|Madam Justice Abella|
The effect of the decision is aptly summed up by Rollie Thompson, a family law professor at Dalhousie University, who said:
“The decision does seem to mark the end of an era in constitutional and family law in Canada, with this court giving marriage status and parental ‘choice’ greater priority over family function and the interests of children,” he said.
Kirk Makin has a very good summary in the Globe & Mail of the law relating to the legislation, the Charter of Rights and the findings of the Supreme Court, which split 5-4 on the decision.
In my view, the sole dissenting judge was the one with the correct view, consistent with modern realities and with the spirit of the Charter of Rights & Freedoms:
Madam Justice Rosalie Abella alone found the exclusion of common-law partners from both spousal support and property division to be unacceptable Charter breaches. She said that even laws passed in good faith can negatively affect particular groups: “In Quebec and throughout the rest of Canada, the right to support does not rest on the legal status of either husband or wife, but on the reality of the dependence or vulnerability that the spousal relationship creates.”
Makin poses 8 questions in his article which go to the heart of the matter, incuding the question of whether the decision affects Qubeckers exclusively (no); whether the gender of the judges could have played a role in their decision; how the Supreme Court decides what to do if a law (such as the Quebec one) is in breach of the Charter of Rights, and what argument won the day.
Quo vadis, Quebec?
The Quebec legislation is clearly contrary to the fundamental law of equality, and should be changed by the Quebec legislature as soon as possible.
In Quebec, almost one-third of unions are de facto common-law ones, and in Canada some 17% are.
This law and the SCC ruling mans that 1.2 million Quebec residents who are in common-law relationships are now not able to claim for spousal support or a share of the matrimonial property, if their relationship breaks up, not matter how long that relationship has lasted, whether there are children, or the ability of one of the couple to maintain an acceptable standard of living after the relationship.
This is utter nonsense, and inconsistent with the fights waged over decades to remove the arbitrary and unfair patriarchal advantage from the matrimonial relationship.
Proposal for a Just Solution:
The Supreme Court court have struck down the Quebec law and given the province's legislature 12 months to come up with an amendment which strikes the proper balance between the primacy of choice (the reason the SCC allowed the Quebec law to survive despites its breach of the Charter), and the reality of poverty among older women after relationships break up.
Now it is up to the Quebec legislatures to cut the Gordian knot.
My suggestion, which the SCC could have adopted in its decision, and which the Quebec legislature can now adopt, is this:
Pass a new law that says that should any common-law relationship of a certain duration (two years?) break up, the couple are automatically allowed to sue for spousal support and to a fair share in the matrimonial property, provided that the couple have not at any time since cohabitation started entered into an agreement to opt out of that law.
However, prior to such agreement being entered into, each of the couple must seek independent legal advice (given to them without the other partner being present) on the impact of the opting out, and at the same time, a state-drafted summary of the living standards of men and women of all ages in the province must be provided to the partners and discussed with them.
This solution maintains the freedom of the couple in Quebec to dispense with the obligations of marriage (through opting out), does not patronize women, but does mean that both partners are fully aware of the gravity of the opting out step.