Survivor’s Pension: Rights of the Twice-Widowed Woman
For many, a survivor’s pension is an indispensable source of income following the death of a spouse. In the recent case of Weatherley v. Canada (Attorney General), 2021 FCA 158, before the Federal Court, one widow fought to maximize her survivor’s pension benefits by challenging the constitutionality of the Canada Pension Plan, R.S.C. 1985, c. C-8 (the “CPP“).
The applicant, in this case, was an elderly woman who was twice-widowed. Under the CPP, after a spouse dies, the surviving spouse can receive a survivor’s pension. If the surviving spouse remarries and their second spouse dies, subsection 63(6) of the CPP limits the surviving spouse to only one survivor’s pension, being the higher of the two. In Weatherley, the applicant sought two survivor’s pensions before the Social Security Tribunal on the ground that s. 63(6) of the CPP discriminates against her on the basis of sex contrary to section 15(1) of the Canadian Charter of Rights and Freedoms (the “Charter“). She argued that s. 63(6) draws a distinction based on sex because the majority of people who are twice-widowed are women. Furthermore, s. 63(6) denies a benefit because, without this provision, she would receive symbolic recognition for non-monetary contributions she made to her first marriage.
The General Division agreed with the applicant, finding a Charter infringement. The Appeal Division reversed that decision. On the application for judicial review, the Federal Court found that s. 63(6) of the CPP is constitutional and does not discriminate on the basis of sex.
The Honourable Justice David Stratas, writing for the Federal Court, explained in his decision that Charter cases call for a careful examination of context. In this case, the context is informed by 1) the nature of the scheme established and regulated by the CPP, and 2) the nature of the survivor’s pension under that scheme. He explained that the scheme is a national “contributory plan”, not a “social-welfare” scheme. It was never intended to meet the needs of all contributors in every conceivable circumstance but rather to provide partial earnings replacement in certain circumstances, such as the death of a wage-earning spouse. Subsection 63(6) reflects the insurance nature of the scheme: an individual can only lose one wage-earning spouse at a time.
To establish that s. 63(6) infringes s. 15(1) of the Charter, the applicant was required to show that s. 63(6) creates a distinction based on an enumerated or analogous ground, and s. 63(6) imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage. Justice Stratas concluded that the evidence filed before the Social Security Tribunal did not establish that s. 63(6) draws a distinction on the basis of sex or denies a benefit.
First, there is no sex-based discrepancy in the demographics of the group the law could apply to, i.e., once-widowed survivors, and the demographics of the group the law did apply to, i.e., twice-widowed survivors. These two groups are nearly identical. Second, the evidence did not clearly show that twice-widowed survivors are disadvantaged as compared to once-widowed survivors and, in fact, there was some evidence to suggest that the former group fare better under the scheme. Additionally, Justice Stratas clarified that the survivor’s pension is not intended to recognize non-financial contributions made to a marriage. Instead, it was designed to provide a minimum income supplement determined, in part, by contributions made to the scheme by the spouse. For these reasons, no Charter infringement was found and the applicant’s claim was dismissed.
In his decision, Justice Stratas went on to state that even if s. 63(6) of the CPP somehow violates s. 15(1) of the Charter, then it is a reasonable limitation on rights and, thus, saved under section 1 of the Charter.
The Federal Court’s decision in Weatherley offers useful insight into the CPP and Canada’s pension benefits scheme as a whole. It also suggests that the judiciary will continue to give significant deference to Parliament when tasked with scrutinizing complex benefits legislation such as the CPP.
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