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“Spouse in the house” rule successfully challenged by
clinics and clients!

The Ontario government recently announced the withdrawal of its appeal of a court decision (Falkiner) which decided that the definition of “spouse” brought in by the previous government was unconstitutional. As many of you know from previous issues, in 1995, the Conservative government changed social assistance law to deem anyone who moved in with a person of the opposite sex to be a “spouse” of their co-resident, and thus to have an obligation to support that person financially. Co-residents were automatically asked to complete a very intrusive “co-resident questionnaire”, which asked detailed questions about their economic, social and “familial” relationship, and usually concluded that they were indeed “cohabiting” as spouses.

Single parents on social assistance, the vast majority of whom are women, found that this new definition had a strong “chilling effect” on their ability to develop relationships with potential partners. Sometimes, the potential partner did not want to become involved with this onerous process, but in many cases the women themselves did not want to become financially dependent on a man before they were very sure of the relationship, because of past experiences of abusive relationships.

The pre-1995 rule used the definition of “spouse” found in the Family Law Act, allowing a couple receiving social assistance to cohabit for three years before it was assumed they were supporting each other financially. This rule continued to apply to all other Ontario residents except social assistance recipients. Accordingly, twelve recipients, assisted by clinic lawyers and legal workers as well as private bar lawyers, challenged this rule as discriminatory. They won at Divisional Court, and at the Ontario Court of Appeal, but the Ontario government kept appealing. However, with the recent withdrawal, the Court of Appeal decision becomes “the law of the land”.

What does this mean in practical terms? After the first loss at Divisional Court, the government changed the definition of spouse to allow couples three months of co-residence before they are deemed to be “spouses” and therefore to be supporting each other financially. Withdrawing the appeal did not change this at all. If recipients want to challenge this to reinstitute the “three year rule” applicable to other Ontario residents, a new court case will have to be commenced and the long process begun again.

However, the greatest significance of the victory in Falkiner lies in the reasons given by the Ontario Court of Appeal in upholding the Divisional Court decision. For the first time, social assistance recipients were recognized as a group entitled to protection from discrimination under section 15 (equality rights) of the Charter of Rights and Freedoms. The importance of this finding for future challenges to unfair laws and practices cannot be underestimated. It is indeed a huge victory for clients and clinics!

Felicite Stairs,
Staff Lawyer
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