Common-law policy up for discussion
Women’s groups fear families will live in poverty
Quebec’s justice minister says it may be time to review the province’s family law, after a ruling by the Supreme Court of Canada that common-law spouses here have no right to alimony. The Eric-vs-Lola case involved a billionaire, but the ruling potentially affects many: More than a million Quebecers live in common-law relationships. The Supreme Court decided that those who choose to marry choose to take on the responsibilities as well as the protections of that status; those who choose not to marry avoid both.
Groups representing women and single parents were quick to criticize Friday’s Supreme Court decision that rejected the idea of alimony for common-law spouses in Quebec, saying the judgment was unfair to women who often end up poor when a relationship ends.
But the constitutional lawyer who argued the case for the province before Canada’s highest court said those who
“The fight does not stop here, rest assured!” ANNE-FRANCE GOLDWATER, LAWYER
are disappointed should now look to Quebec politicians who have the power to change the law.
“What the court has done today is draw the line between what is for the courts to decide and what is for politicians to decide,” Pierre Bienvenu said in an interview. “But it says nothing about what decision politicians should make.”
The legislature can now develop policy using the judgment as a reference point, he said.
Within hours of the decision, Quebec Justice Minister Bertrand St-Arnaud said the time may be ripe to review the province’s family law, which stipulates only child support must be paid when a common-law union dissolves, to provide better protection to women.
In Quebec, common-law spouses have no rights to what was accumulated during the relationship, the family home or alimony. In 2002, Quebec established the civil union, which allows common-law couples to protect themselves under the law, but not many couples have used it, say some family lawyers.
All other provinces and territories have provisions for alimony for common-law spouses, and other rights vary from province to province.
Friday’s ruling ends an 11-year court battle in which a woman took her commonlaw billionaire spouse to court, demanding alimony on top of the child support he was paying for their three children. He had picked up the woman, known only as Lola, on the beaches of Brazil when she was 17 and brought her to Canada where she thought she could fulfill her dream of becoming a model.
Lola had wanted to get married, but the man, known only as Eric, told her it wasn’t his “cup of tea.” Ten years later, the two split up and Eric entered another commonlaw relationship and had two more children. In order to continue the family’s high standard of living, Lola sought a $50-million lump sum plus $56,000-a-month alimony.
While their financial situation is unique, their marital status wasn’t. More than a million Quebecers live in common-law relationships and, according to the latest census, the province has the highest percentage of common-law relationships in Canada after Nunavut. And it’s a trend that shows no signs of abating. The percentage of common-law couples in Quebec rose from 29 per cent in 2006 to 31.5 per cent in 2011.
Anne-France Goldwater, the feisty and outspoken lawyer who represented Lola in Quebec Superior Court then went to Quebec Court of Appeal and won, said it’s a very sad day for family law in Quebec but vowed to continue the struggle to protect the vulnerable.
“The fight does not stop here, rest assured!” Goldwater said in an interview. “If I have to knock at (Quebec Premier) Pauline Marois’s door, then that’s just what I’m going to do.”
Instead of “telling us to speak this language or that language” the National Assembly should “do something that provides protection for the people,” she said.
As in all constitutional cases, the nine judges of the Supreme Court had to ponder two questions: was the law as it stands discriminatory under the Canadian Charter of Rights and Freedoms and if so, was it justifiable in a free and democratic society?
“Those who choose to marry choose the protections, but also the responsibilities, associated with that status.” CHIEF JUSTICE BEVERLEY MCLACHLIN
In a closely divided decision, five out nine j udges ruled it was justifiable.
Chief Justice Beverley McLachlin tipped the scales, saying that the reason for the distinction in Quebec between de facto spouses and married or civil union couples is to promote choice and autonomy with respect to property division and support.
“Those who choose to marry choose the protections — but also the responsibil- ities — associated with that status,” she wrote. “Those who choose not to marry avoid these state-imposed responsibilities and protections, and gain the opportunity to structure their relationship outside the confines of the mandatory regime applicable to married and civil union spouses.”
The distinction “was adopted in response to rapid changes in attitude in Quebec regarding marriage and (is) sufficiently important to justify an infringement on the right to equality,” she wrote.
Quebec’s council for the status of women called on the government to measure the impact of granting rights to one group while not to another, especially given that so many people live commonlaw. The council said it was worried that, after a breakup, families risk falling into poverty if the parent with the l ower income doesn’t receive alimony. Child support, which is required under law, rarely allows the custodial parent to maintain the lifestyle enjoyed before the breakup.
As for the billionaire who was unwittingly drawn into the constitutional battle, Bienvenu said the man is relieved it’s finally over.
“He’s mostly satisfied that this marks the end of his involvement in this constitutional debate, which is not his debate,” Bienvenu said. “He has abided by the law at all times.”