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Walsh and Bona cohabited for 10 years. Upon the breakdown of their relationship, Walsh applied for spousal support, child support and a declaration that the definition of "spouse" in s.2(g) of the Matrimonial Property Act was unconstitutional for failing to provide her with the presumption, applicable to married spouses, of an equal division of matrimonial property, in violation of s.15(1) of the Charter. The trial judge held that the exclusion of common law spouses from the definition of "spouse" did not constitute discrimination within the meaning of s.15(1). The Court of Appeal set aside the decision, concluding that the legislation infringed s.15(1) and that the infringement was not justifiable under s.1 of the Charter.


  1. Is the definition of "spouse" in s.2(g) of the Matrimonial Property Act a violation of s.15(1) of the Charter?


Appeal allowed, s.2(g) is not unconstitutional.



Bastarache, writing for the majority, held the distinction between unmarried and married couples in the Act does not affect the dignity of these persons and does not deny them access to a benefit or advantage available to married persons. Bastarache applied the test set out in Law v Canada to test whether a statute violates s.15(1):

  1. does the law imposes differential treatment between the claimant and others, in purpose or effect;
  2. are one or more enumerated or analogous grounds of discrimination the basis for the differential treatment; and
  3. does the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee?

Bastarache found that s.2(g) passed the first two questions of the test, but not the third. Many opposite sex individuals in conjugal relationships choose to avoid marriage to avoid the legal consequences that flow from it. To ignore the differences among cohabiting couples presumes a commonality of intention that simply does not exist. Finding this was not the case effectively nullifies the individual's freedom to choose alternative family forms and to have that choice respected by the state. Unmarried cohabitants maintain their respective proprietary rights and interests throughout the duration of their relationship and at its end. If they so choose they are free to marry, enter into domestic contracts, own property jointly or register as domestic partners. As a result, the application of the Act to married persons only is not discriminatory in this case as the distinction reflects and corresponds to the differences between those relationships.


Gonthier, concurring with the majority, held that the situation of couples who have chosen life commitment through marriage is not comparable to that of unmarried couples. With married couples, there is a permanent and reciprocal life commitment, to which the legislature has attached a presumption of equal division of matrimonial assets. Unmarried couples do not make that same commitment, and rights and duties akin to marriage should not follow.

When couples marry, they commit to respect the consequences and obligations flowing from their choice. It is this choice that legitimates the system of benefits and obligations attached to marriage generally, and, in particular, those relating to matrimonial assets. To extend the prrgfdjngdfbesumption of equal division of matrimonial assets to common law couples would be to intrude into the most personal and intimate of life choices by imposing a system of obligations on people who never consented to such a system. To presume that common law couples want to be bound by the same obligations as married couples is contrary to their choice to live in a common law relationship without the obligations of marriage.


L'Heureux-Dubé, in the dissent, held that the Act was discriminatory and could not be saved under s.1 as unmarried heterosexual couples were deserving of the same protections that the [Act was passed to provide. Heterosexual unmarried cohabitants have historically faced disadvantages through a legal system that fails to acknowledge them as legitimate family forms. Many heterosexual unmarried cohabitants cohabit not out of choice but out of necessity. For many, choice is denied them by virtue of the wishes of the other partner. To deny them a remedy because the other partner chose to avoid certain consequences creates a situation of exploitation.


The application of the Matrimonial Property Act only to married couples is not unconstitutional. The right to choose to avoid the consequences of marriage or registered domestic partnerships must be respected.