Ontario Court (General Division), Divisional Court
Citation: Mohamed v. Metropolitan Toronto (Department of Social Services) Court File: 609/93
Date: 1996-02-22
Dunnet, Corbett and Adams JJ. Counsel:
Sheena Scott, for appellant.
Shirley Mathi, for respondent, the General Manager, Department of Social Services for the Municipality of Metropolitan Toronto.
Tanya Lee and Rebecca Givens, for respondent, Director of Income Maintenance Branch, Ministry of Community and Social Services.
The judgment of the court was delivered by
[1] DUNNET J.:—This appeal raises the question whether or not children under the age of 16 are eligible in their own right for general welfare assistance in Ontario.
[2] The Social Assistance Review Board (the “board”) in a decision dated August 23, 1993, concluded that the prohibition of direct payment of general welfare assistance to the appellant, a single person under the age of 16 years, is discrimination within the meaning of s. 15(1) of the Canadian Charter of Rights and Freedoms, but is justifiable under s. 1 of the Charter. The appellant asks that the decision be varied to find that the discrimination is not justified by s. 1 of the Charter and that the provisions of the General Welfare Assistance Act, R.S.O. 1980, c. 188 (now R.S.O. 1990, c. G.6) (the “Act”), and R.R.O. 1980, Reg. 441, made under the Act (the “Regulation”), be construed in such a manner as to permit persons aged 15 and under to be eligible for welfare in their own right. The respondent, the Director of Income Maintenance Branch of the Ministry of Community and Social Services, cross-appeals in this appeal and asks that there be a finding that the Act does not discriminate on the basis of age.
Facts
[3] The appellant was born on September 13, 1973, in Somalia. She came to Canada alone on November 10, 1988. She was not being supported by a parent and did not have a dependent child. She received no financial assistance from the Muslim community and did not work.
[4] The appellant applied for and received general welfare assistance from November, 1988, to February, 1989, when she was advised that the payments had mistakenly been paid on the basis that she was believed to be over 18 years of age. At the time, the appellant was living with Jawahir Adan in a boarder/landlord relationship, although rent was paid on only one occasion.
[5] In March, 1989, the municipality referred the appellant’s case to the Children’s Aid Society (the “Society”) who determined that there were no protection concerns. The appellant was attending high school and was adequately fed and clothed. She expressed financial concerns but did not want to come into the care of the Society. Therefore, the Society provided cheques to Ms Adan to allow her to care for the appellant in March and April, 1989, and was willing to provide a further cheque addressed to Ms Adan if the appellant attended an appointment with the Society which she failed to do. At all times the Society was prepared to take the appellant into care, placing her in foster care or a group home.
The decision of the board
[6] The board considered two issues:
1. Do ss. 1(1)(a), (n) and 11(1) of the Regulation under the Act which limit the direct payment of general welfare assistance to eligible persons 16 years of age and older violate s. 15(1) of the Charter?
2. If the answer to the first question is “yes”, do the subsections referred to above constitute a reasonable and demonstrably justified limit pursuant to s. 1 of the Charter?
[7] The board stated that the primary eligibility test for general welfare assistance is set out in s. 11(1) of the Regulation which provides that general assistance shall be paid to or on behalf of every single person or head of a family if that person is in need.
[8] A “single person” as defined in s. 1(1)(n) of the Regulation includes an unmarried adult. An “adult” as defined in s. 1(1)(a) of the Regulation means a person 16 years of age or over. The board found that the appellant is not a “single person” or “head of a family” under the Regulation. However, she is a person in need.
[9] Under the Act, persons under 16 years of age are treated differently than those 16 years of age and older. The board relied upon the decision of Andrews v. Law Society of British Columbia (1989), 56 D.L.R. (4th) 1, [1989] 1 S.C.R. 143, 25 C.C.E.L. 255, and examined the threshold test as set out by McIntyre J. at p. 18 to determine whether such a distinction amounts to discrimination.
I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.
[10] In applying the test, the board found a distinction based on the appellant’s age which had the effect of withholding a benefit — payment of direct welfare assistance — available to other members of society who are otherwise eligible. The board found that although the appellant could receive assistance indirectly through a guardian, there are disadvantages to
the indirect receipt of money such as the fact that a foster parent receives less money than a direct recipient. The board concluded that the test for discrimination must focus on the effect of the legislation and not on the motives, reasonableness or intentions of the legislation. It did not accept that any differentiation or distinction in treatment is sufficient to constitute discrimination. Here the distinction based solely upon age permitted the board to find that there was a violation of s. 15(1) of the Charter.
[11] As the appellant had proven that her s. 15 right had been violated, the onus was on the respondents to prove the limitation on her right was “reasonable” and “demonstrably justified in a free and democratic society”, and thereby not inconsistent with the Charter.
[12] In evaluating whether the limitation applied, the board relied upon the test as set out by Dickson C.J.C. in R. v. Oakes (1986), 26 D.L.R. (4th) 200 at p. 227, 24 C.C.C. (3d) 321, [1986] 1 S.C.R. 103:
To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom”: R. v. Big M Drug Mart Ltd., supra, at p. 430 C.C.C., p. 366 D.L.R., p. 352 S.C.R. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.
Secondly, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test”: R. v. Big M Drug Mart Ltd., supra. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “at little as possible” the right or freedom in question: R. v. Big M Drug Mart Ltd., supra. Thirdly, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”.
[13] In evaluating whether the limitation applies, the board noted that it had not received any evidence of the legislative history respecting the objectives of ss. 1(1)(a), (n) and 11(1) of the Regulation under the Act. Also, there is no specific section of the Act or Regulation that prohibits the payment of direct assistance to an individual under the age of 16; it is only when the subsections are read together that the conclusion is reached.
[14] The first objective found by the board is that the legislation should fit well with other statutes dealing with children, adolescents and adults in Ontario. However, mere consistency with other legislation on the issue of age-related eligibility was not determined to be of sufficient societal importance to override a constitutionally guaranteed right.
[15] The second objective — the need for assistance to be properly assessed by considering the family unit as a whole and the support obligations of others — was also found to be of insufficient societal importance to override the constitutionally guaranteed right. On the other hand, the objective of ensuring proper provision for all children through the combination of various Ontario statutes was of sufficient importance to warrant overriding the appellant’s constitutionally protected right. The board noted that children lack capacity and ability to provide for themselves until they mature at some age, usually in adolescence, and Ontario society accepts the protection and special treatment of children as a “pressing and substantial” concern. The sociological evidence demonstrated that children need more types of support than financial support. Moreover, the objective that the integrity of the family unit be supported where it is appropriate to a child’s needs was of sufficient importance to meet the first part of the Oakes test.
[16] In determining that the means chosen were reasonably and demonstrably justified, the board found the legislation rationally connected to the objectives identified. An individual under 16 years of age cannot be the beneficiary of financial assistance without the assistance of an adult in the role of parens patriae unless the individual himself or herself is a parent and thus required to support a child under 16 years of age. The board concluded that the legislation was not “arbitrary, unfair, or based on irrational considerations”. It found that the legislature made a reasonable effort to minimize the impairment of the constitutionally protected right and proportionality between the effect of the limitation on the Charter right and the objective of the legislation, noting that a system of financial aid to persons under the age of 16 exists with the assistance of an adult or the Society, and any problem in that area lies with the Society and not with the income assistance plan.
[17] Consequently the board concluded that the prohibition of direct payment of general welfare assistance to the appellant as a single person under the age of 16 years is discrimination within the meaning of s. 15(1), but is justifiable under s. 1 of the Charter.
The issues
[18] The judicial review of the board’s decision deals with two issues. First, as a matter of statutory interpretation, do the provisions of the Act and Regulation permit children under the age of 16 years to be eligible for general welfare assistance in their own right? Second, if the answer to the above question is “no”, do the provisions of the Act and Regulation violate the Charter?
1. Statutory interpretation
[19] The municipality’s duty to provide financial assistance to persons in need is prescribed by s. 7 of the Act which states:
7(1) A municipality shall provide assistance in accordance with the regulations to any person in need who resides in the municipality and who is eligible for such assistance.
In determining eligibility for general assistance, the key subsection is s. 11(1) of the Regulation under the Act which states:
11(1) Subject to subsection (5) and sections 3, 5 and 6, general assistance shall be paid to or on behalf of every single person or head of a family if that person is in need and is not a resident in an institution other than a nursing home or hostel … in an amount by which the budgetary requirements of the applicant or recipient determined in accordance with sections 12 and 29 exceed the income of the applicant or recipient as determined in accordance with section 13.
The Regulation defines “adult”, “child” and “single person” as follows: 1(1) In this Regulation,
(a) “adult” means a person sixteen years of age or over;
* * * * *
(c) “child” means a person under sixteen years of age;
* * * * *
(n) “single person” means an unmarried adult, a widow, a widower or a separated or divorced person but does not include a person,
(i) who is a head of a family,
(ii) who is an employable person under the age of twenty-one years living with either of his parents or with a person in loco parentis, or
(iii) who is living with his or her spouse;
In its preliminary decision dated January 14, 1991, after considering these statutory and regulatory provisions, the board concluded:
The Appellant is not a “single person” as defined in Regulation 441. Neither is she a “head of a family” as earlier discussed. Subsection 11(1) is the only section in the Act or Regulation directing or authorizing payment. There is no provision under the General Welfare Assistance Act or Regulation 441 authorizing the payment of assistance to a fifteen-year-old person in need. A foster parent is eligible for general assistance on behalf of a foster child, who must be sixteen years of age by definition (subsection 1(1)(c) of Regulation 441). The Appellant’s counsel submitted that subsection 11(1) is not prohibitive in that it does not prohibit payment to a person under the age of sixteen years. The Board finds that there is no other section in the legislation authorizing payment of assistance directly to a person under the age of sixteen. Subsection 11(1) is a threshold test delineating the classes of eligible persons under the General Welfare Assistance Act. In the absence of any statutory authority, the General Manager cannot pay assistance to any person.
The Board concludes that the Appellant is not eligible for assistance in her own right under the General Welfare Assistance Act.
On a plain reading of these sections, it is apparent that persons who are under the age of 16 are not eligible to receive general welfare assistance in their own right. There is no latent or obvious ambiguity in these sections. Moreover, s. 11 is the only section of the Regulation the appellant could rely upon to obtain assistance from the respondent General Manager: Kerr v. Social Services of Metropolitan Toronto (General Manager) (1995), 121 D.L.R. (4th) 250, 22 O.R. (3d) 588, 80 O.A.C. 81 (C.A.). In my view, the board was correct in finding that under the Act and the Regulation, children under the age of 16 years are not entitled to receive general welfare assistance in their own right.
2. The Charter
[20] Section 15(1) of the Charter states:
15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The starting point for a s. 15 analysis has traditionally been the Supreme Court of Canada’s decision in Andrews v. Law Society of British Columbia, supra, which set out a two-step approach to s. 15. Under the first step, the complainant had to show that he or she was not receiving equal treatment before and under the law, or that the law has a differential impact on him or her in the protection or benefit accorded by the law, as compared with some other person. Under the second step, the complainant had to show that the impact of the law was discriminatory. The most recent decisions of the Supreme Court of Canada on s. 15 reveal, however, a new split in the court on the second step and, in particular, on what must be shown in order to demonstrate discrimination on the basis of an enumerated ground. The court’s diverging analysis on the issue of discrimination is set out in Miron v. Trudel (1995), 124 D.L.R. (4th) 693, [1995] 2 S.C.R. 418, 29 C.R.R. (2d) 189, and Egan v. Canada (1995), 124 D.L.R. (4th) 609, [1995] 2 S.C.R. 513, 95 C.L.L.C. ¶210-025.
[21] In Miron v. Trudel, supra, the Supreme Court of Canada held, in a 5-4 decision, that the exclusion of common law spouses from accident benefits available to legally married spouses under the Ontario Standard Automobile Insurance Policy infringed s. 15 and could not be justified under s. 1. A majority of the court in Egan v. Canada, supra, again in a 5-4 decision, also concluded that the refusal to provide the spousal allowance benefit which was available to married and common law couples under the Old Age Security Act to same-sex couples infringed s. 15. However, unlike Miron, supra, a different majority held that the infringement could be justified under s. 1. In reaching their conclusions on the s. 15 issue, three differing approaches were offered by various members of the court.
[22] Four members of the court (Sopinka, Cory, McLachlin and Iacobucci JJ.) continue to apply the traditional Andrews approach to discrimination. This approach focuses primarily on whether the legislative distinction is drawn on the basis of an enumerated or analogous ground; indeed, it is only in the rarest of cases that a distinction based on an enumerated or analogous ground will be found to be non-discriminatory since these grounds serve as “ready indicators” of discrimination. As McLachlin J. stated in Miron v. Trudel, supra, at p. 745:
To establish discrimination, the claimant must bring the distinction within an enumerated or analogous ground. In most cases, this suffices to establish discrimination. However, exceptionally it may be concluded that the denial of equality on the enumerated or analogous ground does not violate the purpose of s. 15(1) — to prevent the violation of human dignity and freedom through the imposition of limitations, disadvantages or burdens through the stereotypical application of presumed group characteristics, rather than on the basis of merit, capacity or circumstance.
Ultimately, therefore, the question which must be addressed under this approach is whether the distinction has a prejudicial effect on the individual or group in light of s. 15’s fundamental purpose.
[23] One member of the court (L’Heureux-Dubé J.) has adopted a new approach to discrimination which focuses on the impact of the distinction, assessed in terms of the affected group and the affected interest. At issue under this approach is whether the distinction treats the affected individual as less capable or less worthy of recognition or value as a human being or as a member of Canadian society. The more socially vulnerable the group and fundamental the characteristic which forms the basis for the distinction, and the more fundamental the interest affected or the more serious the consequences of the distinction, the more likely it is that the distinction is discriminatory.
[24] Four members of the court (Lamer C.J.C., La Forest, Gonthier and Major JJ.) also rely on Andrews, supra, as the starting point of analysis but have placed added importance on the concept of relevance. This approach to discrimination focuses not only on whether the impugned distinction is based on an enumerated or analogous ground, but also on whether the distinction is relevant to the functional values which underlie the legislation. In particular, if the distinction is relevant to the functional values of the legislation, assuming those values are not themselves discriminatory, the claim of discrimination is not established.
[25] I agree with the comments of McLachlin and Cory JJ. in Miron, supra, and Egan, supra, that the concept of “relevance” should not be imported into s. 15 analysis but is more properly considered under s. 1. However, I am of the view that it is not necessary to decide this issue in this case since I conclude that the age exclusion is discriminatory regardless of the approach adopted.
Denial of equal benefit and equal protection of the law
[26] To establish a violation of s. 15 under any of the approaches, the appellant must still show a denial of one of the four protected equality rights.
[27] The appellant submits that otherwise eligible persons under the age of 16 are excluded from receiving direct financial assistance in their own right by virtue of their age. No criteria other than age, an enumerated ground, is relied upon as a basis for the categorical exclusion. They submit, therefore, that the appellant is denied equal benefit and protection of the law.
[28] The respondents submit that children are not disadvantaged by this Act because of the elaborate provincial statutory scheme providing for financial support from other sources, including parents (Family Law Act, R.S.O. 1990, c. F.3), general welfare assistance paid to responsible adults with an amount for children’s care (the Act), and programs for the care of children (Child and Family Services Act, R.S.O. 1990, c. C.11). In addition, dependent children do not have an obligation to seek employment when they are the beneficiaries of general assistance, whereas under ss. 3(1) and (3) of the Regulation, adults have that responsibility. It is the position of the respondents that these programs and assistance enable children to have access to resources that provide emotional care, psychological support, food and shelter. Given the breadth of the needs of children and the corresponding fulfilment of those needs through legislative programs, the respondents submit that a child in need under the age of 16 is not denied equal benefit of the law by virtue of the fact that a cheque is not provided directly to him or her.
[29] The impugned legislation clearly grants benefits to persons over the age of 16 which are not granted to persons under the age of 16. Further, even though this Act and other provincial legislation provides benefits to those under the age of 16 through parents or other responsible adults or organizations, there is no direct equivalence in the amount of the benefits. The legislation also denies persons under the age of 16 the choice of receiving direct benefits. In my view, a denial of equal benefit of the law on the basis of age, an enumerated ground, is thus established and the only issue is whether this denial is discriminatory.
Discrimination
[30] The respondents submit that the ineligibility of children under the age of 16 for direct welfare assistance is responsive to the direct needs of children which differ from those of adults. Children, they say, require not only financial support but also psychological, emotional and social support. The respondents also argue that some age requirement is necessary for applying for direct assistance. Otherwise, even an infant would have the right to make an application and have it assessed by the General Manager. They submit the age of 16 accords with studies of physical and intellectual human development and cite in support of their argument the study of Frank A. Fasick, “Acquisition of Adult Responsibilities and Rights in Adolescence” in Childhood and Adolescence in Canada (McGraw-Hill Ryerson Limited, 1979), at p. 123 as follows: When one uses the height spurt, sexual development, and Piaget’s scheme of intellectual development as criteria, the vast majority of young persons achieve maturity, or near maturity, by the age of sixteen.
The respondents also refer to the 1989 United Nations Convention on the Rights of the Child, ratified by Canada in 1990. Article 20 of this Convention recognizes the state’s obligation to provide special protection for children deprived of their family environment and to ensure that appropriate alternative family care or institutional placement is made available to them. Article 26 recognizes the right of children to benefit from social security; there is no implicit recognition, however, of the right of children to receive social assistance directly The Convention defines “child”, in art. 1, as a “human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier”.
[31] The appellant relies upon the case of Tétreault-Gadoury v. Canada (Employment and Immigration Commission) (1991), 81 D.L.R. (4th) 358, [1991] 2 S.C.R. 22, 50 Admin. L.R. 1, where the Supreme Court of Canada held that the exclusion of persons aged 65 and older from entitlement to unemployment insurance benefits is discriminatory in that it deprives them of a benefit available to others solely on the basis of a personal characteristic — age. The appellant’s evidence also suggests that the transition from childhood to adulthood occurs in stages and that the moral and intellectual development of children does not change significantly after about age 14 (Michael P. Roche “Childhood and its Environment: The Implications for Children’s Rights” (1988), 34 Loy. L. Rev. 5).
[32] In my view, the age exclusion is discriminatory under any of the approaches set out by the Supreme Court of Canada in Miron, supra, and Egan, supra.
[33] Applying the traditional Andrews approach affirmed by four members of the court, the age exclusion is discriminatory. Age is a ground of discrimination specifically enumerated in s. 15 and the benefit is denied solely on the basis of the person’s age, regardless of the merit, capabilities or needs of the individual. While I agree with the respondents’ submission that the needs and capacities of children are different from those of adults, I do not accept that a sharp line can be drawn between childhood and adulthood. The evidence before this court indicates that the transition from childhood to adulthood, from immaturity to maturity, occurs in stages. There is also disagreement as to the age at which most children may be presumed to be mature. The appellant’s evidence suggests that the appropriate age is 14. The respondents’ evidence indicates an age of 16. The United Nations has adopted the age of 18, unless national law provides for a lower age. The evidence further indicates that all children do not mature at the same rate. Some children below the presumed age of majority may well be as mature, if not more mature, than some adults, while others past the presumed age of majority may not yet be mature.
[34] The Act and Regulation preclude direct payments to all children under the age of 16 regardless of their capabilities or needs. Accordingly, I am of the view that this is not a rare case where a distinction based on an enumerated ground should be found to be non- discriminatory.
[35] A finding that the distinction is discriminatory is also sustained under the approach adopted by L’Heureux-Dubé J. The group affected by the distinction, those under the age of 16, are a vulnerable group in society. The interest affected, access to the social security net, was also recognized by L’Heureux-Dubé J. in Egan, supra, as being of fundamental importance. Assessing these factors together, the impact of the distinction is clearly discriminatory.
[36] Under the approach of those judges who dissented on s. 15 in Miron, supra, and Egan, supra, it is possible that the age exclusion could be considered relevant to the functional values underlying the legislation, which I would broadly characterize as ensuring appropriate support (emotional, financial, physical and psychological) for children. This value is clearly not discriminatory itself. Moreover, age is a relevant distinction when defining children and childhood. For example, in Penner v. Danbrook (1992), 10 C.R.R. (2d) 379 at p. 383, 39 R.F.L. (3d) 286, 100 Sask. R. 125 (C.A.), age was held to be a “relevant consideration in determining whether persons should be legally entitled to maintenance from their parents, or whether they should be considered able to fend for themselves.” It could also be argued that defining who is a child falls within the range of legitimate social policy for the legislature. However, in light of the court’s previous decision in McKinney v. University of Guelph (1990), 76 D.L.R. (4th) 545, [1990] 3 S.C.R. 229, 13 C.H.R.R. D/171, and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), supra, the better approach, in my view, is that unless all individuals excluded by the age limit lack the necessary maturity to be treated as adults, the age limit should be considered discriminatory. This has not been established here.
Section one
[37] Under s. 1 of the Charter, the test to be applied is neither rigid nor inflexible. Among the factors to be considered are the nature of the right in issue, the importance of the objective of the law and whether the means used are proportional to the objective: R. v. Oakes, supra; R. v. Keegstra (1990), 61 C.C.C. (3d) 1 at pp. 27-30, [1990] 3 S.C.R. 697, 1 C.R. (4th) 129.
Nature of the right
[38] In analyzing the nature of the right at stake in a particular case, a lesser burden may in some cases be imposed on the state. Moreover, some restrictions may be easier to justify than others. The Supreme Court of Canada in McKinney, supra, at p. 660, has held that the unique nature of age as a ground of discrimination must be taken into account when assessing this form of discrimination under s. 1.
[39] The court stated:
It must not be overlooked, however, that there are important differences between age discrimination and some of the other grounds mentioned in s. 15(1). To begin with there is nothing inherent in most of the specified grounds of discrimination, e.g., race, colour, religion, national or ethnic origin, or sex that supports any general correlation between those characteristics and ability. But that is not the case with age. … Racial and religious discrimination and the like are generally based on feelings of hostility or intolerance. On the other hand, as Professor John Hart Ely has observed, “the facts that all of us once were young, and most expect one day to be fairly old, should neutralize whatever suspicion we might otherwise entertain respecting the multitude of laws … that comparatively advantage those between, say 21 and 65 vis-à-vis those who are younger or older”: Democracy and Distrust (Cambridge, Mass.: Harvard University Press, 1980), at p. 160. The truth is that, while we must guard against laws having an unnecessary deleterious impact on the aged based on inaccurate assumptions about the effects of age on ability, there are often solid grounds for importing benefits on one age group over another in the development of broad social schemes and in allocating benefits.
In McKinney, supra, at p. 656, La Forest J. also adverted to a section of the Human Rights Code, 1981, c. 53, providing for a minimum age of 18 years for individuals seeking protection under the Code in respect of employment, and stated: “That distinction is, I would think, readily explicable on human, social and economic grounds.”
[40] These considerations must be kept in mind when assessing whether the Act and Regulation are justifiable under s. 1 of the Charter.
Objectives
[41] The determination of the objective or objectives of a law is a legal question for the court. Are the objectives of this law of sufficient importance to warrant overriding the Charter right?
[42] The appellant submits that there is no evidence of the legislative history of these sections and the factors considered by the government when introducing or debating the law. As such, there was no evidence upon which the board could assume the objectives for the limitation in the legislation. The appellant further argues that the court must look to the purpose of the Act, namely, to provide financial assistance to persons in need, and this purpose should not be confused with the purposes of other legislation when analyzing the reasonableness of the provisions in question.
[43] The respondents submit that the Act and the Regulation, as well as other provincial legislation and evidence concerning the practical effect of the provincial legislative regime, demonstrate that the objectives of providing for children by means other than directly giving them a welfare cheque are as follows: that proper provision be made for children including the receipt of support from an appropriate source; that the family unit be supported and its integrity not be interfered with where the family unit is appropriate for the child’s care; and that the need for assistance be properly assessed by considering the family unit as a whole and the support obligations of others as well as individual requirements. The onus is on the respondents to prove the objectives they allege.
[44] I accept that the objective of ensuring proper provision for all children including the receipt of support from an appropriate source is of sufficient importance to warrant overriding the appellant’s constitutional right. The evidence confirms that young people generally need more types of support than direct financial support. It is also appropriate, in my view, to consider the existence of other Ontario legislation, in particular, the Family Law Act and the Child and Family Services Act, when assessing the validity and importance of this objective.
[45] As La Forest J. stated in Tétreault-Gadoury v. Canada (Employment and Immigration Commission), supra, at p. 371:
It is fair to take into account the possibility that a group deprived of benefits under one Act may be receiving equal, or even greater, benefits under another. In other words, one cannot ignore that fact that the economic needs of those over the age of 65 are also addressed in legislative measures such as the Old Age Security Act, R.S.C. 1985, c. O-9. Still, I doubt whether the objective of fitting the Act within the government’s particular legislative scheme of social programs could, in itself, be sufficiently important to justify the infringement of a Charter right. In theory, the government could advance the same rationale to support virtually any piece of legislation that is challenged. In the end, the impact on the individual or group is what is of primary concern.
A similar approach was adopted by Iacobucci J. for the majority in Symes v. Canada (1993), 110 D.L.R. (4th) 470 at p. 565, [1993] 4 S.C.R. 695, 19 C.R.R. (2d) 1:
In order to examine properly the validity of legislative objectives in a cage such as the present one, it is important to consider both the operation of the Income Tax Act as a whole, and the operation of other government systems relating to child care. and at pp. 565-6: If inequities are proved to exist within s. 63, surely it must be relevant to consider the extent to which other government programs respond to those inequities.
I agree with the appellant, however, that the onus is on the respondents to show that the other legislation relied upon does indeed compensate for the denial of direct welfare benefits. This issue is more properly dealt with under the minimal impairment component of the s. 1 proportionality analysis, as was done by La Forest J. in Tétreault-Gadoury v. Canada (Employment and Immigration Commission), supra, at p. 374:
One must not, however, lose sight of the fact that the overall objective of this particular Act is to provide a temporary sanctuary for those wishing to remain in the active labour force, but who are unable for the moment, to find employment. The inquiry, therefore, should be whether that objective is furthered in any way by denying benefits to individuals over 65, and whether that denial is compensated for by the provisions of other Acts. As Lacombe J.A. properly notes, supra, at p. 407, there was no evidence put forth to show that the government could not afford to extend benefits to those over 65. More significantly, there is also no evidence to show that any of the other Acts attempt to fill the gap by addressing the problem of 65-year-olds who must keep working because their pension is insufficient or because they do not receive a pension at all.
I am, therefore, prepared to accept that ensuring the proper provision of support for children, including the receipt of support from an appropriate source through the development of a “co- ordinated legislative scheme”, is an objective which may validly be pursued by government. The government must, however, demonstrate at the minimal impairment stage of analysis, that denying direct welfare payments to children furthers this objective and that the denial of the direct payments is compensated for by other parts of its co-ordinated legislative scheme.
[46] I also agree that the objective of supporting and not interfering with the integrity of the family unit where appropriate to the child’s needs is of sufficient importance to justify overriding the appellant’s constitutional rights. All witnesses agreed that the ideal would be for children to live at home with their parents. I reject the appellant’s submission that no sufficient objective was proven because it would be discordant with the values of society to deprive an individual child of basic necessities on the basis of value judgments about what constitutes a family unit. The objective that the family unit be supported by society where appropriate for the child’s needs does not, in my view, detract from the value of ensuring that a young person’s basic needs are met.
[47] Finally, I accept that it is a valid objective to ensure that the need for assistance is properly assessed by considering the support available from others, including members of the family unit. As the respondent submits, when an individual claims that he or she is in need and is entitled to assistance from the government, the government is entitled to ensure that the individual does not have an alternative means of support available to him or her. Whether the exclusion of persons under the age of 16 from direct payments is an appropriate means of ensuring this objective is, in my view, also properly left to the proportionality stage of analysis.
[48] I conclude, therefore, that the objectives of this legislation are sufficiently important to warrant overriding the appellant’s constitutional equality rights.
Proportionality
[49] Once the law’s objectives have been determined, it is necessary to consider the means used by government to obtain the objectives. The test to be applied at this stage is set out in Tétreault-Gadoury v. Canada (Employment and Immigration Commission), supra, at p. 372, as follows:
In McKinney, this court emphasized that, when evaluating legislative measures that attempt to strike a balance between the claims of legitimate but competing social values, considerable flexibility must be accorded to the government to choose between various alternatives. In such a situation, since the court cannot easily ascertain with certainty whether the least restrictive means have been chosen, it is appropriate to accord the government a measure of deference. Following Irwin Toy Ltd. v. Quebec (Attorney- General) (1989), 58 D.L.R. (4th) 577, 25 C.P.R. (3d) 417, [1989] 1 S.C.R. 927, the court found that “the question is whether the government had a reasonable basis for concluding that it impaired the relevant right as little as possible given the government’s pressing and substantial objectives”: see McKinney, at p. 652 (emphasis in original). Where the age is reasonable, the courts have held that under the minimal impairment portion of the s. 1 analysis, they should not interfere with the limit chosen by the legislature.
[50] In R. v. Davies (1991), 87 D.L.R. (4th) 527, 15 W.C.B. (2d) 86 (Ont. Ct. (Prov. Div.)), the applicant publisher and editor of a newspaper were charged with violating s. 41(8) of the Child and Family Services Act, 1984, S.O. 1984, c. 55, which prohibits the publication of information which would have the effect of identifying a child who is the subject of a child welfare proceeding. “Child” is defined in the Act to include persons under the age of 16 or, where the child is the subject of a child protection order, under the age of 18.
[51] In deciding that s. 41(8) of the Child and Family Services Act, 1981 constituted a minimal infringement on the applicants’ right to freedom of expression, the court stated, supra, at pp. 569-70: In Irwin Toy Ltd. v. Que. (A.-G.), supra, the Supreme Court of Canada had to decide whether it was appropriate to extend the ban on commercial advertising to children up to and including 13 years. The court accepted that age 13 was appropriate and said at p. 623: “Where the legislature mediates between the competing claims of different groups in the community, it will inevitably be called upon to draw a line marking where one set of claims legitimately begins and the other fades away without access to complete knowledge as to its precise location. If the legislature has made a reasonable assessment as to where the line is most properly drawn, especially if that assessment involves weighing conflicting scientific evidence and allocating scarce resources on this basis, it is not for the court to second guess. That would only be to substitute one estimate for another. In dealing with inherently heterogeneous groups defined in terms of age or a characteristic analogous to age, evidence showing that a clear majority of the group requires the protection which the government has identified can help to establish that the group was defined reasonably. … There is sufficient evidence to warrant drawing a line at age 13, and we would not presume to re-draw the line.”
Similarly, in McKinney v. University of Guelph, supra, the Supreme Court of Canada considered whether the choice of the age of 65 for mandatory retirement was too young. The court said that at best this was an exercise in fine line drawing which the court was not prepared to second-guess. In our case, whether the appropriate age for consent to publication of identifying information is 12, 14 or 16, the legislature was justified in using the limit that it did (the age of a child as defined in the Act), and it is not up to me to tinker with the arbitrary but reasonable age line which the legislature chose.
The appellant submits that children fall through gaps in the legislative scheme and that the age limit of 16 should be abolished, making all children of any age eligible for direct financial assistance. The respondents submit that the means used are proportional to each of the objectives identified. There are no gaps in the legislative scheme and financial support is available to children. Parents have a legal obligation to support their children. If they are financially unable to do so, social assistance provides the parents with money to support the children. Social assistance may also provide money to responsible adults other than parents to care for the children. Where it is not appropriate for children to live at home, the Society provides financial support to children.
[52] The legislature in this case has attempted to tailor its legislation to reflect the transition from childhood to adulthood; a sharp divide is not drawn between adults and children. While the legislation generally presumes that individuals under the age of 18 will be ineligible for direct assistance, individuals who are 16 and 17 years old may obtain direct assistance if they have “special circumstances” or are the head of a family with an absent spouse (s. 6(4) of the Regulation). The legislature in the Family Law Act has also placed an absolute obligation on parents to support children under the age of 16, which becomes qualified when the child becomes 16. Provision is also made for the payment of money on behalf of the child to a responsible adult or, if necessary, for the child to be taken into care.
[53] There is also no consensus on the age at which children may generally be presumed to be mature, whether it be 14, 16 or 18. The appellant’s own evidence indicated that children 14 years of age and under should not live independently (cross-examination of Nancy Mayer, hearing before the Social Assistance Review Board, Vol. III, pp. 379-84). In my view, the evidence indicates that children under the age of 16 generally require more than a cheque to survive. They need the support, guidance and care of an adult. It would be contrary to the best interests of children if general assistance were paid directly to them, as it would be an incentive to remove themselves from the care of the family unit or other responsible adults, even where appropriate, because of ideas of what it is like to live “on your own”. Clearly the vast majority of children under the age of 16 years in Ontario not only require but receive financial, emotional, social and psychological support either from the family unit, other responsible adults, or the Society and its services.
[54] The appellant submits that children without financial means to meet their basic needs may resort to the streets and the effect of this is unconscionable. The evidence is, however, that some children under 16 years of age who are living on the street are in hiding either from the police or the Society. There is no evidence that those most in need would access support services. Indeed, there was evidence that a youth provided with independent living accommodation and funding left it to return to the street.
[55] Given the evidence presented to this court, the age of 16 does not appear to be unreasonable and, in accordance with the views expressed by Supreme Court of Canada in Irwin Toy Ltd. v. Quebec (Attorney-General) (1989), 58 D.L.R. (4th) 577, 25 C.P.R. (3d) 417, [1989] 1 S.C.R. 927, and other cases, I am not prepared to redraw the line.
Conclusion
[56] For these reasons the decision of the board is affirmed. Under the Act and Regulation, persons under 16 years of age are not entitled to general welfare assistance in their own right.
[57] The prohibition of direct payment of general welfare assistance to the appellant pursuant to ss. 1(1)(a), in) and 11(1) of Reg. 441 under the General Welfare Assistance Act is discriminatory within the meaning of s. 15(1) of the Charter. However, the provisions of the Act and Regulation constitute a reasonable and demonstrably justified limit pursuant to s. 1 of the Charter.
[58] The appeal is dismissed. With the agreement of counsel, there is no order as to costs.
[59] Appeal dismissed.