Supreme Court of Canada to consider rights of common-law spouses

The Toronto Star reports that the Supreme Court of Canada will soon consider the right of common-law spouses to receive alimony and half of property after the relationship has ended. Currently, there is no such right for common-law spouses.

Women’s Legal Education and Action Fund (LEAF), an organization acting as an intervenor in this case, raises the point that equal division of property and support payments may be extremely important where the caregiver of children – most likely a woman – has dedicated most of her time and energy to children, thus becoming dependent and financially disadvantaged.

According to The Star, “the court said excluding common-law couples was a way of respecting their decision to avoid marriage because of the legal obligations that go along with it.”

However, “in fact, North American research over the past decade has shown that most couples who live together are under the mistaken impression they already have the same rights as married couples.”  Further, most couples do not think ahead to the consequences of a break-up when they make living arrangements.

This case will be heard at the Supreme Court of Canada on January 19th 2012.

14 Comments on "Supreme Court of Canada to consider rights of common-law spouses"

  1. Aylin Berberian | 16/01/2012 at 10:20 am |

    I understand where this statement is coming from but in my opinion, I don’t think the Supreme court will render a decision in favor of common law spouses for the simple fact that it is for a reason that the legislator has assigned different rights and obligations for common law spouses and married ones. It is each person’s responsibility to actually take a look at what they are entering into. One must ask why is it that they are not getting married but yet they’re in a common law relationship therefore common law spouses should not invoke their ignorance about the consequences of a separation. It is everyone’s responsibility to undertsand what they are opting for. Also, if the Supreme court actually renders a decision in favor of Lola this would affect an enormous number of people who are actually stil in a common law relationship and also the one’s who are currently separated.

  2. Aylin, that is a fair point. The problem is that, people cannot from the outset predict the way their relationships will evolve. Further, as many many studies have shown, people are not thinking “what if the relationship ends, then what should we do with all the assets and property we have paid for”. Having children, building a life together etc. may not be part of the plan but sometimes happens. And what of the women who have chosen to be the caregiver of children rather than pursue their own career, because this is something that the couple has decided they would like to do, but if the woman has no knowledge of the law – why should she be punished? If it were an option, the safeguards of an “opt-out” program are preferable – this way, if people decide that they do not want to have the same rights and responsibilities as in marriage, they can exercise their right of choice by opting out.

  3. As Executive Director and lawyer with the Canadian Constitution Foundation, we think the Supreme Court of Canada should not override Quebec law on common law spouses. If the court overrides the legislature, it will retroactively change the law for thousands of individuals who conducted their lives in reliance upon the old rules. They can’t live their lives over again in order to do things differently. This is unfair to them and contrary to the rule of law. To read more:

  4. Related to my previous post above, is a podcast of a radio show my colleague Karen Selick did on this topic:

  5. Zoe Smith | 20/01/2012 at 5:48 pm |

    Thank you for posting the podcast on this issue and your position on the case. What do you think about the theoretical possibility of an opt-out mechanism (so that the freedom of choice will remain)? Do you think this is a realistic possibility and one worth having?

  6. Ricki-Lee Gerbrandt | 22/01/2012 at 11:29 pm |

    In response to the initial blog post, Zoe mentioned that couples can have a mistaken impression that they have the same rights as married couples. I am surprised that nobody has yet mentioned the power dynamics at play in many common law relationships that are specifically gendered. It is common for women (or men) to be prevented from getting married by an unwilling spouse who asserts dominance or control in the relationship. Combine that with children, women (statistically) remain the primary caregiver/stay-at-home parent taking care of the responsibilities of running the household and raising the children and can be left without a career, pension or even CPP. It seems completely unjust to not allow that woman any claim to property or financial rights and security gained from living and contributing to the familial home, raising her children in it and sacrificing her own career for her family. I refer to a quote from LEAF’s January 16th’s press release referring to the case going to the SCC : “In the case of Eric and Lola, Lola repeatedly asked Eric to marry her and he refused, saying he didn’t believe in the institution of marriage. The couple cohabited for seven years and had three children together. Lola cared for the children and did not work outside the home. Although the wealth of Eric in this case is exceptional, the gendered power dynamic of the relationship is not.”

    Women in particular will benefit from a ruling in this instance because they stereotypically remain the primary caregivers of the family and household (although this ruling will also impact men in similar situations- I speak of women because gendered stereotypes are still ubiquitous). Although the need to balance a person’s choice is paramount, I believe that the injustice faced by women in this situation, a propensity for them to be left without any mens of support and necessarily relying on government assistance needs to be adequately addressed. I am intrigued by the ides of an opt-out mechanism, which theoretically makes sense. If people are living together for a specific amount of time, especially with children, I think an opt out mechanism may be a better solution to the existing laws which are highly unjust to many people, especially women in controlling relationships.

  7. Ricki-Lee Gerbrandt | 22/01/2012 at 11:32 pm |

    Also thanks for the blog responses Zoe…I would be very interested to know what Mr. Schafer thinks about an opt-out mechanism and if his concerns over retroactivity would be ameliorated.

  8. I don’t want to sound cynical but I think we can all safely assume that Lola’s sole concern in her case was not righting any kind of gendered oppression. If anyone can explain how she has suffered any oppression of any kind I’m all ears. The statement from LEAF citing Eric’s refusal of marriage is telling, but not for the reasons they claim. Being a multi-millionaire, I would also be very skeptical of entering into a legally-binding union with another person, even one I loved very much, for fear of losing half of all my earnings should that relationship go awry. Hence his hesitation on that point, a feeling I sympathize with (as a woman, it should be noted – nothing gendered about not wanting to lose your property). Now he is being forced into the very nightmare he was trying to avoid by choosing to opt out of legal marriage.

    Further, Lola’s choice to stay at home and raise the children was just that – a choice, freely made, and one made infinitely more attractive by the prospect of a life of ease and luxury, where finding a job was absolutely unecessary. It is farcical to imply that Lola suffered in any way by choosing to be a stay-at-home millionaire’s wife and never once opting to use any of the options surely available at her disposal (nanny service or any other in-home caregiver, daycare services, etc) to be able to carry on her career and professional life. Although there is still important work to be done, we live in an era when women have more options for professional reward and advancement than ever before. As a feminist, I feel that the only gendered oppression in this case is the fact that elite women with loads of money and power at their disposal can continue to play off a dated legal system that holds up the ideal of the ‘kept woman’ (of any financial class) as one which should be protected above all others, especially that of the responsible working woman, and at all costs.

    Another commenter asked why a woman choosing to be a stay-at-home caregiver should be ‘punished’ if she has no knowledge of the legal distinction between marriage and common-law unions; to this I respond with the following: if a woman chooses this path, then surely she must also consider the consequences of such a choice, especially its professional ramifications, just as a man should if he chooses to be the stay-at-home provider. As Aylin pointed out, it is the right of every citizen to be informed – ignorance of the law is rarely acceptable in other cases. The more pressing question becomes: why should her ex-partner be punished after a failed union by being forced to financially support her at his own expense? Again, the view that a man is beholden to care for a woman who has made this choice speaks to an outdated and sexist ideal that I believe rarely helps women. I agree that in cases where a deadbeat husband and/or father leaves his wife and children with absolutely nothing, then financial support is in order. However, the Lola case is setting out a dangerous precedent because it centers around a woman who decided to stay at home precisely BECAUSE she wanted to exploit her partner’s wealth and be able to do so at no cost to herself – when the union ended, even with the thousands she was getting, she decided she wanted more and thus we have this frivolous case. It scares me that her greed may end up permanently altering the relationships of so many.

  9. Zoe,

    Could you explain more fully how your proposed opt-out mechanism would work?



  10. Zoe Smith | 23/01/2012 at 4:21 pm |

    Hi Chris,
    What I envision is that the “default” would work to provide property rights and alimony for those who are in common law relationships. Those who wish to protect themselves from the law applying in this way could apply (if the government were to set up such a scheme) to have themselves dictate the terms of their relationship from the outset (at whatever point they are deemed to be “common law” spouses. This protects the freedom to CHOOSE, and deals with the issue that Julie has pointed out – since those who wish to protect their assets will be responsible for learning about the law.

    Julie, I think considering how a precedent would work by looking at ONE instance (which happens to be, in THIS particular case, a family who is financially prosperous) is not really useful. As we all know, those who have the financial ability to litigate tend to be those who are financially secure. Because she has been economically privileged in a sense does not mean that the decision of this case will not have widespread and far reaching ramifications. Looking at the personal motives of Lola will not really be an indicator how all women/mothers will use it in the future.

    It is also problematic I think to suggest that
    “it centers around a woman who decided to stay at home precisely BECAUSE she wanted to exploit her partner’s wealth and be able to do so at no cost to herself” – these are really generalized statements which are casting women into categories.

    It is not the case that MOST women in common law relationships are in them because of the money. Those who have the kind of money that Lola and her partner have are few and far between. It is also not the case that people necessarily have the opportunity to learn about the law – think of those living in poverty who are struggling to make ends meet.

    It is not the case that the consequences of a relationship are always easy to predict. To have children may not have been in the plan. Marriage may also not have been in the plan. To those that are saying: freedom of choice means that a woman can walk AWAY from the relationship when the partner does not want to marry: what of children that may result from the common law relationship? What of those who do not wish to marry because of the expenses of having a wedding? What if marriage is just not what is desired at that moment?

    I can understand Chris and Julie, the concerns that are raised by this issue. But I think far more people will be benefitted and justifiably protected, and the positives will outweigh the benefits. And it is the role of the judiciary (as always), to distinguish between legitimate claims and fraudulent/dubious claims. I have faith they will be able to do so, if need be.

  11. Zoe Smith | 23/01/2012 at 4:27 pm |

    Sorry, I meant to write, the positives will outweigh the negatives.

  12. Every consenting adult should have the right to determine the nature of their own personal and romantic relationships without the intervention of the government or anyone else, and that naturally includes deciding whether or not they are married or single or something in between.

    It is not up to the government or anyone else to impose their views on us legally with respect to our individual decisions in these matters. Only when two people both agree that they are legally married should any laws pertaining to such a relationship apply. Otherwise it should simply be none of the government’s or anyone else’s business.

    As for the care of the children, there are already very strict and enforced laws on child support. As for what either party “gives up” to raise children, what if there are no children? Then what? Also how do we put a value on the relationship that someone lucky enough to be a stay at home parent has with their children? A stay at home parent is no victim. Plus many parents both work and share the responsibilities as well.

    For all these reasons, particularly the protection of our inalienable right to determine the nature of our own personal and romantic relationships, the government and the legal system should simply butt out.

  13. sandra Olson | 26/06/2012 at 3:13 pm |

    The right to choose implies informed consent. Since that does not apply in most cases of common-law, the very principal is junk. It is time quebec got on board with the rest of canada, and started treating the work of women, raising children etc, as just as important within a marriage as earning money.

  14. “The state has no business in the bedrooms of the nation.” Trudeau, Pierre Elliott Source: PIERRE ELLIOTT TRUDEAU, Canadian Minister of Justice, remark to newsmen, Ottawa, Canada, December 21, 1967, as reported by The Globe and Mail, Toronto, December 22, 1967. He was commenting on the governments proposal to overhaul Canadian criminal law, giving new recognition to individual rights in several areas, including sexual behavior. It was that founding principle that was used to change much of Canada’s divorce legislation. Now the same people are flipping it over and saying that the state should now dictate the quality and nature of everyone’s marital relations. Which one is it? Those speaking here in favor of equal status for common law couples are stuck with flawed logic. Either the couples are married or they are common law. Either eliminate the terms “married” or “common law” from the dictionary or learn do live with the fact that couples make choices. It is not for Sandra or anyone else to dictate to each and every one of us what “informed” consent means or doesn’t mean. Stop the never ending government interference in our lives promoted by some who feel that government should be involved in every aspect of our lives.

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