Aging and Retirement are Not Unique to Heterosexuals: Rosenberg v. Canada

Abstract

In Canada, as elsewhere, the struggle by lesbians and gay men for spousal status continues with mixed success. In 1998, one notable step forward occurred when the Ontario Court of Appeal decision of Rosenberg v. Canada (Attorney General) (1998), 38 O.R. (3d) 577, 158 D.L.R. (4th) 664 was released. In Rosenberg, the court held that the words 'or the same sex' should be read into the definition of spouse in section 252(4) of the Canada's Income Tax Act, for the purposes of the registration of pension plans. This ruling effectively extends entitlement to survivor benefits under occupational pension plans to the partners of lesbians and gay men who die while covered by the plan. It is the first case in which the government of Canada conceded that provision of the Act discriminated against lesbians and gay men in contravention of section 15(1) of the Charter of Rights and Freedoms.

In this chapter, the author reviews briefly the political and legal background to the Rosenberg decision, and then discusses the case in detail, before considering the implication of the decision for lesbians and gay men. The author cautions there may be unwelcome potential consequences, including the possibility that the definition of spouse in the Act will be further amended to include lesbians and gay men for all income tax purposes and not just the pension provisions. A second concern is the trend emerging in recent cases involving the entitlement of lesbians and gay men to 'spousal' benefits currently accorded to heterosexual couples. The benefits being won through judicial or legislative change are in the private sphere. So far Canadian courts and legislatures have resisted conferring on lesbians and gay men the more universal and public benefits such as entitlement to the Old Age Security (OAS) spousal allowance and survivor benefits under the Canada Pension Plan (CPP). The author considers whether the potential cost of remedying the discrimination, when considering whether it can be justified under section 1 of the Charter, is one reason that challenges to discrimination on the basis of sexual orientation with respect to more public benefits have not been successful.

Keywords: Aging, Retirement, Sex and law, Gays, Lesbians, Pension entitlement, Charter of Rights and Freedoms