Hodge v. Canada (Minister of Human Resources Development),  3 S.C.R. 357, 2004 SCC 65
Minister of Human Resources Development Appellant
Betty Hodge Respondent
Attorney General of Quebec, Attorney General of Manitoba,
Attorney General of British Columbia and
Canadian AIDS Society Interveners
Indexed as: Hodge v. Canada (Minister of Human Resources Development)
Neutral citation: 2004 SCC 65.
File No.: 29351.
2004: March 18; 2004: October 28.
Present: McLachlin C.J. and Iacobucci,* Major, Bastarache, Binnie, Arbour,* LeBel, Deschamps and Fish JJ.
on appeal from the federal court of appeal
Constitutional law — Charter of Rights — Equality rights — Marital status — Canada Pension Plan — Survivor’s pension — Definition of “spouse” — Appropriate comparator group — Plan providing for survivor’s benefit to be paid to common law spouse if cohabiting with contributor spouse at date of contributor’s death and for one year prior to that date — No similar cohabitation restriction for married spouses — Whether correct comparator group “separated married spouses” or “divorced spouses” — Whether definition of “spouse” in Plan infringing right to equality — Canadian Charter of Rights and Freedoms, s. 15(1) — Canada Pension Plan, R.S.C. 1985, c. C‑8, s. 2(1) “spouse”.
Constitutional law — Charter of Rights — Equality rights — Comparator groups — Criteria for identifying appropriate comparator group.
The respondent claimant seeks a survivor’s pension under the Canada Pension Plan (“CPP”). She lived in a common law relationship with the deceased, a CPP contributor, between 1972 and February 1993, at which point, because of alleged verbal and physical abuse, she left. After a brief reconciliation failed, she ended the relationship in February 1994 finally and permanently. The contributor died five months later. The respondent’s application for a survivor’s pension under the CPP was denied because, at the time of the contributor’s death, she was no longer a spouse. The definition of “spouse” in s. 2(1)(a)(ii) of the CPP requires a common law spouse, but not a married spouse, to have cohabited with the contributor at the date of death and for one year prior to that date. The respondent successfully appealed the denial of her application to a CPP Review Tribunal. The Tribunal held that the definition of “spouse” in s. 2(1)(a)(ii) breached the equality provisions in s. 15(1) of the Canadian Charter of Rights and Freedoms. On appeal by the Minister, the Pension Appeals Board set aside the Tribunal’s decision. The Federal Court of Appeal allowed the respondent’s application for judicial review, restored the Tribunal’s decision, and declared the definition of “spouse” in s. 2(1)(a)(ii) to be of no force or effect insofar as it requires a non-married spouse to be cohabiting with the contributor at the time of the contributor’s death to be eligible for a survivor’s benefit.
Held: The appeal should be allowed. The respondent is not entitled to a survivor’s pension.
At the time of the contributor’s death, the respondent was not a separated common law spouse but a former common law spouse. Former spouses, whether married or common law, do not qualify for a survivor’s pension under the relevant provisions of the CPP. Since former married spouses and former common law spouses are treated the same, there is no distinction based on marital status, and thus no discrimination.
The Federal Court of Appeal erred in concluding that a court is required to “adopt the comparator group chosen by the applicant unless it can be shown that there is a paucity of evidence or a failure to plead that comparator”. While it is up to the claimant to make an initial choice of the person, group or groups with whom he or she wishes to be compared, the correctness of that choice is a matter of law for the court to determine. The appropriate comparator group in this case is “divorced spouses”, not “separated married spouses” as suggested by the respondent.
Cohabitation is a constituent element of a common law relationship. This is to be contrasted with the situation of married spouses, whose legal relationship continues to exist and who still have legal obligations to each other despite a separation, and despite any subjective intention on their part to put a de facto end to the marriage. Beginning in February 1994, there was both physical separation and an intention on the respondent’s part to make it permanent. The purpose of the survivor’s pension is to deal with the financial dependency of a couple who at the date of death are in a relationship with mutual legal rights and obligations. Subject to whatever provision may be made in a statute, a common law relationship 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. The respondent may have had a measure of financial dependence at the date of death of her former common law partner but she no longer had any legal relationship. While the legislature may extend the responsibility of common law spouses beyond the point where the relationship would end at common law to deal with matters such as economic dependence, Parliament has not done so in the CPP. On the contrary, the CPP defines the requisite common law relationship in terms of cohabitation. In the absence of any demonstration that this definition itself runs afoul of s. 15(1) of the Charter, it must be applied.
Referred to: Andrews v. Law Society of British Columbia,  1 S.C.R. 143; Miron v. Trudel,  2 S.C.R. 418; Granovsky v. Canada (Minister of Employment and Immigration),  1 S.C.R. 703, 2000 SCC 28; Nova Scotia (Attorney General) v. Walsh,  4 S.C.R. 325, 2002 SCC 83; Lovelace v. Ontario,  1 S.C.R. 950, 2000 SCC 37; Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497; Gosselin v. Quebec (Attorney General),  4 S.C.R. 429, 2002 SCC 84; Nova Scotia (Workers’ Compensation Board) v. Martin,  2 S.C.R. 504, 2003 SCC 54; M. v. H.,  2 S.C.R. 3; Vriend v. Alberta,  1 S.C.R. 493; Little Sisters Book and Art Emporium v. Canada (Minister of Justice),  2 S.C.R. 1120, 2000 SCC 69; Trociuk v. British Columbia (Attorney General),  1 S.C.R. 835, 2003 SCC 34; Lavoie v. Canada,  1 S.C.R. 769, 2002 SCC 23; Corbiere v. Canada (Minister of Indian and Northern Affairs),  2 S.C.R. 203; Re Sanderson and Russell (1979), 24 O.R. (2d) 429; Arsenault v. Collier (2001), 208 Nfld. & P.E.I.R. 117; Tanouye v. Tanouye (1993), 117 Sask. R. 196.
Statutes and Regulations Cited
Canada Pension Plan, R.S.C. 1985, c. C-8, ss. 2(1) “spouse” [ad. c. 30 (2nd Supp.), s. 1(3)], 44(1)(d).
Fodden, Simon R. Family Law. Toronto: Irwin Law, 1999.
APPEAL from a judgment of the Federal Court of Appeal,  1 F.C. 271, 214 D.L.R. (4th) 632, 291 N.R. 78, 96 C.R.R. (2d) 232,  F.C.J. No. 900 (QL), 2002 FCA 243, reversing a decision of the Pension Appeals Board. Appeal allowed.
Brian J. Saunders and Christopher Rupar, for the appellant.
Chantal Tie and Ian M. Aitken, for the respondent.
Written submissions only by Hugo Jean, for the intervener the Attorney General of Quebec.
Holly D. Penner, for the intervener the Attorney General of Manitoba.
Leah Greathead, for the intervener the Attorney General of British Columbia.
Written submissions only by R. Douglas Elliott, Patricia A. LeFebour and Megan B. McPhee, for the intervener the Canadian AIDS Society.
The judgment of the Court was delivered by
1 Binnie J. _ A person asking for equal treatment necessarily does so by reference to other people with whom he or she can legitimately invite comparison. Claims of discrimination under s. 15(1) of the Canadian Charter of Rights and Freedoms can only be evaluated “by comparison with the condition of others in the social and political setting in which the question arises”: Andrews v. Law Society of British Columbia,  1 S.C.R. 143, at p. 164. A s. 15(1) claim will likely fail unless it can be demonstrated that the comparison, thus invited, is to a “comparator group” with whom the claimant shares the characteristics relevant to qualification for the benefit or burden in question apart from the personal characteristic that is said to be the ground of the wrongful discrimination.
2 In this case, the respondent claimant seeks a survivor’s pension under the Canada Pension Plan, R.S.C. 1985, c. C-8 (“CPP”), by reason of the death of a man (a CPP contributor) with whom she formerly had a common law spousal relationship. She identifies herself as belonging to the class of “separated common law spouses”, who as a group are denied survivor’s pensions, and she invites comparison with the class of “separated married spouses”, who receive pensions. She says the denial of her pension is discrimination based on marital status. The preliminary question, however, is whether, having herself terminated the common law relationship some months before her former partner’s death, she is any longer a “spouse” at all. If she is not a “spouse” in any legal sense of the term, even using an extended “common law” definition, her invited comparison with “separated married spouses” cannot be accepted. A former married spouse is not entitled to a CPP pension either. Accordingly, unless the respondent can show some continuing spousal status (despite her act of termination prior to her partner’s death), her claim must fail on the basis that she does not meet the criteria for the survivor’s pension given to spouses under the CPP. She does not contend that spousal pensions, as such, are discriminatory.
3 In my view, for reasons to be discussed, the Federal Court of Appeal erred in accepting the comparison invited by the respondent. The proper comparator for a “former common law spouse” is a “former married spouse”. As stated, former spouses, whether married or “common law”, do not qualify under the relevant provisions for a survivor’s pension under the CPP. There is no distinction based on marital status, and thus no discrimination. I would therefore allow the appeal.
4 The respondent had lived in a common law relationship with the deceased contributor between 1972 and February 1993, at which point, because of his alleged verbal and physical abuse, she left. A brief reconciliation in early 1994 failed. She agrees that when she left for good in February 1994, she intended to and did end their relationship:
Q. And I further understand that you attempted a reconciliation with Mr. [Bickell] in January 1994.
Q. But then again you left in February ’94 again because he was physically and verbally abusive and you feared for your safety?
Q. And at that time, in February ’94, in your mind, was your relationship totally broken down? You were leaving him finally and permanently?
A. Yes. [Emphasis added.]
5 While the abuse certainly contributed to her motive to end the relationship, there is no doubt that it was over.
6 Under the CPP only one survivor’s pension is to be paid in respect of a given contributor. The CPP mandates that the pension be paid to the person who is in a spousal relationship with the contributor at the time of the contributor’s death. (Thus, the claim of a separated married spouse may be displaced by that of a common law spouse who is cohabiting with the contributor at the time of the latter’s death and had been doing so for the prior year.)
7 The deceased died in July 1994. At the time of his death he was bankrupt. The respondent, as well as the deceased, had contributed over the years to the CPP. From 1992 onwards, she was receiving CPP disability benefits in her own right. On his death, she immediately applied under the CPP for both a survivor’s pension and a division of unadjusted pensionable earnings. (Upon the breakdown of a marriage or common law relationship, the unadjusted pensionable earnings or pension credits accumulated during the period of cohabitation are added together and divided equally between the partners in respect of each year of cohabitation.) The pension application was denied (because she was no longer a spouse), while the application for the division of unadjusted pension earnings was granted (precisely because the former spousal relationship had come to an end). As a result of this division (or “credit split”), the respondent’s disability and CPP retirement pensions were increased. The respondent appealed the denial of the survivor’s pension to a CPP Review Tribunal.
II. Relevant Statutory Provisions
2. (1) . . .
“spouse”, in relation to a contributor, means,
(a) except in or in relation to section 55,
(i) if there is no person described in subparagraph (ii), a person who is married to the contributor at the relevant time, or
(ii) a person of the opposite sex who is cohabiting with the contributor in a conjugal relationship at the relevant time, having so cohabited with the contributor for a continuous period of at least one year, and
(b) in or in relation to section 55, a person who is married to the contributor at the relevant time,
and, in the case of a contributor’s death, the “relevant time”, for greater certainty, means the time of the contributor’s death.
9 It should be noted that this definition of “spouse” was repealed effective July 31, 2000 by s. 42(1) of the Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, and the CPP was amended to, amongst other things, delete the reference to a person “of the opposite sex”.
III. Judicial History
A. CPP Review Tribunal (January 9, 1997)
10 The Tribunal held that the definition of “spouse” in s. 2(1) breached the equality provisions in s. 15 of the Charter because it excluded the respondent on the basis that she had not resided with her common law husband for the 12 months immediately prior to his death. Consequently, the Tribunal declared the offending parts of s. 2(1)(a)(ii) to be of no force or effect and allowed the appeal and awarded the survivor’s pension.
B. Pension Appeals Board (Cameron J.A. and Killeen and Holmes JJ.) (November 28, 2000)
11 The Board unanimously allowed the Minister’s appeal on the ground that the statutory residence requirement did not violate Ms. Hodge’s rights under s. 15 of the Charter. Writing for the majority, Killeen J. concluded that the residence requirement was a reasonable attempt by Parliament to accommodate common law spouses without permitting multiple claims by successive partners. The statutory scheme could not be said to demean the human dignity of persons in the position of the respondent, nor to cast doubt on their individual worth. Concurring in the result, Cameron J.A. held that Ms. Hodge was not entitled to the survivor’s pension because the common law relationship had ended by the time the contributor died.
C. Federal Court of Appeal (Linden, Evans and Malone JJ.A.) ( 1 F.C. 271, 2002 FCA 243)
12 In unanimously allowing the respondent’s application for judicial review, the Court of Appeal set aside the Pension Appeals Board’s decision and restored the decision of the Tribunal. The court declared the impugned provision of no force or effect in so far as it violated the respondent’s right under s. 15(1) of the Charter to be free from discrimination on the ground of marital status. She was entitled to the survivor’s benefit that she would have received if she had been married to the contributor. The court went on to make a general declaration of invalidity, which declaration was suspended for a period of 12 months.
13 The court agreed with the respondent that the correct comparator group was that of married spouses living apart at the time of the contributor’s death, rather than former married spouses whose marriages had ended by divorce.
IV. Constitutional Questions
14 On July 4, 2003, Gonthier J. stated the following constitutional questions:
15 The prevalence of common law relationships is part of our social reality, as the Court noted almost a decade ago in Miron v. Trudel,  2 S.C.R. 418, per McLachlin J., as she then was, at para. 155:
Of late, legislators and jurists throughout our country have recognized that distinguishing between cohabiting couples on the basis of whether they are legally married or not fails to accord with current social values or realities.
16 The process of modernizing the statute books to reflect that social reality is well advanced. Nevertheless, the legislature is still free to target social programs to those who, as a matter of public policy, it wishes to benefit, provided such targeting is not done in a discriminatory manner: Granovsky v. Canada (Minister of Employment and Immigration),  1 S.C.R. 703, 2000 SCC 28, at para. 61; Nova Scotia (Attorney General) v. Walsh,  4 S.C.R. 325, 2002 SCC 83, at para. 55.
17 The identification and function of the “comparator group” in applying s. 15(1) of the Charter was encapsulated by Iacobucci J. in Lovelace v. Ontario,  1 S.C.R. 950, 2000 SCC 37, at para. 62, as follows:
. . . there are three basic stages to establishing a breach of s. 15. Briefly, the Court must find (i) differential treatment, (ii) on the basis of an enumerated or analogous ground, (iii) which conflicts with the purpose of s. 15(1) and, thus, amounts to substantive discrimination. Each of these inquiries proceeds on the basis of a comparison with another relevant group or groups, and locating the relevant comparison groups requires an examination of the subject-matter of the law, program or activity and its effects, as well as a full appreciation of the context. [Emphasis added.]
It is worth repeating that the selection of the comparator group is not a threshold issue that, once decided, can be put aside. On the contrary, each step in the s. 15(1) analysis proceeds “on the basis of a comparison”. Indeed in many of the decided cases, the characteristics of the “comparator group” are only developed as the analysis proceeds, especially when considering the “contextual factors” relevant at the third stage, i.e., whether discrimination, as opposed to just a “distinction”, has been established. Thus, in Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497, the basis of the differential treatment (age) was identified at the outset (para. 1), but the discussion of age in the context of a survivor’s pension was greatly expanded and refined as the analysis proceeded (see, e.g., paras. 101 et seq.). In Walsh, too, the characteristics of marriage as a basis for the distinction drawn in the Nova Scotia Matrimonial Property Act were only developed at the third stage (e.g., at para. 43). In Gosselin v. Quebec (Attorney General),  4 S.C.R. 429, 2002 SCC 84, the principal discussion of the comparator group took place not at the outset but at the point where members of the Court considered whether age-based distinction amongst welfare recipients amounted to discrimination. (See the reasons of McLachlin C.J., at paras. 39-42, and Bastarache J., at paras. 235-38.)
18 As is evident, a misidentification of the proper comparator group at the outset can doom the outcome of the whole s. 15(1) analysis. In fact, the seemingly straightforward selection of a comparator group has proven to be the Achilles’ heel in a variety of recent cases, including Granovsky, supra, Lovelace, supra, and Nova Scotia (Workers’ Compensation Board) v. Martin,  2 S.C.R. 504, 2003 SCC 54. In other cases, the selection has sparked a good deal of judicial debate, as in M. v. H.,  2 S.C.R. 3, and Gosselin, supra. The correctness of the “comparator group” contended for by a claimant has thus been an important battleground in much of the s. 15(1) jurisprudence and, in my view, this issue is also at the forefront of the present appeal.
19 In this case, we are dealing with an equality rights claim for access to benefits under a legislative program, and with respect to the appropriate “comparator group”, a number of questions must be addressed:
a) the role of the court in determining the appropriate comparator group;
b) the criteria for identifying the appropriate comparator group;
c) a definition of the comparator group appropriate to the case before the court; and
d) whether the claimant brings herself within the comparator group thus defined.
A. The Role of the Court in Determining the Appropriate Comparator Group
20 The outcome of a s. 15(1) claim cannot be skewed by a claimant attempting to associate himself or herself with a group whose relevant characteristics do not reflect the claimant’s actual circumstances, or by targeting the benefits of a group whose relevant characteristics are simply not comparable. The role of the court in scrutinizing the claimant’s choice of comparator group was addressed in Law, supra, at para. 58:
When identifying the relevant comparator, the natural starting point is to consider the claimant’s view. It is the claimant who generally chooses the person, group, or groups with whom he or she wishes to be compared for the purpose of the discrimination inquiry, thus setting the parameters of the alleged differential treatment that he or she wishes to challenge. However, the claimant’s characterization of the comparison may not always be sufficient. It may be that the differential treatment is not between the groups identified by the claimant, but rather between other groups. [Emphasis added.]
21 In my view, with respect, the Federal Court of Appeal erred in concluding that a court is required to “adopt the comparator group chosen by the applicant unless it can be shown that there is a paucity of evidence or a failure to plead that comparator” (para. 23). While it is up to the claimant to make an initial choice of “the person, group, or groups with whom he or she wishes to be compared” (emphasis added), the correctness of that choice is a matter of law for the court to determine: Granovsky, supra, at paras. 47, 52 and 64.
22 Where “the differential treatment is not between the groups identified by the claimant, but rather between other groups” (Law, supra, at para. 58), accordingly, it is the duty of the court to step in and measure the claim to equality rights in the proper context and against the proper standard.
B. The Criteria for Identifying the Appropriate Comparator Group
23 The appropriate comparator group is the one which mirrors the characteristics of the claimant (or claimant group) relevant to the benefit or advantage sought except that the statutory definition includes a personal characteristic that is offensive to the Charter or omits a personal characteristic in a way that is offensive to the Charter. An example of the former is the requirement that spouses be of the opposite sex; M. v. H., supra. An example of the latter is the omission of sexual orientation from the Alberta Individual’s Rights Protection Act; Vriend v. Alberta,  1 S.C.R. 493.
24 The usual starting point is an analysis of the legislation (or state conduct) that denied the benefit or imposed the unwanted burden. While we are dealing in this appeal with access to a government benefit, and the starting point is thus the purpose of the legislative provisions, a similar exercise is required where a claim is based on the effect of an impugned law or state action. Thus, in Little Sisters Book and Art Emporium v. Canada (Minister of Justice),  2 S.C.R. 1120, 2000 SCC 69, the terms of the powers given to customs officers to intercept incoming publications were neutral, but the appellant, a Vancouver bookstore, claimed that their shipments of books and magazines were targeted by customs officials in a discriminatory way because the store catered to gay and lesbian clients. It was clear that customs officials had systematically delayed and denied entry to lawful materials. Thus, the comparator group, defined by reference to the effect of the impugned conduct of customs officials, was “other individuals importing comparable publications of a heterosexual nature” (para. 120).
25 In either case, the universe of people potentially entitled to equal treatment in relation to the subject matter of the claim must be identified. I use the phrase “potentially entitled” because the legislative definition, being the subject matter of the equality rights challenge, is not the last word. Otherwise, a survivor’s pension restricted to white protestant males could be defended on the ground that all surviving white protestant males were being treated equally. The objective of s. 15(1) is not just “formal” equality but substantive equality (Andrews, supra, at p. 166).
26 Nevertheless, in a government benefits case, the initial focus is on what the legislature is attempting to accomplish. It is not open to the court to rewrite the terms of the legislative program except to the extent the benefit is being made available or the burden is being imposed on a discriminatory basis.
27 In Lovelace, supra, for example, some disappointed aboriginal claimants challenged the distribution of the profits from Casino Rama amongst the First Nations in Ontario. The claimants were non-status Indians who considered themselves discriminated against by a provincial government program favouring status Indians. However, the Court held that the Casino Rama fund, for legitimate public policy reasons, targeted aboriginal communities, not aboriginal individuals. It was not the Court’s role to rewrite the policy objectives of a program that were not in themselves discriminatory (i.e., individual versus community). The program was aimed at supporting “a government-to-government relationship” (para. 74), and the potential universe of claimants was therefore limited to “band and non-band aboriginal communities” (para. 64 (emphasis added), per Iacobucci J.).
28 Similarly, in Martin, supra, chronic pain sufferers alleging discriminatory neglect by the Nova Scotia Workers’ Compensation Board attempted to compare themselves to chronic pain sufferers whose injuries were not employment related. Such people were free to go to court to claim appropriate compensation for their chronic pain. However Gonthier J. held, at para. 72, that tort claimants could not constitute a proper comparator group. There was no proper alignment between the benefit sought and the ground of discrimination alleged. The asserted comparator group shared the personal characteristic on which the s. 15(1) claim was based (chronic pain disability), but the benefits under the Workers’ Compensation Act were by definition not available to people who had suffered their injuries outside the workplace in circumstances altogether outside the scope of the statutory compensation plan.
29 A more straightforward example is Trociuk v. British Columbia (Attorney General),  1 S.C.R. 835, 2003 SCC 34, where the impugned legislation permitted mothers to “unacknowledge” fathers by excluding their particulars from the birth registration. This meant fathers could be prevented from participating in naming their children. The choice to unacknowledge was at the mother’s discretion. Fathers had no recourse. The relevant universe of potential claimants were biological parents. Mr. Trociuk claimed discrimination on the basis of sex, since his biological relationship to the child was equivalent to that of the mother in all relevant respects. His claim succeeded.
30 While Walsh, supra, was decided by the majority on the basis that the legislators’ use of marriage as a distinction was not discriminatory in the context of the Matrimonial Property Act, Gonthier J., concurring, took a different approach. In his view, “[t]he fundamental differences between common law and married couples make them inappropriate comparator groups in this respect” (para. 205). On that basis, in his view, the claimants had sought equality with a group with which, for relevant purposes, it did not share relevant characteristics having regard to the alleged ground of discrimination.
31 Lavoie v. Canada,  1 S.C.R. 769, 2002 SCC 23, dealt with a hiring preference in the federal public service for Canadian citizens. The relevant universe of potential claimants were applicants who were qualified for public service jobs. The distinction complained about was made between those who were Canadian citizens, and those who were otherwise qualified but were not Canadian citizens. Applying the proper comparator group, a majority of the Court found an infringement of s. 15(1), although the infringement was ultimately justified under s. 1.
32 Similarly, in Granovsky, the subject matter of the claim was a disability pension. The claimant was not eligible for two reasons: firstly, his disability was temporary rather than permanent; and secondly, he had not made the required CPP contributions. He contended that the proper comparator group consisted of able-bodied workers who were able to keep up their CPP contributions because they were not disabled. He was unable to do so because of his disability. The Court rejected his choice of comparator group because it ignored the basis of the benefit he was seeking, i.e., able-bodied workers are not within the universe of persons potentially eligible for a disability pension. If and when they did qualify, it would be because they were no longer able-bodied. In other words, the benefit sought by the claimant did not correspond with the personal characteristic of the comparator group that he asserted to be the basis of his s. 15(1) claim. The proper comparator group was the permanently disabled CPP contributors with whom Granovsky could not properly demand equal treatment.
33 If the claim to equality is to succeed, the ground has to be a personal characteristic enumerated or analogous to those listed in s. 15(1). This too is occasionally lost sight of. In Martin, the excluded chronic pain sufferers at one point attempted to compare themselves to another group of chronic pain sufferers who had suffered workplace injuries at an earlier date. The earlier group had obtained greater benefits under the Workers’ Compensation Act than the later group of sufferers, but in the interim the benefit the earlier group had received had been terminated and the group grandfathered. Gonthier J. rejected the group of earlier sufferers as a relevant comparator group because what differentiated them from the claimants was not the type of disability but simply the date of their respective workplace accidents, which was not a prohibited ground of discrimination.
34 In this respect, the facts in Martin and the facts in this case may usefully be compared with those in Corbiere v. Canada (Minister of Indian and Northern Affairs),  2 S.C.R. 203. In that case, the subject matter of the impugned legislation was the right to vote, which the legislature extended to band members (which included the claimants) but drew a distinction between band members living off the reserve (who were denied the vote) and band members living on the reserve (who received it). The claimants were able to demonstrate that in every way relevant to the benefit (the vote) they were comparable to those who were favoured by the legislation except that they lived off the reserve. Unlike one of the claimed comparisons in Martin, the claimants in Corbiere belonged to the proposed comparator group at the same time.
35 The claimants in Corbiere would have found themselves in the position of the respondent here if they had altogether ceased being members of the band prior to the vote being called.
36 In Gosselin, supra, McLachlin C.J. for the majority noted, at para. 28:
The Regulation at issue made a distinction on the basis of an enumerated ground, age. People under 30 were subject to a different welfare regime than people 30 and over.
37 Much of the claimant’s argument in Gosselin was rejected because it put the focus on the disadvantages attaching to welfare recipients as a class rather than differentiating within that general class between the two age groups. The evidence of discrimination was therefore not properly aligned with the alleged ground of discrimination.
C. The Appropriate Comparator Group in This Case
38 In the present case, the claimant says that the group to which she belongs (separated common law spouses) shares all relevant characteristics with the group who receives a survivor’s pension (separated married spouses) except for the personal characteristic of marital status. In other words, the universe of potential claimants, having regard to the benefit provided by the CPP, is the universe of separated spouses. I agree with that initial step.
39 The claimant then says that a distinction has been drawn within that group on the basis of a personal characteristic, namely marital status. There is no doubt that marital status is an analogous ground of discrimination prohibited when used in a discriminatory way by s. 15(1): Miron, supra, at para. 156; Walsh, supra, at para. 41. Having correctly laid the groundwork for the analysis by aligning the benefit and the prohibited ground of discrimination, the respondent must now bring herself within it.
D. Does the Respondent Belong to the Comparator Group Thus Defined?
40 Section 44(1)(d) of the CPP targets the benefit (survivor’s pension) at surviving “spouses”. The statutory definition includes common law spouses as well as married spouses. This presents a problem for the respondent. She was not in any sort of relationship at all with the deceased at the date of his death. The survivor’s pension was denied on the basis that the respondent was not, at the relevant time, a spouse. It was not denied, as it was in Miron, because at the relevant time she was a common law spouse rather than a married spouse.
41 As stated, the respondent acknowledges that when she left the deceased in February 1994, she intended to and did terminate their relationship. This is to be contrasted with married spouses whose legal relationship continues to exist and who still have legal obligations to each other despite a separation, and despite any subjective intention on their part to put a de facto end to the marriage.
42 The respondent terminated cohabitation and cohabitation is a constituent element of a common law relationship. “Cohabitation” in this context is not synonymous with co-residence. Two people can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living 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. I agree with the observation of Morden J.A. in Re Sanderson and Russell (1979), 24 O.R. (2d) 429 (C.A.), at p. 432, that, subject to whatever provision may be made in a statute, a common law relationship 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”. On this point, Professor Fodden observes:
. . . turning to a (constructed) mental phenomenon permits the court to make a decision as to the critical moment a relationship ended without having to place inordinate stress upon any particular event or lack of action. It allows for the bridging of gaps in the relationship as being “brief cooling‑off period[s]” and perhaps gives courts some freedom to protract the continuation of cohabitation past the last physical symptom, where to do so might be just.
(S. R. Fodden, Family Law (1999), at p. 60)
43 The test for “cohabitation” has been developed and refined in a number of cases: see, e.g., Arsenault v. Collier (2001), 208 Nfld. & P.E.I.R. 117 (P.E.I.S.C.T.D.), at paras. 15-17; Tanouye v. Tanouye (1993), 117 Sask. R. 196 (Q.B.), at paras. 32-38. It is not an issue that requires extended consideration here because, on the respondent’s own evidence, cohabitation was at an end. She brought it to an end.
44 The respondent’s point, rather, is that the Court should extend the duration of the common law marriage beyond the termination of cohabitation for so long as a measure of economic dependency continues. She points out that such economic dependency may continue in the case of common law spouses who separate just as in the case of separated married couples. Statistics Canada reports that at the age of 75, 50 percent of unattached elderly women live in poverty, a figure the National Council of Welfare suggests is low because they say it excludes people living in institutions. The respondent points out that the “particular vulnerability” of these women “is due to the near impossibility of entering or re-entering the work force and the inadequacy of our pension systems in general”. The legislature may, of course, extend the responsibility of common law spouses beyond the point where at common law the relationship would end, to deal with matters such as economic dependence, but Parliament has not done so in the CPP. On the contrary, s. 2(1) defines the requisite common law relationship in terms of cohabitation. In the absence of any demonstration that this definition itself runs afoul of s. 15(1), we are not at liberty to ignore it.
45 The respondent does not argue that limiting the survivor’s pension to a “spouse” is itself discriminatory. Rather her position, as put by her counsel, is that “Betty Hodge does not compare herself to divorced spouses”. In my view, with respect, the proper comparator group in her case is divorced spouses. Beginning in February 1994, there was both physical separation from her common law partner and an intention on her part to make it permanent. At the time of his death, therefore, she was not a “separated” common law spouse but a “former” common law spouse. Former common law spouses, like divorced spouses, are no longer spouses in any legal sense at common law. In neither case are they eligible for a survivor’s pension under the CPP.
46 The respondent relies upon the decision of this Court in M. v. H. In that case, the Ontario Family Law Act provided support remedies on separation to opposite-sex partners (both married and “common law” as therein defined), but not to same-sex partners. The relevant comparison was therefore between “persons in an opposite-sex, conjugal relationship of some permanence” (the comparator group) and the claimant’s group of “persons in a same-sex, conjugal relationship of some permanence” (para. 61 (emphasis added)). Here there is a disconnect between the claimant group (former spouses) and the comparator group (existing spouses). In M. v. H., the benefit was made available to persons with the same relevant characteristics as the claimant except for sexual orientation. Here former married spouses and former common law spouses are treated the same.
47 I appreciate of course that, as Iacobucci J. stated in Law, at para. 59, “[t]he determination of the appropriate comparator, and the evaluation of the contextual factors which determine whether legislation has the effect of demeaning a claimant’s dignity must be conducted from the perspective of the claimant.” However, the respondent’s perspective prior to the death of the deceased was that the common law relationship had ended. The purpose of the survivor’s pension is to deal with the financial dependency of a couple who at the date of death are in a relationship with mutual legal rights and obligations. The respondent may have had a measure of financial dependence, but she no longer had any legal relationship. A reasonable claimant in her position would, I think, not feel demeaned by being treated the same as other “former” spouses. In fact, as counsel for the appellant pointed out, the effect of the remedy sought by the respondent would itself create a form of inequality by providing survivors’ pensions to former common law spouses that are not available to former married spouses.
48 Having regard to the submission of the intervener, Canadian AIDS Society, I should add that the foregoing analysis deals with heterosexual couples, not homosexual couples. Until such time as the issue of same-sex marriage has been resolved, it is possible that different considerations would apply to gay and lesbian relationships in respect of a survivor’s pension because, at least in the past, the institution of a legal marriage has not been available to them.
49 For these reasons, it is my view that the respondent belongs to the category of “former spouses” for whom no survivor’s pension is available under the CPP, irrespective of marital status.
50 The appeal must therefore be allowed and the decision of the Pension Appeals Board reinstated.
51 The constitutional questions should therefore be answered as follows:
Answer: It is unnecessary to answer this question.
Solicitor for the appellant: Attorney General of Canada, Ottawa.
Solicitors for the respondent: South Ottawa Community Legal Services, Ottawa.
Solicitor for the intervener the Attorney General of Quebec: Attorney General of Quebec, Sainte-Foy.
Solicitor for the intervener the Attorney General of Manitoba: Attorney General of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Victoria.
Solicitors for the intervener the Canadian AIDS Society: McGowan Elliott & Kim, Toronto.
* Iacobucci and Arbour JJ. took no part in the judgment.