Family Law in Canada? It Depends Where You Live

BarristerToday’s decision from the Supreme Court of Canada in A. v. B. has closed the door for common law spouses in Quebec to receive spousal support upon the demise of their conjugal relationships, a ruling that signaled the conclusion of a long-running legal saga launched by the former common law spouse of a Canadian billionaire.

While married spouses and those in civil unions are entitled to apply for support, “de facto” spouses, the term used for common law spouses in Quebec, may not, unless they have entered into a cohabitation agreement with their partner which provides for support upon the breakdown of their relationship.

Quebec’s distinctive language and culture is also accompanied by a Napoleonic legal system which is not shared by other provinces in Canada. Our highest Court examined the spousal support provisions of the Quebec Civil Code and determined that freedom of choice and personal autonomy trumps a family law regime that imposes obligations on spouses who do not expressly consent.

The upshot? If you want spousal support in Quebec you need to be married, in a civil union, or have a cohabitation agreement which covers support if the relationship fails.

Ironically, while the absence of support for common law spouses in Quebec has now been confirmed as constitutional, the British Columbia legislature is mere weeks away from ushering in new law that will see common law spouses, including same-sex partners, enjoy the same benefits as married couples in regards to the division of property.

All Canadian provinces, with the exception of Quebec, provide for spousal support for common law spouses, but British Columbia’s new law is cutting-edge, albeit B.C. is not the first province in Canada to afford property rights to common law spouses. Those honours belongs to Manitoba, Saskatchewan and New Brunwick. However, it is a radical departure from the law as we know it today.

Presently, British Columbia couples are obliged to share all of their property, even if the property is brought into the marriage by one of the spouses. Our new law will ensure that if a spouse brings property into a marriage or common law relationship, that property will belong solely to the spouse who owns the property. However, if the property increases in value during the marriage or common law relationship, the increase in value may be shared by the parties.

As well, certain property will be exempt from sharing, including inheritances, which in our current law has been the source of bitter disputes, particularly when a large inheritance has been received by one spouse in the waning years of a marriage.

Another feature of B.C.’s new law will be the introduction of family law arbitration, a dispute resolution mechanism which is “old hat” in Ontario. In fact, Ontario lawyers have advanced to “med-arb”, a process where a senior lawyer or retired judge first tries to mediate a dispute and if that is unsuccessful, assumes the role of arbitrator and makes a final decision for the parties.

While Canada’s federal Divorce Act remains unchanged, with the exception that same-sex couples may now divorce, family law is rapidly evolving throughout Canada, depending upon where you live, and will likely not slow down anytime soon.

How could it be otherwise? Lawmakers across Canada need to figure how to approach sperm and gamete donation, donor parents, surrogacy contracts, and other intricacies of the new technology, together with the ramifications of same-sex marriage and divorce: all of which is changing what families look like in Canada today.

3 thoughts on “Family Law in Canada? It Depends Where You Live

  1. I am glad that of this Supreme Court Decision on “Lola vs Eric” as it protects the rights of Married couples – as it should. Listen – there is nothing to stop Common Law couples “making it legal” if they want to – and if either party is not willing to do so – they can split or just figure out how to live with it. To do otherwise is to impose a financial burden that was not there before.

  2. Georgialee, very interesting article! Thank you. I can’t help but compare the logic in “Lola v. Eric” to the SCC decision in Kerr v. Baranow.

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