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Split Supreme Court decision favours Eric over Lola

Unionist
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Joined: Dec 11 2005

In a way, this belongs in both Feminism and Québec, but let's try it out here.


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Unionist
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No spousal support for common-law partners in Quebec, Supreme Court rules

Quote:

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.

Surprisingly, the only previous discussion I found on babble was a single post of mine last year, which gave my views at the time. The discussion was really about Anne-France Goldwater, the very outspoken/controversial lawyer whose lower-court win was just overturned:

Unionist wrote:

I don't know her personally, but she's a friend of a friend. And she's the one who won the highly controversial and much mediatized "Lola vs. Eric" case, now awaiting a Supreme Court decision. Common-law spouses have fewer rights than in the rest of Canada under Québec's civil code on breakup - just child support, as far as I know.  But Goldwater succeeded, in a challenge under the provincial and federal Charters, in getting the court of appeal to award her alimony and monthly support. Given that Eric is a billionaire, and Lola is a far younger Brazilian ex-model, you can imagine the media coverage over the years. She got $50 million plus $56,000 per month. [That is not a typo.] The Supreme Court can't have ruled yet, or it would be all over the front pages.

Honestly, I always had the impression (without knowing at all) that Goldwater was a lefty type, just based on the circles my friend frequents. She does have a tendency to shoot from the lip. I don't know any more than that.

ETA: Back to Lola vs. Eric - Québec is said to have far more common-law unions than the rest of Canada. Some say that one reason is that it's easier to disentangle, because of the Code - but I always thought that was a view that minimized the financial dependency that women disproportionately incur in such relationships, veut ou veut pas. If this win is upheld, it will have dramatic consequences. I imagine the Court would give Québec time to bring its law up to snuff, as they have been wont to do recently.

Sorry for the drift, but you asked.

ETA squared: Oh yeah - and she represented the gay couple in the case which legalized same-sex marriage in Québec, before it became legal in Canada.


6079_Smith_W
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Joined: Jun 10 2010

It kind of begs the question of why we have a notwithstanding clause. This is one case in which its application would actually make sense.

If they found that it violated the charter why not point out in the ruling that Quebec has the power to exercise its own sovreignty in this, rather than bend their ruling around a pole in order to make it fit.

This seems fucked up on a whole number of fronts. I wonder to what degree the various motives, from sexism to not wanting to rock the boat, played a role in this decision.


Catchfire
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Joined: Apr 16 2003

My reaction to this story when I heard it on the radio this morning was disappointment. What's the reaction in Quebec, Unionist, of the SCC overturning a Quebec with a very fraught ruling? Especially considering the distinct cultural context -- apparently 1/3rd of all couples in PQ are common law.


lagatta
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Joined: Apr 17 2002

Yes, and furthermore I believe a majority of babies are now born to common-law couples (or, at least to non-married women, which would also include single and separated unmarried mums). As the marriage rate declines, and obviously more children are born to younger couples.

I know the federation of single-parent families was strongly opposed to this judgement, but that is because so many uncoupled custodial parents (usually women) fall into poverty. Haven't heard anything more here yet.


Boom Boom
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Can (would?)  Quebec write its own law to overturn this ruling?


Unionist
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I think (some of) you folks have misunderstood the ruling. The Court upheld the Civil Code of Québec, which makes fundamental distinctions between marriage and common law unions.

If the government of Québec hasn't praised this decision yet, it surely will.

ETA: Here's the full decision. Only 109 pages. Fill your metaphorical boots.

And yes, Catchfire, Québec is said by some to have the largest concentration of common-law partners in the world. It's entirely possible that the reasons range from: 1) Contempt for the Church before and after the Quiet Revolution; 2) The very fact under discussion here, namely, that common-law breakups do not attract spousal support or property division. But I'm not a sociologist or whatever, so someone else may be better able to explain/speculate as to the reasons.


Catchfire
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Ahh. Thanks for the correction.


Unionist
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Here we go (can't see this in English yet so I'll translate):

Québec opens the door to a debate on family law

Quote:
Québec Justice Minister Bertrand St-Arnaud was pleased with the Supreme Court decision which ruled that the Québec rules regarding common-law partners is constitutional.

"I'm happy to see the Supreme Court respecting Québec's jurisdiction in matters of civil law and common-law unions, as well as the freedom of choice of Quebecers to choose which set of rules will govern their partnership and whether or not to be subject to the legal consequences of marriage," the Minister declared.

M. St-Arnaud considers that it is perhaps time to begin re-thinking all of family law in Québec, the last reform dating from 1980.

Had the Supreme Court struck down the Civil Code provision, it would have been a field day for the PQ. As it is, hopefully there really will be a social debate as to whether "freedom of choice" or protection of vulnerable partners (i.e. women for the most part) is more of a priority.

 


Boom Boom
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Unionist wrote:
As it is, hopefully there really will be a social debate as to whether "freedom of choice" or protection of vulnerable partners (i.e. women for the most part) is more of a priority.

That's what I was referring to in my post, although my use of the word "overturn" was unfortunate.


6079_Smith_W
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Joined: Jun 10 2010

Unionist wrote:

Had the Supreme Court struck down the Civil Code provision, it would have been a field day for the PQ.

At first glance it seems so, I agree. And probably that's exactly what would have happened.

On the other hand, If the court had pointed out Quebec's perfectly legal option of using the notwithstanding clause, then Quebec would have had to go to gratiutous lengths to complain. After all, the court found that the law was in violation of Canada's Charter, and the whole question sits on a fundamental difference between Canadian and Quebec law, so using the clause seems to make good sense.

(in fact, I'd say they said as much by allowing that Quebec had made a good argument)

One could in fact argue that the decision made was paternalistic, because it took that decision out of Quebec's hands, probably for the reason you mention.

As it stands, Quebec might change its law for the better, and Canada will still be stuck with this really bad decision upholding discrimination and undermining the charter (and who knows where that might go).

 

 

 

 


Boom Boom
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On P&P: "Ontario recognises, after three years, couples living together are in effect married".


Bärlüer
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Briefly, a couple of comments en vrac:

- I'm disappointed by the decision. To quote from Abella J.'s opinion: the right to support ought "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"

- I imagine few media reports explain this in any detail if at all, but a majority of the Court actually found that the impugned provisions (those relating to spousal support as well as to those relating to partition of property) violate s. 15 (the Charter's right to equality). The reason why the result turned out the way it did is that McLachlin C.J. found the violation to be justified under s. 1 of the Charter. Thus, she joined the four dudes (who found there was no violation of the right to equality) in the result.

- Beyond the (important) issue of family law, this was/is a very important decision on the right to equality generally speaking. IMO, the decision is on that front actually rather good. Even though she is dissenting as to the result, Abella's reasons on the issue of how courts should analyse cases involving the right to equality actually command a majority. This is very good news. To brutally summarize, let's just say that Abella advances a far less formalistic analytic approach than the other group – this is important as historically, courts have dismissed so many equality complaints because the plaintiffs could not fit their argument in the narrow boxes that had been drawn up for them.

- On Me Goldwater: she doesn't seem to be much of a lefty to me... During the student strike, she was very condescending toward the students and she lauded the tuition fees hike

- On the reaction in Quebec: according to my observations of posts on Facebook, comments on news stories, etc., it appears to me that people are overwhelmingly favoring the Court's decision, much to my chagrin. This reaction can be found even among people whom I would characterize as left-of-center. Of course, the reactions are sometimes tainted by anecdotal aspects of the file ("she's already being paid a ton of money!" etc. etc.) / ignorance of the applicable law / ignorance of what the ruling actually says / ignorance of the consequences of a ruling that would have gone in the opposite direction ("the courts are going to oblige me to get married!") / etc. etc.

- Maybe more later...


Boom Boom
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Any comment on Ontario's position as I heard it on P&P?  After three years of co-habitation, couples are considered to be equal to  married status.


Catchfire
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Very informative, thank you Bärlüer. For what it's worth, I did hear that a majority of SCC judges found that the case violated the Charter, but I didn't know what part nor understand what that meant. Thanks for the explanation!


Unionist
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All the media reports I've seen mentioned that a majority held the law violated Charter equality rights. Including the second sentence of the Globe report with which I opened this thread (see post #1 above):

Quote:
A majority found that Quebec’s exclusion does violate the Charter right to equality.

That part is important, but the overal dynamic of the ruling gets more complex.

One reason Quebecers will approve is quite simply that a Canadian court didn't overrule a Québec law.

 


Bärlüer
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Unionist wrote:

All the media reports I've seen mentioned that a majority held the law violated Charter equality rights. Including the second sentence of the Globe report with which I opened this thread (see post #1 above):

Oops, sorry – wrote my post in a hurry after having barely glanced at the thread.

Unionist wrote:
One reason Quebecers will approve is quite simply that a Canadian court didn't overrule a Québec law.

True, I guess... Although those same individuals were probably happy when the Court recently declared the government's proposed national securities regulator ultra vires... (... snarked the dispassionately sovereignist commenter)


Unionist
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Keep writing, Bärlüer - we need your perspective (and your knowledge)!

For example: I speculated upthread as to why Québec has the highest proportion by far of common-law unions. Do you have any take on this?

 


Bärlüer
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The sharp disaffection from the Church ushered in by the Quiet Revolution...? Perhaps there's literature on the subject in the first instance judgment.

There's this bit here, that doesn't quite get into the thick of it:

Quote:
Dans les pays occidentaux, on constate une désaffection à l’égard du mariage mis en œuvre au Québec notamment par l’accessibilité au divorce et la chute marquée de l’influence de l’Église. L’anthropologue Renée Dandurand constate que les barrières légales et morales à l’indissolubilité du mariage sont désormais abaissées. Elle parle de désarticulation du système matrimonial. L’esprit de la fin des années soixante entraîne une mutation des mœurs et amorce véritablement la transformation des couples. L’une d’elles est que les couples choisissent l’union libre parce qu’ils valorisent l’amour et l’égalité des conjoints. Le droit y répond timidement.


Unionist
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Thanks - that's close to what I guessed above. It would be nice to have stats, pre and post 1960s, comparing the rate of common-law unions in Québec with other provinces.

Meanwhile, I wonder if St-Arnaud's musing about a "reflection" will lead anywhere. Other than this notorious case, I haven't seen much intense lobbying by anyone to apply marriage breakup rules on spousal support and property division to common-law unions. I'm going to see how women's organizations are responding to this decision...

ETA: LEAF (Women's Legal Education and Action Fund) intervened on the side of Lola. Here was their description of the case and of LEAF's position, with links to their full factum:

Quote:

The case involves a s.15 equality rights Charter challenge to the exclusion of de facto (common law) spouses from the articles of the Québec Civil Code (“CCQ”) Book on the Family which provide for spousal support, sharing of property and rights to the family residence on separation and divorce of married and civil union spouses.

In Québec, women in de facto unions are not entitled to any of these family law protections, regardless of the length of the relationship, the number of children born into the union, the level of economic interdependence, and the disadvantages and corresponding advantages arising from the relationship, particularly where gendered child-bearing and caregiving roles result in women contributing the bulk of unpaid work in the home.

Lola and Eric were common law spouses for 7 years and had three children together.  Lola wanted to marry, but Eric refused, saying that he didn’t believe in the institution of marriage. Lola argues that her exclusion from the CCQ provisions discriminates against her on the basis of marital status.

LEAF will support Lola’s claim that the exclusion of de facto spouses is discriminatory by focusing on the gendered effects of the differential treatment of married and unmarried spouses.  LEAF will argue that an examination of lived effects and systemic outcomes shows that the CCQ perpetuates prejudice and disadvantage experienced by women in de facto unions by disregarding their contributions and needs.  The exclusion of de facto spouses from this legislative protection exacerbates the feminization of poverty by leaving many cohabiting women economically devastated by relationship breakdown.

LEAF will also challenge the government’s justification for the differential treatment of married and cohabiting spouses.  The government of Québec argues that the CCQ respects the “choices” of couples who decide not to marry and thus avoid the rights and obligations of support and sharing of property.  LEAF will argue that choices are not made in the abstract but in real lived conditions of inequality, including relationships of power and powerlessness which may seriously limit or constrain women’s choices with respect to the structure of their relationships (as in the facts of this case).  LEAF will  argue that choice cannot justify systemic inequalities which are created, perpetuated or reinforced by an impugned law.

And another intervenor, the Federation of Associations of Québec Single-Parent and Step-Families, has issued a release (in French only) expressing their disappointment and calling on the Québec government to take action.

 


pookie
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Boom Boom wrote:

Any comment on Ontario's position as I heard it on P&P?  After three years of co-habitation, couples are considered to be equal to  married status.

Every other province in Canada provides for some access by common-law couples to the family law regime for things like spousal support, and many do for property division as well.  In Ontario the basic rule is three years cohabitation.


Boom Boom
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Thanks, pookie!


Boom Boom
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CBC: The ruling is meant only for Quebec, but others may try to apply it elsewhere.


kropotkin1951
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This once again highlights the weakness that is Section 1 of the Charter.

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

This is like the pot case.  The SCC said the law is a breach of the Charter.  Indeed getting sent to jail made the test in section 7. But like the rights of spouse to not be sent to the jail of poverty the court has determined that under Section 1 it is a reasonable limit prescribed by law. 

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

People read the Charter and presume they have all these guarantees about freedom and equality while ignoring the weasel words in Section 1 not to mention the Not Withstanding Clause.


torontoprofessor
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pookie wrote:

Boom Boom wrote:

Any comment on Ontario's position as I heard it on P&P?  After three years of co-habitation, couples are considered to be equal to  married status.

Every other province in Canada provides for some access by common-law couples to the family law regime for things like spousal support, and many do for property division as well.  In Ontario the basic rule is three years cohabitation.

 

This is not entirely true: it depends on whether we are talking about post-separation support or post-separation equalization of property. In Ontario, if an unmarried couple breaks up after cohabitating for three years, there is an entitlement to spousal support but not to the division of property. Living together for three years does NOT, in Ontario, accord you the same rights and responsibilities as being married. This point is explicitly noted in the government booklet, What You Should Know About Family Law in Ontario, where we read, "Common law couples do not have the same rights as married couples to share the property they bought when they were living together. Usually, furniture, household belongings and other property belong to the person who bought them. Common law couples also do not have the right to divide between them the increase in value of the property they brought with them to the relationship."

For more detail, you can check Ontario's Family Law Act.

In that Act, there are two definitions given of "spouse". One definition applies to the act as a whole, and the other definition applies to and only to Part III, "Support obligations." 

The general definition in the preamble of the Act is as follows: "spouse" means either of two persons who, (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.

The definition that applies to and only to Part III is different: "spouse" means a spouse as defined in subsection 1 (1) [that's the "general definition", above], and in addition includes either of two persons who are not married to each other and have cohabited, (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child."

Note that the three-year rule ONLY applies to support, and not to property equalization.


kropotkin1951
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In BC it is two years of cohabitation. In March a new law goes into effect that gives unmarried spouses the same rights as other spouses to a division of assets.  The difference in BC however is that we have always had a common law legal system not a civil law regime and under the common law of trusts spouses who were not legally married coud still get a division of property.

In Quebec you cannot argue the common law so although the statutes in both provinces look similar the effect in Quebec of property division not being covered meant it was a complete bar to impoverished spouses who were in a trust relationship with the asshole who ran off with the money when the relationship ended.

Quote:

Property Divisions

The new Family Law Act reforms property division so that certain property, such as pre-relationship property and inheritances generally will not be divided up.

Family property now includes all property owned by one or both spouses at the date of separation unless the asset is excluded, in which case only the increase in the value of the asset during the relationship is divisible. Whether an asset is used for a family purpose will not be relevant in deciding if it is family property.

Property division applies to married spouses and to unmarried spouses who have lived in a marriage-like relationship for at least two years.

http://www.ag.gov.bc.ca/legislation/family-law/index.htm


lagatta
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Evidently Lola, who of course was not a lawyer, thought Québec law had the same protections for non-married spouses as Brazilian civil law, which looks very similar on paper.

Lola won't starve; far from it. But her's is a test case for thousands of custodial parents, mostly women, who often do live in deep poverty.

Important as reforming this is, we must remember that spousal support provisions alone are not and cannot be the only mechanism to prevent single parents from falling into poverty. I remember reading about comparative rates in different "rich" countries. Of course the US is the worst, but the poverty rate among this group is still very high in Canada. Both the Scandinavian countries and France had far fewer single parents (think this study only looked at mothers) falling into poverty.

Quebec government ready to "faire ses devoirs" (which means both its duty and its homework) http://www.ledevoir.com/societe/justice/369372/conjoints-de-fait-quebec-...

http://www.ledevoir.com/societe/justice/369335/lola-contre-eric-la-liber... One of many commentary coming up...

According to the writer, the most severe effects are in some more "outlying" regions. Not surprising, a lot of these regions have a lot of resource extraction and heavy industrial jobs; what traditional "women's work" there is, except for a few teachers, administrative workers and health care professionals, is low-paid in services (that is my observation, not Dr Hélène Belleau's):

C’est dans les régions où plus de 75 % des enfants naissent hors mariage (Saguenay -Lac-Saint-Jean, Laurentides, Lanaudière, Mauricie, Côte-Nord, Abitibi-Témiscamingue, etc.) que l’on retrouve aussi plus de 40 % des femmes contribuant pour moins du quart du revenu d’emploi du ménage ! Quelle situation attend ces mères au lendemain d’une rupture ?

Québec solidaire: Time to re-open the debate about legal protection for persons living in de-facto (de fait) unions (not common-law here as we don't use common law):

http://www.quebecsolidaire.net/eric-contre-lola-il-est-temps-de-rouvrir-...

Nothing from La Fédération des femmes du Québec yet.

Lysiane Gagnon says some contemptuous crap (she is not as sloppy a writer as Wente, but just as smug)

I'll post this now; will no doubt have more news and comments. Haven't looked at Mtl Gazette or Glob yet.


lagatta
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This is about the best article I've found in the Globe: http://www.theglobeandmail.com/news/national/quebec-is-a-laboratory-when...

Didn't turn up any worthwhile commentary pieces in the Gazette so far. Imagine Janet Bagnall is writing something.


Unionist
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What surprises me lagatta is that there hasn't been a very visible movement till now to change the law. Unless I just didn't see it. Can it be that there are two competing needs/interests as far as Québec women are concerned - 1. the need to ensure financial security in case of partnership breakup; vs. 2. the need to destroy the old pre-"revolution" marriage structures and ensure freedom to leave? And how much is freedom to leave worth without financial security?

 


pookie
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torontoprofessor wrote:

pookie wrote:

Boom Boom wrote:

Any comment on Ontario's position as I heard it on P&P?  After three years of co-habitation, couples are considered to be equal to  married status.

Every other province in Canada provides for some access by common-law couples to the family law regime for things like spousal support, and many do for property division as well.  In Ontario the basic rule is three years cohabitation.

This is not entirely true: it depends on whether we are talking about post-separation support or post-separation equalization of property. In Ontario, if an unmarried couple breaks up after cohabitating for three years, there is an entitlement to spousal support but not to the division of property. Living together for three years does NOT, in Ontario, accord you the same rights and responsibilities as being married. This point is explicitly noted in the government booklet, What You Should Know About Family Law in Ontario, where we read, "Common law couples do not have the same rights as married couples to share the property they bought when they were living together. Usually, furniture, household belongings and other property belong to the person who bought them. Common law couples also do not have the right to divide between them the increase in value of the property they brought with them to the relationship."

For more detail, you can check Ontario's Family Law Act.

In that Act, there are two definitions given of "spouse". One definition applies to the act as a whole, and the other definition applies to and only to Part III, "Support obligations." 

The general definition in the preamble of the Act is as follows: "spouse" means either of two persons who, (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.

The definition that applies to and only to Part III is different: "spouse" means a spouse as defined in subsection 1 (1) [that's the "general definition", above], and in addition includes either of two persons who ar

l or adoptive parents of a child."

Note that the three-year rule ONLY applies to support, and not to property equalization.

Um, I clearly drew a distinction between spousal support and property division in my post, so I don't know what you're talking about.


lagatta
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Joined: Apr 17 2002

Hi pookie.

Unionist, the Federation of single-parent and blended families has issued a statement about the need for a social debate on this ruling and topic, which also contains a press review.

http://www.fafmrq.org/federation/2013/01/decision-fort-partagee-de-la-co...

I believe the women's movement here has tended to concentrate its efforts more on universal support measures, whether or not there is a spouse or whether he or she has any significant assets.


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