[LINK] "Common-law breakers"

[rfmcdonald]

Gordon Bowness' article in the monthly In Toronto magazine takes a look at a recent Supreme Court decision in the case Eric v Lola that deprived common-law couples in Québec of spousal support in the case of marital breakdown. (The irony that common-law relationships are far more common in Québec than elsewhere in Canada is lost on no one.) Bowness does a good job of pointing out the broader implications for common-law couples, and non-heterosexual couples, and other non-traditional family structures across Canada.

Most Canadians wrongly assume that common-law couples — whether gay or straight — enjoy the same rights and obligations as married couples. That misperception was brought into sharp focus with the Supreme Court ruling in a case known as Eric v Lola, which affirmed that common-law partners in Quebec have no right to spousal support or to a share in their partner's property when the relationship ends.

[. . .]

One of the reasons we have same-sex marriage federally is that as common-law couples won certain protections courts found it wrong to exclude same-sex couples from those protections. Common-law and same-sex relationships are linked, historically and legally.

"For the longest time, common-law relationships and same-sex relationships were being tested in the courts and were advancing kind of in lockstep as discriminated minorities, in fits and starts, lurching forward," [divorce lawyer Anne-France] Goldwater says. She is uniquely positioned to understand that dynamic. Not only is she a leading advocate for the rights of women and mothers in common-law relationships, she and Dubé represented Hendricks and Leboeuf in the 2002 landmark ruling that won same-sex marriage in Quebec.

[. . .]

"I'm worried on a much broader level for the Supreme Court," says Goldwater. "For lawyers interested in constitutional law, we have the feeling, and it's very subjective of course, that the Supreme Court seems to be turning away from the liberal tendencies it used to have in the late '80s and '90s, which was really pro-Charter litigation. We seem to be in a new era of unexplained timidity."

[. . .]

That means Charter challenges in family law may be out of bounds in the short to medium term. Future changes — which will need to address everything from assisted reproduction, surrogacy for gay fathers and multiple parents to the application of federal child support guidelines — will have to originate with provincial legislatures and new statutes, not the courts. How that will proceed is anyone's guess. When the Eric v Lola ruling came down, Quebec's justice minister Bertrand St-Arnaud said the government was open to changing the laws to recognize the rights of common-law spouses. But then came a backlash and the government seems to be backpedalling.

[. . .]

While the wider implications of Eric v Lola remain uncertain, the ruling immediately impacts the common-law relationships of 1.2 million people in Quebec. It also spotlights that common-law couples across the country — despite what they themselves may think — may not hold the same status as their married counterparts. And for all the media attention heaped on same-sex marriage, the vast majority of gay and lesbian couples in Canada are common-law. StatsCan's latest findings on families show that while the number of same-sex marriages tripled between 2006 and 2011, same-sex common-law couples still outnumber same-sex married couples by more than two to one.

Only in BC (as of this month), Manitoba and Saskatchewan are common-law and married couples treated virtually the same, as well as in areas under federal jurisdiction, like income tax and Old Age Security.