Quebec Separation

[Rockslinger]

The SCC has ruled that common law couples in Quebec do not have the same rights as legally married couples. "Lola" will not get her $50 million.

 

[Aardvark154]

The decision: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/12825/index.do

Boy they were all over the place with this one.

"To prove that she has been discriminated against, A must show on a balance of probabilities that the provisions of the Civil Code of Québec at issue create an adverse distinction based on an enumerated or analogous ground and that the disadvantage is discriminatory because it perpetuates prejudice or stereotypes. The provisions relating to the family patrimony, the family residence, the compensatory allowance, the partnership of acquests and the obligation of support apply only to persons who are married or in a civil union, and do not apply to de facto spouses. These provisions therefore have the effect of creating a distinction based on the analogous ground of marital status. That distinction may result in disadvantages for those who are excluded from the statutory framework applicable to a marriage or a civil union. Generally speaking, when de facto spouses separate, one of them will likely end up in a more precarious patrimonial situation than if the couple had been married or in a civil union. As a result, unless these de facto spouses have exactly the same earning capacity and exactly the same patrimony, one of them will be in a worse position after the relationship ends than would a married or civil union spouse in a similar patrimonial situation.

However, the distinction is not discriminatory, because it does not create a disadvantage by expressing or perpetuating prejudice or by stereotyping. Although there was a period of Quebec history during which de facto spouses were subjected to both legislative hostility and social ostracism, nothing in the evidence suggests that de facto spouses are now subject to public opprobrium. The expert reports filed by the parties tend to show the contrary. According to them, the de facto union has become a respected type of conjugality and is not judged unfavourably by Quebec society as a whole."

Hmm, I can see why this was a divided court (5-4 ruling).

Yet the court held

"Per Abella J. (majority on s. 15(1)): The total exclusion of de facto spouses — the term used in Quebec for those who are neither married nor in a civil union — from the legal protections for both support and property given to spouses in formal unions, is a violation of s. 15 (1) of the Canadian Charter of Rights and Freedoms. . . . .

Since many spouses in de facto couples exhibit the same functional characteristics as spouses in formal unions, with the same potential for one partner to be left economically vulnerable or disadvantaged when the relationship ends, their exclusion from similar protections perpetuates historic disadvantage against them based on their marital status. There is no need to look for an attitude of prejudice motivating or created by the exclusion of de facto couples from the presumptive statutory protections. There is no doubt that attitudes have changed towards de facto unions in Quebec, but what is relevant is not the attitudinal progress towards them, but the continuation of their discriminatory treatment. "

 

[Rockslinger]

Please note that this decision may not apply to Common Law provinces like Ontario. So, you guys living common law in Ontario may have to pay your "Lola" $50 million when the loving ends. BTW: 30% of Quebec couples are living common law.

 

[mandrill]

No doubt I'll be reading a number of crits of the decision in the next month or so. The fact that the SCC split 5:4 surprises me. The prevailing theory of s.15 is that the legislative branch is allowed to create distinctions between individuals - indeed, virtually all law creates some distinctions - as long as the distinction did not perpetuate a prejudice or stereotype on one of the enumerated or an analogous ground. There would not appear to be such an opprobrious distinction when one simply distinguishes married from common law spouses. So why the SCC wasn't unanimous in dismissing the challenge has me baffled.

I guess I'll find out in due course.

 

[mandrill]

Please note that this decision may not apply to Common Law provinces like Ontario. So, you guys living common law in Ontario may have to pay your "Lola" $50 million when the loving ends. BTW: 30% of Quebec couples are living common law.

The SCC has already created the doctrine of "joint family venture" to cover this.

 

[Aardvark154]

No doubt I'll be reading a number of crits of the decision in the next month or so. The fact that the SCC split 5:4 surprises me. The prevailing theory of s.15 is that the legislative branch is allowed to create distinctions between individuals - indeed, virtually all law creates some distinctions - as long as the distinction did not perpetuate a prejudice or stereotype on one of the enumerated or an analogous ground. There would not appear to be such an opprobrious distinction when one simply distinguishes married from common law spouses. So why the SCC wasn't unanimous in dismissing the challenge has me baffled.

I guess I'll find out in due course.

This time of night is not good to sit down and read through a decision. That said I would think that as Justice Abella wrote: "the total exclusion of de facto spouses — the term used in Quebec for those who are neither married nor in a civil union — from the legal protections for both support and property given to spouses in formal unions, is a violation of s. 15 (1) of the Canadian Charter of Rights and Freedoms" indeed I would see it as unconscionable.

 

[oldjones]

On the other hand—speaking as a once married and twice common-law husband—what is the point of marriage or common-law status at all if they do not create some special rights and obligations distinct both from single status, and from the other cohabiting status which was not chosen? As I understand it the majority decision was that Québec's Civil Code had acceptably and effectively distinguished between marriage and what we call common-law, and that the couple in the case had made a free and thoughtful choice of the one over the other, and therefore could not later claim the two should subsequently be equalized by inventing alimony/spousal support rights under the Charter that their conscious choice had explicitly excluded.

Makes good sense to me.

 

[Ceiling Cat]

Boy they were all over the place with this one.

This is what you call politics in Quebec. Pauline Marois has a minority govenment and has to find votes where she can. She is trying to whip up the separatist vote as quietly as she can. Here in this matter she is trying to capture the common law womens vote, by making promises that she will never keep.

 

[james t kirk]

I'm all for the divorce laws being reformed from top to bottom. Enough already of this quaint notion of alimony.

My personal opinion would be:

1. You leave with what you had when you married.
2. You split all assets purchased while together 50 50 regardless of who paid, or whose name is on the title. (The exception would be anything covered by a pre-nup such as business shares, pensions, whatever. That's up to the people to decide.)
3. You're on your own when it comes to support. No such thing as alimony.
4. Child support stays the way it is - the famous tables.

As far as the quebec decision goes. I agree with it. (Was this Guy Laliberte from Circ du Soleil does anyone know?)

 

[Aardvark154]

On the other hand—speaking as a once married and twice common-law husband—what is the point of marriage or common-law status at all if they do not create some special rights and obligations distinct both from single status, and from the other cohabiting status which was not chosen? As I understand it the majority decision was that Québec's Civil Code had acceptably and effectively distinguished between marriage and what we call common-law, and that the couple in the case had made a free and thoughtful choice of the one over the other, and therefore could not later claim the two should subsequently be equalized by inventing alimony/spousal support rights under the Charter that their conscious choice had explicitly excluded.

Makes good sense to me.

The facts of the case up for review, make me wonder. I'm not at all certain that much free and thoughtful choice at all was made by a 17 year old who starts cohabiting with a man in his mid-thirties.

 

[Aardvark154]

I'm all for the divorce laws being reformed from top to bottom. Enough already of this quaint notion of alimony.

My personal opinion would be:

1. You leave with what you had when you married.
2. You split all assets purchased while together 50 50 regardless of who paid, or whose name is on the title. (The exception would be anything covered by a pre-nup such as business shares, pensions, whatever. That's up to the people to decide.)
3. You're on your own when it comes to support. No such thing as alimony.
4. Child support stays the way it is - the famous tables.

Without getting into the differences between various jurisdictions: As sweeping generalities, as to one, you already keep the property you brought into the marriage and inheritances unless you converted them into marital assets. Two, marital assets are rarely past a 60-40 distribution. Third in many jurisdictions today alimony is intended to be temporary support, unless it is a very long married couple and one party has no way to make a decent living at their age e.g. You married just out of University where you met each other, you became the next Bill Gates, you didn't want your spouse to work after you started making money they were a full time homemaker, now after 45 years of marriage and three children you are seeking a divorce and the only job your spouse could get is working at Tim Horton's.

Of course in the U.S. Common Law Marriage has been abolished or was never allowed in 39 states, and is only allowed in nine states, with two which somewhat allow it - one only recognizing it for probate purposes, while another requires validation by court or administrative order before it is recognized.

 

[oldjones]

The facts of the case up for review, make me wonder. I'm not at all certain that much free and thoughtful choice at all was made by a 17 year old who starts cohabiting with a man in his mid-thirties.

On the other hand, she kept on cohabiting long after, had kids by him and gets very health child support—enough for the kids to buy the house they all might live in. Sometime along that way, she probably acquired an adult mind capable of making such free and thoughtful choice, and capable of deciding either to leave, use her previous (or continuing) incompetence as grounds for a suit, or deciding to stay. She stayed. The SCC said the relationship differences were clear and in fact created an inequality the Charter prohibited, but the choice of relationship was real and available and hers to make. While I've read only Eric's lawyer quoting him saying marriage was never an option he'd accept, she did remain in that unmarried relationship (to her considerable financial benefit) knowing it was intended to exclude the full benefits of marriage.

Those who propose civil unions alongside 'real' marriages face a dilemna similar to Québec's: Different but equal cannot exist. You either take the consequences of different, or do away with different. Québec's official response was that the rights difference was regrettable, and would be reviewed, but that setting out differences between the two matrimonial states gave people a choice they wanted. But no one wants a civil union.

 

[Aardvark154]

On the other hand, she kept on cohabiting long after, had kids by him. . . .

However, in other jurisdictions that has been seen as problematic - she enters into such a relationship at 17 has a few children and now what options does she really have.

The expressions "Why buy the cow when you are getting the milk for free" and "damaged goods" seem apropos.

 

[msog87]

for the most socialist province quebec really likes to fuck with minorities

 

[affiliated]

(Was this Guy Laliberte from Circ du Soleil does anyone know?)

yes it is/was