Hodge+v.+Canada

//Hodge v. Canada (Minister of Human Resources Development)//, [2004] 3 S.C.R. 357, 2004 SCC 65 (excerpt)

The claimant is seeking survivor’s pension under the //Canada Pension Plan// (“CPP”). She had been in a common law relationship for over twenty years, but left him because of abuse. Five months later, he died. The CPP grants survivor’s pension to surviving partners in common law relationships, but s.2(1)(a)(ii) requires them to be living with the person (the one who contributed to the CPP) at the time of death, and to have lived with them for one year prior. This isn’t the case for married couples.
 * Facts:**

Is s.2(1)(a)(ii), the requirement that the claimant in a common law relationship be living with the contributor at the time of death in order to be eligible for survivor’s benefit, in violation of the s. 15(1) equality provision of the Charter?
 * Issue:**

No. This requirement is not unconstitutional. Claimant is denied survivor’s benefits.
 * Holding:**

At the time of the contributor’s death (the man’s death), she was not a separated common law spouse. She was a **former** common law spouse. Just as a divorced person can’t claim survivor’s benefits, a common law spouse who is no longer in the relationship also cannot claim benefits.
 * Reasoning:**

This means that former married spouses and former common law spouses are treated the same, so there’s no discrimination.

“Cohabitation is a constituent element of ca common law relationship.” When they separated, she no longer had a legal relationship with her ex. NB: “two people can cohabit even though they do not live under the same roof. Such periods of physical separation as the respondent and the deceased experienced in 1993 did not end the common law relationship if there was a mutual intention to continue.”

The legal relationship between two parties to a common law marriage ends when “either party regards it as being at an end and, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one.”

She can’t compare her situation to that of a “separated married couple” (wherein the legal bond of marriage continues to exist): "a cohabitation relationship, which is recognized on a functional basis, does not survive in a comparable way the physical separation of the parties and the intention of one of them that it should end. Thus, by terminating a cohabitation relationship, an individual loses his or her claim, for instance, to a survivor’s pension under the Canada Pension Plan on the partner’s death. In other words, government programs treat a former common-law partner like a divorced spouse, not like a separated married spouse." (Leckey IRPP paper)

Survivor’s pension benefits are not available to separated common law spouses.
 * Ratio:**