Legal Recognition of Non-Conjugal Families by Palazzo Nausica;

Legal Recognition of Non-Conjugal Families by Palazzo Nausica;

Author:Palazzo, Nausica;
Language: eng
Format: epub
Publisher: Bloomsbury Publishing Plc
Published: 2021-06-15T00:00:00+00:00


iii.The Justification Prong

Section 1 of the Charter contains a general limitation clause. In section 1, the rights and freedoms enshrined in the Charter warrant protection ‘only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.

Therefore, rights infringements can still pass muster if they are justified. This is the stage where the government argues for the reasonableness of the discriminatory distinction and attempts to salvage it. In short, the government first must point out a valid state interest or purpose of the law. It must then establish a rational connection – even a tenuous one – between the means employed and the purpose. Third, the law must pass the so-called minimal impairment test.116 According to the test, the infringement shall be ‘as little as is reasonably possible’ – that is, proportional.117 The latter stage focuses on the two conflicting dimensions of the impact of the law on the enjoyment of the right on the one hand and the ‘broader public benefits’118 that the measure is seeking to achieve on the other hand.

In Québec (Attorney General) v A, the Court eventually upheld the exclusion of de facto couples in Québec from the presumptive protections of marriage. The Supreme Court found the promotion of autonomy (of unmarried couples) to be a pressing and substantial state interest. Thus, courts must pay heed to their decision not to marry. In her dissent, Justice Abella, while conceding that the mentioned interest is valid, argued that the law did not pass muster at the proportionality stage; she opined that an opting-out system, where couples decide to contract out of familial obligations, instead of the current opting-in system, where they agree to such obligations, was more compatible with the equality mandate.

Protecting the autonomy of the will of the parties has long been recognised as a valid purpose.119 The received wisdom has it that couples ‘choose’ to be discriminated against because a lack of protections is counterbalanced by a lack of obligations.120 However, the majority opinion regarding the section 15 analysis rightly pointed to the decision to marry being a non-decision. A myriad of factors influences it and often people have no choice but to live in extra-marital arrangements.121 The above-mentioned interest in protecting choice is even more untenable in the case of non-conjugal couples. Marriage is no choice at all for non-conjugal families even if they could opt for it.122 I would not want to marry my cohabiting cousin just because I can. Marriage would signal something which is not the case: a relationship marked by sexual intimacy. Marriage for non-conjugal couples is simply not an option. Therefore, when the interest at stake is furthering the autonomy of claimants, non-conjugal couples can reject it on these grounds.

In one of the few successful section 15 challenges, M v H, the Court determined that the means – excluding same-sex couples from post-breakdown support – were not rationally connected to the purposes.123 The main stated purposes for Ontario’s regime were: (i) the



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