Gimme Shelter

Abstract

Highlighting the family home’s significance as shelter, this paper challenges the prevailing view of the demands of the equality guarantee in the Canadian Charter of Rights and Freedoms regarding unmarried cohabitants. In Nova Scotia (Attorney General) v. Walsh, the Supreme Court of Canada rejected the claim that it was discriminatory to restrict rules dividing matrimonial property to married couples. By contrast, on many views it is discriminatory to exclude cohabitants from a support obligation. Scholars and judges assume that Walsh upholds all statutory rules regarding married spouses and their property, including measures protecting the family home as shelter. But Walsh is best read narrowly, leaving open the status of the latter rules. Viewed by the support/property dichotomy, the regime of the family home is akin to support. For family law and policy, it is analytically useful to unbundle conjugal unions’ effects. Scholars’ reading of Walsh may connect to procedural features of Charter litigation and attitudes towards judicial power inconsistent with the common-law tradition.

Keywords: shelter, unmarried cohabitants, family home, support, matrimonial property, equality, Charter, Walsh

JEL Classification: K10, K11, K19, K30, K39