This case concerned the exclusion of unmarried spouses from the protections existing for married couples under Québec’s family law regime.  

LEAF intervened before the Supreme Court of Canada. 

Facts 

“Lola” and “Eric” were unmarried spouses for 7 years and had three children together. Lola wanted to marry, but Eric refused, saying that he didn’t believe in the institution of marriage. Lola cared for the children and largely did not work outside the home.  

In Québec, those in umarried partnerships are not entitled to the same family law protections as married couples, including spousal support, and sharing of property and rights to the family residence on separation. Lola argued that this exclusion violated s. 15 of the Charter, and that she was entitled to support and a portion of the family property.  

The Québec Superior Court found that the exclusion did not violate s. 15. The Québec Court of Appeal found that the provision excluding  unmarried spouses from spousal support was unconstitutional, but that the other exclusions were constitutional. All parties appealed to the Supreme Court of Canada. 

Arguments 

LEAF argued that the exclusion perpetuated the prejudice and disadvantage experienced by women inunmarried spousal relationships by disregarding their contributions and needs. The exclusion ofunmarried spouses from legislative protection exacerbated the feminization of poverty by leaving many cohabiting women economically devastated by relationship breakdown.  

The exclusion was based on historical prejudices against unmarried unions, and false stereotypes — positive and negative — about the nature of these relationships. Failing to extend the equality-promoting protections to unmarried spouses discriminated based on marital status and prevented women, frequently mothers, from sharing the wealth created by their efforts post-separation. 

Outcome 

The Supreme Court was deeply divided on this decision. Four judges found that the exclusion did not violate s. 15 of the Charter. While five judges found that the provisions violated s. 15, one of those judges found that the exclusion was justified under s. 1. As a result, the exclusion was upheld as constitutional.  

LEAF is grateful to Johanne Elizabeth O’Hanlon and Martha McCarthy, counsel in this case, as well as Nadia Effendi, Ottawa agent for LEAF.

Download the factum here.  

Read the Supreme Court of Canada’s decision here. 

Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].