family, shelter, equality, Canadian Charter of Rights and Freedoms, discrimination, married, unmarried, property, policy
Highlighting the family home's significance as shelter this paper challenges the prevailing view of the demands of the equality guarantee in the Canadian Charter of Rights and Freedoms regarding unmarried cohabitants. In Nova Scotia (Attorney General) v. Walsh, the Supreme Court of Canada rejected the claim that it was discriminatory to restrict rules dividing matrimonial property to married couples. By contrast, on many views it is discriminatory to exclude cohabitants from a support obligation. Scholars and judges assume that Walsh upholds all statutory rules regarding married spouses and their property, including measures protecting the family home as shelter But Walsh is best read narrowly leaving open the status of the latter rules. Viewed in the light of the support/property dichotomy, the regime of the family home is akin to support. For family law and policy, it is analytically useful to unbundle conjugal unions' effects. Scholars' reading of Walsh may connect to procedural features of Charter litigation and attitudes towards judicial power inconsistent with the common-law tradition.
Robert Leckey, "Gimme Shelter" (2011) 34:1 Dal LJ 197.