“Spouse in the House”
The
issue
In
1995, Premier Mike Harris’s government in Ontario
amended
its welfare program. Before the changes, two unrelated people of the
opposite
sex were generally considered to be “spouses” if they lived together
for more
than three years. Under the proposed 1995 welfare rules, a single
mother could
lose her benefits immediately if it was determined that she was living
in
“cohabitation” (undefined) with her opposite sex partner regardless of
how long
they had been living together.
The
government’s rationale was that a man living with a woman would either
in fact
be supporting her, or should be, and that therefore she was not as
“deserving”
of benefits as someone who did not have such a residential situation.
The Ontario government in 1987 had abandoned the so-called “spouse
in the
house” rule. In announcing the 1987 changes, then Minister of Community
and
Social Services John Sweeney stated: “It’s time to move away from
intrusive
investigations into private conduct, towards a system which looks to
the
objective needs of sole support parents.”
In
1995, the Harris government returned to the “spouse in the house”
concept and
issued guidelines that were designed to show when a single mother was
involved
in a relationship with a member of the opposite sex. The government
questionnaire included the following questions:
Do
you and your co-resident spend spare time at home together?
Do
you go to church, temple, synagogue, etc. with your co-resident?
How
do you and your co-resident address each other’s parents?
Who
takes care of you and your co-resident when either of you are [sic] ill?
Do
you ask your co-resident for advice regarding the children?
Does
your co-resident buy them birthday or other presents?
In
addition, the recipients were asked to sign a waiver so that government
employees could ask neighbours and co-workers about them and their
personal
lives. One recipient reported she was advised that the Family Benefits
worker
would ask “around in the community” to determine her living
arrangements. She
reported that her neighbours did not know she was on government
assistance and
was embarrassed at the thought of having this information disclosed.
Another
recipient was asked to prove her co-resident was not a “spouse” and did
not
support her. She reportedly had to obtain a letter from her
incarcerated
boyfriend stating that she was his girlfriend, and her co-resident had
to
provide a letter from his girlfriend outlining their relationship.
Family
Benefits suspected her co-resident was in fact her “spouse” because of
reports
of third parties who, in particular, reported that she and her
co-resident
played cards together as a team.
Family
Benefits workers were reportedly encouraged to conduct “bathroom
visits” to see
if shaving cream or extra toothbrushes were there because this would
show a
male over night visitor. Lists of household items were considered proof
of male
visitors, such as hunting magazines, a large dog, expensive stereo
equipment,
and “masculine” clothing. There was a report of one worker who would
sit in the
parking lot of apartment complexes at night, to see who visited sole
support
mothers. One mother was reportedly asked to try on unisex boots found
in her
home to prove they were hers and did not belong
to her
“spouse.”
The Case
Falkiner v. Ontario
Following
the changes made in 1995, many single mothers lost their benefits. Four
of them
filed legal challenges. In May 2002, the Ontario Court of Appeal held
that the
changes violated the Charter of Rights and Freedoms. The Ontario
government
has appealed the case to the Supreme Court of Canada, which has agreed
to hear
the case.
All
four women who filed suit lost their benefits. They were all unmarried
mothers
with at least one dependant child each. They were living with men, but
in
reportedly trial relationships, and all had lived with the men for less
than
one year. As soon as the changes came into effect, the men with whom
they lived
were considered to be their “spouses” and were therefore considered to
be, or
should have been, supporting their children.
Section
15(1) of the Charter states: “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 or mental or
physical
disability.” In addition to those categories specifically listed, the
Supreme
Court has held that discrimination against other groups is also
prohibited, if
those groups share similar characteristics with the ones listed in
Section
15(1).
The women argued
that the 1995 changes discriminated against them because of their sex.
They
also argued that the changes discriminated against them based on
marital status
and the receipt of social assistance. Although neither of these is
specifically
mentioned in the Charter, the Court agreed and found that the
new rules
did discriminate against the recipients based on those categories. The
Court
stated that these two categories were analogous to the others listed in
the Charter
because they shared many of the same characteristics as those listed,
such as
historic discrimination and persecution, as well as social
disadvantage. This
decision marked the first time that receipt of social assistance was
recognized
as a protected group.
In addition, the
court ruled that the definition of spouse was too broad because it
would catch
relationships where no financial support existed. For example, the
court stated
the definition would include relationships lacking certain key
characteristics
of “spouse,” such as permanence, commitment, a legal obligation to
support and
the right to claim support.
The
Court, in ruling for the first time that receipt of social assistance
could be a
protected category under the Charter, realized the
controversial nature
of the decision. Judge Laskin addressed
this issue in
the opinion, and stated that the ruling recognized the “protection of
human
dignity” which is central to Charter protection.
The government
had argued that the new rules would in fact reduce
discrimination by
treating married and unmarried women equally. However, the Court was
not
persuaded and stated: “Far from negating any discrimination as the
government
contends, administering the challenged definition by requiring social
assistance recipients to complete this questionnaire further suggests
that the
definition undermines human dignity.”
The women also
argued the rules drew conclusions and assumptions that were not
necessarily valid.
The mere fact that a single mother had overnight guests and male
toiletries in
her bathroom did not mean that the man supported her or her children.
The Canadian
Civil Liberties Association (CCLA) intervened in the case. CCLA
contended that
the new rules and the associated questionnaire violated the women’s
right to
privacy. CCLA also argued that the rules would further hinder single
mothers on
assistance from being able to form relationships with men. However, the
Court
did not address these privacy issues. Instead, the Court stated that
the rules
were invalid because they violated the equality guarantee provided in
section
15(1) of the Charter.
The Debate
The
Ontario government put forward two justifications for the 1995 changes.
First,
the regulations treated married and unmarried women alike in assuming
financial
support, therefore, the regulations in fact were reducing
discrimination.
Second, the regulations made sure that scarce public funds went to
those who
needed it most, those who did not have private sources of support.
In
addition to the arguments put forward by the government, commentators
have
supported the regulations and have criticized the Court of Appeal for
its
ruling in Falkiner. Most of the
criticism has
focused on the decision of the Court to include receipt of social
assistance
for protection under section 15 of the Charter. According to
Chris
Schafer of the Fraser Forum, the Court was therefore saying that
earning
capacity was an “immutable” characteristic such as race, ethnicity and
gender.
“In other words, the court finds that receipt of social assistance,
which
signifies a person’s economic condition, is a ‘characteristic that is
difficult
to change, at least for a significant period of time,’ or is otherwise
immutable.
This is unsound. Not only does it fly in the face of the evidence about
how
Canadians earn income, it also leaves the door open to genuinely
pernicious
expansion of the ground for litigating just about everything.
Canadians’
incomes are not immutable.” (Chris Schafer, Welfare Reforms
Jeopardized?, Fraser
Forum, June 2002, at 3).
Mr.
Schafer also stated that the Court’s ruling could jeopardize further
government
attempts at welfare reform. He pointed to U.S. reforms that have
attempted to
move recipients off welfare by requiring them to find jobs and placing
time
limits on receipt of benefits. According to Mr. Schafer, the Court’s
ruling
could effectively mean that the provincial governments could not
initiate such
reform programmes because receipt of social assistance is now a
protected
class.
Others
praised the Court’s ruling. Vincent Calderhead,
a
staff lawyer with the Nova Scotia Legal Aid office in Halifax, has
defended the
decision against criticism like that levelled by Mr. Schafer. In Mr. Calderhead’s opinion, the equality guarantee
provided in
section 15 of the Charter is the provision that according to
the Supreme
Court “is intended to promote and protect human dignity.” He continued:
“That
welfare recipients as a group have been subject to decades of demeaning
treatment by society and are, therefore, entitled to the protection of
the
Equality Guarantee will come as no surprise to Canadians except, it
appears, to
Chris Schafer and the Fraser Institute.” He concluded by stating that
“at
bottom, Schafer would like governments to be free to do just about
anything
they want with people who are in need.”
The
Court in its decision focused on the section 15 arguments. However, the
1995
rules raised serious privacy concerns as well. CCLA General Counsel,
Alan
Borovoy stated that “the rule … invites welfare administrators to
invade the
recipient’s personal privacy.” CCLA intervened in the case and argued
that the
rule violated the privacy and dignity of people who collected social
assistance
and unfairly discouraged them from taking in roommates or from forming
intimate
relationships with members of the opposite sex. The case is slated for
the
Supreme Court. Perhaps these privacy arguments will be addressed at
that level?
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