The Supreme Court of Canada released its decision Friday, January 25, in the case known popularly as Eric v. Lola, which considered whether sections of the Quebec Civil Code were constitutional, particularly as they related to spousal support and the division of property upon the breakdown of relationships of unmarried cohabitants.
Despite the majority finding that the lack of protection for spouses in Quebec does represent a breach of the equality provisions of s. 15 of the Canadian Charter of Rights and Freedoms, the impugned provisions have been deemed constitutional. Section 1 of the Charter allows for laws to be upheld even if they do breach our guaranteed equality rights because there are “reasonable limits” to those guarantees within a free and democratic society.
Of the justices who considered s. 1, only one found that it “saved” the laws she found to be discriminatory. As a minority of the court had not found that s. 15 was breached, they did not consider s. 1. As a result, the impugned provisions were saved.
Confused? You’re not alone. There are elements of the decision that are difficult to reconcile and in situations like this it is incumbent upon the Quebec National Assembly to redress the impugned provisions and provide fairness – and substantive equality – to the women of Quebec.
For decades, in some other provinces across the country, the rights of spouses in “common law” marriages have been recognized and upheld. The majority of the court agrees that to do otherwise is a breach of our equality guarantees. We urge the Quebec government to take note, and to protect the 38% of women in its province who live in these unions, and who are often unaware that, unlike their sisters in other provinces, the law offers them no protection should their relationships end.
Manitoba, Saskatchewan, Northwest Territories and Nunavut include unmarried spouses in their default property-sharing regime. British Columbia has also introduced legislation to extend matrimonial rights and obligations to unmarried spouses. Other provinces do not provide for the division of property. All provinces, except Quebec, allow spousal support claims by unmarried cohabitants.
As Justice Abella says, writing for the majority who find a breach of s. 15: “fairness requires that we look at the content of the relationship’s social package, not at how it is wrapped”. Further, she noted that: “the right to support – and the obligation to pay it – did not rest on the legal status of either husband or wife, but on the reality of the dependence or vulnerability that the spousal relationship had created.”
Kim Stanton Martha McCarthy
Legal Director Co-Counsel
(416) 595-7170 (ext.223) (416) 862-6226
Renée Cochard Johanne O’Hanlon
LEAF Board of Directors Co-counsel
(780) 429-9929, ext. 222 (514) 985-0965