Quebec will ask the country’s highest tribunal for permission to appeal a controversial court ruling that has opened the door for common-law couples in the province to seek alimony and may lead to a surge in co-habitation agreements, triggered deliberations over the definition of common-law couples, and spurred debate over the role of the judiciary.
“The Quebec Court of Appeal is not giving choices to the legislator,” said Quebec Justice Minister Jean-Marc Fournier. “We have to see if we have more room to manoeuvre than what the court of appeal is saying, just to be sure to adapt the right solution for a situation lived by more than one million people.”
In a ruling that touched off a storm of heated debate that is still raging in the province, the Quebec Court of Appeal declared that s. 585 of the Civil Code was unconstitutional because it discriminates against common-law couples by denying them the same recourse to spousal support as people who are married or in civil unions.
The majority of the three-judge panel suspended the constitutional “invalidity” of s. 585 of the Civil Code for one year to give the provincial government time to review the family law section of the Civil Code. Justice Marc Beauregard, however, held that the section should be immediately amended as it would not have an impact on public coffers nor harm married couples or those in civil unions but would lead numerous spouses to “suffer from a lack of alimony” while the government is reviewing Book Two of the Civil Code.
“It is a refreshing judgment, even surprising,” remarked Michel Tétrault, a family law expert whose latest book on marriage, civil unions and common-law couples was cited by the 44-page ruling. “It is in harmony with reality, with the changes that has occurred in society over the past 30 years, taking into account the consequences of the absence of alimony on the children of a common-law couple.”
All provinces and territories in Canada –except Quebec — have provisions that allow former common-law spouses to seek alimony. While children of unmarried couples in Quebec are entitled to child support, ex-spouses can seek alimony only if they had been married.
Thanks to the so-called Lola case, Quebec will be on the same footing as in the rest of Canada. Lola, a Brazilian-born former common-law spouse of a Quebec billionaire who cannot be named because Quebec law forbids the publication of names of people involved in family court cases, went to Quebec Superior Court last year seeking $56,000 in spousal support and a $50-million lump sum on top of the $34,000 in child-support payments she was already receiving for their three children following the end of their seven-year relationship. Quebec Superior Court Justice Carole Hallée rejected her bid, asserting that the definition of marriage as defined in the Civil Marriage Act did not contravene s. 15 of the Canadian Charter of Rights and Freedoms. Justice Hallée also noted that the Supreme Court of Canada in the ground-breaking ruling in Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83,  held that “if there is need for a uniform and universal protective regime independent of choice of matrimonial status, this is not a s. 15(1) issue.”
But after examining the guidelines established by the SCC in Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497 to analyze a discrimination claim under the Charter, the Quebec Court of Appeal overturned the lower court ruling, holding that s.585 of the Civil Code violated equality provisions of the Charter.
Quebec Court of Appeal Justice Julie Dutil noted that while common-law couples in Quebec already have social rights and are treated in the same manner as married or civil union couples by tax authorities, the omission to include common-law couples in s.585 of the Civil Code stems from a stereotype that these relationships “are not sufficiently stable and serious to merit the protection of the law insofar as the fundamental right to meet basic financial needs after a rupture.” Section 585 of the Civil Code states that “married or civil union spouses, and relatives in the direct line in the first degree, owe each other support.”
“The objective behind spousal support has always been to ensure that family members have the necessary resources to provide for their needs,” said Justice Dutil. “Section 585 of the Civil Code does not only target married couples or those in civil unions. It also holds that parents in the direct line in the first degree owe each other spousal support. Spousal support then does not stem only from a contractual engagement but rather it is a social obligation towards close family members.”
By “ignoring them,” the legislator is excluding more than one third of Quebec couples from a protective measure that aims to protect close family members, added Justice Dutil. In 2006, 34.6 per cent of couples – or approximately 1.2 million people — in Quebec were involved in a common-law relationship, compared to 18.4 per cent in the rest of the country. Sixty per cent of children born in the province have parents who are not married.
But while the appeal court has paved the way for common-law spousal support, it was not swayed by arguments for the division of family patrimony and division of financial assets – a finding that may spur Anne-France Goldwater, who represented Lola, to file an application for leave to appeal before the SCC.
“I don’t think the Supreme Court will give the matrimonial regime because the Supreme Court would say it’s unfair, given that we permit married couples to opt out,” said Goldwater, who described the right to common-law spousal support as a “no-brainer.” “But with family patrimony, we don’t let married couples opt out of sharing the value of those assets. So if we don’t let married couples opt out, why would we let common couples opt out. I’m thinking of lodging an appeal but first I want to see what the government will do.”
So too is the billionaire waiting for the government to make a decision before deciding whether to file an application for leave to appeal, said Pierre Bienvenu, the chair of Montreal law firm Ogilvy Renault’s executive committee. While Bienvenu interprets the appeal court ruling as dismissing Lola’s claim for alimony, he does believe that the judgment underscores the evolving role of the judiciary.
“This ruling demonstrates the fine line between what lies within the competence of the legislator and the competence of the courts,” said Bienvenu, who represented the wealthy businessman. “The court of first instance affirmed with vigor that the debate before it was a debate that that should be held in political spheres and not the courts. The Court of Appeal held another point of view. This ruling illustrates that the line of demarcation between the legislator and the competence of the courts is an exercise that is developing as jurisprudence is evolving.”
In the meantime, Université de Montréal law professor Benoît Moore believes that cohabitation agreements will surge.
“I hope people in common-law relationships will now consider cohabitation agreements,” said Moore, a family law expert who too was cited in the appeal court ruling. “It would be ideal because people who live in common-law would be able to establish the rules of the game in case of a split.”
While also favouring an opting out provision, Tétrault now doubts in light of the appeal court decision that common-law couples can circumvent spousal support in cohabitation agreements.
“The problem is that the Court of Appeal stated that spousal support falls within the scope of public duty,” said Tétrault. “Even if the legislator modifies the relevant sections in the Civil Code and allows for opting out, they will not be able to opt out of an obligation that falls within public duty.”
This article was originally published in The Lawyers Weekly.