Difference without Discrimination

The Québec Court of Appeal delivered an important decision last Friday, Droit de la famille ― 139, 2013 QCCA 13, upholding the constitutionality of Québec’s child-support guidelines, despite the fact that their application results, in many cases, in substantially lower child-support awards than that of the federal guidelines which, in one way or another, now apply in the other provinces. The appellants argued that the difference amounted to discrimination contrary to the equality guarantee of s. 15(1) of the Canadian Charter of Rights and Freedoms. At trial, the judge agreed that it did, but held that the infringement of s. 15(1) was justified by s. 1 of the Charter. Now, in a judgment signed by the entire five-judge panel, the Court of Appeal held that there is no s. 15(1) infringement at all.

The reason for the existence of the two separate sets of guidelines is the somewhat messy division of powers over family matters between Parliament and the provincial legislatures. Pursuant to s. 91(26) of the Constitution Act, 1867, Parliament has competence over “marriage and divorce” ― which includes the child-support obligations of divorcing parents. Provinces (in addition to a competence over the “solemnization of marriage” (s. 92(12)), have power over “property and civil rights in the Province” (s. 92(13)), which includes the child-support obligations of parents who are not divorcing because they had never married in the first place. The upshot is that children of never-married couples in every province faced a different legal regime than those of their counter-parts in other provinces and those of divorcing couples in the same provinces. Now my knowledge of family law is very limited indeed, but I don’t suppose any of that would have struck anyone as problematic in 1867, if such questions would even have crossed anyone’s mind at a time when divorce was all but impossible and “bastard” children were very much second class citizens. But while our views of justice in the family realm have changed, the constitutional division of powers hasn’t, so Parliament and the provinces have had to work around it.

The solution they came up with was for Parliament to enact (or rather, to delegate to the Governor-in-council the power to enact) a set of child-support guidelines that would apply in divorce cases, which provinces could make applicable to never-married parents; alternatively, a province could come up with its own set of guidelines, which the federal government would, on some conditions, make applicable in divorce cases in that province. Either way, the legal regime applicable to support obligations for all children in the same province would be the same―but there could be differences between provinces. Most provinces chose the first option, using the federal guidelines for all cases. But Québec opted for the alternative, coming up with its own set of guidelines, which the federal government then made applicable to divorcing parents in Québec. In some ways, Québec’s guidelines were similar to the federal ones, but there were also significant differences in the factors taken into account to determine the amount of child support, often resulting in lower amounts being awarded under the Québec guidelines.

Hence the complaint of discrimination. But not any difference in the way the law treats people or groups amounts to discrimination pursuant to s. 15(1) of the Charter. The difference must be based on one of the grounds (such race, gender, religion, etc.) enumerated in that provision or an “analogous ground” (such as citizenship and sexual orientation). The relationship of the difference complained of and a prohibited ground of discrimination is the central issue in this case.

The appellants argued that they were being discriminated against on the basis of their place of residence (that, Québec as opposed to the rest of the country). But, as the Court of Appeal pointed out, the Supreme Court has always rejected claims that place of residence was an “analogous ground” for the purpose of s. 15(1). Perhaps the most dramatic such case was Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995, where the appellant had been prevented from voting in Québec’s referendum on the Charlottetown Accord because he had not lived in the province for 6 months at the time of the vote and in the referendum on the same issue organized by the federal government in the other provinces because he was now living in Québec. The only “exception” to this rule concerned the status of off-reserve Indians, who, as the Supreme Court pointed out, face much more intractable choices than other Canadians when it comes to choosing their place of residence. Theirs is a special situation that does not bear on this case. Furthermore, said the Court of Appeal, in a federal country such as Canada the equality guarantee must be interpreted in light of the federal principle and of the fact that it can result in different legal regimes being applicable to similarly situated persons in different parts of the country. “Thus, differential treatment depending on the province of residence cannot, a priori, be suspect from the standpoint of the right to equality” (par. 62, translation mine). Even when differential treatment results from the application of the same federal statute (rather than from a comparison between the laws of two different provinces), it is not constitutionally suspect.

I think that’s the right decision. Provinces have different needs and different values; they are distinct political communities. The Charter should not become a means of preventing them from making different choices. And, because of the entanglement of federal and provincial responsibilities, which only becomes more complex as society changes and becomes increasingly different from that of 1867, we need co-operative federalism, including federal laws that create, or incorporate by reference to provincial law, different rules for different provinces. The Court of Appeal recognized this reality.

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