Canada top court: Quebec common law couples do not have rights of married couples

[JURIST] The Supreme Court of Canada [official website] ruled [opinion, PDF] Friday that common law couples do not have the same rights as married couple in Quebec. The case involves a common law couple with three children in which the mother filed suit for spousal support, "partition of the family patrimony and the legal matrimonial regime of partnership of acquests." She challenged several provisions of Quebec's Civil Code that makes distinctions between married, civil-union and de facto couples as well as their rights and obligations. The mother argued that they are inconsistent with the Charter of Rights and Freedoms [text]. In a 5-4 decision, the court rejected the mother's appeal and held that the Civil Code provisions were not unconstitutional because the province's legislature made no distinction and thus, did not discriminate against a particular group of couples. The court mainly focused on the autonomy of couples to make decisions with regards to their relationships:

The distinction made by the law is rationally connected to the state objective: the Quebec approach only imposes state-mandated obligations on spouses who have made a conscious and active choice to accept those obligations. The law falls within a range of reasonable alternatives for maximizing choice and autonomy in the matter of family assets and support. While schemes adopted in other Canadian provinces impair the equality right of de facto spouses to a lesser degree, such approaches would be less effective in promoting Quebec's goals of maximizing choice and autonomy for couples in Quebec ... Without this distinction, the clear choice between a regime of division of property and support on the one hand, and a regime of full autonomy on the other hand, would be absent. The Quebec approach only imposes state-mandated obligations on spouses who have made a conscious and active choice to accept those obligations. The requirement of an active choice to undertake obligations is consistent with the objective of enhancing autonomy
Each province provides different rights and obligations to couples falling outside of the traditional group of couples. Thus, it is unclear whether other provinces will review their laws because the court's ruling was limited to the present case.

The appeal stems from a Court of Appeals decision that held Quebec's Civil Code provisions were unconstitutional [Toronto Star report] because they had discriminatory effect on common law couples. The appeals court thereby reversed the decision of Quebec Superior Court that held that the mother had failed to demonstrate the discriminatory effect caused by the Civil Code provisions. Canada and other countries around the world are currently reviewing the controversy of marriage equality—particularly same-sex marriage [JURIST news archive]. Last January Canadian Justice Minister Rob Nicholson [official profile] indicated that the Canadian government considers all same-sex marriages performed in Canada to be legal [JURIST report] and that the Civil Marriage Act [text] will be altered to reflect the government's position. The announcement came amid a growing controversy over a previous declaration [JURIST report] that non-resident same-sex marriages performed in Canada are not legal unless recognized by the participants' home countries. As it is with common law couples, Canada's provinces have interpreted rights of same-sex couples in different ways. In October 2011 a judge for the Queen's Court Bench of Alberta [official website] granted custody [JURIST report] of a child to a non-biological father who was an ex-partner of the biological father. In January of that year, the Saskatchewan Court of Appeals [official website] ruled [JURIST report] that refusal by provincial marriage commissioners to marry same-sex couples is unconstitutional and thereby invalidated a proposed amendment to Saskatchewan's Marriage Act of 1995 that would have allowed the commissioners to refuse to marry same-sex couples based on their religious beliefs.

 

About Paper Chase

Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

© Copyright JURIST Legal News and Research Services, Inc., 2013.