CANADA

Mixed messages on pensions and payments

The high court rules on family issues

WARREN CARAGATA June 5 1995
CANADA

Mixed messages on pensions and payments

The high court rules on family issues

WARREN CARAGATA June 5 1995

Mixed messages on pensions and payments

CANADA

The high court rules on family issues

There is at first blush nothing much in common between James Egan, Susan Thibaudeau and John Miron. Egan is gay and lives in Courtnay, B.C., with John Nesbit, his partner for the past 47 years. Thibaudeau is a social worker from Trois-Rivières, Que., who is divorced with two children. Miron is an Ottawa-area auto mechanic living common law with Jocelyne Vallière, the mother of his two children. Different people, different lives. But the fates of all of them intersected briefly last week as the Supreme Court of Canada handed down rulings in three separate cases that had as their common denominator the constitutional guarantee of equality and the very notion of what it takes to be a family. As the court is prone to do on social issues, it steered clear of conclusive settlements of controversy, preferring instead to let the politicians come up with legislated solutions. “The courts don’t wish to exceed what they see as their proper role,” said Lynn Smith, dean of law at the University of British Columbia in Vancouver. “It’s a fine line.”

Those hoping for an unequivocal message from the court, in favor of either the traditional mom-dad-and-the-kids family or of other models, were left frustrated. And those hoping for a strong dose of judicial activism were disappointed, as the court widened the room that it gives the government to manoeuvre on social and economic questions. In the Egan case, the nine-member panel ruled unanimously that the equality section of the Charter of Rights and Freedoms outlaws discrimination on the basis of sexual orientation. But at the same time, it decided by the slimmest possible margin—5-4—that the federal government was not discriminating against Egan and Nesbit by refusing them spousal pension benefits. In the case of Thibaudeau, who had become the symbol of a campaign for a system of child support that would provide greater benefits for custodial parents, the high court ruled 5-2 to uphold sections of the Income Tax Act that require a separated or divorced parent with custody of the children—almost always a woman—to

pay tax on child support payments while the parent paying the support—almost always a man—is allowed to deduct the payments. Thibaudeau had argued successfully before the Federal Court of Appeal that she was discriminated against because she had to pay tax on the support payments while her ex-husband got a tax break. Thibaudeau and her supporters said the Supreme Court decision only proved that the law favors men. “I am ashamed to live in Canada and Quebec because the values of the governments are money and power,” she said after the ruling.

In the Miron case, the court also ruled by 5-4 that common-law spouses have the same rights as those who are legally married. And while the case applies specifically to the right to receive automobile insurance benefits, the reasoning in the judgment suggests a much wider application. Following a 1987 automobile accident, Miron was denied accident benefits under Vallière’s automobile policy because he was not legally married to her, despite the fact that they had been living together since 1983. By the range of opinion in the three cases, it was % clear that the issues de| fied consensus as much s inside the courtroom as 5 in society at large. Said Ottawa lawyer Giovanna Roccamo, who acted for Miron: “These decisions are reflective of varying opinions across society.”

The mixed message in the Egan case—what Roccamo called “a bit of a bob and weave”—combined with the rejection of Thibaudeau’s case and the narrow majority in favor of the rights of common-law spouses in the Miron judgment left some court watchers wondering if the the high court was taking a more conservative turn after several years of giving wide scope to the charter. “It could be char-

CLAIMING RIGHTS

In three cases last week, the Supreme Court of Canada ruled on issues of equality before the law and what it takes to be a family:

• Susan Thibaudeau, a divorced mother of two from Trois-Rivières, Que., claimed that federal tax law discriminates against women because the person paying child support (usually a man) receives a tax deduction while the person receiving it (usually a woman) must pay tax on the money. The court ruled 5 to 2 that the current system is constitutional.

• James Egan, 73, had been denied a spousal pension for John Nesbit, 67, his companion of 47 years. The homosexual couple from Courtnay, B.C., claimed they were victims of discrimination. The court unanimously agreed that the equality section of the Charter of Rights and Freedoms outlaws discrimination on the basis of sexual orientation. But it ruled 5 to 4 that the federal government was not discriminating against Egan and Nesbit by refusing them benefits.

• John Miron, an Ottawa-area father of two children born to his common-law wife, Jocelyne Vallière, claimed discrimination after he found that he was not covered by Vallière’s auto insurance policy because they were not legally married. The court ruled 5 to 4 that common-law spouses have the same rights as those who are legally married.

acterized as a bit of a step backward in terms of the kind of concern the court expressed about discrimination,” said David Schneiderman, executive director of the Centre for Constitutional Studies at the University of Alberta. “The court is self-conscious of moving too far ahead of the rest of society.”

But Gerald Chipeur, a Calgary lawyer and chairman of the constitutional and humanrights section of the Canadian Bar Association, said the Supreme Court has been relatively consistent in its wariness about intruding on the government’s right to find compromises on contentious social issues. In the Egan case, it accepted the government’s contention that spousal pension benefits were originally designed to help poor women who had taken time off work to take care of children. And it balanced its inclusion of sexual orientation as an equality right with a statement singing the praises of traditional marriage. Because only male-female couples can have children, the court majority declared, “marriage is by nature heterosexual.” And it added that Parliament is fully within its rights to support an institution that has “from time immemorial been firmly rooted in our legal tradition.” In the Thibaudeau ruling, the

judges accepted the government’s argument that the system of taxation of child benefits was designed to reduce the overall taxes paid by a divorced couple so that more money could be set aside for child care. The court, said Chipeur, is not becoming more conservative. Rather, “what we have seen is lawyers pushing the outer limits of the charter, and if we’re at the outer limits, we can expect the court to set some boundaries.”

In the Thibaudeau and Egan rulings, the court also took account of the effect of its judgments on the cost to the government. In Thibaudeau’s case, the government estimated that for the 1993 taxation year alone, it would have had to refund about $332 million to custodial parents if she had won her battle. “Government must be accorded some flexibility in extending social benefits,” Justice John Sopinka wrote in the Egan decision. “It is not realistic for the court to assume that there are unlimited funds to address the needs of all.” The Supreme Court is also reluctant, observers said, to interfere in the Income Tax Act.

A central characteristic of the charter is its declaration that no rights are absolutely protected. Under Section 1, charter rights are subject to “reasonable limits prescribed by

law as can be demonstrably justified in a free and democratic society.” The Egan case turned out to be a decision as much about the ability of the government to limit rights under Section 1 as about equality. “The bottom line is that Section 1 is the number 1 section,” said Eugene Meehan, a lawyer with Lang Michener in Ottawa and a former officer with the Supreme Court of Canada. Four of the nine judges said that Egan and Nesbit faced discrimination, and four said otherwise. Sopinka, the ninth judge, agreed that there was discrimination— but added that the government had the right to discriminate in this case. “It is legitimate,” he said, “for the government to make choices between disadvantaged groups, and it must be provided with some leeway to do so.”

The judgments brought lengthy legal battles in the three cases to an end. Thibaudeau, however, was left angry and hurt by the ruling against her. She noted bitterly that the only two o women on the court, Justices Beverley McLachlin and Claire L’HeureuxDubé, sided with her against the male majority. But Justice Minister Allan Rock said Thibaudeau should not despair. Before the Commons breaks for its summer recess in late June, Rock said, the government will introduce changes in child-support rules that would change the way custody payments are calculated, taxed and enforced. While the changes must still be agreed on by the cabinet, Rock laid out the principle of the proposed measures. “The children’s interests,” he said, “must be paramount.”

Rock added that the government still plans to introduce changes to the federal humanrights code to include sexual orientation. Egan was disappointed that he and Nesbit did not win their case, but he welcomed the court’s ruling on sexual orientation. “The door will now be opened,” he said. “Sooner or later, the courts will rule in our favor.” But Egan acknowledged that the effect of an unambiguous victory for same-sex couples would have been enormous. “The tradition of centuries would be overturned, the face of society changed completely,” he said. For a high court that appears to measure the temper of the times in its rulings, that was still a bridge too far.

WARREN CARAGATA

LUKE FISHER