UK Family Law Reform

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Slim majority decision will have far-reaching implications for millions of Quebecers in such unions

By Sue Montgomery,

GAZETTE JUSTICE REPORTER

January 25, 2013

The Supreme Court of Canada has ruled against ensuring the same protections for common-law spouses as for married couples in case of a breakup “ a decision that will have far-reaching implications for millions of Quebecers.

Although the bench of the country’s top court was divided in its reasoning, it ultimately found that marriage is a deliberate choice that must remain distinct from common-law partnerships in its rights and obligations.

The court upheld Quebec’s civil code, which does not entitle common-law spouses to alimony, only child support, in the case of a split-up.

The decision ends an 11-year battle by a woman known only as Lola, who took on her billionaire ex referred to by the pseudonym Eric, whom she never married during 10 years and three children together. Lola argued she deserved the same rights as divorcing husbands or wives and that Quebec’s civil code provisions were discriminatory against common-law spouses “ many of whom are left destitute when their unions implode.

But despite much discussion about the injustice and inequality in a system that entrenches differences between married couples and “spouses of fact“ as the Quebec term for common law directly translates . the court upheld the status quo.

In the 128-page decision, five of the nine judges ruled that Quebec’s family law does violate the Quebec Charter of Rights in that it is discriminatory. But then of those five judges, one agreed that the discrimination was justified under Section One of the Charter, killing the case.

Chief Justice Beverley McLachlin tipped the scales, writing:

“The objective envisioned by Quebec legislators, including the promotion of free choice and the autonomy of all spouses in the province in the dividing of assets and the payment of child support, was adopted in response to rapid changes in attitude in Quebec regarding marriage and are sufficiently important to justify an infringement on the right to equality” she wrote.

Lawyer Anne-France Goldwater, who represented Lola at the appeal court and won, said it’s a very sad day for family law in Quebec.

“The fight does not stop here, rest assured” Goldwater said. “If I have to knock at (Quebec Premier) Pauline Marois’s door, then that’s just what I’m going to do.”

smontgomery@montrealgazette.com

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