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-Ã -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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.