Chowdhury v. Argenti

Mr. Peter Argenti was a longshoreman, from a socially conservative background. He had been married, and had three daughters. He also was in a same-sex relationship with Mr. Reza Chowdhury for fourteen years. He kept his relationship secret from his friends.

Before he died, Mr. Argenti transferred his house into a joint tenancy with one of his daughters, Tina Argenti. By his will, he also left everything to her.

After Mr. Argenti's death on September 23, 2003, Mr. Chowdhury made a Wills Variation Act claim to vary Mr. Argenti's will. (He also made claims to an interest in the house, but I am going to confine my discussion to the Wills Variation Act claim.)

In British Columbia, the Wills Variation Act allows a spouse or child to apply to court to vary a will if adequate provision has not been made for the spouse or child.

One of the issues in Chowdhury v. Argenti, 2007 BCSC 1207, was whether Mr. Chowdhury was Mr. Argenti's spouse as defined in the Wills Variation Act. For the purpose of the Act, a spouse includes someone who “is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.”

Madam Justice Allan found that Mr. Chowdhury was not Mr. Argenti's spouse at the time of Mr. Argenti's death. Although they had lived together for about three years from 1993 to 1996, they did not live together thereafter. She found that even if they had lived in a marriage-like relationship when they lived together, they were not in a marriage-like relationship at the time of Mr. Argenti's death. Accordingly, Mr. Chowdhury could not succeed in his claim to vary Mr. Argenti's will.

In reaching her decision, Madam Justice Allan considered the evidence that Mr. Argenti's relationship with Mr. Chowdhury was not open. There was not a general recognition among friends and family in the community that they were a couple. She attached little weight to this evidence, noting the difficulties same-sex couples may have in being accepted. She wrote at paragraph 61,

I was not directed to any Canadian case considering a plaintiff’s claim to be a spouse in a same-sex relationship. While the Canadian government has recognized the right of same-sex couples to marry and – whether they are married or common-law - to enjoy the benefits and rights accorded to opposite-sex couples, not all of society approves of, or recognizes, same-sex relationships. In some communities, openly gay people may be subjected to prejudice and vilification. There are obvious reasons, unique to same-sex couples, for keeping a close, loving marriage-like relationship a secret from their employers, family and friends. In my view, the “recognized in the community as a couple” requirement that opposite-sex couples enjoy common-law status should not be imposed on all same-sex couples.

The Court’s reasons indicate that two people may for the purpose of the Wills Variation Act live in a same-sex marriage-like relationship, even if they are not open with others about their relationship. In this case, Mr. Chowdhury was unable to establish that he lived in a marriage-like relationship with Mr. Argenti at the time of Mr. Argenti’s death

Canada (Attorney General) v. Hislop

The Supreme Court of Canada released its decision today in a class action suit brought on behalf of same-sex partners who were denied Canada Pension Plan survivor’s benefits because their partners died before January 1, 1998, and on behalf of same-sex partners who were not eligible for benefits in respect of any time before July 2000. The case is called, Canada (Attorney General) v. Hislop, 2007 SCC 10.

The Canada Pension Plan now provides for benefits to surviving married spouses and surviving common-law partners of deceased person who were contributors to the Canada Pension Plan. The definition of common-law partners includes opposite and same-sex partners who lived in a conjugal relationship. Accordingly, a surviving same-sex partner of a deceased contributor may receive Canada Pension Plan survivorship benefits.

But, it was not always so.

The federal government amended the Canada Pension Plan, RSC 1985, c. C-8, to include same-sex partners effective July 2000. The amendments contained some restrictions. The new provisions allowing survivorship benefits to same-sex partners did not apply if the Canada Pension Plan contributor died before January 1, 1998. If the contributor died on December 31, 1997, the contributor’s same-sex partner would not be entitled to any survivorship benefits.

Furthermore, those same-sex partners who were eligible to receive survivorship benefits could only receive benefits from July 2000. If the contributor died in November 1999, the surviving same-sex partner was not eligible for the benefits in respect of the period from November 1999 through June 2000.

The Canada Pension Plan also provides that a surviving spouse or common-law partner (whether same-sex or opposite-sex) may only receive benefits in respect of a period of up to one year before he or she applies for the benefits. For example, if your spouse died in January 2002, and you applied for benefits in April 2003, you would be entitled to the arrears of benefits from April 2002, but not for January, February or March 2002.

George Hislop, Brent Daum, Albert McNutt, Eric Brogaard and Gail Meredith as representative plaintiffs challenged the restrictions in the legislation. They argued that by limiting the rights of same-sex survivors, the federal government violated section 15 (1) of the Charter of Rights and Freedoms. Section 15 (1) says,

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 representative plaintiffs advanced arguments on four main issues as follows:

1. The legislation discriminated against anyone whose same-sex partner died before January 1, 1998. In contrast, the opposite-sex partner of a deceased contributor who died before January 1, 1998 is eligible for survivorship benefits.

2. Similarly, by disallowing benefits for the period before July 2000, the legislation discriminated against same-sex partners, who were not treated equally to opposite-sex partners in similar circumstances.

3. Because the legislation allowing same-sex partners to receive survivorship benefits did not come into effect until July 2000, the provision limiting payments in respect of benefits for up to one year before the survivor applies has a discriminatory effect. The representative plaintiffs argued it should be suspended in some cases. This would allow those who were not eligible to apply to receive the benefits they could have received if the legislation had been changed when section 15 of the Charter came into effect on April 17, 1985.

4. The estates of those same-sex partners who would have been entitled to survivorship benefits if the legislation had been amended earlier should receive the survivorship benefits.

The Supreme Court of Canada held that the provision excluding the surviving same-sex partners of contributors who died before January 1, 1998, violated section 15 of the Charter. The court struck out the provision. Those surviving same-sex partners of contributors who died from April 17, 1985 to December 31, 1997, may now receive Canada Pension Plan survivorship benefits.

The Court also held that the provision disallowing benefits to same-sex partners for the period before July 2000 was unconstitutional.

On the other hand, the Supreme Court of Canada did not suspend the 12-month restriction on arrears of benefits. The Court dealt with this question as an issue of remedy, rather than one of rights. In deference to Parliament, which had acted in good faith, the court declined to award benefits for any period exceeding 12 months prior to an application for benefits. The effect of this is that the Canada Pension Plan will not be required to pay survivorship benefits to same-sex partners in respect of any period before July 1999 (one year before the amendments came into effect).

The Supreme Court of Canada also refused to make any award to the estates of those same-sex partners who died before the date arguments were concluded in the Ontario Superior Court.

As an estate lawyer, I find this part of the judgment especially interesting. Mr. Justice LeBel and Mr. Justice Rothstein characterize an estate as “just a collection of assets and liabilities of a person who has died. It is not an individual and it has no dignity that may be infringed.” With respect to section 15 of the Charter, “The use of the term ‘individual’ in s. 15 (1) was intentional. For these reasons, we conclude that estates do not have standing to commence s. 15(1) Charter claims. In this sense, it may be said that s. 15 rights die with the individual.”

Sadly, one of the representative plaintiffs, Mr. Hislop, died before this judgment. Because he was alive on the day final arguments were made in the Ontario Court of Justice, his estate will be eligible for the benefits he fought for.

Wills Variation Act and Sexual Orientation

In a Supreme Court of British Columbia case, Peden v. Peden, Smith et. al., 2006 BCSC 1713, released yesterday, Mr. Justice Groves held that a father's disapproval of his son's sexual orientation is not a rational and valid reason for the father to leave in his will substantially less to one son than to his other sons.

William John Peden died on October 25, 2004. His wife had died before him, and his three sons survived him. In his will, he left two of his sons outright gifts. But left his youngest son, Bruce Peden, a life estate only. In other words, Bruce Peden would receive the income generated from investments held in trust for him, but would not have the capital. (I am not clear from reading the judgment if the executors and trustees had discretion to apply some of the capital for Bruce Peden, but in any case, Bruce Peden would not have control of the capital.)

The division in the will was also unequal in that William Peden left his eldest son, Gary Peden, $150,000 less than the shares set aside for the other two sons, but Gary Peden did not contest this.

The estate was worth approximately $1.7 million. Bruce Peden would receive the income from $610,000, which was estimated to be about $24,000 a year assuming a 4% return.

Bruce Peden brought an application under the Wills Variation Act, RSBC 1996, c. 490, seeking a declaration that his father had not made adequate provision for him in the will. He asked the court to vary the will to give an outright share of the estate, instead of a life estate. If successful, he would get approximately $610,000 to use as he wished, instead of the income from $610,000.

The court found that Bruce Peden was not as well off financially as his brothers, and he was in poor health. He had also provided a significant amount of care for his father, and for other elder family members over the years.

William Peden's main reason for leaving the life estate to Bruce Peden instead of an outright gift was because of his disapproved of his Bruce Peden's sexual orientation.

Bruce Peden's application was successful. In his analysis, Mr. Justice Groves started from the position that a William Peden had a moral obligation to treat the children equally unless there was a rational and valid reason to treat them differently. In this case, William Peden's disapproval of Bruce Peden's sexual orientation was not a rational reason to leave him a life estate only.

Mr. Justice Groves also considered the significant sacrifices that Bruce Peden made to care for his father and other family members before concluding that William Peden did not make adequate provision for his son.