Judgments

Decision Information

Decision Content

A-889-88
Chief Pensions Advocate (Applicant)
v.
Minister of Veterans Affairs (Respondent)
INDEXED AS: CANADA (CHIEF PENSIONS ADVOCATE) v. CANADA (MINISTER OF VETERANS AFFAIRS) (CA.)
Court of Appeal, Heald, Marceau and MacGuigan JJ.A.—Halifax, March 13; Ottawa, March 23, 1989.
Veterans — Interpretation of War Veterans Allowance Act, s. 2(3) — Veterans Appeal Board correctly holding only one allowance payable upon veteran's death to widow at any one time — Use of singular definite article in French definition of "veuve" significant, particularly as replaced indefinite article in original version — Semantic review of relevant provisions — Application of ss. 4(1)(b) and 10 — Importance of residency requirement.
Construction of statutes — War Veterans Allowance Act Whether two widows may receive benefits re: same veteran at same time — Statute creating deemed widowhood where vet eran living common law, prevented from marrying by subsist ing marriage — Original spouse not expressly disentitled Whether legal widow impliedly excluded — Act mandating liberal interpretation — Use of word "le" in phrase "le con joint survivant" in French version excluding plurality — Sig nificant definite article replacing indefinite article "un" origi nally adopted by translators.
This was an application to set aside a decision of the Veter ans Appeal Board that only one allowance is payable upon a veteran's death to his widow at any one time. Subsection 2(3) of the War Veterans Allowance Act creates a deemed widow hood where a veteran resided with a person of the opposite sex, whom he represented as his spouse, but whom he was prevented from marrying because of a subsisting previous marriage. At the same time, there is no express disentitlement of the original spouse, so that upon the veteran's death both the legal widow and the deemed surviving wife would appear to be entitled to the allowance.
Held, the application should be dismissed.
"Widow", "widower" or "surviving spouse" is defined as "surviving spouse" or "le conjoint survivant" in French. As a definite article in the singular form, attached to a noun which does not refer to a class, it normally excludes the possibility of a plurality. This is significant because the definite article replaced the indefinite article in the original version. By declar-
ing that for the purposes of the Act, the veteran shall be deemed to be married to his common law wife and that she shall be deemed to be the surviving spouse on the veteran's death, Parliament clearly indicated its intention to make the definition of "widow" or "surviving spouse" in the situation in subsection 2(3) applicable to the common law wife exclusively. It would have been easy to provide that in certain circum stances the common law wife would benefit as well as the legal wife. At no time and in no situation can two persons meet the definition of "widow" under the Act.
That an allowance is payable to "any female person who is a ... widow" under paragraph 4(1)(b) does not indicate that more than one widow could be entitled at the same time. Where there is a common law wife in the conditions described in subsection 2(3), she is deemed to be the widow. Section 10, which provides that no allowance is payable unless the surviv ing spouse was residing with the veteran, does not apply. It does not contemplate a situation of a common law wife and a legal wife, since it would not have been a question of residence. It only applies to a legal wife who actually fits the definition of "widow" in subsection 2(1). Parliament saw residency as para mount since it was the basic condition for a common law wife to be deemed the "widow" under the Act and thereby become eligible for benefits, and it was a significant, although not exclusive, requirement for a legal wife to which the definition of widow was still applicable, to remain entitled to benefits.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Pension Act, R.S.C. 1970, c. P-7, s. 39.
Pension Act, R.S.C., 1985, c. P-6, ss. 46, 55.
Revised Statutes of Canada, 1985 Act, S.C. 1987, c. 48,
s. 4.
Veterans Appeal Board Act, S.C. 1987, c. 25, s. 11.
War Veterans Allowance Act, R.S.C. 1970, c. W-5, s. 2
(as am. by S.C. 1974-75-76, c. 8, s. 3).
War Veterans Allowance Act, R.S.C., 1985, c. W-3, ss.
2(1),(3), 4(1)(b), 10.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
War Amputations of Canada v. Pension Review Board, [1975] F.C. 447 (C.A.).
COUNSEL:
Evan Robert Elkin and Aidan J. Sheridan for
applicant.
Martin C. Ward for respondent.
SOLICITORS:
Bureau of Pensions Advocates, Charlotte- town, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
MARCEAU J.A.: This section 28 [Federal Court Act, R.S.C., 1985, c. F-7] application challenges a decision of the Veterans Appeal Board ("the Board") on a question of interpretation referred to it by the Chief Pensions Advocate under section 11 of the Veterans Appeal Board Act, S.C. 1987, c. 25.'
The question facing the Board was:
Does the War Veterans Allowance Act allow for two Distinct widows to be in receipt of War Veterans Allowance Widow's Benefits vis-à-vis the same veteran at the same time.
The problem of interpretation arises from a deeming provision of the Act, which, in effect, creates a deemed widowhood in situations where, for a requisite period (3 years) immediately prior to his death, a veteran resided with a person of the opposite sex, whom he represented as his spouse,
' This section reads in part as follows:
11. (I) The Minister, the Commission, the Chief Pensions Advocate, any veterans' organization incorporated by or under an Act of Parliament or any interested person may, in the prescribed form and manner, refer to the Board for hearing and decision any question of interpretation relating to this Act, to any other Act of Parliament pursuant to which an appeal may be taken to the Board or to any regulation made under any such Act.
(4) Before the Board makes a decision on any question referred to it pursuant to this section, the Board shall notify the prescribed persons or organizations in the prescribed form and manner and afford them an opportunity to present argument on the question.
This Court, in the War Amputations of Canada v. Pension Review Board, [1975] F.C. 447 (C.A.), has already decided that a Board's interpretation made pursuant to a provision identical to that contained in this section 11 was a decision within the meaning of—and therefore subject to an applica tion under—section 28 of the Federal Court Act.
but whom he was prevented from marrying because of a subsisting previous marriage. There is no express disentitlement of the original spouse, so that upon the veteran's death there would appear to be two candidates for the allowance: the "legal widow" from the original marriage and the "deemed surviving spouse".
The Board, upholding its long-standing interpre tation of the Act, held that only one allowance was involved and that the provision deeming a common law wife to be the spouse at the time of death necessarily implied the exclusion of the "legal" widow.
The Board's interpretation is, of course, in keep ing with the view that if men are expected to have only one wife at a time, they can leave only one widow at a time. One also is bound to wonder why a single allowance payable to a veteran during his lifetime would be doubled upon his death. But the Chief Pensions Advocate, in support of his attack against the decision, stresses the liberal interpreta tion mandated by the Act and draws some support from the existence, in other legislation, specially the Pension Act R.S.C., 1985, c. P-6, of rules providing for the apportionment of benefits at the discretion of the administering authority, a discre tion which has apparently been exercised to split a pension between a legal wife and a common law wife. 2
There are statements in the Board's reasons which are, at least, equivocal, and I will have occasion to discuss some of them. But, neverthe less, I am in agreement with the substance of the members' reasoning. I think, as they do, that a careful reading of the legislation, and more par ticularly of its deeming provision, confirms that Parliament never intended to give to two women,
2 This last contention was actually never developed before us and I have not been able to find in the Pension Act or in any other legislation a provision which could give an administering authority a clear power to partition a pension between a legal wife and a common law wife. Section 55 of the Pension Act (formerly section 39) was mentioned but there is nothing therein to that effect. In any event, it is clear that the situation elsewhere can have no bearing on the interpretation of the Act with which we are concerned here and I do not intend to say anything more about this argument.
at the same time, a right to the pension allowance payable under the Act to the widow of a deceased veteran. I will endeavour to show that this is indeed the case by stressing, in reviewing the relevant provisions of the Act, words that are particularly telling in that respect and adding brief comments in regard thereto. This reviewing can be done with either the Act as it stood before the coming into force of the Revised Statutes of Canada, 1985 (R.S.C. 1970, c. W-5), or the Act as it now appears (R.S.C., 1985, c. W-3). Of course there can be no substantial difference between the two,' but the fact remains that some words have been changed. While the members of the Board had before them the former Act, the nature of their decision, being one of interpretation with a view to guiding the settlement of future claims, makes it more appropriate, it seems to me, that this Court exercise its power of revision with the new Act in hand. I will therefore reproduce the Act as it now stands, but in my remarks I will point out the few changed words as we go along.
Section 2 in both the former and the present Acts, is the only section to be found under the heading "INTERPRETATION". It has three subsec tions. The first one, as to be expected, lists a series of definitions. Among these definitions is that of "widow or widower or surviving spouse" which reads in both languages, as follows:
2. (1) ...
"widow", "widower" or "sur- «veuve», «veuf» ou «conjoint
viving spouse" means survivant»
(a) a surviving spouse of (a) Le conjoint survi-
a deceased veteran who vant d'un ancien combat-
is not a veteran and who tant, lorsque ce conjoint
has not remarried, and n'est pas un ancien com-
battant et ne s'est pas remarié;
(b) a surviving spouse of (b) Le conjoint survi-
a deceased veteran who vant d'un ancien combat-
is not a veteran, who has tant décédé, lorsque ce
remarried and whose conjoint n'est pas un
' See: The Revised Statutes of Canada, 1985 Act, S.C. 1987, c. 48, section 4.
spouse of that marriage ancien combattant, dans
dies or whose marriage les cas où le conjoint sur -
ends in dissolution or vivant se remarie et soit
legal separation, que son nouveau conjoint décédé, soit encore que son remariage prenne fin par une dissolution ou une séparation légale,
and, for the purposes of para- pour l'application de l'alinéa
graph 7(g) and the schedule, 7(g) et de l'annexe, s'entend
includes a veteran who is en outre d'un ancien combat-
bereft by death of his spouse. tant dont le conjoint est
décédé. (C'est moi qui sou- ligne.]
The first point to be made here is merely con cerned with a meaningless question of form. In the old Act the words "surviving spouse" did not appear together with "widow" and "widower" as one of the expressions being defined; this is the only change brought by the revision.
The second point, however, is basic. It has to do with the use of the word "le" in the phrase "le conjoint survivant" in the French version. As a "definite article" in the singular form, attached to a noun which does not refer to a class, it normally excludes the possibility of a plurality, and this ought to have some considerable significance since this definite article was introduced only later 4 in replacement of the indefinite article "un" which had been originally adopted by the translators (see the text in R.S.C. 1970, c. W-5).
The second subsection of section 2 respecting interpretation is of no concern to us, but the third one contains the deeming provision which is at the heart of our problem. It reads thus:
2....
(3) For the purposes of this Act,
(a) a veteran who establishes to the satisfaction of the Minister that he has been residing with a person of the opposite sex and has been publicly representing that person as his spouse for a period of not less than
(i) three years, where he is prohibited from marrying that person by reason of a previous marriage either of that person or of himself, or
(ii) one year, where neither he nor that person is prohib ited from marrying the other,
4 See S.C. I974-75-76, c. 8, subs. 3(6).
shall be deemed to be married to that person;
(b) on the death of a veteran described in paragraph (a) at any time while he is deemed to be married pursuant to that paragraph, the person to whom he is deemed to be married shall be deemed to be the surviving spouse of the veteran; and
(c) a person who establishes to the satisfaction of the Minis ter that he was residing with a veteran of the opposite sex and was publicly represented by that veteran as his spouse for a period immediately prior to his death of not less than
(i) three years, where the person was prohibited from marrying that veteran by reason of a previous marriage either of that veteran or that person, or
(ii) one year, where neither that person nor that veteran was prohibited from marrying the other,
shall be deemed to be the surviving spouse of that veteran. [Underlining added.]
Again a first remark concerning the form. In the Act as it was before the 1985 consolidation, instead of the phrase "deemed to be the surviving spouse of the veteran", the phrase "deemed ... to be the widow" was used; the rest is identical.
Now the real point. If one considers the manner in which Parliament has seen fit to express its deeming provision, and bears special attention to the words it used, one has to come to the conclu sion that its idea was certainly not only to create an additional beneficiary of the allowance pro vided by the Act. If that had been the case, it would have been easy to say that a common law wife, in certain circumstances, would be entitled to benefit as well as the legal wife. By resorting, on the contrary, to a provision where it is declared that, for the purposes of the Act, the veteran shall be deemed to be married to his common law wife and that the common law wife shall be deemed to be the surviving spouse of the veteran on the latter's death, Parliament, in my judgment, clearly indicated its intention to make the definition of widow or surviving spouse under the Act in the presence of the situation described in subsection
2(3), applicable to the common law wife exclusively. 5
Incidentally, I said previously that the Board, in their reasons, had made statements which seemed to me somewhat equivocal. This is an occasion to point out one of them. The Board asserts at one point that "under the Act two persons may meet the definition of `widow' at a given time". This to me is not exact. If, on reading the Act and its interpretation section, one stops after coming to the definition "widow" or "surviving spouse" in subsection 2(1), one cannot bring under the defini tion any person other than the spouse legally mar ried to the deceased. But then, when having car ried on one reads subsection (3), one immediately realizes that, in the situation therein described, the definition of "widow" can only apply to the "com- mon law wife". At no time and in no situation can two persons meet together under the Act, the definition of "widow".
This, I think, should be the end of the matter. However there are two other provisions which ought to be referred to because they concern the right of the surviving spouse and have been par ticularly relied on by the Chief Pensions Advocate. One is the entitlement provision of section 4 (for- merly section 3), the other, a !imitative provision contained in section 10. I reproduce the relevant part of section 4, and the whole of section 10.
5 A very good example of a legislative enactment providing for an allowance payable to a common law spouse without resorting to a deeming provision such as the one we have here, is to be found precisely in this Pension Act referred to above. It is a long-standing provision which has been carried over in subsection 46(1) of the 1985 revised Act. It reads thus:
46. (I) A person of the opposite sex who, although not married to a member of the forces, was living with him in Canada at the time he became a member of the forces and for a reasonable time previously thereto, and, at that time, was publicly represented by him as his spouse, may, in the case of his death and in the discretion of the Commission, be awarded a pension at a rate not exceeding the rate provided for a surviving spouse in Schedule II or determined pursuant to subsection 45(3), whichever rate is applicable.
(2) The Commission may also award a pension at a rate not exceeding the rate described in subsection (1) if, in its opinion, an injustice would be done by not recognizing a person as the spouse of a member of the forces although there is no evidence that that person had been publicly represented by him as his spouse.
4. (1) Subject to this Act, an allowance is payable to
(b) any female person who is a veteran or widow and who
has attained the age of fifty-five years
10. (1) Subject to subsection (2), no allowance shall be paid to the surviving spouse of a veteran unless the spouse was residing with, maintaining or being maintained by the veteran at the time of his death.
(2) The Minister may exempt any surviving spouse from the operation of subsection (1) in any case where the Minister deems it just and reasonable to do so.
The applicant would see in the word "any" used in paragraph 4(1)(b) ("toute" in the French version) an indication that more than one widow could be entitled at the same time. This is simply not the way I read the text. The phrase is not "any widow", it is rather "any female person who is a ... widow". And we already know that in the case where there is a common law wife in the conditions prescribed in paragraph 2(3), she is deemed to be the widow. As to section 10, I will simply say, with respect, that I fail to see how it may have any bearing on the issue. It is quite obvious that the section does not apply to a "deemed spouse" under paragraph 2(3), nor does it contemplate a situation where there would be both a common law wife and a legal wife, since it would certainly not have been a question of "residence". This is clearly, as I read it, a limitative provision applicable to a legal wife who actually fits the definition of "widow" in paragraph 2(1) because there is no common law wife in the conditions set by subsection 2(3).
Here another of these equivocal statements in the Board's reasons should be mentioned. "Resi- dency with the veteran immediately prior to his death" said the Board "is the paramount require ment for a widow to receive an allowance". The Board surely did not mean to contradict the sec tion they were then considering, namely section 10. What they surely meant to say is that residency was seen by Parliament as paramount since it was the basic condition for a common law wife to be deemed the "widow" under the Act and thereby
become eligible to benefits, and it was a signifi cant, although not exclusive, requirement for a legal wife to which the definition of widow was still applicable, to remain entitled to benefits.
This is how I read the Act. It will be seen, at the end of this tedious but inevitable semantic review of all of the relevant provisions of the Act that, as I said at the outset, my reading of the legislation does not substantially differ from that of the Board. It may appear to some unfortunate that such a deserving candidate as a legal wife be, not only preferred but, ousted by a mere common law wife. This is however a reaction which is certainly not warranted in all cases, but in any event it is not for this Court nor the Board to question the wisdom of Parliament.
I would confirm the interpretation adopted by the Board and dismiss the application.
HEALD J.A.: I concur.
MACGUIGAN J.A.: I concur.
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