Quebec women face distinct unfairness.
The top court ruled by a five-to-four margin in January that, while Quebec's civil code breaches the Charter of Rights equality guarantees, because it treats couples who are not married differently than those who simply live together, Quebec can leave its provisions governing de facto unions in place.
The case, known as Lola vs. Eric, involved a Quebec couple who lived common-law for seven years and had three children together. Lola receives child support, which spouses from de facto unions are allowed to seek, but a Quebec superior judge ruled Lola was not entitled to seek spousal support or a lump sum payment from her wealthy partner because Quebec's civil code permits only married spouses to seek it. A 2010 Appeal Court decision ruled the section of the civil code invalid on the basis of discrimination and ordered the Quebec government to change it. Rather than doing so, Quebec appealed to the Supreme Court. Justice Louis LeBel, writing for the five-judge majority, said the current Quebec law promotes autonomy.
Quebec remains the only province that does not allow spouses in common-law or de facto unions to seek spousal support when they split up. In the late 1980s, Quebec legislators created separate rules for de facto unions under Quebec's civil code, based on the idea that such unions should be based in equality, not dependency. The view, shared by many feminists, is that no one should have a de facto marriage imposed on them; the reasoning is that if women want the option to seek spousal support if they separate, they should marry.
In part, Quebec's beliefs about autonomy were a reaction against the legacy of the Catholic Church's strong influence over marriage and divorce. Married women in Quebec did not have substantially equal rights within marriage until civil code reforms in 1969--later than other women in Canada. Today in Quebec, 31.5 per cent of couples live common-law and are not married (1.2 million people), compared to 12.1 per cent in the rest of Canada. Sixty percent of Quebec children are born to parents who live common-law.
Many women in Quebec remain fearful that they will lose freedoms if de facto marriage is imposed on them when they cohabitate. Montreal family lawyer Sylvie Schirm told the Globe and Mail, "The view was that it was patronizing to women, and if they don't want to get married, we shouldn't force them."
Some feminists disagree. "The current law has terrible consequences," according to Johanne Elizabeth O'Hanlon, a lawyer with the Women's Legal Education and Action Fund. "We see families just thrown into poverty, especially with women who have stayed home to watch the kids. They have no real employment opportunities or career advancement."
Interestingly, all four female Supreme Court justices (plus one male justice) believed that the exclusion of common-law couples from spousal support obligations violated the plaintiff's right to equality under the Charter of Rights and Freedoms.
Nevertheless, Chief Justice Beverley McLachlin wrote that to impose de facto recognition of common-law couples "would be less effective in promoting Quebec's goals of maximizing choice and autonomy for couples in Quebec."
Quebec Justice Minister Bertrand St-Arnaud, meanwhile, admitted it may be time to re-open the discussion. But, he maintained, "This decision confirms the principle of freedom of choice ... in other words, the freedom of couples to choose the rules that will govern their union and to choose whether or not to be subject to the legal consequences of marriage."
Anne-France Goldwater, a lawyer who represented the plaintiff in the lower courts, disagrees. "In my Quebec, we don't protect the rich and let them exploit the vulnerable. That's not Quebecois values."
Although Quebec's civil code does not allow de facto spouses to seek spousal support, some of the province's laws, including those governing income tax and Quebec's pension plan, treat such couples the same as those who are married. While children of de facto relationships are legal heirs under Quebec law, de facto spouses are not automatically legal heirs.
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|Title Annotation:||CAMPAIGN UPDATES|
|Date:||Mar 22, 2013|
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