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Supreme Court of Canada building in Ottawa.Dave Chan/The Globe and Mail

The Supreme Court of Canada has ruled that Quebec can continue to exclude common law couples from receiving spousal support upon the breakdown of a relationship.

A majority found that Quebec's exclusion does violate the Charter right to equality.

However, a complicated split on the court led to a narrow 5-4 vote in favour of leaving the unconstitutional law intact.

The decision means that Quebec continues to march in a different direction than the rest of the country on common law spousal rights.

About 1.2 million Quebec residents are potentially affected by the decision - the largest concentration of unmarried couples in the world.

Rollie Thompson, a family law professor at Dalhousie University, said the outcome of the case was confounding.

"The narrow outcome on spousal support is quite shocking," he said in an interview. "The larger majority on property was more expected."

Prof. Thompson said the court's affirmation of marriage and traditional roles is decisive.

"The decision does seem to mark the end of an era in constitutional and family law in Canada, with this Court giving marriage status and parental 'choice' greater priority over family function and the interests of children," he said.

Chief Justice Beverley McLachlin played the role of swing vote in the narrow majority today.

While she joined with Justices Marie Deschamps, Rosalie Abella, Thomas Cromwell and Andromache Karakatsanis in concluding that the Quebec law violated equality rights, she denied them her crucial vote when it came to striking down the provision.

Chief Justice McLachlin instead reasoned that the province had provided convincing proof that the government had a solid rationale for its stance and that the spousal support provision violates the rights of common law partners as little as possible.

"The law falls within a range of reasonable alternatives for maximizing choice and autonomy in the matter of family assets and support," the chief justice said. "While schemes adopted in other Canadian provinces impair the equality right of de facto spouses to a lesser degree, such approaches would be less effective in promoting Quebec's goals of maximizing choice and autonomy for couples in Quebec."

In separate reasons for judgment, Madam Justice Marie Deschamps said that she, Judge Cromwell and Judge Karakatsanis found the support provision could not be justified and ought to be struck down.

"The affected interest is vital to persons who have been in a relationship of interdependence," Judge Deschamps said. "The rationale for awarding support on a non‑compensatory basis applies equally to persons who are married or in a civil union and to de facto spouses.

Justice Abella was the only judge who concluded that the entire law ought to be scrapped – including aspects that relate to division of property.

Martha McCarthy, a lawyer for the Women's Legal Education and Action Fund, expressed shock at what she termed a "regressive" decision that flies in the face of reality.

"The decision shows a complete disconnect from the reality of people's intimate relationships," Ms. McCarthy said. "Generally, people get married or live together in unmarried relationships because they love each other, not because they are making conscious decisions about which economic regime might suit them on separation."

Ms. McCarthy said that she has to explain regularly to unmarried spouses that they had no right to property sharing regardless of how long they lived with their ex-partner.

"Unless an unmarried spouse has tens of thousands – likely over a hundred thousand dollars – for an unjust enrichment claim, she will walk away with nothing on account of the wealth accumulated over the course of the relationship," she said.

"Unmarried women in Quebec, and in other provinces in Canada, find themselves – much to their surprise – with less economic resources, as a result of the formality of a marriage license," Ms. McCarthy said. "Family law is supposed to protect all families, not discriminate on the basis of marital status. This is a most disappointing, confusing result that cries out for legislative action."

Gender lines were evident in the decision.

Four of the five male judges – Mr. Justice Louis LeBel, Mr. Justice Morris Fish, Mr. Justice Marshall Rothstein and Mr. Justice Michael Moldaver – concluded that the exclusion of common law couples from spousal support simply did not violate the right to equality.

All four female judges on the court concluded that it did.

Writing for the minority, Judge LeBel said that couples who choose not to opt for marriage have made a conscious choice to remain outside of its legal bounds.

"The Quebec legislature has imposed these regimes only on those who, by agreement with another person, have demonstrated that they wish to adhere to them," he said. "Their consent must be explicit, and must take the form of marriage or a civil union."

He said there is nothing stopping common law couples from entering into agreement relating to property and finances.

"They can enter into agreements to organize their patrimonial relationships while they live together and to provide for the consequences of a possible breakdown," Judge LeBel said.

The minority observed that the province's perspective does not spring from a wellspring of discrimination or hostility toward those who choose to live common law.

"Although there was a period of Quebec history during which de facto spouses were subjected to both legislative hostility and social ostracism, nothing in the evidence suggests that de facto spouses are now subject to public opprobrium," Judge LeBel said.

"The expert reports filed by the parties tend to show the contrary," he added. "According to them, the de facto union has become a respected type of conjugality and is not judged unfavourably by Quebec society as a whole. Likewise, the legislature's traditional hostility generally seems to have changed into acceptance of the de facto union."

Judge LeBel said that the minority's conclusions were entirely consonant with the court's 2002 ruling in Walsh v Bona, where it found that common law couples were not subject to rules of property division that relate to married couples.

"To dispose of these appeals, it would be inappropriate to distinguish the partition of property from the obligation of support," Judge LeBel said. "Such a distinction disregards the character of an 'economic partnership' that the Quebec legislature has established for marriage and the civil union."

But Judge Abella took sharp issue with the minority, saying that common law spouses remain uniquely vulnerable when a relationship breaks down.

"As the history of modern family law demonstrates, fairness requires that we look at the content of the relationship's social package, not at how it is wrapped," she said. "In Quebec and throughout the rest of Canada, the right to support does not rest on the legal status of either husband or wife, but on the reality of the dependence or vulnerability that the spousal relationship creates."