February 2012

It's not over yet!

By Suzanne Fortin, Julie Lavoie Lawyer

On Wednesday, January 18, Me Suzanne Fortin of PFD attended the hearings in Eric v. Lola before the nation's highest court, the Supreme Court of Canada.

The Court's ruling could bring about major changes to family law in Québec that will impact the some 1.2 million Québecers in common law relationships.

In July 2009, Lola was unsuccessful in Québec Superior Court, as Justice Carole Hallée rejected her requests for alimony for herself, a lump sum, the division of the family patrimony under the regime of partnership of acquests and compensatory allowance. Justice Hallée ruled that provincial law was valid and did not discriminate against common-law spouses.

In November 2010, Justice Julie Dutil of the Québec Court of Appeal reached a different conclusion, ruling that the law did, in fact, discriminate against common-law spouses and confirming Lola's right to sue Eric for alimony. But Justice Dutil did not touch upon the family estate and partnership of acquests issues. The Court of Appeal therefore required that the government of Québec amend the law within one year's time.

This ruling was appealed to the Supreme Court of Canada, and the nine Supreme Court justices heard the parties' arguments. The country's highest court must essentially decide whether to uphold the free choice of thousands of common-law couples in Québec or ensure the protection of common-law spouses by granting them the same rights and obligations as spouses in marriages and civil unions. These two fundamental positions?freedom of choice or discrimination?were at the heart of the arguments of the seven attorneys who represented the various parties before the Court.

Should the Supreme Court rule in Lola's favour, she will be able to claim the alimony for herself that was initially refused by Québec Superior Court in July 2009. The Supreme Court ruling will also determine the extent of the protection granted to common-law spouses and retroactive changes to the law.

It is important to note that, in 2002, in a ruling on an appeal of a decision of the Nova Scotia Court of Appeal, the Supreme Court of Canada declared that the differences between married and common-law spouses were not discriminatory. However, all Canadian provinces, except Québec, have alimony provisions for common-law spouses.

The case is now in the hands of the nine Supreme Court justices, who are expected to rule by the end of 2012. Regardless of the final result, the decision will certainly incite different reactions, especially from people who are currently involved in common-law relationships, much like the 1989 legislative changes that introduced new family patrimony provisions into the Civil Code of Québec.

We are impatiently awaiting the conclusion of this long legal debate, which has now extended far beyond Lola and Eric and affected over one million Québecers.

Our society and lawmakers will undoubtedly find that serious reflection on the issue is necessary.