Sarah-Danielle Gagnon Leduc

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In Quebec, the law does not protect people that are in a common-law relationship. If someone sacrifices a career by staying at home to raise children, that person will have no rights for protection under the law. Many persons mistakenly believe that unmarried couples with children have the same rights as married couples, after a certain number of years. This assumption is absolutely false; if one of them decides to abandon their career for the benefit of the family, they do so at their own risk.

In matters of separation, the women and children in common-law arrangements should have the same rights concerning alimony and support as a legally married couple. In light of a new ruling from the Quebec Court of Appeal, unmarried couples will be better able to protect themselves in the future.  The ruling will not only aid in the rights of common-law couples, but also better protect all citizens of Quebec regardless of the status of the family.

There are two types of unions in Quebec: married couples (including civil and religious marriages), and unmarried or common-law couples. Married couples live under the patrimonial law of the family. Family patrimony is the sharing of all property acquired during the duration of the time of marriage. Thus, a woman who stays at home to raise the couple's children will not see a change in living standards upon divorce. She will be entitled to alimony for her children, as well as alimony for herself. She will also be entitled to half of everything: money in the bank, the value of the house or other properties acquired during marriage, and the savings (RRSP, retirement plans, etc.).

In the case of an unmarried couple that has one or more children, the equal share of family patrimony does not apply. The woman will be given a pension for the children, based on the salary of the spouse, but nothing for herself. Even if she had contributed to the enrichment of the family while she raised the children, she must prove by official papers that she contributed financially to the acquisition of family assets. This lack of protection stems from the judicial system in Quebec, in particular, the civil code of Quebec. The civil code came into effect on January 1^st, 1994. The Civil Code of Québec, as defined by the Québec Portal, under the Justice section:

The civil code of Québec is a general law that contains all of the basic provisions that govern life in society, namely the relationships among citizens and the relationships between people and property. It governs all civil rights, such as leasing items or property, sales contracts, etc. It also deals with family law, as in the case of matrimonial regimes.

A Background of Quebec Civil Law Involving Legal Unions

The history of the civil law in Quebec began in 1763 in New France with the abolishment of the French system when the British took control of the territory. A few years later, in 1774, French civil law was restored in Quebec. By the Act of Quebec, the English parliament gave its power back to the province of Quebec in terms of civil law. Private and criminal law remained in the Federal jurisdiction, and only civil law went under provincial jurisdiction in Quebec.

For this reason, the province has juridical rights over civil unions.  Quebec legislates rights for civil unions independently from the other Canadian provinces.  The other provinces within Canada recognize common-law as equal to that of legal marriage. Quebec does not recognize common-law unions. In the case of separation, you are not entitled to financial support from your spouse regardless of how many years you spend living together, and not considering whether or not you have children. The present law does not provide alimony for the spouse, despite the fact that he or she may have contributed to the enrichment of the couple.  The majority of the population believes that unmarried couples are protected in the same way as married couples. Often, this belief stems from the notion that once a couple has been living together for a certain number of years, or if they have children together, they are protected by the civil law of Quebec; again, this is false. As Quebec is still the weakest province in the country when it comes to legislature in this matter, it proves to be a tough battle for those trying to fight the system and get their voices heard.

Who's fighting for the cause?

For several years, Anne-France Goldwater, a family law lawyer, worked very hard for the recognition of de facto spouses. For over 10 years, Anne-France Goldwater has been defending the rights of spouses in common-law unions and has spent most of her time challenging the constitutionality of the federal definition of marriage in the Civil Marriage Act, as well as many dispositions of the Civil Code of Quebec, which discriminates against de facto spouses.

Currently, she is challenging the constitutionality of the guidelines on provincial child support in the province of Quebec. She, among others, requested that non-married couples be granted the same protection as married couples, especially in cases where one spouse has abandoned their career to care for the couple's children. Currently, a parent who ends up with custody of children is entitled to alimony, but only for the children, not for them. It is not taken into consideration whether or not one of the parents worked at home for years. It is not taken into consideration that they may have lost years of work to stay home and raise children, nor is it considered that both members of the couple may have decided together that one of them should stay home for the well being of their children. The alimony is established according to one of the parents' salary, but only for the children[1].

What can be insidious about this way of assigning alimony is that the parent with custody of the children may be left penniless, living under the poverty line for months, years, or possibly for life. The parental contribution covers the basic needs of children, but not those of the parent.   To understand what might happen in the case of an unmarried couple with children who decide to separate, let's review the case of Peter and Mary, which should help us get a better picture of the situation.

Peter and Mary lived together for 10 years, and they had two children, 8 and 6 years of age. They both decided not to marry, for personal reasons. After the birth of their first child, Mary returned to work. She was a nurse and had five years of seniority at the hospital where she worked. She had just got a permanent position, with a rather stable schedule and a good salary. Then, at the birth of their second child, Paul, the situation became more complicated. Paul suffered from respiratory problems and heart disease. His condition required special care and many appointments with specialists. Mary returned to work anyway, but after six months she was exhausted physically and mentally, as someone must always be present to care for Paul. Peter and Mary decided together that Mary should stay home, in order to provide a better environment for the children. Since Peter earned much more than Mary (his income was close to 200 000 dollars a year), it was decided that Mary would stay home. Six years later, the couple decided to separate. Mary received custody of the children, and she was entitled to alimony of $ 14,390 per year, based on Peter's salary. She would have returned to work, but Paul's condition still required for the same care. In addition, she had lost her seniority at work, and if she returned, she should work the "on call" or night shift, which was out of the question.

In this case we see that Mary is in a precarious situation; she has no job, no money, and she has lost several years of work experience. It will take time to rebuild her life and regain her independence. It is obvious here that Peter should pay an amount of money to Mary, as they had made a choice several years ago, a choice that had serious consequences on Mary's professional life. Most people would agree that Peter should assume his share of the responsibility. It seems unconstitutional for Mary and the children live under the poverty line while the father obviously has the means to help his family.  Real civil cases, such as this, have been presented to the courts in the past, only to be cast aside, as the law does not support common-law separation battles. Most of the time, the judge dismisses the case and thus little to no progress has been made in this matter, until recently. A new ruling of the Court of Appeal has held that: It is discriminatory that "Mary" is not protected simply because she and her partner did not choose to get married.

The Court of Appeal of Quebec has recently ruled on common law. The court finally made a formal statement, ruling that, by not protecting unmarried parents in case of separation is discriminatory. Indeed, after many years and many battles, the court has given ammunition to advocates of common law. The judge who was involved in the groundbreaking decision has given the matter the push it needs to hopefully get the government to reevaluate the law.  The government must address the issue of de facto spouses, and it can hardly ignore the ruling of the Court of Appeal. Let's be clear: it is not about being entitled to half the family assets (house, savings, RRSP), but rather "to establish a system to meet the basic needs of survival," argues Marie-France Bureau, an associate professor at the Faculty of Law, University of Sherbrooke. She adds, "If both spouses are self-sufficient and earn a good income, the law will not apply. Support should be provided only in cases of economic dependency. A mere difference of income is not a sufficient reason. It takes, on one hand, a financial dependence because of the union, and on the other, a capacity to pay."  Of course, that implies that there will still be a choice for non-married couples. They will now have the freedom to forego marriage, should they choose to, and they won't have to comply with a new law on de facto spouses. If both spouses agree to separate amicably, they may still do so.

Social responsibility

The advantage of a law for non-married couples is to protect a spouse who is in a situation of dependency. If the law does not hold both parties responsible, who is? Who will support that person? The State? Us? Our taxes? There is nothing wrong with financially supporting the most vulnerable members of our society; it is the foundation of our democracy. The state should not take responsibility for a former spouse who has the means to care for his family. Having a sound law in place ensures us, as a society, that families will not fall below the poverty line. It guarantees us that children born out of wedlock do not have to bear the brunt of a separation that goes wrong. That, in itself, is a social responsibility and we have, as a civilization, a duty to protect all of our citizens, especially children. The judge, who has just declared that it is discriminatory not to protect the spouses, has not changed the law. He acted as a philosopher, and ruled on a situation that has persisted for too long in Quebec. Think about it: in Québec, 60% of children are born outside of wedlock. It is high time the government put in place laws that protect these children. Now that the court ruled, the government has what it takes to review the law in Quebec, and make the necessary changes. Ultimately, all citizens will benefit from an amendment to the Civil Code, since it will better protect each individual within our society. And as everyone knows, a well-protected society is a stronger society.

Bibliography

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Jarry, Jocelyne. Les conjoints de fait au Québec: vers un encadrement légal. Cowansville, Les Éditions Yvon Blais Inc., 2008.

Ambert, Anne-Marie. Union libre et mariage [electronic resource]: y a-t-il des similitudes?  Ottawa : Institut Vanier de la famille, 2005. 

D.-Castelli, Mireille. Précis du droit de la famille. Québec: Les Presses de l'Université Laval,             2000. 401-416.

CanLII, Institut canadien d'information juridique. Québec-Cour d'appel. 1998. Web. 1^st Nov. 2010.

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Goldwater, Anne-France. Interview by Michel Desautels. Société, Radio-Canada, 2010. Web. 1st Nov. 2010.

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Boisvert, Yves. " Quand la cour marie un million de gens."  La Presse 4 November 2010. Print.