This week, the Supreme Court of Canada will revisit the issue of whether common-law spouses are presumptively entitled to an equal division of family property:
They’re known as “de facto spouses.” Partners in a paperless marriage. Or, in this case, plain old Eric and Lola.
But there’s almost nothing ordinary about the tale of a 51-year-old Quebec billionaire businessman and a former Brazilian model, whose messy legal battle could change life for millions of Canadian couples.
Their case, which reaches the Supreme Court of Canada [this] Thursday, is expected to decide whether common-law spouses have the same rights as married couples to support and sharing of property after a break-up.
While the case is likely to have its greatest impact in Quebec, legal experts predict that if Lola succeeds in her landmark challenge, eight other provinces and territories that deny property rights to unmarried spouses, including Ontario [and Nova Scotia – DJP], will be forced to rethink their legislation.
As a starting point, common-law spouses should have the right to both alimony and an equal share in property, argue lawyers for the Women’s Legal Education and Action Fund (LEAF), an intervenor in the case.
Looming over the case is a 2002 decision by the Supreme Court involving Susan Walsh, a Nova Scotia woman who sought a share of her late common-law husband’s assets. In that case, the court’s 8-1 majority upheld a section of Nova Scotia’s Matrimonial Property Act, which gives only married people a share in a partner’s property.
The court said excluding common-law couples was a way of respecting their decision to avoid marriage because of the legal obligations that go along with it.
LEAF argues it is time to revisit the Walsh decision, saying the court in 2002 did not have the benefit of social science research that shows when people move in together, they aren’t motivated by legal considerations.
In fact, North American research over the past decade has shown that most couples who live together are under the mistaken impression they already have the same rights as married couples.