September 2011

Have they been historically discriminated against?

Family and human rights law team

In divorce law, though the federal government has the jurisdiction to determine the child support payments due between ex-spouses, it delegated the power to provinces for cases in which the former spouses both reside in the same province. When the divorcing or divorced parties live in different provinces, federal child support guidelines apply. Québec is, in fact, the only province to follow its own guidelines rather than the federal rules. The province's guidelines apply to all parents and their children, regardless of whether the couples were married or not. Unlike the other Canadian provinces, Québec does not distinguish between married and unmarried couples.

A group of single women who receive alimony payments for their children under provincial guidelines recently learned that they would receive much higher amounts under federal rules. The women therefore sought legal recourse for the application of federal guidelines in their cases and, by the same token, asked that the federal order that allows Québec to set its own child support guidelines for divorced couples be revoked. The women claimed that the provincial guidelines were discriminatory under the Canadian Charter of Rights and Freedoms, since the federal rules would apply and the child support payments would be higher if a member of the former couples lived outside Québec.

To prove discrimination, discriminatory grounds and a comparison group are required. Though the place of residence (Québec) does not constitute discriminatory grounds under the Canadian Charter of Rights and Freedoms, the Honourable Diane Marcelin in Droit de la famille 111526, 2011 QCCS 2662 ruled that the women had been historically prejudiced based on the inherent characteristics of being wives and mothers. Therefore, for divorced and divorcing single mothers, discrimination based on province of residence constituted analogous grounds under section 14 of the Canadian Charter of Rights and Freedoms.

The Court stated that women residing in Québec were treated differently than women elsewhere in Canada: "En raison du lieu de résidence de leur mère, des enfants ont droit à un soutien alimentaire moins important que ceux dont les mères sont domiciliées ailleurs au Canada."["Because of the place of residence of their mothers, the children receive less child care support than those whose mothers live elsewhere in Canada."] (Droit de la famille 111526, 2011 QCCS 2662). Québec's provincial guidelines account for the salaries of both parties and introduce the notion of custody time. When parents have joint custody, the alimony is cut in two. This is not the case in the rest of Canada. In addition, the amounts granted for child support in Québec are often lower, especially when more than one child is involved. This is clearly discriminatory under the Canadian Charter of Rights and Freedoms. The larger the family, the more single mothers are negatively affected and discriminated against. "L'analyse de ces facteurs prouve que les mères monoparentales divorcées ou en instance de divorce ne méritent pas d'être traitées autrement que les femmes dans la même situation partout ailleurs au Canada. Prétendre autrement est une atteinte à leur dignité et est discriminatoire." ["The analysis of these factors shows that divorced and divorcing single mothers do not deserve to be treated differently than women in the same situation elsewhere in Canada. To claim otherwise constitutes a violation of the women's dignity and is discriminatory."] (Droit de la famille 111526, 2011 QCCS 2662). The Court therefore ruled that the federal order was discriminatory under the Canadian Charter of Rights and Freedoms. No appeal is planned in the matter.

And so it was a victory for divorced and divorcing single mothers across Québec! But the euphoria was short-lived, since under the Canadian Charter of Rights and Freedoms, a rule of law may affect rights and freedoms within a reasonable limit - infringements that may be justified in a free and democratic society. One of the consequences of cooperative federalism admitted by the Supreme Court of Canada is that federal laws may be applied differently from one province to the next. The Court concluded that the federal provision is justified in a free and democratic society under cooperative federalism. In sum, though divorced and divorcing single women in Québec are discriminated against, this discrimination is reasonable and justified under cooperative federalism in a free and democratic society. The Court did, however, note that the provincial alimony scales are some 15 years old and in dire need of review. As such, it is important to assess the impacts of the scales, especially with regards to custody time, scale complexity and the ensuing economic constraints for single mothers, regardless of their level of income. In fact, the revision would also be relevant to common-law spouses with children since the same scales apply.