SCC: The Rights and Obligations of Common-Law Spouses in Quebec

On Friday, January 25, 2013, the Supreme Court of Canada ruled in a tight majority judgment (five: McLachlin, Deschamps, Abella, Cromwell and Karakatsanis, against four: LeBel, Fish, Rothstein and Moldaver) that the Quebec Civil Code discriminates against common-law spouses because it does not grant them the same rights as married couples in regard to spousal support and division of property. However, and thankfully, the Court does not find that the discriminatory nature of these Civil Code provisions is unconstitutional. According to the Court’s decision, the infringement is a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under section 1 of the Canadian Charter of Rights and Freedoms.

We wrote about the Eric v. Lola case that generated debate on this topic previously on Slaw here and here. I won’t go into the details of the case so please read my previous posts to understand the issues the Supreme Court of Canada had to analyze and ponder.

In plain language, unmarried Quebec couples who live together and then split up are not entitled to the same rights as legally married couples, when it comes to spousal support and division of property. The only support they can obtain is child support if a child is born of the union. When a common-law (de facto) relationship ends, child support and child custody are determined in the same way as in a divorce.

The Court has decided that the choice of the spouses to live common-law must be respected and it would not be appropriate to impose all the rights and obligations of marriage on them. This decision is reflected in the judgment when it is written:

The Quebec legislature has imposed these regimes [partition of property and obligation of support] only on those who, by agreement with another person, have demonstrated that they wish to adhere to them. Their consent must be explicit, and must take the form of marriage or a civil union. The Civil Code of Québec does not lay down the terms of the union of de facto spouses. Since the de facto union is not subject to the mandatory legislative framework that applies to marriage and the civil union, de facto spouses are free to shape their relationships as they wish, having proper regard for public order. They can enter into agreements to organize their patrimonial relationships while they live together and to provide for the consequences of a possible breakdown.

The justices said that the law is not born of prejudice/stereotypes and that common-law couples are free to enter into agreements that relate to division of property and support, “Although there was a period of Quebec history during which de facto spouses were subjected to both legislative hostility and social ostracism, nothing in the evidence suggests that de facto spouses are now subject to public opprobrium.”

Out of the four dissenting Judges, Madam Justice Rosalie Abella found the exclusion of common-law partners from both spousal support and property division to be unacceptable Charter breaches. She said that even laws passed in good faith can negatively affect particular groups. “In Quebec and throughout the rest of Canada, the right to support does not rest on the legal status of either husband or wife, but on the reality of the dependence or vulnerability that the spousal relationship creates.”

However, Justice Lebel said it best:

…it will be up to the [Quebec] legislature to intervene if it believes that the consequences of such autonomous choices give rise to social problems that need to be remedied.”

The Quebec Minister of Justice and Attorney General, Bertrand St-Arnaud, stated that he was satisfied with the decision of the Supreme Court on the rights and obligations of Quebec spouses to each other.

This said, maybe it is time to modernize these provisions to reflect all the new realities in which couples live today. However, the government has to find a balance. They must take into consideration the fact that children born of de facto spouses must rely on the ability of parents to raise and educate them in a favourable context by ensuring that both parents have adequate income and means to do so. At the same time, the legislature must preserve the freedom of Quebecers to choose to marry or not.

Also, the legislature should take into account the fact that women have much lower incomes than men in many cases.

At the same time, maybe there is a need for more education to ensure that all individuals in Quebec are aware of the ability to enter into a civil union instead of just living together without any agreement. A civil union 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.

Such unions are still very different from matrimony in the sense that 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.

Whatever happens next, the decision sets a precedent that justifies the different types of relationships people enter and their reasons for doing so. If a couple wants the legal protections offered by a marriage or civil union, they must explicitly enter into such an arrangement. If they do not enter, they will not enjoy all of the legal protections. The type of arrangement they choose will decide the protections provided to them by the law. That is a reasonable decision, and it allows individuals a reasonable option when it comes to deciding how they will arrange their private relationships. The alternative is that there is no difference between common-law unions, civil unions and marriages—and no choice for individuals in those relationships.

Impact of the court decision on existing legislation

Across Canada the rights and obligations of individuals in common-law relationships vary and depend on the province or territory. A common-law couple may be recognised for one purpose and not another even within the same province or territory. Several Canadian jurisdictions have defined “spouse” in such a way as to extend certain entitlements or to pay spousal support at the end of a common-law relationship. All Canadian provinces except Quebec, provide for the potential for spousal support for common law spouses after a certain period of time of living together.

In British Columbia, common-law couples are entitled to claim spousal support in the same manner as married couples. However, with the new Family Law Act coming into force in March 2013, common-law couples will receive the added benefit of having the same property rights as married couples.

As defined by the Department of Justice Canada, “Spousal support” is money that one spouse (usually the one with the higher income) may have to pay to the other spouse (usually the one with the lower income) following a separation or divorce. It is sometimes called “alimony” or “maintenance.”

On January 30, 2013, the Canadien Press reported that because of this case, the Law Reform Commission of Nova Scotia says it is going to examine whether the provincial law that governs marriage in Nova Scotia should apply to common-law couples. The commission says,

some argue that under existing law in Nova Scotia, partners in common-law relationships aren’t properly protected when property is divided in the event of a breakup. […] On the other hand, some common-law couples may choose to remain unmarried in order to avoid the financial and property sharing obligations of married couples after a separation.”

In Nova Scotia common-law couples may be treated identically to married couples if they register under the Vital Statistics Act in that province.

The commission says it will examine the laws in other jurisdictions, the public perceptions of the rights and obligations of common-law spouses and the financial consequences of breakups for both types of relationships, including the interests of children of the relationship.

The Quebec government has not firmly said that they would examine the law, but St-Arnaud stated to the Globe and Mail that “he acknowledged that Quebec society has evolved and that the time may be ripe to reflect on the possibility of changing the law in order to grant greater economic protection to unmarried women involved in a common law relationship.”

It is true in the last decades our social and family reality has evolved. Is it time for us to start to think again about our family regime in our civil code? Maybe. Today, the door is certainly open to a general reflection about our family regime.”

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