Nova+Scotia+(A.G.)+v.+Walsh

//Nova Scotia (AG) v. Walsh, SCC, 2002// __Facts__: B and W cohabited for 10 years. Upon breakup, W applied for spousal and child support, and for a declaration that the definition of “spouse” in Nova Scotia’s Matrimonial Property Act (MPA) was unconstitutional (s.15(1) of the Charter) because it failed to provide unmarried cohabitants with the same presumption applied to married spouses – an equal division of matrimonial property.

__Issues__: Is MPA unconstitutional (violate s.15(1) of the Charter)? and if it passes the reasonable limits test set out in s.1 of the Charter

__Decision__: Majority: No. Dissent: Yes.

Reasoning: __Majority__: Crown conceded that MPA provides differential treatment, and that marital status is an analogous ground of discrimination. Only question remaining (part 3 of Law test) is whether MPA has effect of demeaning dignity. Comparator group: married and unmarried heterosexual cohabitants. There is “no discriminatory denial of a benefit in this case because those who do not marry are free to take steps to deal with their personal property in such a way as to create an equal partnership between them”. “The application of the MPA to married persons only is not discriminatory in this case as the distinction reflects and corresponds to the differences between those relationships and as it respects the fundamental personal autonomy and dignity of the individual”. Also, liberty is an essential Charter value. Court cannot restrict freedom of choice of those in conjugal relationships, because doing so would be contrary to liberty interest. __Gonthier agrees with the majority.__ Adds that right to equality is a comparative right. The situation of couples who chose life commitment through marriage is not comparable to unmarried couples. To extend the presumption of equal division of matrimonial assets to unmarried cohabiting couples is to intrude “into the most personal and intimate of life choices”.

__L’Heureux-Dube in Dissent__: MPA diminishes the claimant’s dignity by failing to provide a fundamental benefit when it is most needed. The relationships (married and unmarried heterosexual cohabitants) are **functionally** equivalent, so the law should apply equally to both. Claiming that the MPA is “designed to give effect to the intentions of married and unmarried persons at the outset of their relationships” is of little consequences, since “people are often unaware of their legal rights and obligations and do not organize their personal lives in a manner to achieve specific legal consequences”. Choice is often denied to a person by his/her partner. Alternative remedies does not save the MPA from s.15(1) scrutiny, since the remedies are inadequate relative to those under the MPA. MPA cannot be saved by s.1 of the Charter – no rational connection between excluding unmarried cohabitants from the MPA and the purported purpose of the MPA.