MONTREAL–They like to call it a "free union," but common-law partnerships in Quebec might also be considered free from obligations or responsibilities.
While in the rest of Canada common-law spouses are granted many or all of the same rights as married ones in the event of a separation, such as alimony, the fact that in Quebec they have none may come as a bit of a surprise – even to Quebecers.
It's a discrepancy that's about to be tested in Quebec courts with a case sure to keep the public fascinated. It pits a well-known billionaire against a Brazilian-born socialite who is seeking $50 million and $56,000 per month in spousal support.
She must first change the law, and so she has launched a constitutional challenge, arguing that the protections of marriage should be the same for spouses, whether married or common law.
The case, which begins in Quebec Superior Court tomorrow, has the potential to "dramatically impact the rights of millions of people – and their children," says Anne-France Goldwater, lawyer for the common-law ex-wife.
The couple cannot be named. Quebec law prohibits naming those involved in family law cases, and though the case is now a constitutional challenge, a judge ruled the name ban still applies.
The couple stayed together for 10 years and lived a luxurious life. They had three children before separating. The man is already paying significant child support.
It's only in Quebec that a common-law spouse has no right to alimony, a scenario that experts say most affects women. No right if the couple has been together for years, if they have children together, even if she has no means by which to support herself.
"No matter how long cohabitation has lasted," a Quebec government document unambiguously explains, "de facto spouses have no legal support obligation to each other, even if one spouse is in need and the other has a high income."
Ironic, too, it seems, since Quebec is the province whose people dove headlong into the idea of common law. Here, 35 per cent of couples cohabit, compared with 13 per cent in the rest of Canada. And 62 per cent of all children in Quebec are now born outside of marriage – twice the rate elsewhere.
"It's very interesting because Quebec is the province with the highest rate of unmarried cohabiting couples, and yet it has given (them) the least rights," says Nick Bala, a professor of family law at Queen's University in Kingston, who has followed the case closely.
"I'm just surprised it hasn't come before the Quebec courts sooner."
"In Quebec we lawyers like to say humorously that common-law spouses are, between themselves, strangers," says Goldwater. "It creates insane situations."
There are 1.2 million Quebecers living common law, yet the majority of them don't know their rights.
The Quebec Chamber of Notaries found in a survey that more than half of those shacking up believe they have the same legal rights as married couples after a separation.
For economically vulnerable spouses, the fact that "they have no rights," Goldwater says, "can spell disaster."
The woman in the case still lives comfortably raising her children in Montreal. She can be seen from time to time on the city's social circuit.
Pierre Bienvenu, lawyer for the defendant, says the law is about freedom of choice. If one wanted these rights, he or she should have entered into marriage or a civil union. "Quebec has deemed it important for individual Quebecers who live in an unmarried couple to live as individuals, who do not want these rights and obligations," he explains. "They have that free choice."
Since the 1970s, Canadian provinces outside Quebec have moved toward the recognition of unmarried relationships, granting rights along the way. For example, in Saskatchewan there is full equality with marriage. In Ontario, there is an inherent right to spousal support, and one spouse can ask a judge to remain in the family home, but no right to equal division of property bought during the partnership.
Bienvenu says the case already shows that the Constitution does not dictate that these relationships should be treated the same. Thus, he adds, any change in law should come from the government, not the courts. He denies some common-law spouses might be left in the lurch. "If these people were unprotected or felt unprotected they would either marry or enter into a civil union."
In 1981, when Quebec's family laws were being changed, the thinking was that the road to true equality for women was to not be dependent on the man. And so feminists supported the distinction of common-law relationships. But the reality, says Bala, is that it's most often the man who doesn't want to get married, and the woman doesn't press. If he leaves, he says he has no obligation toward her. "It's women, and women with children, who have been suffering in this regime," he says. "Some say it's a 'union libre' all right, but only for the man."
Commentary by the Ottawa Mens Centre
Checkout this comment by "Henri"
Nick Bala is so heavily biased in the feminist camp, his opinions are generally little more than feminist propaganda that panders to the extreme feminist lobby group. Just when is Bala going to talk about how child support is in excess of any cost to raise children, is in effect spousal support without any evidence of there being a legal right to spousal support and, the fact that men deserving of spousal support are not only denied but forced to pay spousal support labeled child support based on incomes that don't exist simply because of Gender. see the roscoe files on judicial bias at the ottawamenscentre site