LeBlanc v. Cushing Estate, 2020 NSSC 162

Supreme Court of Nova Scotia Citation: LeBlanc v. Cushing Estate , 2020 NSSC 162 Date: 20200515 Docket: Yarmouth No. 484289 Registry: Yarmouth Between: Sarah LeBlanc Applicant v. R. Andrew Kimball in his capacity as personal representative of the Estate of Russell Cushing Respondent Library Heading Judge: The Honourable Justice Pierre L. Muise Heard: January 20, 2020 in Yarmouth, Nova Scotia

Summary: Ms. LeBlanc was in a common law relationship with Mr. Cushing. They were not registered as domestic partners. Mr. Cushing died leaving a will under which Ms. LeBlanc was not a beneficiary. She brought an application seeking, among other things, dependants’ relief under the Testators’ Family Maintenance Act (the “ TFMA ”). In a preliminary motion, it was determined that the reference to “widow”, in the TFMA definition of “dependant”, does not include the surviving female in a common law couple, which has not registered a domestic-partner declaration under the Vital Statistics Act .

As a result of that exclusion, Ms. LeBlanc does not fit in the definition of “dependant”, which denies her standing to make a TFMA application. She makes the within motion seeking a declaration that the scheme of the TFMA , which creates that exclusion, is unconstitutional, and reading common law spouses into the definition of “widow”, with retroactive effect. Issues:

(1) Does the exclusion of common law couples, who have not registered as domestic partners, from the TFMA definition of “dependant”, infringe Ms. LeBlanc’s right to equality under s. 15 of the Charter ?

(2) If so, is the infringement a reasonable limit on equality that can be demonstrably justified in a free and democratic society under s. 1 of the Charter ?

a) Is the objective behind the limit pressing and substantial?

b) Is the limit proportional to the objective? i. Is the limit rationally connected to the objective? ii. Does the limit minimally impair the right? iii. Do the beneficial effects of the limit outweigh the detrimental effects?

(3) If there is a s. 15 breach that is not justified under s. 1, what is the most appropriate Charter remedy in the circumstances.

Result: 1. The exclusion of common law couples, who have not registered as domestic partners, from the TFMA definition of “dependant”, infringes Ms. LeBlanc’s right to equality under s. 15 of the Charter . It denies persons in her situation the benefit of standing under the TFMA that is available to married and registered couples, simply because they are married or registered, irrespective of what other steps they have taken to provide for mutual rights and obligations on death. It does so in a manner that has the effect of perpetuating arbitrary disadvantage on them.

A common law couple cannot choose to register while one of them is married, but marriage automatically terminates a domestic partner registration, thus creating a marital status hierarchy in which marriage takes precedence. Limiting testamentary autonomy in a marriage situation, but not a common law situation, prioritizes marriage. 2. The infringement is justified under s. 1. (

a) The objectives are sufficiently important. They are interconnected and include: ensuring the TFMA only applies to those couples who have deliberately chosen and consented to acquiring the rights and obligations of legally married spouses, i.e. preserving choice and autonomy; certainty as to who qualifies to make a TFMA application; and, providing a one-spouse limit on qualifying as widow or widower for the purposes of the TFMA . (

b) The limit on s. 15 rights is proportional to the objectives.

i) Marriage and registration require a deliberate and consensual act, that is recorded, making them rationally connected to the objectives of choice, autonomy and certainty. Excluding a common law spouse from being able to register, and from qualifying as a widow or widower, when their spouse is already married to someone else, is the only way the ensure the one-spouse goal is met and satisfies the rational connection test. ii) Registration is quicker, easier and cheaper than marriage. It is available immediately upon cohabitation.

In that way, it impairs s. 15 rights less than a requirement for a minimum period of cohabitation, which is the measure suggested by Ms. LeBlanc. Even when one member of the common law couple is married, a divorce can be obtained as of right before the minimum period of cohabitation required to apply for inter vivos support (except where there is a child of the common law relationship). Thus, the registration option can permit faster access to the TFMA even where a divorce must be finalized first. In addition, there are alternate means of protection which common law spouses, who are unable to register, can use.

For these reasons, the means selected to achieve the objectives minimally impair the right. iii) The balance of convenience test is satisfied. The fast and inexpensive registration scheme attenuates the detrimental impact on equality rights, compared to the scheme in Quebec, which the Supreme Court of Canada found to be constitutional despite complete exclusion of de facto spouses from the property division and spousal support regimes. Alternative means of protection further attenuate that impact.

The negative impact arising from having to wait for one person in the common law couple to divorce before registering is due to that person’s choice to remain married. The general objective of testamentary autonomy informs assessment of the benefits to be gained from the measures taken to advance the three interconnected objectives.

The benefits of the interconnected measures include: promoting and preserving the choice and autonomy of common law couples; providing certainty to ensure procedural fairness in TFMA applications and to facilitate estate planning and administration; limiting the risk that a survivor will access the benefits of the TFMA without having agreed to accept the corresponding obligations; and, prohibiting a second spouse to limit interference with testamentary autonomy, to facilitate a testator prioritizing support of children, and to avoid providing special benefits only for unregistered common law spouses. 3.

As a result of the conclusion that the s. 15 infringement is justified under s. 1, the impugned legislation is not unconstitutional and it is unnecessary to address the question of remedy. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: LeBlanc v. Cushing Estate , 2020 NSSC 162 Date: 20200515 Docket: Yarmouth , No. 484289 Registry: Yarmouth Between: Sarah LeBlanc Applicant v. R. Andrew Kimball in his capacity as personal representative of the Estate of Russell Cushing

Respondent Judge: The Honourable Justice Pierre L. MuiseHeard: January 20, 2020, in Yarmouth, Nova ScotiaCounsel: Sarah Shiels, Richard Norman and Kilian Schlemmer for the Applicant Rubin Dexter, Jane O’Neil, Q.C., Benjamin Carver and Dan VanClieaf for the Respondents Jeff Waugh and Jeremy Smith for the Attorney General Brian Casey, Q.C. making submissions, with leave, on behalf of Russell Cushing's daughter, Ms.Cushing, represented by her Litigation Guardian, Wendy Cushing INTRODUCTION [1] Subsection 2(

b) of the Testators’ Family Maintenance Act, R.S.N.S. 1989, c. 465 (the “TFMA”) defines “dependant” asmeaning, among other things, the “widow” of a testator. In LeBlanc v.

Estate of Russell Cushing, 2019 NSSC 360, I concluded that“widow” in that definition “does not include a surviving female who was in a common law relationship with the testator at the time of thetestator’s death, unless, at the time of the testator’s death, they were registered as a domestic partnership” under the Vital Statistics Act,R.S.N.S. 1989, c. 494 (the “VSA”). [2] Only a “dependant” has standing to apply for relief under the TFMA. [3] It is conceded that Sarah LeBlanc was in a common law relationship with Russell Cushing when he passed away suddenly andunexpectedly.

In addition, she is not named as a beneficiary under his will. However, since they were not registered as a domesticpartnership, the definition of “widow” prevents her from seeking relief under the TFMA. [4] Therefore, she brings the within motion under the Canadian Charter of Rights and Freedoms (the “Charter”) challenging theconstitutionality of a TFMA definition of “dependant” that excludes common law couples who have not registered as domestic partners. She asks that it be declared unconstitutional and that common law spouses be read into the definition of “widow”, with retroactive effect,at least for her.

ISSUES 1) Does the exclusion of common law couples, who have not registered as domestic partners, from the TFMA definition of“dependant”, infringe Ms. LeBlanc’s right to equality under s. 15 of the Charter? 2) If so, is the infringement a reasonable limit on equality that can be demonstrably justified in a free and democratic society under s. 1of the Charter? a. Is the objective behind the limit pressing and substantial? b. Is the limit proportional to the objective? i. Is the limit rationally connected to the objective? ii. Does the limit minimally impair the right? iii.

Do the beneficial effects of the limit outweigh the detrimental effects? 3) If there is a s. 15 breach that is not justified under s. 1, what is the most appropriate Charter remedy in the circumstances? LAW AND ANALYSIS ISSUE 1: DOES THE EXCLUSION OF COMMON LAW COUPLES, WHO HAVE NOT REGISTERED AS DOMESTICPARTNERS, FROM THE TFMA DEFINITION OF “DEPENDANT”, INFRINGE MS.

LEBLANC’S RIGHT TO EQUALITY UNDERS. 15 OF THE CHARTER? [5] Subs. 15(1) of the Charter provides that: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental orphysical disability.” [6] S. 15 provides protection against discrimination based on the enumerated grounds and analogous grounds. There is no disputethat marital status is an analogous ground: Miron v. Trudel, (SCC), [1995] 2 S.C.R. 418. Ms.

LeBlanc’s Position

[ 7 ] Ms. LeBlanc’s argument that the TFMA ’s exclusion of common law spouses that have not registered breaches s. 15 of the Charter is as follows. [ 8 ] In Quebec (Attorney General) v. A. , 2013 SCC 5 , five of the nine judges concluded that the exclusion of de facto spouses from the inter vivos property division and spousal support regime in Quebec infringed s. 15. In doing so they noted that the s. 15 analysis has changed since Nova Scotia (Attorney General) v.

Walsh , 2002 SCC 83 , where the majority concluded that exclusion of “unmarried cohabiting opposite sex couples” from the definition of “spouse” in the Matrimonial Property Act , R.S.N.S. 1989, c. 275 (the “ MPA ”) did not infringe s. 15. Therefore, the conclusion on s. 15 in Walsh is no longer binding. Even if it was still binding, the TFMA deals with support following death. As such, it is distinguishable from property division following separation. [ 9 ] Miron and Quebec v.

A. bind this court to find a violation of s. 15. [ 10 ] “[L]aws that on their face exclude unmarried spouses to the preference of married spouses are inconsistent with the equality guarantees enshrined in the Charter ”: R v. Legge , 2014 ABCA 213 , para 34 . Other courts in Canada have found the law is settled on that point. For example, R v. Hall , 2013 ONSC 834 , and Coates v. Watson , 2017 ONCJ 454 . [ 11 ] Similar dependants’ relief legislation in other provinces has been found to violate s. 15 because it excludes common law couples: Grigg v.

Berg Estate , 2000 BCSC 36 , and Woycenko Estate, Re , 2002 ABQB 640 . [ 12 ] The TFMA allowing only married spouses and registered domestic partners to advance a claim, and excluding common law spouses from doing so, creates a distinction based on an analogous ground. [ 13 ] It denies a benefit “in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage”, making the distinction discriminatory, for the following reasons. [ 14 ] “A claimant is not obligated to prove that the legislature acted on or perpetuated prejudice or stereotypes.

Nor is the claimant required to prove an unquantifiable abstraction about human dignity.” [ 15 ] “A substantive equality analysis focusses on the impact of the law on the claimants”. [ 16 ] Initially, “common law spouses were excluded based on societal disapproval of unmarried spouses”. That same historical disapproval was exhibited against Ms. LeBlanc by “locking her out of the shared residence, denying her access to [Ms. Cushing, Mr. Cushing’s daughter], and labelling her a ‘girlfriend’”.

Excluding a common law spouse from being able to apply for support from their deceased spouse’s estate, at a time when they are most vulnerable, is detrimental to her “sense of autonomy and dignity”. [ 17 ] She could have applied for support on separation while Mr. Cushing was still alive under Nova Scotia’s Parenting and Support Act . She provided evidence of financial and other hardships she has suffered since his passing and the consequences of her lack of standing as a dependant under the TFMA . She argues it conveys that her common law relationship with Mr.

Cushing, of over three years, is not worthy of protection. [ 18 ] Marriage and registration of a domestic partnership are virtually the same because they require the express consent of both persons in the couple. However, a relationship of dependency can arise without such express consent.

Common law spouses are denied standing without regard for the nature of their relationship or the dependency of the survivor. [ 19 ] The amendments made in 2000, and subsequently, to the VSA , provide that two people who are cohabiting, or intending to do so, can, subject to specified exceptions, register as domestic partners, and thereby acquire the same rights and obligations as “a widow or widower” under the TFMA .

However, that does nothing to diminish the “perpetuation of historic disadvantage suffered by common law spouses” for: “a vulnerable, economically dependent common law spouse whose partner refused to marry or enter into a domestic partnership”; and, those who cannot marry or register a domestic partnership, such as where one of them is still married (one of the specified exceptions).

That illustrates the reality that some individuals in common law relationships do not have an opt-in choice, as discussed by McLachlin, J., as she then was, in Miron , at paragraph 163 . [ 20 ] The “exclusion relies on a false stereotype, namely, the assumption that common law spouses have voluntarily chosen their relationship status in order to avoid a mandatory legal regime imposed on married and civil union spouses”. That argument is extracted from the comments of Chief Justice McLachlin in Quebec v.

A . [ 21 ] The question of choice is “irrelevant to the question of discrimination” and is to be considered as part of the s. 1 analysis: Lubianesky v. Gazdag , 2018 ABQB 290 , paras 40 to 44 , citing Abella, J. in Quebec v. A . [ 22 ] Ms. LeBlanc responded to the argument advanced by Ms. Cushing that there was no distinction between Ms. LeBlanc and any other person because, with Mr. Cushing being still married, no one could acquire a marital status that would bring them within the meaning of “widow” in the TFMA . She referred to Linder v.

Regina (City) , 2006 SKQB 68 , where the legislation prevented a surviving common law spouse, named as a beneficiary of the deceased’s pension plan and group insurance benefits, from receiving the survivor benefits under the pension plan, because the deceased had a surviving married spouse. The court in Linder concluded that infringed s. 15 and directed a trial of the s. 1 issue. Ms.

LeBlanc also referred to other legislation in Nova Scotia, and cases from other provinces dealing with their own legislation, where both common law and married spouses were able to make claims at the same time, including for dependants’ relief. The cases included: AXA Insurance Company of Canada v. Prince , 1998 CarswellOnt 1584 (C.A.) ; Austin v. Goerz , 2007 BCCA 586 ; and Prelorentzos v. Havaris , 2015 ONSC 2844 . The Nova Scotia legislation included the Parenting and Support Act , Hospitals Act and Pension Benefits Act of Nova Scotia.

The Estate’s Position [ 23 ] The Estate concedes that the TFMA definition of “dependant” makes a distinction based on marital status “between the surviving spouse of a legal marriage and the surviving spouse of a common law relationship”. However, it argues that Ms. LeBlanc has

not proven that the TFMA distinction “has the effect of perpetuating disadvantage”, for the following reasons. [ 24 ] Couples can access rights and obligations under the TFMA through a simple registration process. Ms. LeBlanc and Mr. Cushing did not [and could not] register because Mr. Cushing remained married to his wife until the time of his death. The evidence does not show that the differential treatment was due to the TFMA as opposed to the decisions of Mr. Cushing and his wife not to get divorced. [ 25 ] Mr. Cushing met with his lawyer slightly over one week before his death.

He did not express a desire to provide for Ms. LeBlanc in his will. He left his daughter, Ms. Cushing, as the main beneficiary. He chose to advance a cohabitation agreement as part of estate planning. [ 26 ] Competing Charter rights must be “reconciled” under s. 15 with an appreciation for the context. That means they must be “defined so that they do not conflict with each other”.

It differs from the “balancing” of rights under s. 1, where the court is tasked with prioritizing one right or interest over another: Iacobucci, J., “ ‘Reconciling Rights’ the Supreme Court of Canada’s Approach To Competing Charter Rights” (2003), 20 S.C.L.R. (2d) 137 . In Lawen Estate v. Nova Scotia (Attorney General) , 2019 NSSC 162 , the court concluded that testamentary autonomy is a fundamental right under s. 7 of the Charter that was violated by the TFMA to the extent that it was “undermined by being subject to a purely ‘moral’ claim by an independent adult child”.

The domestic partnership registration process reconciles the right of a surviving partner to standing under the TFMA “equal to that of married spouses” and the right to testamentary autonomy. [ 27 ] The court in Jackson Estate v. Young , 2020 NSSC 5 , dealt with the constitutionality of the exclusion of common law spouses, not registered as domestic partners, from the definition of spouse in the Intestate Succession Act , R.S.N.S. 1989, c. 236 (the “ ISA ”). In that case, the s. 15 violation was conceded, and the court found that it was established.

However, the same result need not obtain in the case at hand because the need to reconcile the right to testamentary autonomy does not arise with the ISA . The Attorney General’s Position [ 28 ] The Attorney General takes no position on the s. 15 infringement issue. Ms. Cushing’s Position [ 29 ] Ms. Cushing advances multiple reasons why the court should find that there is no s. 15 violation. As signalled by her comment that some of the s. 15 analysis is useful even if there is a need to proceed to the s. 1 analysis, some of her arguments are more geared to the question of justification.

Her s. 15 arguments are as follows. [ 30 ] Ms. LeBlanc has not shown that the scheme of the TFMA creates a distinction. Mr. Cushing was married, so no one could acquire spousal status with him, either through a marriage ceremony or registration of a domestic partnership. The legislation limits each person to having one spouse at a time for the purposes of standing under the TFMA . So, the legislation treats Ms. LeBlanc the same as everyone else.

She is asking for a special rule and more favourable treatment that will afford standing, as a second spouse, to the survivor of a common law couple which has not registered a domestic partnership. [ 31 ] The Supreme Court of Canada has recently presented differing formulations of the test to determine when different treatment is discriminatory, including in Quebec v. A. , Kahkewistahaw First Nation v. Taypotat , 2015 SCC 30 , and Centrale des syndicats du Qu ٞ ébec v. Attorney General of Quebec , 2018 SCC 18 .

Those formulations can be summarized in the following questions geared to the circumstances of the case at hand: Does the distinction ‘widen the gap’ between common law couples who do not register, and couples (married or domestic partners) who do register for the purposes of the TFMA ? Are unregistered common law couples at a historical disadvantage compared to registered couples? Does it violate the norm of substantive equality?

Is the disadvantage discriminatory because it is as a result of prejudice or stereotypes or does it perpetuate prejudice or stereotypes? [ 32 ] Any different treatment in the case at hand is not discriminatory for the reasons which follow. [ 33 ] The registration scheme does not widen the gap, it narrows it from what existed previously. The domestic partner registration process is quicker, easier and cheaper than marriage and marriage registration. It can be accessed immediately upon cohabitation.

There is no minimum cohabitation period to qualify. [ 34 ] The “civil union” process in Quebec is akin to a civil marriage in Nova Scotia. Thus, the domestic partner registration process in Nova Scotia distinguishes the scheme of the TFMA from the support and property division schemes in Quebec. The gap between registered and unregistered common law couples in Nova Scotia is much narrower than that between civil unions and de facto spouses in Quebec. That makes it such that the majority s. 15 result in Quebec v. A. need not obtain in the case at hand.

Though the s. 15 conclusion in Walsh was overruled in Quebec v. A. , the new regime put in place since Walsh, which narrows the gap, makes it such that Walsh could pass the newly modified s. 15 test. [ 35 ] The Jackson Estate case, where the parties agreed, and the court found, that there was a s. 15 infringement, is distinguishable on the basis that neither the deceased nor the survivor were married to someone else. Therefore, it was possible for someone to have become a spouse of the deceased while he was still living, through marriage or registration of a domestic partnership.

Grigg and Woycenko are distinguishable on the same basis, and on the basis that Nova Scotia has a way, other than marriage, to acquire standing under the TFMA . [ 36 ] Ms. Cushing advances that, as noted in Canadian Foundation for Children, Youth and the Law v. Canada , 2004 SCC 4

, [2004] 1 S.C.R. 76, at paragraph 53, “whether discrimination exists is assessed from the point of view of a reasonable couplewho have the attributes of LeBlanc’s relationship with Russell Cushing”. Mr. Cushing was a lawyer who had just received estateplanning advice. He understood the legal significance of his relationship with Ms. LeBlanc. Since he was still married, they could notachieve spousal status. Absent registration through mutual consent there are alternative ways of providing for their mutual rights andobligations. Mr. Cushing was pursuing the option of a cohabitation agreement and Ms.

LeBlanc had life insurance on Mr. Cushing. “It isnot discriminatory to treat people who have expressly consented and are free to marry differently from those who have not and are not.” [37] “Recognizing the choice of some common law couples not to register does not ‘widen the gap’ between common law andmarried couples.” Unless every couple of any nature is included there will always be a gap. Registration is available immediately andeasily.

Making the registration requirement the gap, instead of an arbitrary period of cohabitation, is not discriminatory. [38] There is no indication of stereotyping of, or prejudice against, unregistered common law couples to be perpetuated. Thedifference in treatment simply reflects their choice. Ms. LeBlanc has not provided evidence “to show that the different treatment has theeffect of ‘widening the gap’, perpetuating prejudice against couples that do not register, or is based on a stereotype about couples who donot register”.

The court cannot take judicial notice of it. [39] Treating couples who choose to register different from those who do not is not discriminatory, if there is a good reason for it. Agood reason which obtains in the circumstances of the case at hand is the preservation of the testator’s ability to provide for the child ofa prior relationship, especially considering the law requires prioritization of such support obligations over spousal and other supportobligations arising from subsequent relationships. [40] It is also not discriminatory that Ms.

LeBlanc qualifies as a spouse under some legislation but not as a widow under the TFMA. Different legislation has different purposes.

The question is whether married, domestic partner and common law relationships “are sosimilar for the purposes of a claim to someone’s estate that it is discriminatory to treat them differently”. “If the couples are different, itis not a breach of equality rights to treat them differently.” [41] In addition, for some legislation, such as the Fatal Accidents Act, “there is no adversity in interest between the common law‘spouses’”. [42] The court is required to consider testamentary autonomy.

The registration requirement gives testators certainty regarding theirobligations, when they are making testamentary decisions. [43] After death, when the testators are no longer available to testify, it removes uncertainty regarding who qualifies as a widow orwidower. Preliminary Comments on Arguments Advanced S. 15 Test [44] The s. 15 test is most often expressed as a two-step test. [45] The Supreme Court of Canada has, in Quebec v.

A. and subsequent cases, articulated the first step in the following ways: Do “the provisions in question create an adverse distinction based on an enumerated or analogous ground’? [LeBel J., in Quebec v. A,at para 236] “Does the law create a distinction based on an enumerated or analogous ground?” [Abella J. and McLachlin C.J.C., in Quebec v.

A, atparas 324 and 418; Côté J., for 4 of the 9 judges in Centrale des syndicats du Québec, at para 117] “[W]hether, on its face or in its impact, a law creates a distinction on the basis of an enumerated or analogous ground.” [Abella J., for aunanimous court, in Taypotat, at para 19] “Does the challenged law, on its face or in its impact, draw a distinction based on an enumerated or analogous ground”? [Abella J., for 4of the 9 judges in Centrale des syndicats du Québec, at para 22] [46] Whether the distinction is adverse might more properly be considered in the second step of the test.

However, the followingfirst step test incorporates the elements expressed in these various formulations: Does the challenged law, on its face or in its impact, create or draw an adverse distinction based on an enumerated or analogous ground? [47] Justices of the Supreme Court of Canada in those same cases articulated the second step of the test in the following ways: Is the resulting disadvantage “discriminatory because it perpetuates prejudice or stereotypes”? [LeBel J., in Quebec v.

A, at para 236] Is the resulting disadvantage “discriminatory from the point of view of a reasonable person placed in circumstances similar to those of”the claimant? [McLachlin C.J.C., in Quebec v. A, at para 423] “[W]hether the distinction is discriminatory”. [Abella J., in Quebec v.

A, at para 349] Whether a “flexible and contextual inquiry” reveals “a distinction has the effect of perpetuating arbitrary disadvantage on the claimantbecause of his or her membership in an enumerated or analogous group”. [Abella J., for a unanimous court, in Taypotat, at para 16] “Does the challenged law … impose ‘burdens or [deny] a benefit in a manner that has the effect of reinforcing, perpetuating orexacerbating … disadvantage’, including ‘historical’ disadvantage?” [Abella J., for 4 of the 9 judges in Centrale des syndicats duQuébec, at para 22]

“Does the distinction create a discriminatory disadvantage by, among other things, perpetuating prejudice or stereotyping” considering mainly “the impact of the law”? [Côté J., for 4 of the 9 judges in Centrale des syndicats du Québec , at para 117] [ 48 ] The evolution of the test for discriminatory effect from a simple statement of whether it “perpetuates prejudice or stereotypes” appears to have been prompted by the statement in Withler v.

Canada , 2011 SCC 12 , at paragraph 2 , that “[a]t the end of the day there is only one question: Does the challenged law violate the norm of substantive equality in s. 15(1) of the Charter ?” That statement was made in the course of comments introducing a case turning on “comparison” and “’mirror’ comparator groups”. Paragraph 2, with case reference omitted, states: [2] … In our view, the central issue in this and other s. 15(1) cases is whether the impugned law violates the animating norm of s. 15(1), substantive equality … .

To determine whether the law violates this norm, the matter must be considered in the full context of the case, including the law’s real impact on the claimants and members of the group to which they belong. The central s. 15(1) concern is substantive, not formal, equality. A formal equality analysis based on mirror comparator groups can be detrimental to the analysis. Care must be taken to avoid converting the inquiry into substantive equality into a formalistic and arbitrary search for the “proper” comparator group.

At the end of the day there is only one question: Does the challenged law violate the norm of substantive equality in s. 15(1) of the Charter ? [ 49 ] Abella J., in Quebec v. A. , at paragraph 325, explained that “[p]rejudice and stereotyping are two of the indicia that may help answer that question; they are not discreet elements of the test which the claimant is obliged to demonstrate”. [ 50 ] Similarly, McLachlin C.J.C., in Quebec v.

A. , at paragraph 418, stated: While the promotion or the perpetuation of prejudice, on the one hand, and false stereotyping, on the other, are useful guides, what constitutes discrimination requires a contextual analysis, taking into account matters such as pre-existing disadvantage of the claimant group, the degree of correspondence between the differential treatment and the claimant group’s reality, the ameliorative impact or purpose of the law, and the nature of the interests affected … . [ 51 ] Then, at paragraphs 419 and 420, she added the following points: [419] … First, the issue of whether the law is discriminatory must be considered from the point of view of “the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant” … . [420] Second, a legal distinction can be discriminatory either in purpose or in effect.

As a practical matter, legislatures seldom set out to discriminate on purpose; discrimination when it occurs is usually a matter of unintended effect. [ 52 ] Their approach differed from that of LeBel J., in Quebec v. A. , which he explained, at paragraph 169, as follows: Once a distinction is found to exist, therefore, the main question must always be the same: does the distinction create a disadvantage by perpetuating prejudice or stereotyping? In other words, if there is a distinction, is it discriminatory? The Court [referring to the Court in Withler and R. v.

Kapp , 2008 SCC 41 ] therefore stressed the importance of the factors of perpetuation of prejudice and stereotyping. While it did not make them the only factors, it determined that they were crucial to the identification of discrimination and to the application of the analytical framework for s. 15. [ 53 ] In Quebec v. A. , Decshamps J., Cromwell J. and Karakatsanis J. agreed with Abella J. that s. 15 had been infringed, and, McLachlin C.J.C. , conducting her own analysis, came to the same conclusion. Therefore, a majority of the Court in Quebec v. A. approved of the Abella/McLachlin approach.

Abella J. also used a test which did not require perpetuation of prejudice or false stereotypes, for a unanimous court, in Taypotat , supra . [ 54 ] Later, she did the same for four of nine judges in Centrale des syndicats du Québec , supra . In that case, Côté J., for 4 of the 9 judges, used a test which referred to perpetuation of prejudice or stereotyping, and found that there was no s. 15(1) infringement as the distinction was not based on an enumerated ground and was not discriminatory.

However, at paragraph 134, she stated: “The claimant must … prove that the law creating a distinction has a discriminatory impact in that it perpetuates a disadvantage faced by the group in question.” That indicates she referred to perpetuation of prejudice or stereotyping as examples of what might “create a discriminatory disadvantage”, not as a requisite element. [ 55 ] McLachlin C.J.C., agreed with Abella J. that there was a breach of s. 15(1).

Thus, again, at least a majority of the Court, and it appears the Court as a whole, approved a test for discrimination which did not require proof of perpetuation of prejudice or false stereotypes. [ 56 ] Abella J., in Taypotat , at paragraphs 20 and 21 , provided the following expanded explanation of the test and its application: [20] The second part of the analysis focuses on arbitrary — or discriminatory — disadvantage, that is, whether the impugned law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage: The root of s. 15 is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed.

If the state conduct widens the gap between the historically disadvantaged group and the rest of society rather than narrowing it, then it is discriminatory. [ Quebec v. A , at para. 332] [21] To establish a prima facie violation of s. 15(1), the claimant must therefore demonstrate that the law at issue has a disproportionate effect on the claimant based on his or her membership in an enumerated or analogous group.

At the second stage of the analysis, the specific evidence required will vary depending on the context of the claim, but “evidence that goes to establishing a claimant’s historical position of disadvantage” will be relevant: Withler , at para. 38 ; Quebec v. A , at para. 327.

[ 57 ] Therefore, a formulation of the second step of the s. 15(1) test which appears to reflect the current approach of a majority of the Supreme Court of Canada is as follows: Does the distinction created or drawn by the challenged law impose burdens or deny a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating arbitrary disadvantage on the claimant, including historical disadvantage? [ 58 ] The question must be assessed “from the point of view of” a “reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant” , considering mainly “the impact of the law”.

Answering the question involves considering whether the law “widens the gap between the historically disadvantaged group and the rest of society rather than narrowing it”. Application of S. 15 Test First Step [ 59 ] Does the challenged law, on its face or in its impact, create or draw an adverse distinction based on an enumerated or analogous ground? [ 60 ] Ms. Cushing says that, in the circumstances of the case at hand, it does not because no one could have acquired the status of widow under the TFMA , as Mr.

Cushing was married, meaning that he could not enter into a valid marriage or registered domestic partnership with anyone. Allowing Ms. LeBlanc to acquire that status would be creating an exception to the one-spouse rule only for the benefit of common law couples that have not registered as a domestic partnership. [ 61 ] The court in Linder , supra , dealt with a similar situation, in a different context, as described above while outlining Ms. LeBlanc’s position. The circumstances were similar to those in the case at hand.

The legislation prevented a common law spouse from receiving survivor benefits, despite being the named beneficiary, because the deceased was still married to someone else at the time of his death.

At paragraph 51, the court stated that the fact the deceased and his wife “chose not to determine their respective property rights … does not affect the differential treatment now experienced by Marilyn Linder who was not in a position to effect a determination of those property rights”. [ 62 ] This comment was made in the context of legislation dealing with the relationship between the common law couple as a unit and a third party, as opposed to the relationship of those in a common law couple as between themselves.

In that way, it is distinguishable from the case at hand and other cases where the rights and obligations of common law spouses between themselves are at issue. Also, the “choice” referenced is the choice made by the side of the common law couple that was still married, not the couple’s choice of marital or cohabitation arrangement. In that way, it is distinguishable from Quebec v. A. , in which the majority ruled that the question of choice was to be dealt with as part of the s. 1 justification analysis. [ 63 ] Therefore, Mr. Cushing’s choice to remain married can be considered in the s. 15(1) analysis.

However, it is more properly considered as part of the second step. [ 64 ] For the purposes of this first step, I agree with the positions of Ms. LeBlanc and the Estate in that, on its face, the scheme of the TFMA does create an adverse distinction between married spouses and registered domestic partners, on the one hand, and unregistered common law spouses, on the other hand. The adverse distinction is that it only allows the married spouse or registered domestic partner to pursue a claim under the TFMA . In arriving at this conclusion, I leave the impact of Mr.

Cushing’s choice to remain married to the second step of the s. 15 analysis. Second Step [ 65 ] Does the distinction created or drawn by the challenged law impose burdens or deny a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating arbitrary disadvantage on the claimant, including historical disadvantage? [ 66 ] The question must be assessed “from the point of view of” a “reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant”, considering mainly “the impact of the law”.

Answering the question involves considering whether the law “widens the gap between the historically disadvantaged group and the rest of society rather than narrowing it”. [ 67 ] The court in Linder , supra , found an infringement of s. 15(1), stating, at paragraph 53: In Miron , supra , in excluding the common law spouse from benefits, the legal distinction was imposed on the common law couple by legislation without regard to their own wishes or their own view of the relationship.

The same can be said for The Pension Benefits Act, 1992 in that the common law spouse is excluded from the receipt of benefits by the legislation by virtue of there being a surviving married spouse, without consideration for the views of the common law couple, or indeed the deceased member who had named his common law spouse as his designated beneficiary. [ 68 ] The case at hand is distinguishable on the following bases: - The legislation challenged in Linder was the Saskatchewan Pension Benefits Act, 1992 , which addressed the rights of the surviving common law spouse against a third party.

The TFMA addresses the rights and obligations of couples as between themselves. - In Linder , the legislation prevented the surviving common law spouse from receiving the survivor benefits even though the deceased had named her as beneficiary, thus ignoring his views. The scheme of the TFMA does not prevent a common law spouse from being a beneficiary of her deceased common law spouse’s will, even if the deceased testator was still married at the time of his death. It merely allows that married spouse to make a claim under the TFMA .

In that way, it considers the views of the testator and allows them to provide for their common law spouse.

[ 69 ] Similarly, Miron , supra , is distinguishable because it dealt with the surviving common law spouse’s rights as against a third party, in that case an automobile insurer. [ 70 ] The case at hand is also distinguishable from Quebec v. A. , Grigg , Woycenko, supra , and all other cases in which the reciprocal rights and obligations of the couple as between themselves were at play, but neither person in the couple was married to someone else. The fact that Mr.

Cushing was still married to someone else brings into consideration the one-spouse rule, which I will discuss further later. [ 71 ] The issue in Legge , supra , was whether the common law spousal immunity rule, which made it such that the Crown could not compel the spouse of an accused to testify, applied as between common law spouses. Though it considered Charter values, it did not involve a Charter application to declare a law unconstitutional.

Hall , supra , dealt with the common law rule preventing the Crown from compelling an accused’s spouse to testify, as well as s. 4 of the Canada Evidence Act , which had the same effect. It did find an unjustified infringement of s. 15(1) of the Charter .

However, in both of those cases, as in Linder , the rights and obligations at play were in relation to third parties, i.e. the Crown, who wanted the accused’s common law spouse to testify, and the court in which the accused’s trial was unfolding. [ 72 ] The significance of the rights and obligations at play being in relation to third parties is that: the interests of the couple are not adverse to each other; and, the law has effect irrespective of the wishes or expectations of the persons in the conjugal relationship.

Where, as in the case at hand, the equality rights of the claimant must be reconciled with the rights to testamentary autonomy, the wishes and expectations of the testator take on greater significance. [ 73 ] Coates , supra , dealt with the child’s right to support, not a spouse’s right to support or to share in assets. In addition, the laws in question, one provincial, the other federal, created a distinction related to the marital status of the parents based on whether the child was disabled or not. Neither of the parents, who had lived common law, was married to someone else.

However, that would not be a relevant distinguishing feature in a child support case. [ 74 ] The distinguishing features discussed make it such that the s. 15(1) result in the cases noted need not obtain in the case at hand. [ 75 ] The fact that other legislation in Nova Scotia, and legislation from other provinces, including dependants’ relief legislation, allows both married and common law spouses to make a claim at the same time, does not make the differing effect of the TFMA scheme discriminatory. I also note the following in relation to the cases provided by Ms. LeBlanc on that point and referred to above.

AXA Insurance v. Prince dealt with no-fault automobile accident death benefits, thus relations with third parties. Austin v. Goerz and Prelorentzos v. Havaris dealt with estates where the deceased did not have a will. Therefore, testamentary autonomy was not a relevant factor. I note the following. The Ontario Succession Law Reform Act , dealt with in Prelorentzos v. Havaris , only allowed married spouses to claim a preferential share of an intestate’s estate.

However, both a married spouse and an unmarried spouse who had “cohabited continuously for a period of not less than three years” could make a dependants’ relief claim. That differing standing rule was not challenged.

However, it is an example of how legislatures can provide for different standing rules related to marital status for different purposes, even within the same statute. [ 76 ] The majority in Walsh , supra , found that the exclusion of common law spouses from the Matrimonial Property Act did not infringe s. 15(1) , largely because it respected their freedom to choose their own marital arrangement, and, if they wished, to provide for the same mutual benefits and responsibilities imposed on married spouses under the MPA in other ways.

It also found that the distinction in that case did not perpetuate prejudice or stereotyping. However, the majority in Quebec v. A. ruled that the question of respecting the choice and autonomy of common law couples was a legislative objective to be considered at the s. 1 justification stage, not the s. 15 stage. In addition, it ruled that, although perpetuation of prejudice or stereotyping is relevant to the s. 15 inquiry, it is not a necessary element.

Therefore, the s. 15 result in Walsh need not obtain in the case at hand either. [ 77 ] I agree that the s. 15 result in Jackson Estate need not obtain in the case at hand because that case dealt with intestate succession such that testamentary autonomy was not a relevant consideration, and neither common law spouse was legally married to anyone. [ 78 ] I also agree that a further reason to find that the s. 15 result in Quebec v.

A. is not binding in the case at hand is that the “civil union” process in Quebec is akin to a civil marriage in Nova Scotia, and the gap between registered and unregistered Nova Scotia common law couples is much narrower than that between civil unions and de facto spouses in Quebec. [ 79 ] These distinguishing features have a policy element which makes them also applicable to a s. 1 analysis. [ 80 ] I do not agree that the availability of alternate means for common law spouses to provide for their mutual rights and obligations makes it such that the exclusion of common law spouse from the TFMA regime is non-discriminatory.

That is because common law couples are still denied the benefit of standing that the legislation affords married spouses or registered domestic partners. That benefit is the right to apply for relief post-mortem irrespective of what steps have been taken, beyond marrying or registering, to provide for mutual rights and obligations on death. [ 81 ] As agreed by all participants in this motion, and recognized even by the four judges in Quebec v.

A. who found there was no s. 15 violation, common law couples have suffered historical disadvantage initially rooted in prejudice, and common law relationships have traditionally been treated as less deserving of protection, and even “immoral”. However, over time, the negative attitudes towards common law spouses have dissipated. They are no longer subject to the opprobrium of the public that they once were.

Many statutes which traditionally only extended protections or benefits to legally married spouses now extend them also to common law spouses. [ 82 ] The TFMA , from its inception in 1956, until the coming into force of the Law Reform

(2000) Act , S.N.S. 2000, c. 29 , did not provide standing to any common law spouses to apply for relief. The amendments the Law Reform

(2000) Act brought to the VSA allowed common law spouses, and others, to register as domestic partners and thereby acquire the rights and obligations of a “widow or widower” under the TFMA .

[ 83 ] That had the effect of narrowing the gap that previously existed between married and common law spouses, except where, as in the case at hand, it is not possible for common law spouses to register, because, among other disqualifying situations, one person in the common law couple is still married to someone else. In those circumstances, for the purpose of the TFMA , the historical gap remains. The question of the couple’s choice to register, even if it was part of the s. 15 analysis, could not remove discriminatory effect where that choice is not available. [ 84 ] Ms.

LeBlanc submits her evidence reveals perpetuation of prejudice and stereotyping because: some of Ms. Cushing’s extended family blocked her from having access to the house where she lived with Mr. Cushing and to Ms. Cushing; and, referred to her as his girlfriend. However, the evidence falls short of revealing prejudice and stereotyping. [ 85 ] Her own affidavit evidence says the following. She was allowed to stay in the home. She moved in with her parents for awhile, planning to move back in. However, after she was told, by Ms. Cushing’s maternal aunt, that they thought it was best they cut her out of Ms.

Cushing’s life, she, herself, changed her plans to move back in and decided instead to renovate her own house. The comment regarding cutting Ms. Cushing out of her life was prefaced by an acknowledgement that she had “been an excellent influence, and role model, and … a godsend into that family” but that they believed it was in Ms. Cushing’s “best interest” because the “back and forth”, and seeing her, kept reminding Ms. Cushing of “what she lost”. It does not reveal any prejudice towards a common law relationship, only concern for Ms. Cushing. At that point, only Ms.

Cushing’s mother was responsible for her care. [ 86 ] The affidavit of Deborah Henderson, Mr. Cushing’s sister, states that Mr. Cushing introduced Ms. LeBlanc to her as his “girlfriend”. The affidavit of his other sister, Susan Berry, simply states that Ms. LeBlanc was Mr. Cushing’s “girlfriend”. Those affidavits were prepared and filed before the Estate conceded that Mr. Cushing and Ms. LeBlanc had been in a common law relationship. In those circumstances, it is understandable that they would not refer to them as living common law to protect the Estate’s case in response to Ms. LeBlanc’s application.

That evidence does not show prejudice against common law relationships either, it is merely the way the relationship was described to at least one of them and articulated by the other. Ms. Berry went on to comment that Mr. Cushing and Ms. LeBlanc lived together and looked happy together. [ 87 ] However, it is not necessary to show perpetuation of prejudice or stereotype to establish s. 15 has been infringed. [ 88 ] The Estate and Ms. Cushing argue that the distinction is created, not by the TFMA , but by the fact Mr.

Cushing was married and chose not to get divorced, leaving the one-spouse rule to govern the situation, and making it such that allowing Ms. LeBlanc to gain the status of a “widow” would be giving her more favourable treatment. Ms. Cushing further argues that Ms. LeBlanc has not challenged the constitutionality of the one-spouse rule. [ 89 ] The one-spouse rule is created by the scheme of the TFMA . Subs. 55(1)(

c) of the VSA provides that a registered domestic partnership terminates, among other things, when “one of the domestic partners marries another person”. Subs. 55(3) preserves, for such former domestic partners, “the same rights and obligations under the statutes referred to in subsection 54(2) that accrue to spouses by separation, separation agreement, court order or death”. Subs. 54(2) creates, for registered domestic partners, the same rights and obligations as a “spouse” on death of the other partner, for multiple statutes, including the Intestate Succession Act .

Subs. 54(2) creates for them the rights and obligations of a “widow or widower” for the TFMA . Thus, the subs. 55(3) preservation of rights and obligations for former domestic partners does not encompass the TFMA , leaving the one-spouse rule to apply. Even if the preservation of the rights of a “spouse” on death is interpreted to include those of a “widow or widower” under the TFMA , subs. 53(5) prohibits a person who is married from making a domestic partner declaration. Therefore, in the circumstances of this case, the VSA creates a rule that no one else could acquire the status of Mr.

Cushing’s “widow or widower” for the purposes of the TFMA . [ 90 ] It is the creation of the one-spouse rule by the scheme of the TFMA that made it such that Ms. LeBlanc could not qualify as Mr. Cushing’s “widow”, irrespective of how long she cohabited with him or how dependant she was on him, because she and Mr. Cushing could not register a domestic partnership. In contrast, if Ms. LeBlanc had been in a registered domestic partnership with Mr. Cushing, it would have been terminated immediately by Mr. Cushing marrying someone else.

That differing effect prioritizes marriage over common law relationships, whether registered as domestic partnerships or not, thus creating a marital status hierarchy in which legal marriage takes precedence over common law relationships, irrespective of registration. [ 91 ] Ms. Cushing implied that the inability to register is not what created the disadvantageous distinction for Ms. LeBlanc because the evidence is that she and Mr. Cushing did not “ever discuss the possibility of having a registered domestic partnership”.

The reasoning is that, even if they could have, they would not have because they did not even discuss it. However, Mr. Cushing, being a lawyer, would likely know it was not an option, and that would explain why it was not discussed. Plus, the lack of opportunity to register, in itself, is a distinction which inevitably results in lack of standing in the circumstances of the case at hand. [ 92 ] Such a one-spouse rule and prioritization are not a necessary part of dependants’ relief legislation. In Ontario, for instance, dependants’ relief can be sought by both married and common law couples at the same time.

Ultimately, the distinction was only created by Mr. Cushing being married because the scheme of the TFMA made it so. [ 93 ] As noted in Linder , supra , the fact Mr. Cushing remained married “does not affect the differential treatment now experienced by” Ms. LeBlanc and it was beyond her control. However, since this court must strive to reconcile testamentary autonomy with equality rights, any choice Mr.

Cushing made to remain married informs that reconciliation exercise. [ 94 ] A previously noted, the court in Lawen Estate , supra , concluded that testamentary autonomy is a fundamental right under s. 7 of the Charter . As noted by Iacobucci, J., in “‘Reconciling Rights’ the Supreme Court of Canada’s Approach To Competing Charter Rights”, a reconciliation exercise in relation to competing Charter rights is part of the s. 15 analysis.

Even if testamentary autonomy is not a s. 7 right, it is still to be considered in the reconciliation process as a “social purpose”: Iacobucci, J., in “‘Reconciling Rights’ the Supreme Court of Canada’s Approach To Competing Charter Rights”, pp. 160 and 161. [ 95 ] The TFMA curtailed Mr. Cushing’s right to testamentary autonomy if he remained married. Divorcing and choosing not to register as a domestic partnership would have given him the most testamentary autonomy.

Therefore, his “choice” to remain married, even if it was a deliberate choice, as opposed to one that was the product of procrastination or delay in resolving or determining corollary

relief issues, could not have been for the purpose of preserving testamentary autonomy. [96] The TFMA already limits testamentary autonomy where the testator dies with a spouse to whom he was married. A commonlaw spouse can be as dependant as a married spouse. Limiting testamentary autonomy in a marriage situation, but not a common lawrelationship situation, prioritizes marriage. It creates a hierarchy of marital status. It results in “arbitrary – or discriminatory –disadvantage” for the surviving common law spouse.

Therefore, the right to testamentary autonomy cannot be reconciled with a commonlaw widow’s right to equal benefit of the scheme of the TFMA, for the purposes of the s. 15 analysis.

Conclusion Regarding Whether S. 15 Rights Infringed [97] For the reasons discussed, a “reasonable person, dispassionate and fully apprised of the circumstances, possessed of similarattributes to, and under similar circumstances as, the claimant” would conclude that the distinction created or drawn by the scheme of theTFMA denies common law spouses the benefit of standing to apply for dependants’ relief in a manner that has the effect of reinforcing,perpetuating or exacerbating arbitrary disadvantage on them. Therefore, it infringes s. 15 of the Charter.

ISSUE 2: IF SO, IS THE INFRINGEMENT A REASONABLE LIMIT ON EQUALITY THAT CAN BE DEMONSTRABLYJUSTIFIED IN A FREE AND DEMOCRATIC SOCIETY UNDER S. 1 OF THE CHARTER? [98] S. 1 of the Charter states: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free and democratic society. [99] All participants agree that the criteria to be satisfied to establish that such a limit is reasonable and demonstrably justifiable in afree and democratic society are those set out in R. v.

Oakes, (SCC), [1986] 1 S.C.R. 103, at pages 138 to 140, asfollows: To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied.First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficientimportance to warrant overriding a constitutionally protected right or freedom" . . . The standard must be high in order to ensure thatobjectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection.

It isnecessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before itcan be characterized as sufficiently important. Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen arereasonable and demonstrably justified. This involves "a form of proportionality test" ... Although the nature of the proportionality testwill vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individualsand groups.

There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefullydesigned to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they mustbe rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair"as little as possible" the right or freedom in question . . .

Third, there must be a proportionality between the effects of the measureswhich are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance". With respect to the third component, it is clear that the general effect of any measure impugned under s. 1 will be the infringement of aright or freedom guaranteed by the Charter; this is the reason why resort to s.1 is necessary. The inquiry into effects must, however, gofurther.

A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arisein respect of these. Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature ofthe right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon theintegral principles of a free and democratic society.

Even if an objective is of sufficient importance, and the first two elements of theproportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals orgroups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, themore important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. [Emphasis by underlining in the original] Ms. LeBlanc’s Position [100] Ms.

LeBlanc submits that which follows in relation to the s. 1 justification issue. [101] The conclusion in Walsh, supra, that the exclusion of common law spouses from the application of the Matrimonial Property Acthas no bearing on the result in the case at hand for the following reasons. An MPA application on death precedes any TFMA application:Casavechia v. Casavechia Estate, 2015 NSSC 119. “[T]he two statutes deal with different kinds of relief.

The MPA deals with amarried spouse’s entitlement to property; the TFMA is open to a wide-range of dependents, including children of common law couples,and offers no entitlement or forced share whatsoever.” [102] The distinguishing features between the Intestate Succession Act and the TFMA make it such that the s. 1 conclusion in JacksonEstate, supra, does not apply in this matter.

Those distinguishing features include the following. “The length or nature of therelationship, and similar factors, play no role in the distribution of the estate assets.” Intestate succession legislation deals with divisionof assets, while dependants’ relief legislation essentially deals with maintenance and support: Ferguson v. Armbrust, 2001 SKCA 122. [103] In addition, the court in Jackson Estate, erred in relying on the s. 1 analysis in Quebec v. A., which is distinguishable for thefollowing reasons.

[104] The objective of promoting choice and autonomy was unique to Quebec. In Quebec v. A. there were eight expert reports fileddealing with “Quebec and its culture, with a focus on the socio-legal evolution regarding unmarried couples”. In Quebec, many couplesdeliberately chose the de facto spouse arrangement to avoid the support and property division regime that applied to married persons andcivil unions, and it was popular.

There is no evidence that Nova Scotia couples make that deliberate choice to avoid the rights andresponsibilities associated with the TFMA or that exclusion of common law spouses from the TFMA is popular. [105] The Quebec regime “governs how money and property will be divided”. The TFMA makes it possible to seek relief and providesguiding factors. [106] Also, Quebec does not allow de facto spouses to claim inter vivos support, while Nova Scotia does. If the objective is to preservefreedom of choice, why not do so in relation to inter vivos support as well.

It is arbitrary to allow choice for one statute but not the other. [107] Lastly, the TFMA includes moral duties, while the Quebec legislation at play (as well as the MPA and ISA) only deal with legalduties. [108] Marriage and registration are “not purely a matter of choice” and are often “outside of a person’s control”. [109] No evidence has been presented to support a s. 1 justification. Unless the basis for the legislation is obvious, the party seeking tojustify it under s. 1 must bring evidence to demonstrate it and cannot rely on speculation, intuition or a mere assertion: Carter v.

Canada(Attorney General), 2015 SCC 5, para 119; and, Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1S.C.R. 927, at para 67. [110] The Courts in Grigg and Woycenko Estate, supra, dealing with dependants’ relief legislation in British Columbia and Albertarespectively, concluded that the exclusion of common law spouses was not justified. [111] No pressing and substantial objective can be demonstrated. “[T]he pressing and substantial objective must ‘clearly reveal theharm that the government hopes to remedy’”: Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, para 23.

No harm arises froma common law spouse being permitted to seek dependants’ relief, considering they can seek inter vivos support. [112] “[T]he relevant objective is the purpose of the specific infringing measure, not the purpose of the legislation as a whole”: R. v. J.(K.R.), 2016 SCC 31, para 62. [113] The purpose of the TFMA is “to enforce a testator’s moral obligation to make adequate provision … for the support ofdependents”: David v.

Beals Estate, 2015 NSSC 288, para 29. “[I]ncorporation of common law spouses would better serve thelegislative aim of dependents’ relief”. [114] “There is no rational connection between the pressing and substantial objective of dependents’ relief … and the infringingmeasure of excluding common law spouses.” If the goal of the TFMA is to relieve dependency, it should “capture as many intimaterelationships as possible”: Taylor v.

Rossu, 1998 ABCA 193, at para 143. [115] The minimal impairment question is whether “there are alternative, less harmful means of achieving the government’s objective‘in a real and substantial manner’”: R. v. J.(K.R.), supra, para 70. The right must be infringed “no more than reasonably necessary”: R.v.

Sharpe, 2001 SCC 2, para 96. “An absolute exclusion of all common couples from the right to even apply for spousal support is not aminimal impairment”: Taylor, supra, at para 144. [116] A less harmful measure would be to put in place qualifications, such as minimum cohabitation requirements, which common lawspouses must meet before they qualify to apply under the TFMA. [117] The benefits of the infringement must be for the “greater public good”: Carter, supra, para 122. “Marginal and speculative”benefits are insufficient: R. v. J.(K.R.), supra, para 92.

There is no evidence of the benefits to Nova Scotians. [118] The deleterious effects are significant and severe. Common law spouses are denied the ability to apply for relief irrespective ofthe extent of their relationship with the deceased, “against a backdrop of historical disadvantage and prejudice”.

That occurs when theyare most vulnerable because of the passing of their spouse. “[T]he more severe the deleterious effects of a measure, the more importantthe objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society”: Oakes, supra, para71. [119] If there is a significant benefit it makes no sense to pursue it only upon death. Preserving freedom of choice is a speculativebenefit as there is no evidence that common law spouses consider the TFMA.

The Estate’s Position [120] The Estate presents the following submissions in relation to the s. 1 justification issue. [121] Even if no social science or other evidence has been led to support a s. 1 justification, and the Attorney General has provided nosubmissions on the question, the court can apply logical reasoning and common sense to determine the issue: Jackson Estate, supra,paras 174-181; Oakes, supra, page 138; and, R. v.

Jones, (SCC), [1986] 2 S.C.R. 284, para 29. “[T]he first stage of thes. 1 analysis is not an evidentiary contest” and a pressing and substantial objective, even a theoretical one, need only be asserted; and, theproportionality determination, though it requires more than an assertion, can be made using logic and reason, without the need for directevidence: R. v. Bryan, 2007 SCC 12, paras 32, 38 to 42, and 48.

The object of a law is often apparent on its face and may be gleanedfrom the legislative history and the context in which it was enacted: Reference re Firearms Act (Canada), 2000 SCC 31, para 17; R. v.J.(K.R.), supra, para 64; and, M. v. H., (SCC), [1999] 2 S.C.R. 3, paras 87 to 90. [122] The legislature deliberately excluded common law spouses to: “1) preserve the autonomy of individuals to choose how their

property is to be distributed and 2) to ensure that all couples, regardless of sex/gender or cohabitation period, can choose to be subject to the obligations of and access to the rights available under all statutes dealing with the division of property and support.” [ 123 ] Walsh , Quebec v. A. , and Jackson Estate , supra , “are determinative of the

section 1 issue”. Quebec v. A. does not make any distinction between support and division of property. [ 124 ] The objective is “preservation of choice and autonomy” in dealing with property, which is sufficiently important to justify an infringement: Quebec v. A. , per McLachlin C.J.C., paras 435 to 437; and, Jackson Estate , para 183 .

It is particularly important where individuals choose, as between themselves, to arrange their relationship differently from a traditional marriage, and the legislation in question dramatically alters their legal obligations, as between themselves: Walsh , per Bastarache J, para 43 . [ 125 ] The TFMA brings in the added consideration of testamentary autonomy, which was found to be a s. 7 Charter right in Lawen Estate , supra .

That provides even greater reason to find a s. 1 justification in the case at hand than in Jackson Estate . [ 126 ] As long as “it is reasonable to suppose the limit may further the goal” there is a rational connection: Alberta v. Hutterian Brethren of Wilson Colony , 2009 SCC 37 , para 48 . Excluding unregistered common law spouses is rationally connected to preservation of choice and autonomy: Quebec v.

A. , per McLachlin C.J.C., para 438; and, Jackson Estate , para 184 . [ 127 ] The ease and speed of registration makes the infringement minimally impairing, and actually more advantageous than having to wait out a prescribed period of cohabitation. The availability of other measures which impair the right less does not prevent a finding of minimal impairment if those measures are less effective in pursuing the objective: Quebec v.

A. , per McLachlin C.J.C., para 442. [ 128 ] The detrimental impact on common law spouses is not disproportionate to the benefits of promoting personal autonomy: Jackson Estate , para 187 . [ 129 ] Any infringement on Ms. LeBlanc’s s. 15 rights is justified under s. 1. The Attorney General’s Position [ 130 ] The Attorney General agrees with the points made by the Estate regarding the evidence required for a s. 1 justification. It notes that the object of the TFMA was argued during the statutory

interpretation motion and discussed at paragraphs 77 to 114 of my reported decision on that motion, which I referenced in the Introduction to this decision. Also, the wording of the scheme of the TFMA makes the objective of the limitation clear. It is to balance testamentary freedom against the ability of married persons and persons who register as domestic partners to make a claim. [ 131 ] Otherwise, the Attorney General takes no position on the s. 1 justification issue. Ms. Cushing’s Position [ 132 ] Ms.

Cushing notes that the arguments she made in relation to the s. 15 analysis apply to the s. 1 analysis to the extent the court concludes they are part of the legislative justification for the law. She also submits that which follows. [ 133 ] In Quebec v. A. , McLachlin C.J.C. concluded the support and property division regimes were saved by s. 1, and Deschamps J., writing for herself and three other justices, concluded the property division regime was saved by s. 1.

The same analysis should be followed in the case at hand. [ 134 ] The objectives of advancing autonomy and testamentary autonomy and preserving procedural fairness in TFMA applications are pressing and substantial and sufficiently important to justify distinguishing between registered and unregistered common law couples. [ 135 ] “Requiring express consent (by registration) respects the express choice of the couple.” “The only way to guarantee the autonomy of the couple is to provide choice” to be governed by the TFMA or not.

Registration provides certainty and allows the parties to know their rights and obligations before they acquire or dispose of assets. So, as found by four of the five judges in Quebec v. A. , [h]aving different rules for those who opt in is rationally connected to the goal of protecting testamentary autonomy.” [ 136 ] Ms. LeBlanc has not provided evidence that she, or anyone else, wanted to register, but couldn’t. The evidence from her discovery is that she and Mr.

Cushing did not discuss registering as a domestic partnership or even that they were in a common law relationship. [ 137 ] The registration requirement minimally impairs the equality right for the following reasons. The group than can register as domestic partners “is larger than those who would qualify to marry and larger than those who would qualify as a common law couple after the passage of an arbitrary period of time”. It is easier to register than to marry or acquire common law status.

Registration gives the couple instant access to choice. “Any system which impaired less the equality right would be less effective at preserving the autonomy of the couple. Four of the five judges in Québec who addressed the issue accepted that the requirement to register for property rights was a minimal impairment.” [ 138 ] The “opt-out” alternative suggested by Abella J. in Quebec v. A. impairs equality rights just as much as an opt-in system. Either way the couple chooses.

Abella J.’s dissent is also distinguishable on the basis that it is much easier to register as domestic partners in Nova Scotia than to enter a civil union in Quebec (which requires a formal ceremony much like a civil marriage in Nova Scotia). [ 139 ] Deschamps J., in Quebec v. A. , at paragraphs 401 to 406, writing for herself and four other judges, noted the points which supported their finding that the minimal impairment and balance of convenience components of the proportionality analysis were satisfied. Those points, which are applicable to the case at hand, include the following. (

a) The alternative ways vulnerable de facto spouses can protect themselves, such as through an unjust enrichment claim, makes it such that the disadvantages of the impugned measure do not outweigh its advantages, and the government is not obliged to “impose measures

of patrimonial protection” on everyone. Similarly, common law spouses in Nova Scotia can make unjust enrichment claims. Ms. LeBlanc has made such a claim and had insurance on Mr. Cushing’s life. (

b) While “interdependence … sometimes steals into conjugal life, over which the parties have no real control, the acquisition of patrimonial property results from [conscious] decisions regarding which the government is justified in respecting the autonomy of the parties.” Similarly, Mr. Cushing’s Estate is property he acquired and maintained through his conscious decisions. [ 140 ] Any concern over people in common law relationships being unaware of the ability to register can be addressed by public education. [ 141 ] Ms.

LeBlanc does not point to any way to maintain testamentary autonomy and the couple’s autonomy which would impair the right to equality any less. Making “ all common law couples subject to the TFMA regardless of their wishes is a greater impairment of testamentary autonomy”. [ 142 ] Plus, less than 6.25% of Nova Scotians, 15 years of age or more, live common law. So, a small number of people are affected: Access to Justice & Law Reform Institute of Nova Scotia, “Intestate Succession Act Discussion Paper” (June 2019), p. 80.

S. 1 Analysis [ 143 ] The onus of demonstrating a s. 1 justification is on the party defending the legislation, in this case, the Estate. [ 144 ] However, as indicated in Jackson Estate , supra , at paragraphs 174 to 181 , and the authorities cited therein, that can be done with little or no evidence because the court can base its assessment on: what is “obvious or self-evident”; “judicial notice of legislative or scientific facts from previous justification cases”; and, using “logical reasoning and common sense”. “[T]he first stage of the s. 1 analysis is not an evidentiary contest”, a pressing and substantial objective need only be asserted, and a “theoretical objective” will suffice: R. v.

Bryan , supra , para 32 . Though the proportionality inquiry requires more than “assertions”, “logic and reason may play a large role” in it, such that direct proof is not always necessary: R. v. Bryan , paras 38 to 49 . Arguments Distinguishing Walsh, Jackson Estate and Quebec v. A. [ 145 ] Ms.

LeBlanc seeks to distinguish Walsh and Jackson Estate on the basis that the TFMA deals with maintenance and support, while the ISA and MPA deal with entitlement to property. [ 146 ] The TFMA expressly states that a judge may order that provision “be made out of the estate of the testator for the proper maintenance and support of the dependant”. The “estate” is necessarily comprised of the testator’s assets which remain post-mortem .

Therefore, an order under the TFMA necessarily deals with entitlement to property even though the entitlement criteria relate to maintenance and support. [ 147 ] The ISA provides a formula for distribution of the estate of a person who dies without a will, or for distribution of that portion of a person’s estate that is not dealt with under their will. It does not expressly make need an entitlement criterion. In Ferguson v.

Armbrust , 2001 SKCA 122 , at paragraph 20 , the court commented that the Saskatchewan 1996 Wills and Intestate Succession Acts were “in essence statutes dealing with the distribution of a deceased person’s property”, and the 1996 Dependants’ Relief Act was “in essence a maintenance and support statute”. [ 148 ] However, in Austin v, Goerz , supra , at paragraph 53 , the court stated that “for nearly 100 years, intestacy legislation did require a person claiming as a marital-equivalent partner to have been financially dependent on the deceased”. That requirement remained until about 2000.

Therefore, in British Columbia, at least for unmarried partners, for much of the life of the intestate succession legislation, maintenance and support was an express purpose. [ 149 ] Here in Nova Scotia, it is noteworthy that the ISA gives priority, first to the surviving spouse, then to the children, of the deceased. The TFMA limits standing to the deceased’s widow or widower and children, the same persons who are given priority under the ISA . The surviving spouse and children are the most likely to require maintenance and support.

It makes sense that part of the consideration for giving them priority under the ISA was to provide for such maintenance and support.

The June 2019 “Intestate Succession Act Discussion Paper”, at page 34, states, in relation to the ISA which was passed in 1966: “The preferential share for the surviving spouse indicated a growing recognition of the needs of the surviving, untitled spouse – usually, the wife.” At page 35, it states: “Reform of intestacy laws since 1758 has been concerned in large part with addressing inequalities in the social order, including providing for the welfare of widows … .” Therefore, part of the purpose of the ISA is to help ensure th

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