IN THE MATTER OF the Employment Insurance Act,
S.C. 1996, c. 23
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IN THE MATTER OF a claim for unemployment benefits by
Marie T. Davie
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IN THE MATTER OF an appeal by the Claimant
from a decision of the Board of Referees given
on December 23, 1996 at Brandon, Manitoba
Appeal heard at Brandon, Manitoba on June 16, 1999
DECISION
THE HON. R. C. STEVENSON, UMPIRE
Ms. Davie appeals from the decision of a Board of Referees dismissing her appeal from a Commission ruling that she was disqualified from receiving unemployment benefits because she had voluntarily left her employment at the Seven Oaks General Hospital in Winnipeg without just cause.
Ms. Davie left her employment in October 1996 to move to Flin Flon and establish a common law or de facto marriage relationship with a man she had met in 1994. Their relationship and commitment were serious. In a written submission presented at the hearing of the present appeal Ms. Davie related that while recovering from surgery in the fall of 1995 she had lived with her partner in Flin Flon for four weeks. Except for that four week period Ms. Davie and her partner had maintained their relationship by weekend commuting and by long distance telephone.
Ms. Davie's partner had stable employment and owned a home in Flin Flon. If they were to establish a long term relationship it was more practical for Ms. Davie to move to Flin Flon than for him to move to Winnipeg. The actual timing of her move was governed, at least in part, by the date of expiry of her lease in Winnipeg.
If one leaves employment in order to accompany a spouse, i.e. a person to whom she is legally married, it is just cause for leaving employment. If one leaves employment to move at the time of entering into a legal marriage, she has just cause.
Common law or de facto marriages are now recognized in many statutes, both federal and provincial. Many of those statutes recognize such marriages if the parties have been living together for a particular length of time. In some cases it is one year; in other instances it is as long as three years. The relationships are also recognized, regardless of the length of cohabitation, if the parties are the parents of one or more children.
Justice MacKay reviewed many of those statutes in CUB 24562. In that case the umpire also considered the provision in the Canadian Human Rights Act which prohibits discrimination on the basis of marital status.
Parliament has not yet expressly extended the meaning of the word "spouse" in the Employment Insurance Act beyond legal marriages. justice MacKay held that section 3 of the Canadian Human Rights Act required that the unemployment Insurance Act be read so that the word ,"spouse" in paragraph 28 (4) (b) (now paragraph 29 (c) (ii) of the Employment insurance Act), does not distinguish between married spouses and common law spouses. He said:
There is no expressed intention by Parliament to restrict its meaning to "married spouses" and in my view, it should be read in a manner consistent with the CHR Act. If that is so, paragraph 4(b), describing certain circumstances which may permit benefits without disqualification for one who voluntarily leaves employment, should be applied without reference to the marital status of those who claim to be spouses.
This does not mean that in every case, one who voluntarily leaves employment to follow her or his spouse to another location is automatically deemed to have left employment with just cause.
The circumstances in that case were that the claimant had been living with a man she considered to be her common law husband for eight months. Her child from a previous marriage lived with them. After her partner was transferred to Windsor she and her daughter travelled from Etobicoke to Windsor one weekend and he travelled to Etobicoke the next weekend. The alternate weekend arrangement was not satisfactory. The claimant quit her job and she and her daughter relocated to Windsor.
In CUB 34376 Justice Reed allowed the appeal of a claimant who moved from Ontario to British Columbia to live with a man in a common law relationship. They had cohabited during his visits to Ontario over about a six month period. They planned to marry but had not done so when the umpire heard the appeal. Justice Reed noted that
Their relationship had stability about it before the claimant moved. They had known each other for four years. The claimant moved at the end of June because she brought her two children, of whom she has sole custody, with her. it was not practical for her to move before the end of the school year.
...
one does not uproot two children and move them half way across the country without there being a significant degree of commitment in the relationship. When she arrived the claimant and her children moved in with her now spouse and they have lived together as a family ever since.
...
in this case the claimant's situation was no different than that of a person who moves to marry a fiancé, except that she and her spouse were establishing or continuing a common law relationship rather than one covered by a legal marriage. Having regard to all the circumstances the claimant has met the requirement and shown that there was no reasonable alternative open to her. The Commission's decision that she be denied benefits because she left her employment without juts cause is therefore set aside.
In a written submission Ms. Davie says:
My relationship with my spouse continues to grow better and better every day. We are in the process of purchasing a new (older) home, we are expecting our first child in September, and are trying to gain custody of his 13 year old daughter. If this doesn't show our degree of commitment to each other I [am] not sure what will. We are building our life together as any other husband and wife would except we're doing outside of a legally recognized marriage. I realize that if we had a wedding date set or had children prior to my relocating with Greg this claim probably would not have been questioned. I still feel that I am being discriminated against because I do not believe there is a difference between living common-law and being legally married, or deciding to wait to have children until we were ready to provide them with 2 loving parents instead of 1.
In this case the Board of Referees found that no common-law relationship had been established before Ms. Davie left her job. The Board did not make any express findings of fact with respect to the time Ms. Davie and her partner had spent together in 1995 or during the period in which they had commuted on weekends.
The facts are similar, although not identical, to those in CUB 34376. I conclude that the finding of the Board of Referees that no common-law relationship had been established was erroneous and was made without regard to the material before the Board. I will follow the precedent established in CUB 34376.
The appeal is allowed and the Commission's disqualification ruling is set aside.
RONALD C. STEVENSON
Umpire
FREDERICTON, NEW BRUNSWICK
3 August 1999