Brebric v. Niksic
Krystyna Brebric and Steven Brebric and Krystyna Brebric
as Litigation Guardian for Tomy Brebric, a minor, appellants,
Ivan Niksic, respondent
 O.J. No. 2974
60 O.R. (3d) 630
215 D.L.R. (4th) 643
163 O.A.C. 92
96 C.R.R. (2d) 81
27 R.F.L. (5th) 279
115 A.C.W.S. (3d) 417
Docket No. C36570
†Ontario Court of Appeal
McMurtry C.J.O., Weiler and Armstrong JJ.A.
Heard: March 20, 2002.
†Judgment: July 29, 2002.
On appeal from the judgment of Justice Terry Patterson dated June 18, 2001.
Raymond G. Colautti and Anita Chatterjee, for the appellants.
Mason Greenaway, for the respondent.
Robert E. Charney and Lisa J. Sand, for the intervener Attorney General of Ontario.
The judgment of the Court was delivered by
1 ††††This appeal concerns the constitutionality of the definition of "spouse" in s. 29 of the Family Law Act, R.S.O. 1990, c. F.3, and its application to s. 61 of the Family Law Act for the purposes of defining who may make a claim for damages in tort for the death or injury of a family member through the negligence of a third party. The appellant, Krystyna Brebric, had cohabited with Ante Alivojvodic for about 18 months when Mr. Alivojvodic was killed in a collision between the van in which he was riding and a train. The appellant commenced an action against the respondent, who was the driver of the van, claiming damages pursuant to the Family Law Act, and challenging the definition of "spouse" in s. 29 of that Act. The definition of spouse found in s. 29 includes unmarried couples who have cohabited continuously for a period of not less than three years. The appellant's constitutional challenge is based on the assertion that the definition of spouse discriminates against persons who are in a relationship of some permanence but who have cohabitated in a spousal relationship for less than three years.
2 ††††For the reasons that follow, I am of the view that neither the definition of "spouse" found in s. 29 of the Family Law Act nor its application to s. 61 infringes the Charter, and I would dismiss the appeal from the order of the motions judge.
3 ††††The appellant, Krystyna Brebric, met Ante Alivojvodic on March 6, 1992. They began living together at Mr. Alivojvodic's apartment in the late spring of 1992, and purchased a home together in June 1992. The appellant, her two sons from a previous relationship and Mr. Alivojvodic moved into the home in October 1992. On December 5, 1993, Mr. Alivojvodic was killed in the accident mentioned earlier.
4 ††††Although the respondent disputes the precise length of their relationship, it is agreed for the purposes of this appeal that the appellant and Mr. Alivojvodic cohabited for a period of approximately 18 months. They did not marry, and no children were born of the relationship. During the time that the appellant and Mr. Alivojvodic cohabited, they shared expenses, which included the needs of the appellant's two sons. The couple had planned to marry in February of 1994.
RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS
5 ††††Part III of the Family Law Act, which deals with support, defines "spouse" as follows:
29. In this Part,
"spouse" means a spouse as defined in subsection 1(1), and in addition includes either of a man and woman who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, ...
6 ††††Section 61 in Part V of the Family Law Act permits the recovery of damages and provides a right of action to spouses as defined in s. 29 of the Act and to immediate family members of a person who is injured or killed by the fault or neglect of another, where the person injured or killed is, or would have been, entitled to recover damages. The damages recoverable in a claim made by a spouse pursuant to s. 61 include, among other things, actual funeral expenses reasonably incurred and an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred: s. 61(2).
7 ††††Section 15(1) of the Canadian Charter of Rights and Freedoms provides:
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.
PROCEEDINGS BEFORE PATTERSON J.
8 ††††The appellant and her two sons commenced an action against the respondent seeking damages arising from the wrongful death of Mr. Alivojvodic pursuant to s. 61 of the Family Law Act. The appellant brought a motion for summary judgment before Patterson J. seeking a declaration that, in the circumstances of her case, s. 61 of the Act unfairly discriminates against her, depriving her of a claim for loss of guidance, care and companionship, and a further declaration that ss. 29 and 61 of the Act should be deemed to include her as a claimant. The respondent also brought an application for summary judgment dismissing the appellant's action. Patterson J. dismissed the appellant's motion for summary judgment, declaring that she was not a "spouse" of the deceased, Alivojvodic, as defined in s. 29 of the Act, and dismissed the appellant's action. In a brief endorsement, Patterson J. said:
The s. 61 right to sue under the [Family Law Act] is premised on a person being in a dependent relationship and the section 29 definition of spouse which establishes support obligations on a common law relationship if the three year threshold is met. It is a valid object of the Legislature to use a time period to establish support obligations and also the limited right to sue under the provisions of s. 61. Therefore there is no discrimination.
Further the three year requirement is a valid provision under s. 1 of the Charter in that it is fair for the Legislature to establish time limits in order that citizens will know when support obligations are a possible legal requirement. The right to sue under s. 61 clearly flows from a person being a dependant of a relationship of some degree of permanence as set in Ontario under the F.L.A. at three years.
9 ††††The issues raised in this appeal can be stated as follows:
(1) Does the definition of spouse in s. 29 of the Family Law Act, as it applies to limit the entitlement to maintain a claim for damages pursuant to s. 61 of the Act, violate s. 15(1) of the Canadian Charter of Rights and Freedoms on the basis that it discriminates against persons who are not married and have cohabited for less than three years?
(2) If the definition of spouse does discriminate against the appellant within the meaning of s. 15 of the Charter, can the discrimination be demonstrably justified in a free and democratic society pursuant to s. 1 of the Charter?
10 ††††In Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497, the Supreme Court of Canada set out a three-step framework for analyzing a claim of discrimination pursuant to s. 15(1) of the Charter. Iacobucci J. said at para. 88:
Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:
(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 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?
(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?
11 ††††The Supreme Court has stated that the focus of the three-step inquiry is to establish whether a conflict exists between the purpose or effect of the law in issue and the purpose of s. 15(1), which focuses on protecting human dignity. The purpose of s. 15(1) was described by Iacobucci J. in Law at para. 51:
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.
12 ††††The three-step framework offers guidelines for analysis under s. 15(1) that should be understood as points of reference for a court, not a rigid test that is to be applied mechanically: Law, supra, at para. 88; Falkiner v. Ontario (Director, Income Maintenance Branch),  O.J. No. 1771 (C.A.) at para. 65.
13 ††††The Supreme Court has followed the framework set out in Law, and provided additional general principles and guidelines for analyzing a s. 15(1) claim in several subsequent decisions: see M. v. H.,  2 S.C.R. 3; Granovsky v. Canada (Minister of Employment and Immigration,  1 S.C.R. 703; Lovelace v. Ontario,  1 S.C.R. 950.
In Lovelace, the Court provided further guidance on the purposive and contextual approach to a s. 15(1) challenge, and set out a number of contextual factors which may be relevant when determining whether there is discrimination at the third step of the analysis. Iacobucci J. said at para. 68:
... [T]here are four contextual factors which provide the basis for organizing the third stage of the discrimination analysis. They are: (i) pre-existing disadvantage, stereotyping, prejudice, or vulnerability, (ii) the correspondence, or lack thereof, between the ground(s) on which the claim is based and the actual need, capacity, or circumstances of the claimant or others, (iii) the ameliorative purpose or effects of the impugned law, program or activity upon a more disadvantaged person or group in society, and (iv) the nature and scope of the interest affected by the impugned government activity.
14 ††††It is within the framework first established in Law, supra, and on the basis of these general principles, that I must assess the appellant's s. 15(1) claim.
1. Does the definition of spouse violate s. 15(1) of the Charter?
15 ††††The first step of the Law framework requires the court to determine whether the definition of "spouse" in s. 29 of the Family Law Act imposes differential treatment between the appellant and others on the basis of one or more personal characteristics. As equality is a comparative concept, the court must evaluate claims of distinction and differential treatment by comparison with one or more other persons or groups.
16 ††††The intervener submits that the appropriate comparison for the purposes of this case is between those persons included in the impugned definition and those excluded from it. I note that this Court has recently criticized this approach to defining the appropriate comparator groups on the basis that such an approach can fail to take into account the perspective of the claimant and the effect of the legislation in question: see Falkiner, supra at paras. 68-69. In the present case, however, the comparison suggested by the government - between unmarried persons cohabiting for three years or more and those cohabiting for less than three years - is an appropriate one. The appellant's attack on the constitutionality of the definition of spouse as used in s. 61 of the Act is premised on the fact that it draws a distinction between the appellant and other individuals solely on the basis of the duration of the relationship. Unlike in Falkiner, there is no suggestion that the perspective of the claimant or the effect of the legislation requires a different comparator group than that established by the legislative definition of spouse. I agree that the appellant has been subjected to differential treatment based on the duration of her relationship with Mr. Alivojvodic as a result of the definition of spouse, and that this differential treatment is based on a personal characteristic of the claimant.
17 ††††However, in my view, the appellant's claim falters at the second step of the Law inquiry. At the second stage of the analysis, it must be determined whether the differential treatment suffered by the appellant is based on one or more prohibited grounds of discrimination. The grounds may be enumerated in s. 15(1) of the Charter, or analogous to the grounds that are enumerated.
18 ††††The appellant submits that, as an unmarried individual, she has been discriminated against on the basis of marital status. In Miron v. Trudel,  2 S.C.R. 418, the Supreme Court of Canada held that marital status constitutes an analogous ground of discrimination within the ambit of s. 15(1) of the Charter. The Supreme Court concluded that a law that granted insurance benefits to married couples, which were not accorded to unmarried common law couples, denied equal benefit of the law on the basis of marital status.
19 ††††The present case can be distinguished from Miron v. Trudel, since the benefit at issue is equally accorded to both married and unmarried couples. The only distinction drawn is between unmarried common law couples depending upon the length of their relationship. In my view, a person's status as one who has cohabited with another person for less than three years is not an analogous ground of discrimination within the ambit of s. 15(1) of the Charter. In Corbiere v. Canada,  2 S.C.R. 203, McLachlin and Bastarache JJ. writing for a majority of the Supreme Court of Canada said at para. 13:
... [T]he thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making.
20 ††††The status of being a member of a cohabiting relationship for less than three years is not immutable. Rather, it is an inherently fluid and transitory status that changes with the passage of time and persists for a maximum of three years. This variable status has neither been a historical basis for stereotyping nor a demeaning proxy for merit-based decision making.
21 ††††Although I have already concluded that the appellant has not suffered from differential treatment based on an enumerated or analogous ground of distinction, I will briefly consider the third step in the Law framework. In my view, the definition of spouse in s. 29 of the Family Law Act is not discriminatory.
22 ††††The legislative distinction in the present case does not categorically exclude "common law" couples in a relationship analogous to marriage from Part V of the Family Law Act. Instead, the impugned definition of spouse gives equal recognition to both married and common law spousal relationships. In Egan v. Canada,  2 S.C.R. 513, L'Heureux-Dub» J. stated at para. 64:
... [D]oes the distinction constitute a complete non-recognition of a particular group? It stands to reason that a group's interests will be more adversely affected in cases involving complete exclusion or non-recognition than in cases where the legislative distinction does recognize or accommodate the group, but does so in a manner that is simply more restrictive than some would like. [Emphasis in original.]
The definition of "spouse" is not based on any moral disapproval of unmarried persons who have cohabited for less than three years, and does not interfere with the appellant's dignity or aspirations to human self-fulfilment. The definition, in the words of L'Heureux-Dub» J., is "simply more restrictive than some would like."
23 ††††The definition of spouse in s. 29 of the Family Law Act is tied to the purpose of the legislation. Spousal support obligations that arise on the termination of a relationship have a compensatory purpose of recognizing contributions to the relationship and the economic consequences of the relationship. The right to sue in tort under s. 61 of the Act is premised on the right to claim support that would have been available if not for the death or injury of a spouse. Support obligations and the right to sue are not automatically imposed, but rather arise after three years of cohabitation. This three year "qualifying period" is an attempt to target only those relationships of sufficient duration and demonstrated permanence as to justify the imposition of ongoing private support obligations after the termination of a relationship.
24 ††††The alignment of the s. 29 definition of spouse with the legislative purposes of Parts III and V of the Family Law Act in which it is applied, demonstrates that those who have cohabited for less than three years are quite properly treated differently on the basis of their actual difference in circumstances. Although the specified three year period (at which the requisite degree of duration and permanence is deemed to exist for the purposes of Parts III and V of the Act) may not reflect the characteristics of the appellant's relationship, perfect correspondence with the time period chosen by the legislature is not required. Indeed, in Law Iacobucci J. said at paras. 105-106:
In referring to the existence of a correspondence between a legislative distinction in treatment and the actual situation of different individuals or groups, I do not wish to imply that legislation must always correspond perfectly with social reality in order to comply with s. 15(1) of the Charter. The determination of whether a legislative provision infringes a claimant's dignity must in every case be considered in the full context of the claim ...
... Parliament is entitled ... to premise remedial legislation upon informed generalizations without running afoul of s. 15(1) of the Charter and being required to justify its position under s. 1.
25 ††††L'Heureux-Dub» J. also stated in Egan, supra, at para. 39:
... [A]t the heart of s. 15 is the promotion of a society in which all are secure in the knowledge that they are recognized at law as equal human beings, equally capable, and equally deserving. A person or group of persons has been discriminated against within the meaning of s. 15 of the Charter when members of that group have been made to feel, by virtue of the impugned legislative distinction, that they are less capable, or less worthy of recognition or value as human beings or as members of Canadian society, equally deserving of concern, respect, and consideration.
26 ††††The definition of spouse in s. 29 of the Family Law Act does not demean the appellant's human dignity. The definition does not reflect a view of the appellant that suggests that she is less capable, or less worthy of recognition or value as a human being or member of Canadian society, and, accordingly, is not discriminatory within the meaning of s. 15(1) of the Charter.
2. Section 1 of the Charter
27 ††††In light of my conclusion that the definition of spouse in s. 29 of the Family Law Act, as it applies to limit the entitlement to maintain a claim for damages pursuant to s. 61, does not violate s. 15(1) of the Charter, it is not necessary for me to perform the s. 1 analysis described in R. v. Oakes,  1 S.C.R. 103. However, I will make a few brief comments concerning the definition of spouse established by the legislature.
28 ††††The objective of the Family Law Act as a whole is to, among other things, provide for the equitable resolution of economic disputes when intimate relationships between individuals who have been financially interdependent break down, and to ensure that family members have a means to seek redress when an immediate relative is injured or killed through the negligence of a third party. The legislature chose the three year minimum period of cohabitation found in the definition of spouse as a reasonable indicator of the kind of common law relationships that ought to attract ongoing private support obligations on the termination of a relationship. The same definition of spouse applies to both Parts III and V of the Act because the right to claim damages under Part V is premised on the existence of a support obligation that can no longer be fulfilled due to the injury or death of a member of the couple.
29 ††††As L'Heureux-Dub» J. stated in Miron v. Trudel, supra at para. 117:
Indeed, although the unit deserving of protection can be defined by marriage, it can also be defined in a workable and acceptably certain way by reference to the length of the relationship or to the existence of children. These two criteria have been recognized by the legislature as feasible indicia of interdependence in other statutes which confer rights or obligations upon relationships outside of marriage ... Although deference should be had with respect to policy choices made by the legislature as to what duration of cohabitation is necessary to define such a relationship, courts should not feel obliged to be as deferential when the legislature has simply excluded other possibilities altogether, unless the government can demonstrate that this exclusion is, itself, the product of a reasonable attempt to balance competing social science or policy interests. [Emphasis added.]
30 ††††Patterson J. correctly found that the duration-based definition under s. 29 of the Family Law Act was a "valid provision under s. 1 of the Charter" that had the advantage of providing certainty with respect to legal obligations, stating:
... [I]t is fair for the Legislature to establish time limits in order that citizens will know when support obligations are a possible legal requirement.
31 ††††Although the three year minimum period of cohabitation may not correspond precisely with the characteristics of all common law relationships, any deleterious effects of the definition of spouse are outweighed by the advantages of having an objective standard by which individuals and the courts can determine when state-imposed support obligations and rights of action arise.
32 ††††Therefore, I am of the view that the definition of "spouse" in s. 29 of the Family Law Act, as it applies to limit the entitlement to maintain a claim for damages pursuant to s. 61, constitutes a reasonable limit that can be demonstrably justified in a free and democratic society.
33 ††††I would dismiss the appeal.
34 ††††I would make no order as to costs as the appellant has raised a novel issue and the respondent has relied on the submissions of the Attorney General concerning the constitutionality of the provisions of the Family Law Act.
†WEILER J.A. -- I agree.
†ARMSTRONG J.A. -- I agree.