A November 3, 2010 Quebec Court of Appeal decision has been touted as a significant victory for the rights of common law spouses living in Quebec. The case of Droit de la famille-102866, 2010 QCCA 1978, focused on the constitutionality of Article 585 of the Civil Code of Quebec (CCQ), which provides that “[m]arried or civil union spouses, and relatives in the direct line in the first degree, owe each other support”. Unlike all other Canadian provinces, unmarried cohabitants (“de facto” or “common law” spouses) in Quebec do not have rights under Article 585 CCQ or any other law to claim spousal support upon the termination of their relationship. Quebec has historically explained this as being out of respect for the freedom of choice of couples who do not wish to assume the legal responsibilities of marriage.

Commonly referred to as “Eric” and “Lola” since a publication ban was issued to protect the family’s identity, the parties met in 1992 in Lola’s native Brazil. She was a 17 year old student, and he a prospering 32 year old Quebec businessman. Living in Montreal, the parties had three children between 1996 and 2001. While growing his empire, Eric saw to all of the family’s financial needs and they enjoyed a most privileged and luxurious lifestyle. Save for some attempts at a modeling career, Lola did not work during the parties’ relationship. Lola wished for the couple to marry, but Eric refused, claiming not to believe in the institution. After seven years of cohabitation, the parties separated in 2002.

Among the various claims in Lola’s legal proceedings at the Superior Court was a request for spousal support and a claim that Article 585 CCQ violated Section 15 of the Canadian Charter of Rights and Freedoms in failing to grant to common law spouses the same rights to spousal support as married or civil union spouses.

At time of the Superior Court Judgment, the parties were sharing joint custody of their children and Eric was paying child support of approximately 34,000$ per month, a host of additional child-related expenses (school fees, activities, two nannies, chauffeur, cook) and providing Lola with the use of a 2.5 million dollar home. On July 16, 2009, the Superior Court rejected Lola’s claim for spousal support on the grounds that Article 585 CCQ did not provide for such a right to common law spouses and rejected Lola’s argument that same was unconstitutional. Lola appealed the Superior Court decision to the Court of Appeal.

The Court of Appeal applied the test established in Law v Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 for analyzing claims under s.15 of the Charter. The Court determined that matrimonial status was an analogous ground to those enumerated at s. 15(1). The Court of Appeal next questioned whether the distinction created by omitting common law spouses from Article 585 CCQ created a disadvantage by perpetuating a prejudice or enforcing a stereotype. Again, the Court of Appeal answered in the affirmative, finding that despite common law unions may present identical characteristics of financial dependency as married couples, the exclusion from Article 585 CCQ perpetuates the stereotype that common law relationships are not sufficiently stable or serious to merit the same protection under the law.

The objectives of alimentary obligations have long been acknowledged as being to ensure that the family unit has the necessary resources to satisfy its needs. The Quebec family unit, however, has evolved significantly over the years. In 2006, 34.6% of Quebec couples (1.2 million people) were living in common law relationships, compared to 18.4% in the rest of Canada. Moreover, in 2002, 60% of children born in Quebec were born of common law relationships. The Court of Appeal determined that relying on the existence of a formalized marriage or civil union in order to recognize and protect the economic dependency that may result from that union, particularly ones from which children are born, ignores the changing social reality of Quebec’s families.

The Court of Appeal then analyzed the nature of the right at issue - the capacity to provide for one’s financial needs upon the termination of a relationship characterized by intimacy and financial dependency – which the Supreme Court had previously held was a fundamental right (M. v H., [1999] 2 S.C.R. 3). Article 585 CCQ thus denies one third of Quebec couples the fundamental right to ensure their basic financial needs are satisfied upon the breakdown of their relationship, regardless of whether a financial dependency results from that union. Moreover, the Court of Appeal considered the effects of such a distinction on children born of common law parents compared with children born of married parents. Quebec children born of married parents would likely enjoy a more financially balanced environment upon divorce than children born of a common law relationship, where a financially disadvantaged parent could not claim spousal support.

The Court of Appeal unanimously declared Article 585 CCQ invalid for discriminating against common law spouses in Quebec by denying them the right to claim spousal support and consequently the right to equal protection and treatment under the law. As to the remedy, Justices Julie Dutil and Lorne Giroux ordered that their declaration of invalidity be temporarily suspended for 12 months to allow for appropriate legislation to be drafted, presumably to set standards for defining a common law couple. Justice Beauregard dissented in this respect only, favoring instead the immediate effect of the invalidity and allowing the Courts to determine on a case-by-case basis whether a particular union constitutes a common law relationship. Lola herself will have the opportunity to return to the Superior Court after the 12 month delay to address the issues of quantum and retroactivity of her spousal support request, it having not been decided by the Court of Appeal.

At the time of writing the present article, the Attorney General of Quebec has appealed the Court of Appeal decision to the Supreme Court of Canada, if only to obtain clarifications and establish how much legislative liberty it has, particularly considering the varying definitions of common unions in the other provinces ranging from one to five years of cohabitation, and varying with the presence or absence of children.