A Legal/Social Disservice

"The National Assembly enacted economic safeguards for spouses in formal unions based on the need to protect them from the economic consequences of their assumed rules.
"Since many spouses in defacto couples exhibit the same functional characteristics as those in formal unions, with the same potential for one partner to be left economically vulnerable or disadvantaged when the relationship ends, their exclusion from similar protections perpetuates historic disadvantage against them based on their marital status."
Supreme Court Justice Rosalie Abella

It seems that for some groups whose human rights have a special resonance among the liberal-left that infects societies today, and whose insistence on lawful recognition in entitlement to the status of marriage as opposed to mere civil unions, legal assurance from the highest court of the land was readily granted. So that same-sex marriage is now a legal entitlement in Canada.

To some the very thought of two men or two women 'marrying' one another, adopting the covenant hitherto restricted to heterosexual couples mostly for the protection of their progeny within society being co-opted by gays and lesbians appears ludicrous on all fronts. When civil unions were given legal recognition with the same rights as married couples the insistence by gays and lesbians that marriage should not be denied them appears an absurd entitlement.

But what has been so readily proffered to gays and lesbians in their battle for equal recognition and equal treatment in a sphere that their gender orientation would seem to disqualify them for as a social convention, while still guaranteeing them economic protection under the law related to their living arrangements as a family unit, appears to be denied to women living in Quebec in common-law relationships.

In most other provinces in Canada those living in common law relationships have similar obligations and benefits as those living as married couples where property rights are upheld. Quebec is an exception. The irony is that it is in the Province of Quebec where common-law relationships are more prevalent than elsewhere in Canada. It is estimated that 1.2-million people in Quebec are affected by the Supreme Court ruling.

In a case involving a common-law couple that had lived together for years, a family unit that had produced three children, the man, a wealthy businessman, balked at the woman's demands for alimony and property settlement, contending that he was not obligated under the law to support his former partner and their children. And this was the case upon which the Supreme Court was asked to judge.

A slight majority with the deciding vote cast by Chief Justice Beverley McLachlin concluded that the province's family law regime was fully constitutional. In violation of equality rights, so that the social aspect of the law is clearly unreflective of today's social mores, but politically, lawfully acceptable.

Four of the five male judges; Mr. Justice Louis LeBel, Mr. Justice Morris Fish, Mr. Justice Marshall Rothstein and Mr. Justice Michael Moldaver; felt there was no violation of the right to equality.

All four of the female judges on the Supreme Court reached a consensus that excluding common law couples from spousal support did indeed violate the right to equity. Despite which, Madam Chief Justice McLachlin decided to cast her vote with her majority male colleagues.

“The decision shows a complete disconnect from the reality of people’s intimate relationships.  Generally, people get married or live together in unmarried relationships because they love each other, not because they are making conscious decisions about which economic regime might suit them on separation.”

“Unless an unmarried spouse has tens of thousands – likely over a hundred thousand dollars – for an unjust enrichment claim, she will walk away with nothing on account of the wealth accumulated over the course of the relationship.” 
“Unmarried women in Quebec, and in other provinces in Canada, find themselves – much to their surprise – with less economic resources, as a result of the formality of a marriage license. Family law is supposed to protect all families, not discriminate on the basis of marital status. This is a most disappointing, confusing result that cries out for legislative action.”                 Martha McCarthy, Women's Legal Education and Action Fund.

It is time and past time that the Quebec National Assembly lawmakers made the decision to re-write its legislation on alimony, child support and property rights for women in common-law relationships to better reflect the reality of the vulnerability of women and children in long-term relationships outside the sanctity of the marriage contract, but the relationship a familial one, regardless.