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Section 15 (2) of the Charter of Rights and Freedoms reads
"Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability"

Smith contends that as women have moved into the paid marketplace, the impugned laws may have been set up to ensure that they are not disadvantaged there in comparison with men who do not have unpaid caregiving responsibilities.
The laws may also have been set up to ensure a broad tax base, to increase national productivity, to enable women to have financial independence, and to ensure young children got a good start in life.

Smith contends that these goals have however not been met by the impugned laws, though their purpose is valid.By favoring women with paid labor over women whose labor was traditional and unpaid, the laws have created a new discrimination between women and have disadvantaged and penalized women who do caregiving.
The impugned laws have intentionally created a disincentive to unpaid caregiving and have had as a consequence the delaying of child-bearing and the decline of the birth rate which in the long term will lead to a decline in national productivity and will seriously threaten not only the tax base but the viability of social programs such as education, health care and the pension fund which were all designed with a minimal birth rate in mind.
The impugned laws have led to financial independence for women only if they had paid employment outside the home and have not allowed for the more modern solution of home-based office, telecommuting and tag-team parenting options parents are opting for in increasing numbers. The impugned laws by denying recognition for caregiving have failed to provide women with financial recognition for their traditional work so have continued the cycle of poverty for caregivers. The impugned laws also by ignoring the educational value of one on one care by family and friends have discriminated between children based on the location of their 'care' and have therefore denied children equal benefit of the law.

The laws in question are not relevant or efficient

Basing maternity or parental benefits on the amount of income the mother earned the preceding year is an irrelevant criterion to the value of the bonding between parent and child.
The high costs of monitoring programs that discriminate based on source of income are not justified when a universal program would be not only consistent with equality provisions of the Charter but also less expensive to administer.