Ontario's house-in-spouse ruling found unconstitutional.

TORONTO -- Ontario's spouse-in-the-house rule is unconstitutional, the Ontario Court of Appeal said in a ruling that recognizes receipt of social assistance as a prohibited ground of discrimination under the Charter of Rights and Freedoms.

The rule, which deems any welfare recipient who lives with a member of the opposite sex is in a spousal relationship unless proved otherwise, discriminates on the basis of sex, marital status and receipt of social assistance, the court said in May.

The provincial government has announced it will appeal the ruling while making some changes to the definition of spouse in the legislation governing Ontario Works and the Ontario Disability Support Program.

Between 1987 and 1995, the definition of spouse for social assistance purposes mirrored that under the Family Law Act, which deems people to be spouses if they have lived together continuously for at least three years. In 1995, the Harris government changed the rules so that members of the opposite sex were presumed to be spouses as soon as they began living together.

Four women who lost their benefits challenged the constitutionality of the new rules. To date, the provincial Social Assistance Review Board, the Divisional Court and, now, the Court of Appeal have agreed that the definition of spouse violates section 15 of the Charter of Rights and Freedoms.

Although women accounted for only 54% of those receiving social assistance and only 60% of single persons receiving benefits, they accounted for nearly 90% of those whose benefits were terminated by the definition of spouse, Mr. Justice John Laskin said in his ruling.

But it is his recognition of receipt of social assistance as a ground of discrimination that has made waves.

The significance of that recognition cannot be overstated, said Ernie Lightman, a professor of social policy at the University of Toronto. Every province has some variation of the spouse-in-the-house rule, he said. In the immediate term, Lightman said, Ontario landlords will not be able to deny rental housing to welfare recipients.

Ontario Attorney-General David Young said the decision has far-reaching implications that deserve consideration by the Supreme Court. While the provinces seeks leave to appeal, it will also make changes to the legislation governing social assistance.

The government intends to wait until two people have lived together for three months before assessing whether the relationship is spousal, including whether there is a meaningful economic relationship, said Community, Family and Children's Services Minister Brenda Elliott.

In a separate appeal heard at the same time, the court also found that the Social Assistance Review Board had erred in deciding that Paul Thomas, a man with a mental disability who is permanently unemployable, and his caregiver of 10 years were cohabiting in a spousal relationship. The Board failed to consider whether the two interrelated as a couple and did not adequately take account of whether Thomas' disability explained why he and his caregiver spent so much time together, the ruling said.