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Welfare – a Constitutional Right?

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Canadian Conservative Review Ontario has been a leader in canadian welfare reform since 1995. However, with the release late last year of a report by Liberal MPP Deb Matthews, a move is afoot to return to policies that were in place pre-1995. The changing winds of welfare policy in the province are reflected in the abandonment by the Liberals of the appeal to the Supreme Court of canada of the Harris-era “spousein- the-house” rule. As such, the decision by the Ontario Court of Appeal striking down the “spouse-in-the-house” rule as unconstitutional stands. This is most unfortunate given the weak judicial analysis at play in this case.

The “spouse-in-the-house” rule deemed as spouses welfare recipients who cohabitated with a member of the opposite sex. Welfare recipients reclassified as spouses had to rely on co-inhabitants for fmancial support, or reapply for welfare as couple. The Court concluded that this rule was discriminatory against women under section 15 of the Charter, effectively establishing a new ground of Charter protection for welfare recipients.

In reaching its decision, the Court relied upon a statistical analysis that was based on flawed logic and invalid assumptions. The Court held that women are disproportionately adversely affected by the “spouse-in-the-house” rule because, although women accounted for only 54% of those on welfare and only 60% of single persons receiving welfare, they accounted for almost 90% of those whose welfare was ended under the rule. However, why would the Court expect the rule to affect equal numbers of women and men? The rule should affect about the same percentage of women on welfare as women in the general Ontario population who are unemployed and supported by spouses. The reality that female welfare recipients are more likely to have live-in fmancially supporting boyfriends than the other way, as occurs in society generally, ought not to be surprising. The rule does not exacerbate or reproduce sex discrimination. The statistical results of the application of the rule simply reflect a larger social reality in which for example women bear most of the costs of marital breakdown.

The disproportionate impact of the rule upon females does not necessarily mean it is discriminatory. After all, it would then not be a stretch to conclude that provincial rent control laws are discriminatory based solely on calculations that show that the groups disproportionately impacted are racial or ethnic groups. Rent control laws disproportionately affect older buildings, which need increased maintenance and as a result may degenerate more quickly into ghettos. Such laws may be discriminatory because particular racial and ethnic groups in low-income brackets usually occupy older deteriorating buildings.

In fact, making limited welfare budgets available to the most needy, the rule actually advantages the most needy by reserving welfare for them, while it disadvantages the less needy, i.e. ‘spouses’ with presumed access to private support from their mates. This selective targeting of persons deemed most needy makes those denied welfare benefits better off. This seemingly paradoxical reality is borne out in canada’s first-ever large-scale study of life after welfare, which reported that a majority of six out often canadians who left welfare in the 1990s saw their family incomes improve, such that five years after leaving welfare, average family earnings had increased by about forty percent,. In @ Canadian Conservative Review : Winter 2005 charter chris schafer fact, almost all welfare leavers were in low-income families while on welfare (91 %), but only 58% were in that state once off welfare.

The Court also suggests in its reasoning that it was motivated by the fact that being reclassified as a spouse forces women to become fmancially dependent on men which strikes at the core of their human dignity. However, given the inherent vagueness of the constitutional equality standard of human dignity, one could argue that the “spouse-in-the-house” rule actually increases a woman’s independence by removing her from dependence on the state. If we assume that equal human dignity is best addressed through civil society and through enlarging the space for individual liberty and freedom, then the “spouse-in-the-house” rule could be seen as enhancing the dignity of welfare recipients. Indeed, any evidence of disproportionate adverse effect on women may in fact be evidence of women obtaining the independence they have always wanted, which the aforementioned study of life after welfare suggests increases the fmancial well-being of former female welfare recipients. Unfortunately, acknowledgment of this perspective was altogether absent from the Court decision.

As such, the Court established receipt of welfare as an analogous ground of protection under section 15 of the Charter. The Court found that, much like race, receipt of social assistance “fits the expansive and flexible concept of immutability.” In other words, the Court found that receipt of welfare, which signifies a person’s economic condition, is a characteristic that is hard to change. However, this is unsound because Canadians’ incomes are not immutable. Canadian longitudinal data tracking evidence of individual incomes demonstrates that over five-year periods, roughly forty-five moved up at least one income quintil&. In regards to social assistance recipients, the aforementioned welfare study demonstrates that family earnings among both the middle and bottom income tiers rose over the five years that they left welfare from 1994 to 1999, improving significantly among the bottom tier.

In conclusion, by dropping the Supreme Court of Canada appeal of the Conservative “spouse-in-the-house” rule, the Ontario Liberal government commenced a roll back of Harris-era welfare reforms which will likely continue. The elimination of the “spouse-in-the-house” rule was not made on a reasoned public policy basis articulated by the Liberal government. The rule which accounted for a decrease in the sole support parent welfare caseload and better economic outcomes for former female welfare recipients was made on the basis of weak judicial analysis incorporating flawed logic and invalid assumptions. Undoubtedly, this was one appeal that needed to be heard.