two conclusions that in my view are clearly correct. First, he found that the exclusion of separated spouses from entitlement to the spouse's allowance denies them access to federal government assistance that is available to other older Canadians whose circumstances are similar.

[36]            Second, he found that the Old Age Security Act does not recognize, address or accommodate the needs of separated spouses with low incomes. That was true during the period relevant to Ms. Collin's claim. The situation has changed somewhat because of the 1999 statutory amendment that allows a person in receipt of a spouse's allowance to continue to receive the benefit for three months after the breakdown of a spousal relationship with a pensioner. That amendment would not have assisted Ms. Collins, however, because she separated from her spouse before reaching the age of sixty.

[37]            In his concluding remarks about the applicability of subsection 15(1), the Trial Judge referred to the following comments of McLachlin J. in Thibaudeau at paragraph 207:

One's status vis-à-vis one's former spouse involves the individual's freedom to form family relationships and touches on matters so intrinsically human, personal and relational that a distinction based on this ground must often violate a person's dignity.

The validity of this comment seems obvious to me.

[38]            I am of the view that the Trial Judge did not err in concluding that a statute granting an income tested allowance to a cohabiting spouse, while denying it to a separated spouse in similar financial circumstances, is discriminatory in that it creates a distinction based on a personal characteristic intrinsic to human dignity. Thus, despite the paucity of evidence of historical disadvantage or vulnerability, I am not prepared to reverse the decision of the Trial Judge that the impugned legislation is discriminatory within the meaning of subsection 15(1) of the Charter.

Justification under section 1 of the Charter

[39]            The Trial Judge provided a detailed and thoughtful discussion of the justification question using the analytical framework in R. v. Oakes, [1986] 1 S.C.R. 103. On the basis of that analysis, he concluded that the exclusion of separated spouses from entitlement to the spouse's allowance was justified under section 1 of the Charter. Counsel for Ms. Collins argues that the Trial Judge's justification analysis is wrong in several respects. I will address the arguments that seem to me to be the most substantial.

[40]            The first question from Oakes is whether there is a pressing and substantial objective for the legislation as a whole, for the particular provision that is the subject of the Charter challenge and, where the allegation is underinclusiveness, for the limitation. The Trial Judge found that the objective of the legislation as a whole and the objective of the exclusion of separated spouses from the spouse's allowance were pressing and substantial. I summarize his reasons as follows:

(1)        The Old Age Security Act is intended to provide income support to elderly persons, which is a pressing and substantial public policy objective. Egan establishes that the objective of the spouse's allowance is to benefit low income cohabiting spouses of whom only one has attained the age of sixty-five and the other has attained the age of sixty, by providing them with income equivalent to what they would receive if both spouses were pensioners. This is a pressing and substantial objective.

(2)        With respect to the objective of the exclusion, the legislation was not intended to benefit everyone over the age of sixty, because there was a concern that this would encourage a general lowering of the normal retirement age to sixty, which was seen to be undesirable from both a social and fiscal perspective. Also, there is evidence that the spouse's allowance probably would not have been enacted if it could not be enacted on a restricted basis. Thus, the exclusion of separated spouses from entitlement to the spouse's allowance is as pressing and substantial as the spouse's allowance itself.

(3)        The pressing and substantial nature of the legislation and the exclusion did not change when widows and widowers were included among persons over the age of sixty who could qualify for an income tested allowance that was similar in amount to the spouse's allowance. The evidence at the time of the extension of the benefit was that the vast majority of persons who would be entitled to the survivor's allowance were widows who had been financially dependent on their spouses for most, if not all, of their lives. There was no demographic reason or statistical evidence that the same could be said of separated spouses.

[41]            Counsel for Ms. Collins argues that there is no pressing and substantial objective for excluding separated spouses from entitlement to the spouse's allowance because the only reason for excluding separated spouses from entitlement to the spouse's allowance was to limit costs, and that cost considerations can never justify infringement of a Charter right to equality. He also argues that discrimination in the relief of poverty is not compatible with the values that characterize a free and democratic society.

[42]            The proposition that cost alone cannot justify a Charter infringement is supported by a number of comments made by the Supreme Court of Canada, culminating in the following summary by Lamer C.J. in Reference re Provincial Court Judges, [1997] 3 S.C.R. 3 at paragraphs 281-4:

[281]      The respondent attempted to justify the closure of the Manitoba Provincial Court as a measure designed to reduce the provincial deficit. Thus, it has chosen to characterize this decision as a financial measure. However, this begs the prior question of whether measures whose sole purpose is budgetary can justifiably infringe Charter rights. This Court has already answered this question in the negative, because it has held on previous occasions that budgetary considerations do not count as a pressing and substantial objective for s. 1. In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 218, Wilson J. speaking for the three members of the Court who addressed the Charter (including myself), doubted that "utilitarian consideration[s]... [could] constitute a justification for a limitation on the rights set out in the Charter" (emphasis added). The reason behind Wilson J.'s scepticism was that "the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so". I agree.

[282]      I expressed the same view in Schachter v. Canada, [1992] 2 S.C.R. 679, where I spoke for the Court on this point. In Schachter, I clarified that while financial considerations could not be used to justify the infringement of Charter rights, they could and should play a role in fashioning an appropriate remedy under s. 52 of the Constitution Act, 1982. As I said at p. 709:

This Court has held, and rightly so, that budgetary considerations cannot be used to justify a violation under s. 1. However, such considerations are clearly relevant once a violation which does not survive s. 1 has been established, s. 52 is determined to have been engaged and the Court turns its attention to what action should be taken thereunder. [Emphasis added.]

[283]      While purely financial considerations are not sufficient to justify the infringement of Charter rights, they are relevant to determining the standard of deference for the test of minimal impairment when reviewing legislation which is enacted for a purpose which is not financial. Thus, in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 993, the Court stated that "the distribution of scarce government resources" was a reason to relax the strict approach to minimal impairment taken in R. v. Oakes, [1986] 1 S.C.R. 103; the impugned legislation was aimed at the protection of children. In McKinney v. University of Guelph, [1990] 3 S.C.R. 229, where the issue was the constitutionality of a provision in provincial human rights legislation, La Forest J. stated at p. 288 that "the proper distribution of scarce resources must be weighed in a s. 1 analysis". Finally, in Egan v. Canada, [1995] 2 S.C.R. 513, where a scheme for pension benefits was under attack, Sopinka J. stated at para. 104 that

government must be accorded some flexibility in extending social benefits.... It is not realistic for the Court to assume that there are unlimited funds to address the needs of all.

[284]     Three main principles emerge from this discussion. First, a measure whose sole purpose is financial, and which infringes Charter rights, can never be justified under s. 1 (Singh and Schachter). Second, financial considerations are relevant to tailoring the standard of review under minimal impairment (Irwin Toy, McKinney and Egan). Third, financial considerations are relevant to the exercise of the court's remedial discretion, when s. 52 is engaged (Schachter).

[original emphasis]

[43]            In this case, however, the Trial Judge did not say and the record does not establish that cost was the sole basis for the decision to limit the spouse's allowance to cohabiting spouses of pensioners, or the decision to provide a similar allowance for widows and widowers only. On the contrary, the basis of both decisions was the concern that a universal allowance for those sixty years or older would not only lead to a greater number of claims immediately, which obviously is a cost consideration, but could also tend to change behaviour, particularly with respect to the age of retirement, which would have a number of other social and fiscal implications.

[44]            I do not accept the proposition that there can be no justification under section 1 of the Charter in this case because the overriding objective of the statutory scheme is the relief of poverty. The Supreme Court of Canada has indicated that a degree of discrimination in such cases can be justified. Whether it is justified in this case is the subject of the Oakes analysis.

[45]            With respect to the other factors relevant to the question of justification, the Trial Judge held that the exclusion of separated spouses from the spouse's allowance is rationally connected to the aim of the legislation because the legislation is intended to benefit only cohabiting spouses. He also found that there was a reasonable basis for the decision of Parliament to limit the spouse's allowance to cohabiting spouses and therefore the violation of the Charter right is a minimal impairment. He characterized this as a question upon which considerable deference was due to Parliament, because the impugned legislation represents a balancing of interests, in which Parliament was required to make choices among disadvantaged groups in the allocation of social benefits, and also because the extension of the spouse's allowance could have significant social and economic implications.

[46]            I agree with the Trial Judge on this point. I note that it is consistent with the following guidance offered by Sopinka J. in Egan at paragraphs 104, 105 and 109:

[104]       ... It is not realistic for the Court to assume that there are unlimited funds to address the needs of all. A judicial approach on this basis would tend to make a government reluctant to create any new social benefit schemes because their limits would depend on an accurate prediction of the outcome of court proceedings under s. 15(1) of the Charter. The problem is identified by Professor Hogg in Constitutional Law of Canada (3rd ed. 1992), at pp. 911-12, where he states:

It seems likely that virtually any benefit programme could be held to be under-inclusive in some respect. The effect of Schachter [[1990] 2 F.C. 129 (C.A.)] and Tétreault-Gadoury [[1991] 2 S.C.R. 22] is to subject benefit programmes to unpredictable potential liabilities. These decisions by-pass the normal processes by which a government sets its priorities and obtains parliamentary approval of its estimates.

[105]       This Court has recognized that it is legitimate for the government to make choices between disadvantaged groups and that it must be provided with some leeway to do so. ...

[...]

[109]       With respect to minimal impairment, the legislation in question represents the kind of socio-economic question in respect of which the government is required to mediate between competing groups rather than being the protagonist of an individual. In these circumstances, the Court will be more reluctant to second-guess the choice which Parliament has made. ...

[47]            On the same theme, Iacobucci J. stated the following in M. v. H., [1999] 2 S.C.R. 3 at paragraph 78:

[...]

This Court has often stressed the importance of deference to the policy choices of the legislature in the context of determining whether the legislature has discharged its burden of proof under s. 1 of the Charter: ... As a general matter, the role of the legislature demands deference from the courts to those types of policy decisions that the legislature is best placed to make. ...

[48]            In this case, there was conflicting evidence with respect to the cost of providing a spouse's allowance to separated spouses, but the Trial Judge concluded, based on the evidence adduced for Ms. Collins, that on an annual basis the incremental cost of including separated spouses would be somewhere between $53.4 and $78.4 million. This would represent an increase of 13.5% to 20% over the 1998 cost of providing allowances to spouses and survivors ($400 million). Although the claim asserted by Ms. Collins in this case is limited to those, like herself, who are sixty to sixty-four years of age and legally married but separated, one can reasonably foresee that her argument, if valid, would apply equally to persons of the same age who are separated following a divorce or other spousal relationship, and persons who have never been the spouse of another person. In that case the incremental costs would be $825 million to $1,275 million. Expanding entitlement to the spouse's allowance could result in behavioural and demographic changes with significant fiscal and social implications.

[49]            Finally, the Trial Judge found that there was proportionality between the effects of the impugned provision and its objectives. In this regard he acknowledged that denying the spouse's allowance to separated spouses could have deleterious effects, particularly if ineligibility for the spousal allowance could motivate a person to remain in an abusive spousal relationship. However, the Trial Judge assigned this possibility little weight. The evidence indicates that financial resources are an important factor in the decision of an abused spouse to terminate a spousal relationship (National Council of Welfare, Women and Poverty Revisited (Ottawa: Minister of Supply and Services Canada, 1990) at page 60). In most cases, however, a person in such a situation who has no recourse to the spouse's allowance would be eligible for financial assistance from provincial sources. Ineligibility for the spouse's allowance was not a factor in Ms. Collins' decision to separate from her husband. There was no evidence of spousal abuse and her separation occurred some nine years before Mr. Collins became a pensioner.

[50]            The record provides ample support for the Trial Judge's conclusions about the fiscal costs of the spouse's allowance program, the fiscal and social costs of the alternative programs that might result if this case were resolved in Ms. Collins' favour, and the proportionality between the effects of the impugned provision and its objectives. In my view, the Trial Judge gave appropriate consideration to the availability of provincial financial assistance for Ms. Collins and similarly situated individuals, and was correct to discount the submission that there is a social stigma attached to the receipt of financial assistance under provincial programs as opposed to income tested benefits under the Old Age Security Act.

[51]            Taking all of these factual considerations into account, and bearing in mind that Parliament is better equipped than the Court to find an appropriate balance between the competing interests that arise in this case, I agree with the Trial Judge that the exclusion of separated spouses from eligibility for a spouse's allowance under the Old Age Security Act was justified under section 1 of the Charter.

Disposition

[52]            The appeal should be dismissed. As no costs were requested, none should be awarded.

"K. Sharlow"

J.A.

"I agree

B.L. Strayer J.A."

"I agree

B. Malone J.A."