Legal challenge to Quebec common-law rules seeks equal rights for unmarried spouses

MONTREAL — A well-known Quebec lawyer says she's mounting a legal challenge to provincial laws that don't grant common-law spouses the same rights as married couples in the event of a breakup.

Anne-France Goldwater said today Quebec family law treats unmarried women as having less value than their married counterparts because they aren't entitled to the same alimony and property rights.

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Goldwater previously argued the issue all the way to the Supreme Court of Canada, which ruled in 2013 that Quebec's family law regime was constitutional and did not have to be changed, even though the court found there was discrimination against common-law couples.

The case, known as "Eric and Lola," involved a woman and her former lover, a prominent Quebec businessman who contended he should not have to pay alimony because they were never legally married.

Goldwater, who represented "Lola" in the case, has filed a new motion in Quebec Superior Court contesting the constitutionality of all the articles relating to family law in Quebec's Civil Code as well as the section of the provincial Charter of Human Rights and Freedoms that deals with rights and obligations of married and civil union spouses.

The case she's arguing concerns a common-law couple called "Nathalie" and "Pierre," who were together 30 years and have four children.

Goldwater told reporters today the years that have passed since the Supreme Court of Canada decision have reinforced the need for the law to change. She notes in her court submission that successive provincial governments have promised to reform the province's family law without ever doing so.

"Quebec family law perceives non-married women and their children as having less value than married families and it's even worse for women who are common law without children," Goldwater said.

"Why are Quebec women not equal under Quebec law?" she said.

The 2013 Supreme Court decision noted that while there was discrimination toward common-law couples, it could be allowed under a section of the Canadian charter which allows for the limitation of rights in certain circumstances.

Goldwater says she believes the current situation represents a form of "systemic sexism" that has been worsened by the COVID-19 pandemic, which she says has had a disproportionate impact on women. "Why do we have to have a pandemic to convince the leaders that women are economically disadvantaged?" she said.

Under Quebec's current law, common-law spouses aren't entitled to alimony, division of the family patrimony or the right to occupy the home after the split. While any children stemming from the relationship have a right to support, the fact that the parent doesn't get alimony or a share of the wealth will result in a lower standard of living for the children, Goldwater says.

She argues this creates "two sets of rules" for children: one for those whose parents married, and another for children whose parents were common-law spouses.

Like others before it, Premier Francois Legault's government has promised to reform the province's family law, which has not been overhauled since 1980.

Goldwater says the change could be made with the "stroke of the pen," namely by adding de facto spouses to the definition of couple and family, as was done for same-sex spouses when they were granted the same rights and benefits as heterosexual married couples in Quebec.

This report by The Canadian Press was first published March 3, 2021.

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