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| Quebec Court of Appeal |
In Canada, we live in a generally free society and people are allowed to do many things. One of the many freedoms which we have includes the choice of how and with whom we cohabit - whether to live single; get married; live together and not get married and so on.
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| National Assembly of QC |
In practical and very simple terms, this means that upon the dissolution of a marriage, whether by divorce or death or otherwise, there is a possibility for spousal support (a.k.a. alimony) and that the matrimonial property is split according to a certain formula, in order to provide (hopefully) a fair division and distribution of the estate to both parties.
Common-law couples, on the other hand, have never received any such safeguards. When they split-up, there is no similar (required) division or distribution. Generally speaking, each go their own way.
It is important to note that children born from married couples, common-law couples or from two persons not cohabiting together at all, should always receive aid from both parents, as the case may be. This financial allotment is based on the child-parent relationship - the marital status of the parents being irrelevant.
La Belle Province of Quebec, until last week, was the only province in Canada that made a distinction between marrieds and common-law'ers, at least with regard to spousal support. In the rest of Canada, recognition of the common-law status has long been the norm. Usually, this means that if a couple has been living together for a minimum of 3 years or alternatively one year with a child from their union, they were subject to the rules of alimony upon the break-up of their relationship. With the ruling of the Quebec Court of Appeal, this division has now been bridged somewhat.
Let me tell you about the facts of the case.
I think that the details of this story have been sensationalized, which is a shame, because that distracts from the true issues at hand. A 34-year-old billionaire man - nicknamed 'Eric' - met a 17-year-old girl - 'Lola' - in Brazil. She moved back with him to Montreal. They moved in together and had 3 children. Apparently, she wanted to get married, but he said that he didn't believe in the institution of marriage and they never married. After 10 years of being together, they decided to part ways.
Since their split, 'Eric' has taken very good care (financially-wise) of their children, to the tune of $35,000 per month (you read that right - that's no printing mistake!). Mother and children currently live in a cool $2.5 million house in a very tony district of town.
Lola would like a chunk of her ex's money. She went before a Quebec Superior Court and asked the judge to grant her a $50 million lump-sum payment plus $56,000 per month as an alimony payment. (As mentioned above, spousal support and child support are two distinct matters).
In her situation, she felt that she was being discriminated against due to her marital status, or more precisely, her lack thereof. She decided to challenge those provisions of the Civil Code of Quebec which differentiate between married and unmarried couples. She based her arguments on our constitution, the supreme law of the land, the Canadian Charter of Rights and Freedoms, declaring that she was guaranteed the right to equal benefits and equal protection of the law, without discrimination. She asked the court to declare those Civil Code provisions unconstitutional.
Contrary to what may be commonly perceived, a judge cannot change or re-write the law. If it is not perfectly clear, then she can interpret the law. Or, she can also declare a law to be unconstitutional i.e. that it does not jive with the supreme law of the land.
In our case, the trial judge stated that the suggested discrimination was not apparent and consequently, there were no grounds for striking down the law. Lola's claim was thus denied.
Lola went to appeal. At the appeal level, the court ruled that the law as it stands now is discriminatory and therefore unconstitutional. The court was not prepared to pronounce that she be awarded a portion of the family patrimony, but concluded that she should be entitled to receive spousal support.
This ruling has the potential to have an incredible impact on Quebec society. There are lots of common-law couples here and now that there is a possibility of having these relationships look and behave more like marriages, participants will have to be more aware and conscious of their decision to enter into such a state. For sure, many common-law relationships are of the long-term committed type; but there are also many 'shacking-up' common-law relationships too. All of these may soon be touched by new legislation. Family law as we know it will be changed forever.
The Quebec government must now decide whether to send its legislators back to the drawing board and make the law right or whether to appeal this decision to the Supreme Court of Canada.
This ruling has the potential to have an incredible impact on Quebec society. There are lots of common-law couples here and now that there is a possibility of having these relationships look and behave more like marriages, participants will have to be more aware and conscious of their decision to enter into such a state. For sure, many common-law relationships are of the long-term committed type; but there are also many 'shacking-up' common-law relationships too. All of these may soon be touched by new legislation. Family law as we know it will be changed forever.
The Quebec government must now decide whether to send its legislators back to the drawing board and make the law right or whether to appeal this decision to the Supreme Court of Canada.
I'm not quite sure about how I feel about this judgment! On the one hand, when these laws were originally brought into force in the 1980's, couples were overwhelmingly married, as opposed to living common-law. Thus, the laws ensured that the majority of unions was well covered by the progressive legislation.
Forward 20+ years and Quebec is now the common-law capital of Canada (and North America)! A whopping 35% of couples now live in couple-hood outside matrimonial bliss and 60% of children now born in Quebec are born to these relations. That's 6 out of every 10 children born! If the law's intention was to protect women exiting from a 'loving' relationship, i.e. a married one, can there be any justification today in ignoring the approximately 3.5 women (out of 10) of the common-law ilk, who may be left impoverished if suddenly found single?
On the other hand, who's to say which proportion of these common-law couples actually chose to be in an unregulated common-law setting! Perhaps it was a very clear, purposeful and obvious choice for them to remain in the common-law arena and specifically not to venture into the married side. I am sure that anyone would be willing to bet a dollar, that everybody today knows of this creature called 'marriage' (or civil union) and those who do stay clear of it, know perfectly well what they are doing! The fact is: getting married brings its own baggage and maybe maybe some just couldn't be bothered and/or wish to avoid it altogether.
Forward 20+ years and Quebec is now the common-law capital of Canada (and North America)! A whopping 35% of couples now live in couple-hood outside matrimonial bliss and 60% of children now born in Quebec are born to these relations. That's 6 out of every 10 children born! If the law's intention was to protect women exiting from a 'loving' relationship, i.e. a married one, can there be any justification today in ignoring the approximately 3.5 women (out of 10) of the common-law ilk, who may be left impoverished if suddenly found single?
On the other hand, who's to say which proportion of these common-law couples actually chose to be in an unregulated common-law setting! Perhaps it was a very clear, purposeful and obvious choice for them to remain in the common-law arena and specifically not to venture into the married side. I am sure that anyone would be willing to bet a dollar, that everybody today knows of this creature called 'marriage' (or civil union) and those who do stay clear of it, know perfectly well what they are doing! The fact is: getting married brings its own baggage and maybe maybe some just couldn't be bothered and/or wish to avoid it altogether.
What's the connection to this immigration blog? Well, for starters, I thought that this all was interesting enough to share! Perhaps persons living in far-away lands with cultures and lifestyles very different from our own, can have a better understanding and appreciation of our familial and social environments.
Furthermore, anyone reading this post, contemplating coming to Canada, might well remember and be forewarned of the possible implications of his/her relationships once arriving here.
Finally, there is an incidental connection to immigration. Spousal sponsorship applications includes those living in married and in common-law relationships. Potential immigrants already have enough to worry about and hopefully the information provided above will give them a better and clearer insight of the intricacies of Canadian family styles.
(The photo file of the Quebec Court of Appeal is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license and is free to share with attribution.
Attribution for the photo of the National Assembly of Quebec: By dszpiro on Flickr [CC-BY-2.0 (www.creativecommons.org/licenses/by/2.0)], via Wikimedia Commons).
Furthermore, anyone reading this post, contemplating coming to Canada, might well remember and be forewarned of the possible implications of his/her relationships once arriving here.
Finally, there is an incidental connection to immigration. Spousal sponsorship applications includes those living in married and in common-law relationships. Potential immigrants already have enough to worry about and hopefully the information provided above will give them a better and clearer insight of the intricacies of Canadian family styles.
(The photo file of the Quebec Court of Appeal is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license and is free to share with attribution.
Attribution for the photo of the National Assembly of Quebec: By dszpiro on Flickr [CC-BY-2.0 (www.creativecommons.org/licenses/by/2.0)], via Wikimedia Commons).
