By Anne-France Goldwater and Marie-Hélène Dubé

Goldwater, Dubé

In July 2009, the Quebec Superior Court issued its decision in the landmark case on the legal status of de facto (or “common law”) unions in the province of Quebec. The Court dismissed the constitutional challenge launched by a Quebec woman which seeks to have unmarried couples treated the same as married couples when their relationships end. That ruling is being appealed to the Quebec Court of Appeal. In this article, Anne-France Goldwater and Marie-Hélène Dubé summarize the arguments they presented in the lower court. [Follow-up: On November 3rd, 2010, in a unanimous judgment the Quebec Court of Appeal overturned the ruling in first instance, and gave the Quebec government one year to provide spousal support rights to common law couples.] [Follow-up: on January 18 2012, the Supreme Court heard oral argument on the respective appeals of Lola, Eric and the Quebec government. A judgment is expected later in 2012.]

Our client’s constitutional challenge seeks to have de facto unions between childless couples who have cohabited for at least three years, or couples with children who have cohabited for less than one year, considered legal marriages in Canada. Indeed, this type of informal union represents a new social norm, in a grand majority of cases, couples no longer celebrate a formal marriage when they decide to built a future together.

Even if the legal distinction between a permanent de facto union and marriage is upheld, this case challenges the absence of legal protection for de facto couples. We argue that denying these couples access to conventional family law remedies available infringes upon their right to equality under Section 15 of the Canadian Charter of Rights and Freedoms. The plaintiff in the case is an ex-de facto wife. A ruling in her favour would mean that when de facto couples split, ex-spouses would be able to claim alimony, protection of the family residence, and division of the family assets. This would be a victory for innumerable spouses and their children who are, at present, left to their own fates because of the discriminatory legislation that ignores them. De facto couples are the conspicuous orphans of the Civil Code of Quebec, which treats the partners in such relationships as if they were strangers to each other.

In Quebec, 34.5 % of couples live in de facto (or “common law”) unions. More than half of couples aged 34 and under are not married. In fact, for a number of years now, more than half of Quebec births occur in families where the couple is cohabiting without being married. Yet, despite the extent of this social phenomenon, de facto spouses have no mutual rights or obligations.

The State has an interest in protecting the family nucleus as a cornerstone of society; accordingly, it makes available remedies intended to equalize family resources in the event of separation or death. Yet the rationale for protecting married couples in Quebec also applies tode facto spouses. De facto wives have family obligations just as married wives do, and their family contributions should be recognized and valued. Children should enjoy the advantages indirectly available to them through the family patrimony, or the protection of the family residence, whether or not their parents are married.

In all other Canadian provinces, common law couples have an obligation to support each other financially, and several provinces entitle them to share their property when they separate.

It is worth taking a closer look at the protection offered by family law rules in Quebec, which are withheld from de facto spouses.

In Quebec, in the event of a separation, married spouses can claim alimony, if one of them cannot fully support himself or herself and the other has the means to do so. In order for alimony to be awarded, the marriage must have engendered an economic dependency. The length of the union, the duties of each spouse during the union and the discrepancy between their incomes are the principal factors that influence the amount and duration of the alimony.

The family residence cannot be sold or mortgaged without the consent of both spouses, even if only one of them owns it. The non-owner spouse can claim a right of use to the family residence.

The family patrimony consists of the residences where the family lives, the furnishings, the vehicles used by the family and the pension plans accrued during the marriage. Regardless of ownership, the values of these assets must be shared when the union ends. The debts accumulated to purchase or preserve the family patrimony, and the gifts and inheritances received by either spouse, are then deducted from that value. And, if a spouse was already the owner of an asset in the family patrimony before the marriage, the value of that asset at the time of the marriage is also deducted from the value to be divided. The rules concerning family patrimony are considered to be of public order, which means that the spouses cannot simply waive them contractually.

When spouses wed, they can choose their matrimonial regime. Under the partnership of acquests regime (the term used in the English version of the Civil Code of Quebec), the assets acquired and debts accumulated during the marriage must be divided when the union ends. Once again, assets acquired by way of gift or inheritance are excluded from the division. This is the legal regime that applies by default if the spouses have not agreed otherwise in a marriage contract. The regime of separation as to property allows them to not combine assets other than those in the family patrimony, and not share their debts other than those relating to the family patrimony. Under this regime, the spouses do not have to share assets such as their savings, corporate stocks or income producing properties.

Sometimes a spouse will make an exceptional contribution to the marriage, enabling the other spouse to develop his or her patrimony in a way he or she could not have accomplished otherwise. That spouse may then claim a compensatory allowance, for which the conditions of application are less stringent than for an action in unjustified enrichment.

We argue that the State cannot continue to concern itself solely with married couples, and to ignore the reality of the Quebec population, which is composed of a plurality of families, many of whom no longer bother to go through the formalities of marriage.

In addition, many de facto spouses believe they are subject to the same rules as married couples. Indeed, as concerns third parties, they do have the same rights and obligations as if they were married, which naturally leads them to believe that they have rights and obligations vis-à-vis each other as well. It is only when they separate, that they discover the cruel reality that they have no rights at all vis-à-vis each other.

Requiring de facto spouses to sign contracts is not an effective remedy for many reasons. This solution fails to recognize the imbalance of negotiating leverage within the couple, and the unpredictable and often unforeseeable ways in which a family’s circumstances evolve with time.

A couple may start a family but choose not to marry for any number of reasons. The couple may be opting not to marry for cultural reasons, or to reject religious requirements. Denying these couples the protections that married couples enjoy devalues the families they create. Regardless of how individuals choose to form their family, all family law protections should apply to them without discrimination.

Indeed, the Supreme Court has already held that civil status is an analogous ground of discrimination and, sinceMiron v. Trudel, [1995] 2 S.C.R. 418, it has been unlawful to excludede facto spouses whose relationship has attained a certain degree of permanence from benefits available to married spouses. In Nova Scotia (Attorney General) v. Walsh [2002] 4 S.C.R. 325, the Supreme Court of Canada denied the presumption of equal division of the universality of the couple’s assets under the Matrimonial Property Act, which gives legally married couples the right to opt out. But de facto spouses in Nova Scotia are not totally deprived of rights (they have the right to claim alimony and recourse to constructive trust which confers ownership rights), and legally married spouses may be subject to a more extensive division of their assets than their Quebec counterparts.

The Quebec context, illustrated by reports from sociological experts introduced into evidence, unlike in Walsh, seriously calls into question the premise upon which the Walsh case was based, namely that de facto spouses make a deliberate “choice” not to marry, supposedly expressing a desire not to become subject to the legal framework of marriage. In fact, in our view, what we are now seeing in Quebec is the resurgence of a phenomenon historically recognized in Canada: the “common law marriage.” Quebecers, far from having abandoned marriage, have simply freed themselves from the constraints of solemnizing their marriage, a formality derived from religious rules.

The foregoing is the essence of the arguments we submitted on behalf of the plaintiff at the trial on this landmark case, which was heard in Montreal from Jan. 19 to 29, 2009, in the Superior Court of Quebec. The claims were vigorously contested by the ex-de facto husband and by the Canadian and Quebec governments, all of whom maintained that the law does not discriminate. However, the Fédération des associations de familles monoparentales et reconstituées du Québec intervened in support of plaintiff’s case. The Fédération is concerned about the harm suffered by children of de facto spouses because their parents do not have basic personal rights and so are forced to survive on the limited child support available.