Canada: Common Law Spouses: The Supreme Court Ruling

Last Updated: May 22 2013
Article by Doree Levine

The highly publicized case known as Eric v. Lola reached its pinnacle on January 25, 2013. In a Judgment rendered by a divided bench, the Supreme Court of Canada rendered judgement in favour of "Eric", recognizing the constitutional validity of the existing legal treatment of "de facto" or "common law" spouses in Quebec (Quebec (Attorney General) v. A, 2013 SCC 5).

Contrary to all other Canadian provinces, common law spouses in Quebec do not enjoy the legal protections afforded to married or civil union spouses upon the breakdown of their relationship, such as the partition of the family patrimony and partnership of acquests, the right to claim a compensatory allowance, and most notably to request spousal support. Historically, the Quebec legislature justified this distinction under the guise of respecting the freedom of choice of non-married spouses who did not wish to be subject to the rights and obligations associated with marriage (or civil union).

The relevant facts of the case are as follows. The parties met in 1992 in Lola's native Brazil where she was a 17 year old student and Eric was a prospering 32 year old Quebec businessman. The parties lived in Montreal, and three children were born of their union between 1996 and 2001. Throughout their relationship, Eric saw to all of the family's financial needs and they enjoyed a most privileged and luxurious lifestyle. Save for some attempts at a modelling career, Lola did not work during the parties' relationship. Although she wanted to marry, Eric claimed not to believe in the institution of marriage. In 2002 and after seven years of cohabitation, the parties separated.

In virtue of a May 2006 Judgment of the Superior Court of Quebec, the parties were awarded joint custody of their three minor children, and Eric was ordered to pay child support of approximately $34,000 per month. In addition, he was responsible for various expenses of the minor children, namely their tuition, activities, nanny, chauffeur and cook. Moreover, by agreement Lola was provided with the use of a large residence (although not the ownership of same).

In pursuing her remaining claims before the Court, Lola raised the argument that the articles of the Civil Code of Quebec (C.C.Q.) that provided certain protections to married or civil union spouses upon the breakdown of their relationships were discriminatory in that they did not apply to common law spouses. Lola argued that common law spouses should benefit from the same protections as married or civil union spouses, that is, the right to the partition of family patrimony and partnership of acquests, to claim a compensatory allowance, the right to claim spousal support and the protections with respect to the family residence.

On July 16, 2009, Madam Justice Carole Hallée of the Superior Court of Quebec rendered a judgment which rejected Lola's claims, holding that the differential treatment between common law spouses and married or civil union spouses was not discriminatory. Lola then appealed that Judgment to the Court of Appeal. On November 3, 2010, the Court of Appeal of Quebec partially reversed the Superior Court decision by unanimously declaring that Article 585 of the C.C.Q. was invalid in that it discriminated against common law spouses in Quebec by denying them the right to claim spousal support and consequently, the right to equal protection and treatment under the law. The Court of Appeal ordered that their declaration of invalidity be temporarily suspended for a period of twelve months in order to allow the appropriate legislation to be drafted. Both Eric and the Attorney General of Quebec sought leave to appeal the conclusions whereby Article 585 C.C.Q. would be struck down and Lola sought leave to appeal the conclusions that had maintained the constitutional validity of the property-related protections afforded only to married or civil union spouses.

On January 18, 2012, the Supreme Court of Canada heard the appeal, and Judgment was rendered just over one year later. On January 25, 2013, the majority of the Supreme Court of Canada in a 5-4 decision concluded that excluding common law spouses from certain protections afforded to married spouses in the Civil Code of Quebec was not discriminatory. The Supreme Court therefore re-established the legal treatment of common law spouses (or absence thereof) which existed prior to Lola's challenge, whereby common law spouses had neither alimentary obligations one toward the other nor any personal or patrimonial rights or claims upon their separation, save and except for claims for unjust enrichment in virtue of the Civil Code.

As mentioned above, the 450-paragraph Supreme Court of Canada Judgment was rendered by a highly-divided bench of nine judges. One group comprised of Justices LeBel, Fish, Rothstein and Moldaver, concluded that the relevant articles of the C.C.Q. did not result in discrimination in that they simply served to express the Legislator's choice not to regulate the private relationships of de facto spouses on the basis that their individual autonomy and freedom should be respected. According to those judges, it would be erroneous to claim that the difference in treatment between common law spouses and married or civil union spouses rests on historic disadvantages or stereotypes towards common law spouses. They were rather of the view that society no longer views nonmarried couples in any negative light and that that difference in treatment is but an expression of the Legislator's objective to respect individual autonomy. For this reason, the treatment of common law spouses upon breakdown of their unions was not considered discriminatory under Section 15 of the Canadian Charter of Rights and Freedoms.

On the other hand, Justice Abella, in her dissent, concluded that the difference in treatment between common law spouses and married or civil union spouses was discriminatory. She explained that the very reasons that motivated the Quebec Legislature to add protections for married spouses in the Civil Code of Quebec were applicable to common law spouses as well, in that both types of unions share the common characteristics of, for example, longevity, stability, a partition of household tasks, and financial interdependence. For these reasons, Justice Abella held that common law spouses should be offered the same protections presently available to married or civil union spouses, including partition of family patrimony and partnership of acquests, and spousal support, for example.

The third group of Judges, composed of Justices Deschamps, Cromwell, and Karakatsanis concluded, like Justice Abella, that the difference in treatment between common law spouses and married or civil union spouses is discriminatory under the terms of the Canadian Charter. However, these Judges explained that among the various protections afforded to married spouses, only the right to spousal support affected the fundamental rights of the vulnerable spouse. The other measures of protection, and particularly those regarding family patrimony and partnership of acquests, were considered to be of a patrimonial nature and result from a conscious and deliberate act. The Court held that there are other ways for common law spouses to enter into economic unions like the ones imposed on married spouses, such as by jointly purchasing property or entering into Cohabitation Agreements. For these reasons, this group of three judges would have declared only Article 585 C.C.Q unconstitutional, thereby permitting common law spouses to seek spousal support upon a separation.

The fourth set of reasons was rendered by Chief Justice Beverley McLachlin, and effectively determined the final outcome. Like Justices Deschamps, Cromwell, Karakatsanis and Abella, Justice McLachlin was of the view that the difference in treatment between common law spouses and married or civil union spouses is discriminatory. However, Justice McLachlin noted that this "discrimination" arises out of the goal of the Quebec Legislature to respect the choice and autonomy of couples in common law relationships. Justice McLachlin held that "treating de facto spouses differently from married and civil union spouses enhances this goal, and does so in a proportionate way". By pointing out that common law spouses have access to other protections, such as entering into Cohabitation Agreements, the Chief Justice held that the discrimination is justified in a free and democratic society. Therefore, the result of Chief Justice McLachlin's decision aligns with that of Justices LeBel, Fish, Rothstein and Moldaver and determined the outcome of the case as a whole.

The state of the law as it affects common law spouses has therefore remained the same as it was prior to the institution of Lola's legal proceedings. Upon separation, common law spouses do not benefit from the protections otherwise available to married or civil union spouses. Therefore, the freedom of choice of couples to participate or not to participate in the legislative regime of marriage or civil union has triumphed.

Although the decision of Canada's highest court on this matter has now been rendered, we suggest that the debate regarding the rights and obligations of common law spouses will continue in the political arena. Subsequent to the Supreme Court's decision, the Minister of Justice of Quebec spoke of the possibility of reflecting on family law as a whole, suggesting that there remains the possibility that the legislature will review the law in the future. Common law spouses would therefore be well advised to consider Cohabitation Agreements in order to manage and foresee, to the extent possible by law, their rights and obligations upon a separation.

In collaboration with Benjamin Prud'homme, articling student.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions