Marriage vs Common Law - Supreme Court Decision

We see a lot if ink spent on discussing a minor court decision on Toronto mayor Rob Ford yet little has been mentionned about one of the most important legal decision of the year.


 


Most newspaper and magazines in Canada have reported the decision and many expressed an opinion on it.


 


It may be best to start with the actual decision as reported on the Supreme Court of Canada website:


 


http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/12825/index.do 

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Re: Marriage vs Common Law - Supreme Court Decision

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."


 


http://www.theglobeandmail.com/news/national/no-spousal-support-for-common-law-partners-in-quebec-su...

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Re: Marriage vs Common Law - Supreme Court Decision

This is scarey!  The Supreme Court can allow a provinical law that violates people's Charter Rights.  Might as well take the paper the Charter is written on and take it to the bathroom where it will be useful.

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Re: Marriage vs Common Law - Supreme Court Decision

I would think that this decision is rooted in the Catholic background of many Quebecer's.

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ninrud7
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The women on the news received 50 million dollars plus child support of a large amount monthly.She still wants more WTF. Hard to feel sorry for her.What did she financially bring into the relationship.It is no suprise this happened in Quebec as they could screw up the Lord's Prayer.

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Re: Marriage vs Common Law - Supreme Court Decision

while i agree in "principal" with the decision I think it is going to open a big can of worms.


Not sure how on one hand the government can consider them "married" in terms of taxes and benefits payable but not consider them 'married' in term of a separation and support.


I do agree that there was no "contract" per se and therefore no agreement to provide for the other in case of a separation , thus if there is no "contract" to  specify support on separation then there is also no "contract" to combine funds for tax purposes.


 


I may have worded that wrong but it makes sense in my mind-lol


although I will admit that i am biased in regards to 'common-law" marriages

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Re: Marriage vs Common Law - Supreme Court Decision

The women on the news received 50 million dollars plus child support of a large amount monthly. She still wants more. Hard to feel sorry for her. What did she financially bring into the relationship?


 


'Finances' have nothing to do with it. How about the birth of two children for starters? Her husband is well off…..she with her presence and the caring of the home and the children that she gave birth to makes her as equal as a wife after all those years. All but for a piece of ……….paper.


I remember years ago there was a middle aged couple who were living common law for many years. They ran an apiary together as well for all those years. Then one day he decided to dump her, without anything, and she took him to court. (I think it was in Ontario). Anyhow, she won, hundreds of thousands of dollars.


 


Why this woman in the news article wants more….who knows…..I can’t find any information on it. Maybe he cheated on her…maybe he had another woman on the side and even had a child with her (which happened to a woman I know). If some parents in Canada had daughter and she was mistreated by her husband and it came down to a divorce, they would probably would say ….’take him for all you can get’.


Then again…..it may be her fault as well. Again..........who knows!


 


Marriage, its practice and definitions have been very varied since the dawn of time. But even the most distant in the past defines marriage as when a couple have children. This couple fills that bill.





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Re: Marriage vs Common Law - Supreme Court Decision

valve37
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Kennedy pulling a Dion again. What does it matter though Ontario Liberals are going down the next election as did their Federal buddies!

"It came to me that every time I lose a dog they take a piece of my heart with them. And every new dog who comes into my life gifts me with a piece of their heart. If I live long enough, all the components of my heart will be dog, and I will become as generous and loving as they are."--Unknown
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Re: Marriage vs Common Law - Supreme Court Decision

Wrong thread valve?





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Message 9 of 10
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'Finances' have nothing to do with it.


 


True.  The impact of this case on the woman in question is minimal.  The impact on the approx. one million people living common-law in Quebec is major.  Women who once were considered equals in a common law relationship are now up the creek.


A woman stays home with the kids and keeps the house, enabling hubby to go out and earn big bucks is entitled - whether married or common-law.


I suspect their will be a run on those pieces of "paper".


 

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