The bitter estrangement of a Quebec businessman and his partner has given the Supreme Court of Canada an opportunity to elevate the economic rights of common-law partners close to those of married couples.
Legal experts say the time could be ripe for the court to overrule a controversial 2002 judgment that left many common-law spouses with virtually nothing after a separation. Doing so would mean that common-law partners could begin routinely sharing in the growth of assets acquired during their relationship.
Phil Epstein, a prominent Toronto family lawyer, said the Supreme Court of Canada is reluctant to overturn its previous decisions, “but this will be a golden opportunity for them to do so.”
At the heart of the case being argued on Wednesday are a Quebec couple, identifiable only as Lola and Eric, who enjoyed a life of fabulous wealth. Lola’s lawyers argue that under Quebec’s legal regime, their client is precluded from obtaining spousal support, let alone a share of Eric’s multibillion-dollar assets.
The first stage of inquiry for the Supreme Court will be to determine whether Quebec should be compelled to join the rest of Canada in offering common-law spouses the same rights as married couples when it comes to obtaining spousal support.
Should it choose to go further, the court could reverse its 10-year-old precedent in the case of Walsh v. Bona, erasing a sharp line the court drew between marriage and common law when it comes to the division of property.
Mr. Epstein said opponents of the Walsh decision were encouraged by two recent rulings in which the court saw fit to expand the rights of common-law spouses.
However, University of Toronto law professor Brenda Cossman noted that, while most of the bench is new to the court since 2002, Chief Justice Beverley McLachlin – a highly influential member – voted with the majority in the Walsh ruling.
Lola and Eric met in 1992, when she was 17 and he was 32. They had three children during their seven-year relationship. Lola, the primary caregiver, was unable to work outside the home. She maintains that by refusing her persistent requests that they get married, Eric effectively managed to safeguard his vast fortune.
Critics of the Walsh ruling say the Supreme Court was naive to characterize common-law partners as independent, equal entities who reject the formal ties and obligations of marriage. They insist that many women have no choice but to bow to a male partner’s refusal to get married.
“Why would the Supreme Court allow the more powerful spouse to avoid any family law obligations simply by unilaterally refusing to marry?” said Joanna Birenbaum, legal director for the Women’s Legal Education and Action Fund. “Such a result would fly in the face of over a half-century of progressive legislative and judicial evolution of family law in Canada.”
LEAF lawyers Johanne O’Hanlon and Martha McCarthy say in a legal submission that female common-law partners not only tend to earn less during a relationship, they come out on the short end after separation because property is divided unequally.
The effect is particularly harsh in Quebec, they said, because common-law partners don’t get spousal support. “Unmarried spouses in Quebec may be left with nothing on relationship breakdown, regardless of economic integration or disadvantage arising from their cohabitation,” they said.
LEAF also argues that confusion is endemic among common-law partners when it comes to their legal rights. It says that women are frequently shocked to discover, after separation, that their failure to marry their former partner is going to leave them with little on which to live.
While provinces and territories have adopted sharply different approaches to the rights of estranged common-law partners, Quebec is widely considered the least hospitable to their interests.
The most obvious example is spousal support: Quebec is the only province that does not recognize a right for common-law spouses to obtain benefits. Common-law spouses in the province also enjoy no rights regarding the family home.
According to data compiled by the Women’s Legal Education and Action Fund, child support also varies from province to province for common-law spouses.
In contrast to the case for married partners, federal child-support guidelines are not automatically applied when a common-law relationship breaks down. The amount of child support payable in each province can vary from a few hundred dollars to several thousand dollars per month.
When it comes to division of property and assets, a handful of provinces – including Manitoba and Saskatchewan – have provisions that require common-law spouses to share property and debts after separation if they have lived together for a specified period of time or have had children together.
B.C. also recently introduced legislation extending to common-law spouses property rights and obligations currently available to married couples.
However, others – including Ontario, Alberta and all of the Atlantic provinces – do not include cohabiting spouses in the matrimonial property provisions of their family law statutes.