Eric v. Lola – Quebec Court of Appeal decides on alimony for common law spouses
On Wednesday, January 18, 2012, the Supreme Court of Canada heard the now infamous Eric v. Lola case following an appeal from the decision of Quebec Court of Appeal on November 3, 2010 which was made by the Attorney General of Quebec, Jean-Marc Fournier.
In this case, the Quebec Court of Appeal was asked to decide whether article 585 of the Quebec Civil Code, which does not give common-law partners the right to support, the sharing of family property and the protection of the family residence, was discriminatory pursuant to s. 15 of the Canadian Charter of Rights and Freedoms. It should be noted that these rights, as well as many others, are granted to married couples and couples in civil unions who reside in Quebec.
In their judgement, released November 3, 2010, the Quebec Court of Appeal ruled that article 585 of the Civil Code does in fact discriminate against common-law partners by denying them the same right to support as individuals who are married or in civil unions.
However, one exception to the decision was that the Quebec Court of Appeal did not invalidate the article of the Civil Code pertaining the sharing of family property. Rather, they affirmed the Quebec Superior Court’s decision and claimed that the case of Walsh v. Bona was determinative and could not be set aside, and that with regards to the division of property, the freedom to choose whether to marry or not is paramount.
The Quebec Court of Appeal further stated that support payments exist to meet basic need and represent an aspect of social solidarity whereas the division of property is contractual in origin.
The parties, namely Eric and Lola (please note that the parties’ real names were not used in order to protect their privacy and their children), met in 1992 when Lola was seventeen years old and attending high school and Eric was thirty-two years old. Following their meeting, the parties had three children in 1996, 1999 and 2001. Despite Lola’s numerous efforts to persuade Eric to marry her, he consistently refused stating that he did not believe in the institution.
Eric was the head of a lucrative business and therefore Lola never secured or maintained employment and instead relied financially on Eric throughout their relationship.
After seven years of cohabitation, the parties separated in 2002. After separation, Eric supported Lola in the following ways:
- He was providing her with $34,260.00 in monthly support for the couple’s three children;
- He provided her and the children with a house;
- He provided her with a car;
- He provided her with money for the children’s tuition; and
- He provided her with money for various travels.
However, despite his provisions to both Lola and the children, she brought an action to the Quebec Superior Court seeking $56,000.00 per month in support as well as a $50 million lump sum payment. The Quebec Superior Court dismissed her action and reinforced that common-law partners in Quebec have no right to claim support from the ex-partner.
The Quebec Superior Court also dismissed her claims that article 585 of the Civil Code was discriminatory, stating instead that the choice not to marry is a legitimate lifestyle choice and is accepted by Quebec society. Thus, common law partners are not the subject of prejudices or stereotypes. In addition, the court ruled that any changes to the law would have come from the government and could not be made by the judiciary.
Lola appealed this decision: the following is the decision from the Quebec Court of Appeal.
When deciding whether article 585 of the Civil Code was discriminatory, the Quebec Court of Appeal relied heavily on s. 15 of the Canadian Charter of Rights and Freedoms as well as the Supreme Court of Canada case Law v. Canada, which sets out the test to be satisfied in order to establish equality rights claims under s. 15.
Firstly, s. 15 states the following:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Therefore, in order to establish discrimination, one must prove that a law, in purpose or effect, violates s. 15. To be successful, one must establish that the law creates a distinction on an enumerated and analogous ground and in this case it was found as marital status is listed as a ground under s. 15(1). Secondly, one must establish that the distinction creates a disadvantage by perpetuating prejudice or stereotyping. In order to do so, one must satisfy the four prong test enunciated in Law v. Canada:
- Pre-existing disadvantage, stereotyping, prejudice or vulnerability experienced by the individual or group at issue;
- The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity or circumstances of the claimant or others;
- The ameliorative purpose or effect of the impugned law upon a more disadvantaged person or group in society; and
- The nature and scope of the interest affected by the impugned law.
Based on these four factors, the Quebec Court of Appeal held that article 585 was in fact discriminatory for the following reasons:
- The failure of the government to include common law partners in the Civil Code, and afford them the right to support in the case of separation, reflects the stereotype whereby these unions are not sufficiently stable or serious to warrant the legal protection of the right of these partners to have their basic needs met in the event of a breakdown of the relationship, even though these types of unions can bear the same characteristics of financial dependence as marriages or civil unions. Common law partners are deemed less worthy of protection than married spouses and civil union spouses, even though common law unions present many similarities with those other types of unions.
- By requiring marriage or civil union as a precondition to the right to claim support, the legislature fails to consider social realities. The purpose of an obligation of support between former spouses is to allow one of the spouses to meet his or her basic needs after separation (especially in situations of economic dependency created during the relationship) by obtaining support from the other who is able to provide it. The nature of the couple’s relationship, whether it be a marriage, civil union or common law relationship, does not change whether one of the partners needs support after the relationship breaks down. The Civil Code therefore fails to recognize that common law unions and the children resulting therefrom constitute a legitimate family unit in the same way as those stemming from a marriage or civil union. Since 34.6% of couples in Quebec are in fact common law, the government is ignoring and excluding more than one-third of Quebec couples and their children from the laws that are in place to protect the family unit.
- There are a number of Quebec statutes that extend the rights and obligations, which were once reserved for married persons to common law couples thus demonstrating the similarity between these two types of relationships. Therefore, the breakdown of a common law relationship can lead to economic consequences comparable to those experienced by married or civil union couples, particularly with respect to the need for support. Therefore, the different treatment created by this law has an actual impact on common law partners, as they are unable to claim support from one another.
- There may be situations where only one of the spouses does not want to marry and therefore the spouse who does want to marry, such as Lola in this case, is disadvantaged by the effect of this law; and
- The quality of life of the children in common law relationships may deteriorate if they are in the custody of a former common law partner who was once financially dependent on the other and then loses the right to support.
The Quebec Court of Appeal then went on to consider whether the violation of s.15 was justified under s. 1 of the Charter and concluded it was not.
Based on the aforementioned, the Quebec Court of Appeal allowed the appeal in part, set aside the trial judgement, declared article 585 of the Civil Code of Quebec to be of no force or effect due to constitutional invalidity since it violates s. 15 of the Charter, and suspend the declaration of invalidity for twelve months, with costs against Eric and the Attorney General of Quebec in both the first instance and appeal, including $25,000.00 for expert fees.