Charter of Rights and Freedoms Civil Code of Quebec Family law Quebec Superior Court Supreme Court of Canada

Alimony rights for common-law spouses at stake in wealthy couple’s battle

Common lawA legal battle pitting a Brazilian aspiring model against a wealthy Montreal businessman may have all the ingredients of a riveting soap opera but at stake lies a constitutional challenge that strikes at the heart over the financial duties of common-law partners in Quebec.

The 35-year-old woman, who mothered three of the man’s children, is challenging the law that mandates spousal payments for couples who only have been legally married. Before Quebec Superior Court, she is seeking $56,000 in alimony and a share of his wealth. The identities of the protagonists are protected by the court, as is the case in Quebec when family law cases involve children.

“I want to help women who are in the same situation,” said the woman said outside the courtroom, adding she had assumed she had the same rights as women who are legally married. “Not many people know about the law.”

According to Statistics Canada, 35 per cent of couples in Quebec are unmarried, and 60 per cent of children are born out of wedlock. In the rest of Canada only 18 per cent of couples live together.

In some provinces in Canada, the law grants common-law couples who have lived together after a certain period of time, usually three years, or those with a child, the same legal protection as married couples.

But not in Quebec. Under the Civil Code, when common-law relationships end, child support is mandatory — but not alimony.

Anne-France Goldwater, the woman’s lawyer, argues that de-facto unions should enjoy the same protections and responsibilities as marriage.

But Pierre Boisvenu, the man’s lawyer, maintains that the constitutional issue was already decided by the Supreme Court of Canada seven years ago in Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, 2002 SCC 83.

In a case that profoundly changed the Canadian legal landscape, the majority of the Court decided that excluding long term unmarried cohabitants from the statutory definition of spouse in the Matrimonial Property Act was not contrary to section 15 of the Canadian Charter of Rights and Freedoms. Under s. 15, every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In short, the Court held that common-law partners cannot claim an equal division of matrimonial property if they break up.

“Where the legislation has the effect of dramatically altering the legal obligations of partners, as between themselves, choice must be paramount,” wrote Supreme Court Justice Michel Bastarache. “The decision to marry or not is intensely personal and engages a complex interplay of social, political, religious, and financial considerations by the individual. While it remains true that unmarried spouses have suffered from historical disadvantage and stereotyping, it simultaneously cannot be ignored that many persons in circumstances similar to those of the parties, that is, opposite sex individuals in conjugal relationships of some permanence, have chosen to avoid the institution of marriage and the legal consequences that flow from it.”

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