This case challenged changes to Ontario’s Family Benefits Act, which denied benefits to opposite-sex individuals who moved in together unless they could prove they were not spouses.  

LEAF intervened in the judicial review proceedings before the Ontario Divisional Court, and in the appeal proceedings before the Ontario Court of Appeal. 

Facts 

Under the social assistance regime at the time, when an individual became a “spouse”, they lost their eligibility to receive family benefits as a “sole support parent”. From 1987 to 1995, a person became a “spouse” if they had lived with another person for at least three years. The government then amended that definition so that, once a person moved in with another individual of the opposite sex, they were presumed to be spouses unless they could prove otherwise.  

Sandra Falkiner and the other plaintiffs in this case had one or more children, and had each been living with a man for less than one year. Prior to the changes to the definition, they had received social assistance. When the definition changed, they lost their eligibility. 

Ms. Falkiner and the others challenged the definition in two ways. First, they sought judicial review of the new definition of spouse before the Divisional Court. Second, they appealed the decisions declaring them ineligible for social assistance to the Social Assistance Review Board.  

Arguments 

In both of its interventions, LEAF argued that the changed definition violated s. 15 of the Charter as they discriminated based on sex, and status as a single mother on social assistance. At the Court of Appeal, LEAF also argued that the definition violated s. 7 of the Charter, by depriving low-income women of economic support for basic survival, violating their privacy, and placing women at increased risk of intimate partner violence.  

Outcome 

In the judicial review, a majority of the Divisional Court decided not to hear the case. They held that it was appropriate for the Social Assistance Review Board (SARB) to hear and decide Ms. Falkiner and the others’ appeal. At that point, they would have the ability to appeal the decision to the Divisional Court.  

In the appeal proceedings, the SARB held that the definition violated s. 15 of the Charter and could not be saved under s. 1. The Divisional Court upheld the decision. The provincial government appealed the decision to the Ontario Court of Appeal. 

The Ontario Court of Appeal held that the definition violated s. 15 of the Charter, as it discriminated based on sex, marital status, and receipt of social assistance. This was the first time the Court of Appeal recognized receipt of social assistance as an analogous ground under the Charter. The Court held that the definition could not be saved under s. 1

LEAF is grateful to Martha Jackman and Carissima Mathen, counsel before the Ontario Divisional Court in judicial review proceedings in this case. LEAF is also grateful to Fay Faraday and Kerri Froc, counsel before the Ontario Court of Appeal. 

Download the Ontario Divisional Court factum here.

Download the Ontario Court of Appeal factum here.

Read the Ontario Divisional Court’s decision here

Read the Ontario Court of Appeal’s decision here

Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].