October 2009
PFD | Family

The Lola vs Eric saga: Take 1!

By Étienne Ruel Lawyer

On July 16, Quebec Superior Court Judge the Honourable Carole Hallée rendered her soon-to-be-famous decision in A v. B (Family law - 091768 [2009] QCCS 3210). This decision had been anxiously awaited by family law specialists for several years.

The facts in this case can be summarized as follows: Ms. A lived with Mr. B for about 7 years without ever getting married, and the union produced 3 children. The couple separated in 2001 and Ms. A instituted proceedings in February 2002. On May 16, 2006, after the pronouncement of several safeguard orders, a Superior Court decision confirmed the shared custody of the three children, granted Ms. A support payments of $34,260 a month for the upkeep of the children, and ordered Mr. B, in addition to making the support payments, to assume other specific costs.

In her suit, Ms. A contested the constitutionality of certain provisions of the Civil Code of Québec in order to obtain for de facto spouses the same support payments that are granted to married spouses. She asked for support payments of $56,000 a month for herself, and a lump sum payment of $50,000,000 based on the division of family patrimony under the regime of partnership of acquests.

In Quebec, only married and civil union spouses owe one another support payments and are subject to the rules for the division of family patrimony under the regime of partnership of acquests. These rules do not apply to de facto spouses unless they have decided otherwise in a cohabitation agreement prepared by a lawyer or notary.

In her lengthy judgment (63 pages), the Honourable Carole Hallée concluded that the provisions of the Civil Code of Québec that provide protective mechanisms for married spouses but not for de facto spouses are not discriminatory under the Canadian Charter of Rights and Freedoms, adding: "The legislator has simply chosen to refrain from interfering in the patrimonial relations of de facto spouses since they have not, unlike persons who are married or joined in civil union, formally manifested the choice to be covered by this legal regime." Later in the judgment she wrote: "Quebec's legislative approach which, for nearly 30 years, has carefully maintained the choice of opting for a so-called free union in the name of independence and individual choice, is a matter of respect for the dignity of essential human freedom." (free translation)

Justice Carole Hallée's decision will, in some cases, have significant financial consequences for one of the parties, but as she points out, "The political arena, not the court room, is the appropriate forum for such a debate."

Ms. A has appealed the decision and the Court of Appeal will pronounce its verdict sometime in the years ahead. We assume that the final judgment will eventually come down from the highest court in the land, the Supreme Court of Canada.