In Nova Scotia, section 3 of the Maintenance and Custody Act allows people who recently separated from their common-law partners to apply for maintenance.
Most other provinces had similar legislation on the books, but Quebec – which has more unmarried couples per capita than anywhere else in Canada – was the lone holdout, until today. (Er, make that one year from today.)
With her rent-free $2.5-million mansion, two nannies, a chef and a chauffeur, Lola seems an unlikely champion of downtrodden single mothers.
But the 35-year-old woman Wednesday won what is being hailed as a major legal victory for common-law spouses, who under Quebec’s Civil Code have enjoyed no right to alimony in the event of a break-up.
The Quebec Court of Appeal ruled unconstitutional a clause of the Civil Code that blocked common-law spouses from seeking alimony after the end of a relationship. The three-judge panel found that the provision discriminates against common-law spouses, perpetuating a prejudice that such relationships are “less durable and serious” than those sanctioned by marriage.
The court suspended application of the decision for one year to give the provincial government time to adapt its legislation. The ruling will have broad implications in Quebec, which has the highest proportion of unmarried couples in the country. Figures from 2006 cited by the court show 35% of Quebec couples live common-law, compared with 18% in the rest of the country, and 60% of children in Quebec are born to unmarried parents. Quebec is the only province that does not recognize the right of common-law spouses to sue for alimony.
If you are seeking a share of your former common-law spouse’s property, however, you might be out of luck. Halifax lawyer Lara Morris ably summarized the 2002 Walsh v. Bona decision, in which the Supreme Court of Canada ruled that common-law spouses are not automatically entitled to equal division of the parties’ property:
…Bastarache J. framed the question as “whether a reasonable heterosexual unmarried cohabiting person, taking into account all the relevant contextual factors, would find the MPA’s failure to include him or her in its ambit has the effect of demeaning his of her dignity.” The majority boiled the answer to this question down to one main element: choice. That is, the choice whether or not to marry.
The majority found that because common law couples are free to choose whether to marry (and have the MPA apply to their relationship) their exclusion from the operation of the MPA is not discriminatory. In fact, the requirement to choose to marry before the MPA applies was seen by the majority as enhancing a person’s autonomy and self-determination. This upsets Briand, “One thing that really irritates me about it is that the freedom of choice thing is even admitted by the majority decision to be illusory in a great deal of the cases. Nevertheless that’s what they hung their hat on.”
…Bastarache J. stated that the MPA significantly alters “the status quo of an individual’s proprietary rights and obligations.” Briand notes the special treatment accorded property rights: “I think property has always had a much more protected status in the common law than any other aspect of people’s lives.” Briand says that this decision might be a carry over of that view.
The fact that other remedies are available to common law couples also played a role in the majority’s decision. Bastarache J. noted the availability of maintenance or support through provincial legislation, as well as equitable remedies such as the constructive trust. “In my view, where the multiplicity of benefits and protections are tailored to the particular needs and circumstances of the individuals, the essential human dignity of unmarried persons is not violated,” he wrote.
The National Post‘s Marni Soupcoff, for her part, wonders why spousal support was not treated the same way:
…Quebec happened to be the one province that was getting it right by distinguishing between couples who have voluntarily elected to enter a binding marital contract and those who haven’t. No one was “discriminating” against common-law spouses. Rather, the law was leaving the choice up to the individuals involved.
Those who wanted the legal protections that are afforded to formally married couples were free to get married at any time. Those who didn’t were free to continue their lives and relationships without such a formal designation — and the rights and responsibilities it entails.
What’s particularly frustrating is the sheer bossiness of the new (to Quebec) approach. Now, even if both members of a couple would like to live together but decidedly and explicitly do not want to take on a financial responsibility for each other for whatever reason (rugged individualism, a feeling that their relationship is still too casual, whatever), they are completely out of luck.
The government decides for them that they’re common-law — that one of them will have to support the other financially if they break up — and there’s nothing they can do to stop it short of maintaining separate residences.
It’s intrusive, presumptuous and a blow to the freedom of choice that all individuals should have about their intimate relationships.
Actually, future support obligations could be dealt with by way of a cohabitation agreement – but even they may be subject to challenge, depending on the circumstances.
It appears that “Éric,” the payor in Lola’s case, will not appeal the decision. We’ll have to wait to see if and how the Supreme Court of Canada distinguishes common-law support cases from those involving division of property.