Common-law couples await ruling
Supreme Court decision in ‘Lola’ case could have far-reaching implications
A decision expected Friday from Canada’s highest court could affect the almost one million Quebecers living in common-law relationships, and bring the province up-todate and in line with the rest of the country when it comes to alimony.
If the Supreme Court of Canada upholds a 2010 lower court decision ordering Quebec to revamp the family law section of its Civil Code to give unmarried couples the right to claim alimony, it will offer some security to many who find themselves destitute once their commonlaw marriages end. In most cases, such people are women who have forgone paid work to stay home and raise children.
The battle over common-law couples being granted the same rights and obligations as married couples began with a heated and sometimes emotional court case in 2009, when a woman, known only as “Lola,” took a Quebec billionaire, “Eric,” with whom she had three children, to court for alimony.
She lost that round when Superior Court Justice Carole Hallée ruled in 2010 that recognizing all couples as “married” would remove people’s freedom of choice not to marry.
The Court of Appeal overturned that ruling and Quebec appealed to the highest court, saying it wanted more clarity for the legislators.
If the Supreme Court rules in favour of Lola, it could also mark the first of many challenges to modernize the law and better reflect the evolving nature and definition of marriage.
The protagonists who got the ball rolling for legal rights of commonlaw spouses — and ultimately ended up at the Supreme Court — are hardly your typical couple involved in a breakup. Lola was seeking enormous sums — a $50-million lump sum plus $56,000-a-month alimony.
But contrary to common-law spouses who are left impoverished after their relationship ends, Lola was in the unusual situation of having sufficient finances to wage the long and costly court battle that, in the end, could benefit thousands of Quebecers.
Eric met Lola on the beaches of Brazil when she was a stunning teenager with ambitions to become a model. Eric, who older than her, brought her to Canada where they had three children before splitting seven years later. She is now 37, and he has had two more children with another woman with whom he lives common-law.
Lola took him to court in 2009, but didn’t exactly win public sympathy with her claim that the monthly $35,000 in child support she now receives doesn’t provide for the lifestyle she and her three children enjoyed during the 10-year relationship. But if the Supreme Court rules in her favour, single mothers struggling to make ends meet will benefit as well.
In their judgment last November, two out of three judges on the Quebec Court of Appeal gave the provincial government a year to revamp the family law section of the Civil Code so that unmarried couples can’t be excluded from the right to claim alimony. The third judge, Marc Beauregard, felt the legislature should act immediately.
Lola’s lawyer, Anne-France Goldwater, says the law needs to be changed mainly for those men and women who give up careers to stay home and raise children, and then are left in the lurch when the union ends.
Lawyers Pierre Bienvenu and Suzanne Pringle, who represent the billionaire, said they wouldn’t comment until after the ruling is released and they’ve had time to read it.
After the Appeal Court ruling, Bienvenu suggested his client wouldn’t have to pay alimony because any new law Quebec adopts will probably not be retroactive. But Goldwater disagreed with that interpretation, saying this week if the Supreme Court rules in her favour, her client will return to Quebec Superior Court to work out an alimony agreement.
Quebecers began shunning the notion of marriage during the Quiet Revolution, around the same time the Catholic churches began emptying. The province now has the second-highest percentage of common-law couples in Canada after Nunavut, and the trend shows no signs of stopping. According to the most recent census, the percentage of common-law couples in Quebec rose from 29 per cent in 2006 to 31.5 per cent in 2011.
The trend seems to be catching on in the rest of Canada. According to the 2011 census, the number of common-law families in Canada accounted for 16.7 per cent of all families, surpassing for the first time lone-parent families, which represented 16.3 per cent of all families. Between 2006 and 2011, the number of common-law couples rose 13.9 per cent, more than four times the 3.1 per cent increase for married couples.
Many couples living together in Quebec — as well as in the rest of the country — are under the mistaken belief they have the same rights as married couples when the relationship breaks up, such as the right to spousal support and property division. But the only universal obligation throughout Canada is to pay child support and work out a custody agreement when the relationship ends.
In Quebec, there are no rights for common-law couples regarding property division (family patrimony), the family residence, spousal support or claims on the estate.
But since 2002, common-law couples in Quebec have been able to protect themselves under the law through a civil union.
All provinces and territories except Quebec have provisions for alimony when common-law couples break up.