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Simon Shields, LLB

Appendix 4 -
The Concept of "Spousal Dependency"

1. Overview

As will be recalled from Ch.2 "Claimants: The Benefit Unit",
welfare law and administration uses the concept of the
"benefit unit" - an aggregation of individuals historically
based on the family unit (ie. "dependent" spouse and
offspring) - as the unit of financial eligibility assessment
(income and assets) and assistance payment (ie. one cheque
issued for the entire benefit unit, payable to the
"applicant" within it).

For this administrative form to be effective for its
purposes it is necessary that the determination of the
make-up of the benefit unit (ie. membership within it) be a
compulsory matter, not one subject to the intention of those
who apply for welfare. The culture of welfare administration
would be apoplectic if individual members of what it
considered to be the benefit unit were allowed to exclude
themselves from it, fearing that individuals with high
income and assets would do so, allowing their impecunious
'relations' to collect welfare. Visions of single-earner
dual-parent households lining up to exhaust welfare coffers
dance in their heads.

On the other hand, (primarily) feminist political analysis
has pointed up the injustice that the benefit unit form
imposes on the financial independence of women. Where the
"applicant" (to whom the benefit unit's entire cheque is
paid) is the man (and there is no fixed rule as to which
spouse it is made payable) then the woman - who may (and
statistically as a class will) be - subject to domestic
abuse or violence is further hindered in her efforts to free
herself by her financial dependence on the man. Even when
the cheque is made payable to herself there are often
practices established within the household (ie. ranging from
joint accounts to physical intimidation and theft) that
militate against the establishment of the meagre financial
independence that welfare otherwise offers the woman. The
only practical solution for such woman is to physically
leave the joint household (at which point they can re-apply
for welfare with themselves as the "applicant"), which tends
to defer escape from the abusive situation until it reaches
crisis proportions.

Note 1: Spousal status was (and residually still is)
categorically significant under the Family Benefits
Act, where single parents are a distinct category of
FBA eligibility. While this Act is being rapidly
supplanted by the successor Ontario Works
legislation into which most single-parent FBA
recipients were "grand-parented", spousal status is
still hugely relevant to financial eligibility due
to the forced financial aggregation triggered by a
finding a spousal status. In most cases, inclusion
of the spouse's income and assets into the benefit
unit renders all members ineligible for welfare.

However, the "benefit unit" form and its conceptual reliance
on financial dependence between spouses is not essential to
welfare law and administration. The concept of "financial
in/dependence" (discussed extensively in Ch.2: "Claimants:
Financial Independence") is openly set out and regularly
assessed (and adjudicated) for the specific purpose of
determining which minor and adult offspring will - or will
not - be included within the benefit unit. Yet for some
reason this same assessment is denied from spouses seeking
to establish the financial segregation and freedom available
to employed women.

The reasons for the persistence of the benefit unit form
(and its commensurate restriction of financial independence
on women) probably lies in the social dominance of the
traditional family form during the time of the origin of
social assistance and during the lengthy pre-feminist period
that followed it. Another very likely reason is the
widespread class suspicion that welfare recipients are just
chomping at the bit to defraud and otherwise exploit the
system to their personal gain.

Note 2: The irony in this fear is that this suspicion is
quite ill-located upon poor people as a class. The
fraud scenario posited earlier (where monied
"members" of the "benefit unit" exclude themselves
from it in order to facilitate collection by their
impecunious families) is one actually only available
to the working or moneyed upper classes. As I like
to say by way of illustration: "poor people cannot
commit welfare fraud" - for if they are concealing
assets and income then they are not - by welfare's
own definition - poor. It is primarily the middle
class that commits welfare fraud.

Note 3: While the compulsory membership aspect of the
benefit unit is unquestioned in welfare culture and
administration, it may be of questionable legal
legitimacy - at least within Ontario law. The s.2
Ontario Works Act definition of "benefit unit"

"benefit unit" means a person and all of his or
her dependents ON BEHALF OF WHOM
[emphasis added] the person applies for and
receives basic financial assistance;

While mandatory inclusion of minor children within
the benefit unit may be a necessary outcome of their
limited legal consent capacity, it is a basic
principle of law that one adult may not presume to
act for another with the first's consent. What would
the legal position be of the happily-married and
spousal co-resident woman who applied for welfare
separately from her husband on the basis that she
did not consent to him applying "on behalf of"
herself? The phrasing of the above definition
clearly lends itself to this interpretation and (as
readers of this program may be sick of being
reminded), it is well-established that any ambiguity
in the statutory interpretation of
benefits-conferring legislation flows in favour of
the benefits-claimant: Rizzo v Rizzo Shoes
[1998] 1 SCR 27.

2. Falkiner and Similar Litigation

The spousal aspects of the "collectivization" inherent in
the benefit unit concept has been under periodic (and minor)
collateral attack in litigation over intrusive "spouse in
the house" investigative practices - the most recent and
publicized of which has been the Falkiner series of
cases that eventually terminated in the Ontario Court of
Appeal (see the casenote below), when a (granted) leave
request to the Supreme Court of Canada was discontinued by
the province.

However Falkiner and similar cases have merely nipped
at the flanks of welfare culture on this
"spouse-in-the-house" issue by lamenting (variously):
too-intrusive investigation techniques, unfair presumptions
and location of onus (ie. women having to 'prove a
negative'), restrictions on sexual freedom, and such. These
cases have not - for whatever reason - taken up the
challenge openly alluded to by Laskin JA in this passing
statement made in the Falkiner CA case:

The use of a couple in a spousal relationship as a
benefit unit to deliver social assistance is not disputed
in these appeals. What is disputed is whether the
definition of spouse captures relationships that are not

That said, such collateral pressure has resulted in a
straining of the traditional concept of the "spouse" as it
is applied within the welfare context, particularly in the
now express exclusion from consideration or investigation of
"sexual factors" [Reg s.1(2)], and in an effective retreat
from aggressive use tactics such as the "home visits" of
great anecdotal notoriety. Countering this pressure are
political attitudes inclined toward the 'sanctity' of the
traditional family unit, so vigorously resurrected by the
religious right in their recent unsuccessful battle against
same-sex marriages in Ontario.

Ironically (there is no shortage of irony in this note) for
gays and lesbians in the welfare context, the high profile
and "across-the-board" same-sex rights litigation has
resulted in a financially perverse result - as gays and
lesbian recipients are now subject to the same mandatory
collectivization into the "benefit unit" as their
heterosexual siblings. Prior to the February 2000 Regulation
amendments (see the discussion "Preliminary Note re Same-Sex
Spouses" in Ch.2), co-resident same-sex couples were treated
as two separate benefit units and administered as
accomodation "sharing" singles, with or without dependents.
Such separate treatment was typically financially
advantageous to the same-sex couples as it isolated any high
assets and income of one partner from assessment, allowing
the other to achieve eligibility. In circumstances were both
partners were impecunious, the treatment was similarly
advantageous as assistance for two single-applicant benefit
units is higher than that of a spousal couple.

3. Case Note on Falkiner v Ontario (Ont CA, 2002)

In Falkiner v Ontario (COMSOC) 59 OR (3d) 481 (CA,
2002) [leave to SCC granted March 2003; withdrawn 01 Sept
2004] a 1995 revision to the definition of "spouse" in the
Family Benefits Act was challenged as violating s.15 of the
Charter (discrimination). The previous definition adopted
the same definition then used in Ontario family law (three
continuous years of cohabitation). The 1995 amendment
created a rebuttable presumption that persons of the
opposite sex living in the same place who had "a mutual
agreement or arrangement regarding their financial affairs"
and a relationship that amounted to "cohabitation", were
"spouses". The court focussed on this element of financial
interdependence as being at the heart of the discrimination.

Laskin JA, writing for the Court of Appeal found that the
law infringed the recipients' s.15 Charter rights under the
categories of gender, marital status and - surprisingly -
a new s.15 category of "receipt of social assistance". The
law was NOT saved by s.1 of the Charter as it was (1) not
"rationally connected" to the government goal of ensuring
that only needy persons receive welfare (ie. government
economy), (2) "overbroad" (ie. it captured relationships not
properly characterized as spousal) and (3) as well that the
means adopted to achieve the government's goal was not
'worth' the intrusion into the lives of the women involved.
The appropriate Charter remedy was to declare the impugned
definition of no force or effect, a declaration which the
Court declined to "suspend" (as is commonly the practice in
such cases).

Some things worth noting in the case include:

. the use of the collectivization inherent in the
"benefit unit" concept per se was not subject to
challenge in the case; the recipients were content to
challenge the statutory definition of "spouse" within
the logic of the benefit unit structure;

. neither did the case strive vigorously to define the
concept of "spouse" as such, instead largely accepting
it as a coherent and independently existing concept by
which the impugned definition could be contrasted;

. "social, familial and economic" factors were amongst
those that were relevant to the determination of
spousal status.

4. Post-Falkiner

The 'corrective' action required of the government after
Falkiner was not immediately apparent (something
which the court alluded to - while at the same time
withholding significant constructive comment), although it
appears that the main problem was with the degree of
financial interdependence required to establish a
relationship as spousal. More specifically, the court was
offended by the extent to which the freedom of social
assistance single mothers was restricted by their inability
to engage in "try-on" test relationships when compared to
others not on social assistance:
The [impugned] definition will thus capture relationships
lacking in the permanence, the commitment, the legal
obligation to support, the legal right to claim support,
even the meaningful actual support that characterizes
spousal or marriage-like relationships.

Laskin JA further endorsed comments made by the Divisional
Court majority on this issue:

The Regulation captures as part of a "couple", individuals
who have not formed relationships of such relative
permanence as to be comparable to marriage, whether formal
or common law. It makes couples, or family units, out of
individuals like the Respondents who have made no
commitment to each other, with accompanying voluntary
assumption of economic interdependence. There is all the
difference in the world between a person, with her own
money, sharing accommodation in the hope that an inchoate
relationship may flourish, versus a person whose financial
support is largely in the hands of her co-habitant who has
no legal obligations towards her and her children.

.... [the impugned] clause (iii) of s. 1(1)(d) does not
reasonably capture the financial interdependence that
characterizes spousal relationships. Instead, clause
(iii) seems designed to capture try-on relationships like
those of the respondents, where the couple does share
some expenses but has no mutual support obligations and
no meaningful financial interdependence.

5. Present Law of Spousal Status

In response to Falkiner the province amended the
definition of "spouse" in Reg 197/02 to add to a
co-residency requirement of three months, and in addition
  • that the "extent of the social and familial aspects of
    the relationship ... is consistent with co-habitation",

  • the "extent of the financial support" OR the "degree of
    financial interdependence ... is consistent with

Other un-impugned categories of "spouse": marriage,
self-declaration, legal duty to support the other - are all

This response defines the present state of the law of
spousal status. The circularity of this response reflects
the lack of guidance provided by the Court in
Falkiner, as it essentially threw the whole issue
back into the common law definition of "co-habitation" -
which is really proxy for the concept of "spousal".
Recipients and administrators are thus referred back to the
previous "spouse-in-the-house" cases and any relevant
principles to be drawn from family law.

In summary, the present legal social assistance test for
spousal status now:
  • does not arise until at least three months of

  • no longer takes the legal form of a rebuttable
    presumption (although practice by administrators and
    staff may practically re-assert this),

  • requires an "extent of the social and familial aspects of
    the relationship ... consistent with co-habitation",

  • requires an extent or degree of "financial support ...
    or interdependence" greater than before, and more
    consistent with the common law concept of "co-habitation".
    On this last key point the element of permanence in the
    relationship may be the most pertinent factor.

6. Comment

Ironies abound in this result, and are reflective of the
failure of both litigants and the courts to confront the
underlying problem discussed above regarding the forced
collectivization of spouses into the "benefit unit", which
again is a simple financial-aggregation (essentially an
accounting) device.

Falkiner, after much ado and stripped to its
essentials, struck down a portion of the definition of
"spouse" simply because it was overbroad under Charter s.1
for its instrumental purpose of identifying who was a
"spouse" within the conventional benefit unit framework: ie.
it captured persons who were not "spouses" (whatever they
are, for we are not enlightened significantly on that issue
by the Court). The additional Charter s.1 failures of
"rational connection" and "means/end" balance are as
unnecessary to the result and strained as Laskin JA's
activist and gratutitous addition of 'receipt of social
assistance' as a new s.15 ground of discrimination.

Note 4: Not that I am unhappy with this new s.15 ground, but
the contortions to the analogous ground criteria of
"immutability" required to achieve this are
reflective of the less-than-thorough activist vision
embodied in the full judgment. A fuller activist
vision would have identified and addressed the
underlying problem of the forced collectivization of
the benefit unit.

The boosts given to the benefit unit form by its tacit
endorsement in Falkiner and the temporally
simultaneous - and successful - struggle for same-sex
marriage (since incorporated wholly into welfare law) both
defer constructive addressing of the more fundamental
"benefit unit" problem that is the theme of this note. This
is to the continued detriment of welfare spouses, who are, -
post-Falkiner - still subject to the same intrusive
inquiries (the welfare co-habitation questionnaires have
since been dusted off for re-use), burden of proof and
compelled financial interdependence injustices which are
(and were) the root aggravating "spouse-in-the-house"

Thankfully, one beneficial irony of the obssessive
litigation focus on "spousal status" has been the Court's
ultimately rational treatment (at least by way of result) of
the appellant in the Thomas case, heard and decided
with the Falkiner appeal. That case considered (and
reversed) welfare's literalist determination that a
care-giver and care-recipient of opposite genders were
"spouses" and that therefore the care-recipient was
categorically ineligible. Rather than focussing on the
ostensibly-significant factors of financial interdependence
so touted in Falkiner, the Court of Appeal quickly
dispensed with the issue by finding no "co-habitation" in
the nature of the relationship - despite the dictate that
"sexual factors shall not be investigated or considered in
determining whether or not a person is a spouse [Reg

Query: Did Laskin JA fear - on the destruction of the
discriminatory spousal-inclusion in the benefit unit
- a broad (and thus ostensibly non-discriminatory)
government response re-embracing the benefit unit
concept for all co-residents - so as to force such
recipients as Thomas and his care-giver, brother and
sisters, parents and grandchildren, co-resident
friends - and more into the "benefit unit" net - with
a commensurate across-the-board reduction in both
rates and eligibility?

7. Case Law Re Spousal Status

Despite Falkiner (it could be argued because of it)
the previous extensive "spouse-in-the-house" case law is
still relevant. Some of these case are briefly noted here:
  • Re Warwick and COMSOC 21 OR (2d) 528 (CA, 1978)
    Status as a single person (and thus 'spousal status') is
    not a question of fact alone (thus broadening court
    appeal availability). Neither is financial dependence
    alone determinative of such status. The determination
    involves a complex set of conjugal, sexual, familial and
    social factors; followed in Earle v Ontario
    [1981] OJ #1022 (Div Ct)

  • Willis v Ontario (COMSOC) (1983) 40 OR (2d) 287
    (Div Ct)
    Key aspect of spousal status is economic integration not
    sex. Where the man did not recognize duty to support
    woman and child there was no spousal relationship.

    Note: this law has since been amended to render
    situations spousal where a legal duty to support exists,
    regardless of the man's perspective on this duty: Act
    s.1(1) "spouse".

  • Chartier v Ontario (COMSOC) [1984] OJ #1428 (Div
    Factors relevant to spousal status determined from
    Willis and Warwick nicely requoted. Perhaps
    the most accurate, concise (and short) statement of the
    present state of the law.

  • Yusuf v Ontario (COMSOC) [2002] OJ #1659 (QL)(Div Ct)
    Majority sets out and applies a primarily economic test
    for spousal status.

  • Re Pitts and Ontario (COMSOC) 51 OR (2d) 302 (Div
    Ct, 1985); Re Burton and Minister of Community and
    Social Services
    52 OR (2d) 211 (Div Ct, 1985)
    In cases decided under the now obsolete definition of
    "single person" under the Family Benefits Act, it was
    held that an essential element of a spousal relationship
    for welfare purposes is co-residence. This fact must be
    established before the social, familial and financial
    factors of the relationship are considered.

  • Ontario (COMSOC) v Nicolitsis [1995] OJ #2340 (Div
    In a case decided under the now (mostly) obsolete
    phrasing of "living with" under the Family Benefits Act a
    finding of spousal status requires more than the mere
    fact of co-residence by adult of opposite gender.

  • R v Jantunen [1994] OJ #889 (QL) (OCJGD)
    Interesting and prolonged discussion of 'spousal' meaning
    in context of criminal fraud conviction.
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