The highly publicized case known as Eric v. Lola reached its pinnacle on January 25, 2013. In a Judgment rendered by a divided bench, the Supreme Court of Canada rendered judgement in favour of “Eric”, recognizing the constitutional validity of the existing legal treatment of “de facto” or “common law” spouses in Quebec (Quebec (Attorney General) v. A, 2013 SCC 5).

Contrary to all other Canadian provinces, common law spouses in Quebec do not enjoy the legal protections afforded to married or civil union spouses upon the breakdown of their relationship, such as the partition of the family patrimony and partnership of acquests, the right to claim a compensatory allowance, and most notably to request spousal support. Historically, the Quebec legislature justified this distinction under the guise of respecting the freedom of choice of non-married spouses who did not wish to be subject to the rights and obligations associated with marriage (or civil union).

The relevant facts of the case are as follows. The parties met in 1992 in Lola’s native Brazil where she was a 17 year old student and Eric was a prospering 32 year old Quebec businessman. The parties lived in Montreal, and three children were born of their union between 1996 and 2001. Throughout their relationship, 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 modelling career, Lola did not work during the parties’ relationship. Although she wanted to marry, Eric claimed not to believe in the institution of marriage. In 2002 and after seven years of cohabitation, the parties separated.

In virtue of a May 2006 Judgment of the Superior Court of Quebec, the parties were awarded joint custody of their three minor children, and Eric was ordered to pay child support of approximately $34,000 per month. In addition, he was responsible for various expenses of the minor children, namely their tuition, activities, nanny, chauffeur and cook. Moreover, by agreement Lola was provided with the use of a large residence (although not the ownership of same).

In pursuing her remaining claims before the Court, Lola raised the argument that the articles of the Civil Code of Quebec (C.C.Q.) that provided certain protections to married or civil union spouses upon the breakdown of their relationships were discriminatory in that they did not apply to common law spouses. Lola argued that common law spouses should benefit from the same protections as married or civil union spouses, that is, the right to the partition of family patrimony and partnership of acquests, to claim a compensatory allowance, the right to claim spousal support and the protections with respect to the family residence.

On July 16, 2009, Madam Justice Carole Hallée of the Superior Court of Quebec rendered a judgment which rejected Lola’s claims, holding that the differential treatment between common law spouses and married or civil union spouses was not discriminatory. Lola then appealed that Judgment to the Court of Appeal. On November 3, 2010, the Court of Appeal of Quebec partially reversed the Superior Court decision by unanimously declaring that Article 585 of the C.C.Q. was invalid in that it discriminated 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. The Court of Appeal ordered that their declaration of invalidity be temporarily suspended for a period of twelve months in order to allow the appropriate legislation to be drafted. Both Eric and the Attorney General of Quebec sought leave to appeal the conclusions whereby Article 585 C.C.Q. would be struck down and Lola sought leave to appeal the conclusions that had maintained the constitutional validity of the property-related protections afforded only to married or civil union spouses. On January 18, 2012, the Supreme Court of Canada heard the appeal, and Judgment was rendered just over one year later.

On January 25, 2013, the majority of the Supreme Court of Canada in a 5-4 decision concluded that excluding common law spouses from certain protections afforded to married spouses in the Civil Code of Quebec was not discriminatory. The Supreme Court therefore re-established the legal treatment of common law spouses (or absence thereof) which existed prior to Lola’s challenge, whereby common law spouses had neither alimentary obligations one toward the other nor any personal or patrimonial rights or claims upon their separation, save and except for claims for unjust enrichment in virtue of the Civil Code.

As mentioned above, the 450-paragraph Supreme Court of Canada Judgment was rendered by a highly-divided bench of nine judges. One group comprised of Justices LeBel, Fish, Rothstein and Moldaver, concluded that the relevant articles of the C.C.Q. did not result in discrimination in that they simply served to express the Legislator’s choice not to regulate the private relationships of de facto spouses on the basis that their individual autonomy and freedom should be respected. According to those judges, it would be erroneous to claim that the difference in treatment between common law spouses and married or civil union spouses rests on historic disadvantages or stereotypes towards common law spouses. They were rather of the view that society no longer views nonmarried couples in any negative light and that that difference in treatment is but an expression of the Legislator’s objective to respect individual autonomy. For this reason, the treatment of common law spouses upon breakdown of their unions was not considered discriminatory under Section 15 of the Canadian Charter of Rights and Freedoms.

On the other hand, Justice Abella, in her dissent, concluded that the difference in treatment between common law spouses and married or civil union spouses was discriminatory. She explained that the very reasons that motivated the Quebec Legislature to add protections for married spouses in the Civil Code of Quebec were applicable to common law spouses as well, in that both types of unions share the common characteristics of, for example, longevity, stability, a partition of household tasks, and financial interdependence. For these reasons, Justice Abella held that common law spouses should be offered the same protections presently available to married or civil union spouses, including partition of family patrimony and partnership of acquests, and spousal support, for example.

The third group of Judges, composed of Justices Deschamps, Cromwell, and Karakatsanis concluded, like Justice Abella, that the difference in treatment between common law spouses and married or civil union spouses is discriminatory under the terms of the Canadian Charter. However, these Judges explained that among the various protections afforded to married spouses, only the right to spousal support affected the fundamental rights of the vulnerable spouse. The other measures of protection, and particularly those regarding family patrimony and partnership of acquests, were considered to be of a patrimonial nature and result from a conscious and deliberate act. The Court held that there are other ways for common law spouses to enter into economic unions like the ones imposed on married spouses, such as by jointly purchasing property or entering into Cohabitation Agreements. For these reasons, this group of three judges would have declared only Article 585 C.C.Q unconstitutional, thereby permitting common law spouses to seek spousal support upon a separation.

The fourth set of reasons was rendered by Chief Justice Beverley McLachlin, and effectively determined the final outcome. Like Justices Deschamps, Cromwell, Karakatsanis and Abella, Justice McLachlin was of the view that the difference in treatment between common law spouses and married or civil union spouses is discriminatory. However, Justice McLachlin noted that this “discrimination” arises out of the goal of the Quebec Legislature to respect the choice and autonomy of couples in common law relationships. Justice McLachlin held that “treating de facto spouses differently from married and civil union spouses enhances this goal, and does so in a proportionate way”. By pointing out that common law spouses have access to other protections, such as entering into Cohabitation Agreements, the Chief Justice held that the discrimination is justified in a free and democratic society. Therefore, the result of Chief Justice McLachlin’s decision aligns with that of Justices LeBel, Fish, Rothstein and Moldaver and determined the outcome of the case as a whole.

The state of the law as it affects common law spouses has therefore remained the same as it was prior to the institution of Lola’s legal proceedings. Upon separation, common law spouses do not benefit from the protections otherwise available to married or civil union spouses. Therefore, the freedom of choice of couples to participate or not to participate in the legislative regime of marriage or civil union has triumphed.

Although the decision of Canada’s highest court on this matter has now been rendered, we suggest that the debate regarding the rights and obligations of common law spouses will continue in the political arena. Subsequent to the Supreme Court’s decision, the Minister of Justice of Quebec spoke of the possibility of reflecting on family law as a whole, suggesting that there remains the possibility that the legislature will review the law in the future. Common law spouses would therefore be well advised to consider Cohabitation Agreements in order to manage and foresee, to the extent possible by law, their rights and obligations upon a separation.

Co-authored by Benjamin Prud’homme, articling student