LEAF intervening in Eric v. Lola equality rights challenge: Common Law Spouses in Quebec Entitled to Access Family Law ProtectionsTuesday, November 30 1999
January 16, 2012 - Toronto - On January 18, 2012, the Supreme Court of Canada will hear "Lola's" s.15 Charter equality rights challenge to the total exclusion of de facto (common law) spouses from the Quebec Civil Code family law regime. Lola argues that this exclusion unconstitutionally discriminates against de facto spouses on the basis of marital status. LEAF's intervention will focus on the gendered nature and effects of this marital status discrimination.
"Approximately 35% of all couples in Quebec live in de facto unions and over 60% of children in Quebec are born outside of marriage" explains LEAF co-counsel, Johanne O'Hanlon of O'Hanlon, Sanders, Teixeira in Montreal. "Yet women in Quebec who have not married or registered a civil union with their spouses are excluded from claiming spousal support, rights in the family home or sharing of property."
"This is true regardless of their circumstances" continues O'Hanlon "For example, a woman who has been with her spouse for 15 years, has had four children with him (or her), was the primary caregiver of the children and sacrificed her career or earning potential in the process while supporting the spouse's career, is left at the end of a relationship without any support or family law claim to property, other than child support which is inadequate to sustain a single-mother family of four. The exclusion from any right to claim spousal support or other family law remedy is unjust and unfair and is often devastating for women and their children."
LEAF co-counsel Martha McCarthy of Martha McCarthy & Company in Toronto further explains: "Spousal relationships continue to be marked by gender inequality. In most relationships, it is still women who have primary responsibility for children and domestic labour. As a result, women, or men who assume stereotypically gendered roles in the home, are economically disadvantaged on breakdown of spousal relationships. Family law statutes across the country are aimed at redressing the economic and other injustices created by gendered roles in spousal relationships."
"The rights of cohabiting spouses to equal sharing of property varies across the country" explains LEAF Legal Director, Joanna Birenbaum.
Recognizing the social reality of common-law spouses, some provinces and territories, like Manitoba, Saskatchewan, Nunavut and NWT, require common law spouses who have lived together for a defined period of time or who have children together, to share the property and debts accumulated during the relationship at relationship breakdown, unless the parties agree otherwise. British Columbia recently amended its family law legislation to extend matrimonial property rights and obligations to common law spouses. Other provinces, like Ontario, Alberta, and the Maritime provinces, do not include cohabiting spouses in the matrimonial property provisions of their family law statutes.
"LEAF argues that matrimonial property regimes must include unmarried cohabitants" continues Birenbaum. "At the moment the law in Quebec and other provinces, like Ontario and Alberta, is exclusion or "opt-in" contractually. This is unrealistic and ignores gendered power imbalances. The presumption should be equal contributions during the relationship and equal sharing of property. Couples can always opt-out at the end of their relationships or apply to the Court for unequal division where appropriate."
Moreover, explains McCarthy, "most common law couples believe that matrimonial property regimes apply to them, particularly if they have children or their relationship is long term. A Supreme Court of Canada decision which requires the extension of division of property laws to cohabiting spouses would accord with societal expectations."
McCarthy further explains that "the social science evidence before the Court in this appeal demonstrates that, for the most part, couples have no idea of the legal consequences of the decision to cohabit. The evidence also confirms that the governing family law legal regime is not a factor which determines whether couples choose to marry or not marry."
"In my 17 years of practice in Quebec", continues O'Hanlon, "in case after case, women in de facto relationships are shocked to discover that their rights and contributions are not recognized in Quebec law, and that they are entitled to nothing."
In response to the press coverage ofthe Eric v. Lola challenge, O'Hanlon has been asked many questions about de facto couples' rights and obligations of spousal support if the appeal is successful. "There's a misperception in Quebec that if Lola's challenge succeeds, support obligations will automatically flow in every case involving de facto couples. This is incorrect. De facto spouses, just like married spouses, will only be entitled to receive spousal support, or correspondingly pay support, if the claimant spouse meets the statutory test of means and needs. If there is no economic dependency, no support will be ordered."
Quebec is the only province in Canada which excludes de facto (or common law) spouses from the right to claim spousal support at the end of a relationship.
In the case of Eric and Lola, Lola repeatedly asked Eric to marry her and he refused, saying he didn't believe in the institution of marriage. The couple cohabited for seven years and had three children together. Lola cared for the children and did not work outside the home. Although the wealth of Eric in this case is exceptional, the gendered power dynamic of the relationship is not.
"Why would the Supreme Court of Canada allow the more powerful spouse to avoid any family law obligations simply by unilaterally refusing to marry? Such a result would fly in the face of over a half century of progressive legislative and judicial evolution of family law in Canada" states Birenbaum.
LEAF's factum is available at: http://leaf.ca/legal-issues-cases-and-law-reform/active-cases/