Are Common Law Couples Victim of Discrimination?

This year, Quebec’s highest court had to decide if common-law couples residing in Quebec were victims of discrimination based on section 15 of the Canadian Charter of Rights and Freedom. Quebec’s Civil Code does not afford common-law partners access to alimony, the sharing of family property and the protection of the family residence, among other rights that married or civil union couples enjoy (see sections 585, 401–430, 432, 433, 448–484 of the Code).

The Quebec Civil Code, which governs relations between private persons, treats common-law spouses as two independent individuals, regardless of the length of their union. It does not grant them the rights it grants to married or civil union* spouses, or submit them to the same obligations, except in some specific cases; for example, when it comes to consent to care for a common-law partner, or the adoption of a child by one of the common-law partners.

The reason is quite simple: the province wants to respect the choice of those who prefer to adopt another form of relationship than marriage or civil union. Note that other Quebec and Canadian laws, such as those that govern income tax, legal aid and social assistance, treat common-law partners the same as married spouses.

In 2006, 34.6 percent of Quebec couples (1.2 million) lived in common-law unions. In 2002, 60 percent of children were born out of wedlock. By comparison, in the rest of Canada, less than 20 percent of couples live common law. Quebec is among the top common-law enclaves in the world, beating out liberal strongholds like Sweden and Denmark.

In the rest of Canada, the law treats unmarried cohabitants who have children as married spouses. They have the same privileges and equal obligations to pay alimony to the spouse who has less money.

On November 3, 2010, Quebec’s Court of Appeal ruled that the province’s Civil Code does indeed discriminate against common-law spouses by denying them the same recourse to alimony as those who are married. The court declared only section 585 (obligation of support between married and civil union spouses) of the Civil Code unconstitutional and in violation of the Canadian Charter of Rights and Freedoms.

However, the court did not offer the female partner access to one of the entitlements of married spouses—the sharing of family property—citing a precedent set by the Supreme Court.

Background
Lola and her ex-boyfriend, Eric (the court didn’t release their real names to protect their children), met in 1992. The couple’s three children were born in 1996, 1999 and 2001. Lola wanted to formalize their union, but Eric refused. After seven years of cohabitation, the couple separated in 2002.

At the time of the court case, Lola was already receiving from Eric support in the amount of $34,260 per month for the couple’s three children. In addition, Eric had provided for her and the children with a house, a car, as well as money to pay tuition and various travels.

Despite being a common-law wife, she sought alimony for herself in the amount of $56,000 per month and $50 million as a lump sum payment. She decided to attack the constitutionality of the Civil Code sections that deal with married or civil union spouses. Her arguments were based in part on the Canadian Charter of Rights and Freedoms that guarantees the right of individuals to equal protection and equal benefit of the law without discrimination.

In 2009, a judge of the Quebec Superior Court disagreed with her and ruled that common-law spouses have no right to claim alimony from their ex-spouse. Common-law spouses are not the subject of stereotypes or prejudices, the judge said, and in our society this type of union is a legitimate lifestyle choice and accepted just like marriage. The judge concluded that the difference in treatment between common-law spouses and married or civil union spouses is not discriminatory.

The judge also said that it is not up to the court to change the law, but to the government if it sees fit to do so.

Lola appealed.

Why Does the Court of Appeal Think the Code Does not Respect the Canadian Charter?

Section 15 of the Charter states:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) 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.

To establish a discrimination claim, one must prove that a law, in purpose or effect, conflicts with the purpose of section 15.

To do this, the Court of Appeal applied Law v. Canada (Minister of Employment and Immigration), [1999] 1 S. C. R. 497, which is a leading Supreme Court of Canada decision that created the Law test for establishing equality right claims under section 15 of the Charter.

The four test factors are as follows:

  1. Pre-existing disadvantage, stereotyping, prejudice or vulnerability experienced by the individual or group at issue. The effects of a law as they relate to the important purpose of s. 15(1) in protecting individuals or groups who are vulnerable, disadvantaged or members of “discrete and insular minorities” should always be a central consideration. Although the claimant’s association with a historically more advantaged or disadvantaged group or groups is not per se determinative of an infringement, the existence of these pre-existing factors will favour a finding that s. 15(1) has been infringed.
  2. The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity or circumstances of the claimant or others. Although the mere fact that the impugned legislation takes into account the claimant’s traits or circumstances will not necessarily be sufficient to defeat a s. 15(1) claim, it will generally be more difficult to establish discrimination to the extent that the law takes into account the claimant’s actual situation in a manner that respects his or her value as a human being or member of Canadian society, and less difficult to do so where the law fails to take into account the claimant’s actual situation.
  3. The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society. An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. This factor is more relevant where the s. 15(1) claim is brought by a more advantaged member of society.
  4. The nature and scope of the interest affected by the impugned law. The more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of s. 15(1).

The Court of Appeal in this case concluded:

  • That the legislature, by failing to include common-law spouses, regards them as less worthy of protection offered (by law) as married couples and those in a civil union, even if common-law unions are similar to these two types of unions.
  • That by failing to include common-law unions in law—even if common-law unions are accepted in society—the legislature continues to discriminate against them by submitting them to stereotypes. The judge says one of these stereotypes is the fact that common-law spouses have less lasting and meaningful relationships than married or civil union couples who have their union formalized, which is not the case.
  • These unions, and children resulting from them, constitute a family unit in the same way as those coming from a formalized relationship. The obligation to pay support is intended to ensure that the family’s financial resources meet their needs. Since (as of 2006) 34.6 percent of couples in Quebec are common-law spouses, the Court of Appeal concluded that the government is ignoring, excluding more than one-third of Quebec couples and the majority of children from measures that are aimed to protect the family unit.
  • While common-law spouses may end up living in the same situation of dependency or vulnerability as married or civil union couples, the law does not allow them to claim support from their ex-spouse.
  • It may happen that only one of the spouses does not want to marry. Therefore, the spouse who wishes to marry is at a disadvantage.
  • Children of common-law couples are victims of discrimination because their quality of life can only deteriorate while in the custody of a former spouse who was financially dependent and who loses the right to alimony.

The Impact of this Court Decision

The court left the Quebec government one year to review its position.

As a result, Lola can actually return to court in a year to seek spousal support (alimony) from her ex-partner, Eric.

Justice Minister Jean-Marc Fournier said the government would study the decision before commenting. “We have to see what the consequences are on unmarried couples but also on married couples”, he said.

Will there be an appeal to the Supreme Court of Canada? Stay tuned.

In the meantime, nothing has changed; former common-law partners do not owe spousal support when they separate.

However, some thinking needs to be done beyond the support obligation, particularly on the definition of spouse, family member, family, family law. There are too many inconsistencies that may leave a lot of wives and children out of these definitions or the protection the law purports to provide.

The Appeal Court seems to have set out a pretty clear argument that the treatment of common-law partners is discriminatory in comparison to marriages or civil unions, but I wonder if this issue would be better left to couples to decide, as Quebec’s legislative assembly originally desired. What I mean is: couples who want to marry, and enjoy the legal benefits and obligations of that institution can do so; and couples who do not want to marry, but who want those benefits and obligations, can also do so via a civil union; but what about a couple that is committed to their relationship, but also to their legal independence? Should the government force them into a contract that they don’t want?

The present case, however, offers an interesting and probably more common scenario: one partner wants to marry and the other doesn’t. The partner who wants to marry has very little power, because he or she cannot legally force the other partner to provide for the future if they separate. In Quebec, couples may enter marriage contracts or civil union contracts. Perhaps they could enter a common-law contract, but this would effectively be a civil union contract, and it seems unlikely that a partner who doesn’t want to marry would agree to such a thing.

So what are the options? Some might argue that Lola should have questioned her relationship with Eric, and maybe she should have left him, when he refused to marry her—and maybe she did think about that. But they had children, and she probably knew that she would get nothing if she left. It’s important to remember that, while Eric is clearly very wealthy and is already taking care of Lola via various support measures, common-law partners in less financially stable situations, or where one partner is the main earner in the family, could be devastated if they received no support after their relationships break up.

But what about the couple that says they don’t want the legal obligations of marriage or a civil union (not including their obligations to any children), but when they break up, one of them changes direction and demands alimony? This might be a less common situation, but surely it happens, and what do the partners do? Is this a case where the government knows best and the citizens should just accept and be quiet?

I don’t know, but I look forward to seeing the government’s response when the court-imposed deadline is up.

* A civil union is an institution created by the Quebec government in 2002. It is similar to marriage, but it differs in some aspects. This institution allows a couple (each partner must be at least 18 years old), consisting of spouses of the opposite or same sex, to publicly commit by contract, in front of a priest or pastor or notary, to a life together. The union grants rights and imposes obligations on both partners. A civil union may, under certain conditions, be dissolved by a simple joint declaration before a notary, while married couples must get a divorce to dissolve a marriage.

Retweet information »

Comments

  1. While the common law provinces (and territories?) all give a separated common-law spouse a right to support, in the same circumstances that would entitle a married spouse to support, they do not all treat rights to property the same way. Some allow a claim on property, some (such as Ontario) do not. Presumably their governments and legislatures have gone through a similar debate to the one that Yosie outlines above, balancing the desire for a ‘fair share’ against the respect of a decision not to assume a legal status that does give a property claim.

    (BTW the hyphenation or not of ‘common law’ above strikes me as right, though inconsistent. Anyone wanting to comment on that should probably take it out of Yosie’s family law thread to john@euclid.ca.)

  2. I disagree.

    Discrimination factors are often beyond the control of the individual (race, ethnicity, age etc). On the other hand, at the start of a relationship, one can choose to cohabit (common-law), marry etc.

  3. In one respect, the judgment of the Quebec Court of Appeal(COA) is consistent with Miron v. Trudel(1995) in which the SCC held that exclusion of common-law spouses from automobile insurance benefits constituted discrimination on the grounds of marital status under s.15 Charter equality provisions. It’s noteworthy (and troubling) that the COA made it a point to define alimony as a public rather than a private issue.

    This case once again highlights the ongoing constitutional debate regarding the appropriate boundary in defining personal and family relationships as private matters under Charter liberty and freedom of association provisions versus legitimate public interests in family relationships.

    The legal trend of the past quarter century has two distinguishing characteristics: first, increasing state interventionism in the family justified under public interest; second, legal harmonization of all forms of personal relationships. Both trends reflect a socialist society as opposed to the alleged “free and democratic” society guaranteed under s.1 of the Charter. No doubt both will form part of any challenge to the COA decision assuming the Quebec government doesn’t intervene first.

    Any challenge will force an airing on the judicial substantive equality interpretation of s.15 based on socialist “equality of outcome” as opposed to the classic formal equality interpretation(equality of opportunity). I suspect the feds are encouraging Quebec to bring in overriding legislation to “Lola” to retain the legal status quo, as any discussion on substantive equality raises the prospect that it is the state rather than the individual that must underwrite substantive equality costs, in which case we would see legislative back-peddling on equalization, child/spousal support quantum that would scientifically establish that it is indeed possible to move faster than the speed of light.

    As for other conclusions in the Lola case, even a non-lawyer can see that the COA was straining to find justification with specious logic that a primary school student would find laughable were it not for the seriousness of the debate. And lets be clear, the debate is ostensibly about alimony, but the real debate is whether Canada is a democracy or a socialist state in which the family is a state franchise with children being lease-back state commodities.

    How politically ironic that Quebec may have the distinction of saving democracy in Canada!

  4. Mr Piskor’s concerns seem to me a bit exaggerated. We see the Americans tossing around the label ‘socialist’ to mean any action of government that they don’t like, but we might try to be a bit more careful. We are not talking in the Lola case or in family law generally of nationalizing the means of production, or having the government prescribe the details of family relationships – which would not necessarily be ‘socialist’, it would just be interventionist, possibly heavy-handed – that’s a debate we can have without misleading labels that are probably not as emotionally potent among Slaw readers as they are among the rabble that can be roused by their use (and we’re not aiming at an emotional debate here, are we?)

    A democratic society may decide that the collective instrument of the duly enacted law may protect people who are vulnerable against exploitation. We can debate – and democractic societies can debate without ceasing to be democratic – the questions of who is sufficiently vulnerable to need this protection and of what kinds of activity or relationships constitute exploitation to be prohibited.

    The arguments that persuaded many democratic governments in the 1970s to extend support rights (‘alimony’ is not a term in much use in Canadian law) to unmarried spouses in relationships of some permanence or involving children, were that one spouse may have impaired her or his own earnings for the benefit of the couple, and that the decision not to marry may not have been entirely voluntary.

    Any claim for support depends on showing need, not just status, whatever the state of the relationship. So in the Quebec case, ‘Lola’ may not be awarded any support, once the courts get to the merits, given that she is receiving for the kids over $300,000 a year and other benefits. Some people in Quebec and elsewhere in Canada manage to struggle by on such amounts or less – even socialists.