Quebec (Attorney General) v A—Much ado about saying “I do”

In a decision handed down on January 25th, 2013, the Supreme Court of Canada dealt with a Charter challenge to certain spousal support and property division articles in the Québec Civil Code. These provisions only applied to married or civil union spouses and it was argued that these provisions were unconstitutional under section 15(1) of the Charter because they did not apply to cohabiting couples. Québec (Attorney General) v. A, 2013 SCC 5, (also known as Eric v Lola) showcases a divided approach to two of the main policies underlying the family law regime: protection of choice and autonomy over how individuals choose to structure their interpersonal relationships on the one hand, and protection of vulnerable spouses on the other.

In an article entitled, “Using the Canadian Charter of Rights and Freedoms to Constitute Women” (B. Baines and R. Rubio-Marin eds, The Gender of Constitutional Jurisprudence, Cambridge University Press, 2005) Professor Beverley Baines (Queen’s University) states that Canada is now going through a process of constitutionalizing family law—particularly because marriage is not the only, or even the most common, way for couples to structure their relationships. Across Canada, many provinces have extended spousal support provisions to cohabiting couples, and some provinces (Manitoba, Saskatchewan, Nunavut, Northwest Territories, and now British Columbia) have also extended their property division regime to cohabiting couple. Where property rights have not been extended via legislation, the common law doctrine of equitable trusts may allow cohabiting couples to make property rights claims at separation. The extension of spousal support entitlements and property division to cohabiting couples resulted from the perspective that individuals who cohabit are functionally similar to married spouses. Thus, the same policy rationales that underlie the justification for spousal support entitlements and property division for married couples (i.e. presumption of equal contribution during the intact relationship, the recognition that possible inequitable division of labour leaves one spouse at a financial disadvantage upon relationship breakdown etc.) apply equally to cohabiting spouses.

Facts & Background:

*As is common in family law cases, the couple’s real names were not used in this decision.

Eric, a wealthy business man, and Lola, a Brazilian model, lived together in a cohabiting relationship for seven years and had three children. Although Lola wanted to get married, Eric maintained that he did not believe in the institution of marriage. When they separated, pursuant to a contract, Lola remained in the family home with her children while Eric provided substantial child support. Lola did not have access to any of the spousal support entitlements or property sharing entitlements that were available to married or civil union spouses upon separation. Lola challenged these provisions (specifically articles 401-430, 432, 433, 448-484, and 585) as violations of the equality guarantee under section 15 of the Charter. In so doing, she sought to extend the legal regime applying to married and civil union spouses to cohabiting couples.

The Supreme Court of Canada rendered a split decision. On the issue of section 15(1) the Court produced a 5-4 majority finding that the provisions violated section 15(1). Chief Justice McLachlin and Justices Abella, Deschamps, Karakatsanis, and Cromwell formed the majority while Justices Lebel, Rothstein, Fish and Moldaver formed the dissent. On the issue of section 1, the Court was slightly more divided. Justices Lebel, Rothstein, Fish, and Moldaver declined to consider section 1 having found that the provisions were constitutional because they did not violate section 15(1). Justice Abella found that none of the provisions were justified under section 1. By contrast, Justice McLachlin found that all of the provisions were justified under section 1. Finally, Justices Deschamps, Karakatsanis, and Cromwell found that all of the provisions except article 585 (spousal support entitlements) were constitutional.

In the result, cohabiting couples still do not have access to the spousal support and property division regime that married and civil union spouses have access to. Pursuant to Eric and Lola’s domestic contract, Lola was still entitled to the home and to child support. While the ultimate result was not in Lola’s favor, the division within the Court may be the catalyst needed to prompt the Québec government to review the legislation and consider extending the articles at issue to cohabiting couples.

Analysis

Section 15(1)

Before providing a brief summary of the various rulings in this case, it is necessary to say a few words about section 15(1) of the Charter. The equality guarantee, and the test used to determine its violation, is both complex and nebulous as courts have struggled over the years to define “equality” and structure a test that adequately captures the definition. This task is somewhat elusive as both scholars and courts have recognized that no one-size-fits-all definition is possible—indeed a one-size-fits-all definition would be the antithesis of substantive equality which requires a focus on the particular context and the particular claimant before the court. It is with this understanding in mind that the Court has sought to reshape the s. 15(1) test over the years (from Andrews v Law Society of British Columbia [1989] 1 SCR 43 to Withler v (Canada) Attorney General 2011 SCC 12) so that it would map onto a more robust understanding of substantive equality. The complexity of this particular case is amplified because of the concept of choice—and the (perhaps) misguided attempt to understand it in the context of cohabiting couples.

To prove that the law is discriminatory within the meaning of section 15(1), a claimant must prove the following two elements:

(1)     The law creates a distinction on the basis of an enumerated or analogous ground (the crux of these grounds is that they identify characteristics that are immutable or constructively immutable—that is, characteristics which can be changed but only at unacceptable cost to the individual); and

(2)     The distinction creates a disadvantage (see R v Kapp 2008 SCC 41 and Withler).

Justice Lebel’s dissent recognized marital status as an analogous ground (this had first been determined in Miron v Trudel [1995] 2 SCR 418), but concluded that a claimant must prove either prejudice or stereotype in order to ground a finding of discrimination. In rejecting that prejudice or stereotype were at play in this case, Justice Lebel prioritized the notion of choice. Although he recognized that cohabiting, married, and civil union relationships are functionally similar, he believed that it would be unfair to extend the obligations and rights which exist at separation for married and civil union spouses to cohabiting couples because the latter had specifically “chosen” not to marry. In this way, he concluded that because the legislation respected the choice of cohabiting couples to remain outside the legal regime as it applied to married and civil union spouses, the legislation was not discriminatory and did not violate section 15(1); instead, the legislation respected the choice of individuals to structure their interpersonal relationships as they saw fit, whether within the bounds of legal obligations or outside of them.

Justice Abella, writing for the majority’s analysis of section 15(1), also agreed that marital status is an analogous ground (indeed, once a ground is found as analogous, the claimant does need to prove the ground in subsequent cases). She disagreed, however, with Justice Lebel’s interpretation of the test. She stated that prejudice and stereotype are two possible indicia of discrimination, but are not discrete elements that a claimant must prove. She recognized that requiring claimants to prove prejudice or stereotype would not only elevate the threshold for finding a violation of section 15(1) but may also miss other ways that discrimination and disadvantage manifest themselves. Justice Abella quoted Professor Sophia Moreau, who writes:

“Such a narrow interpretation [whereby a claimant must prove either prejudice or stereotype] will likely have the unfortunate effect of blinding us to other ways in which individuals and groups, that have suffered serious and long-standing disadvantage, can be discriminated against. This would include cases, for instance, that do not involve either overt prejudice or false stereotyping, but do involve oppression or unfair dominance of one group by another, or involve a denial to one group of goods that seem basic or necessary for full participation in Canadian society” (paragraph 325).

Justice Abella went on to state that the focus on “choice” should not have been relevant at the section 15(1) stage. Claimants are not required to prove that they could have avoided discrimination to establish that their equality rights have been violated. Choice, therefore, is irrelevant to a finding of discrimination and should instead come up at section 1 within the context of justifying the legislation. Justice Abella’s conclusion on section 15(1) is succinct and articulate:

“…that [the exclusion from the legislative regime] imposes a disadvantage is clear, in my view: the law excludes economically vulnerable and dependent de facto spouses from protections considered so fundamental to the welfare of vulnerable married or civil union spouses that one of those protections is presumptive, and the rest are of public order, explicitly overriding the couple’s freedom of contract or choice. The disadvantage this exclusion perpetuates is a historic one: it continues to deprive de facto spouses access to economic remedies they have always been deprive of, remedies the National Assembly considered indispensable for the protection of married and civil union spouses” (paragraph 349).

The tension between Justice Abella’s reasons and Justice Lebel’s reasons arises because of the different policy rationales relied on by each judge: Justice Abella focuses on the protection of vulnerable spouses while Justice Lebel focuses on respect for autonomy and choice. Woven through this tension are certain gendered aspects of familial relationships that tend to arise at family breakdown—particularly, the feminization of poverty (which is understood to mean that women and children have little access to economic support either from their former spouses or the state). The feminization of poverty typically results from gendered divisions of labour in the household whereby women remain outside of the paid labour force. As such, upon separation, the woman is left entirely dependent on her spouse and the state to provide resources. Justice Abella noted that the disproportionate number of women who experienced poverty at separation played an important role in the development of spousal support entitlements and family property division in the Code. Justice Abella quoted Justice L’Heureux-Dubé in Moge v Moge [1992] 3 SCR 813 who stated the following when discussing gender roles in heterosexual relationships:

“The sacrifices she has  made  at  home catch up with her and the balance shifts in favour of the husband who has remained in the work force and focused his attention outside the home. In effect, she is left with a diminished earning capacity and may have conferred upon her husband an embellished one” (paragraph 300).

Importantly, the idea of diminished earning capacity can apply regardless of whether the relationship is opposite-sex or same-sex, assuming that one of the spouses remains home to care for the children (or other dependent family members). As Justice Abella stated: “The right to support – and the obligation to pay it – did not rest on the legal status of either husband or wife, but on the reality of the dependence or vulnerability that the spousal relationship had created.”

Section 1

All of the judges writing about section 1 agreed that the purpose of the legislation was pressing and substantial: the exclusion of cohabiting spouses from the statutory regime was meant to preserve their freedom of choice to remain outside the legal regime governing married and civil union spouses.

For Justice Abella, the challenged provisions fell at the minimal impairment stage. She stated that an opt-out scheme would have given couples the freedom to contract out of the regime if they chose to do so, while protecting vulnerable cohabiting spouses by automatically extending spousal support and property division entitlements to them. While it may be true that both parties would have to consent to contract out—and as such, the spouse who wanted to be governed by the regime would carry the day—she stated that the benefits of ensuring the vulnerable spouse is protected far outweighs any concerns about freedom of choice and autonomy that the non-vulnerable spouse could bring to the table. Chief Justice McLachlin, by contrast, found that all of the provisions pass each stage of the Oakes Test. Justices Deschamps, Cromwell, and Karakatsanis, objected to treating spousal support entitlements and property division entitlements in the same way. Whereas spousal support entitlements arise by virtue of the interdependence of the spouses as a result of the relationship itself, property entitlements arise because of a conscious choice: by marrying or entering into a civil union, individuals indicate a conscious choice to be subject to the property division regime at separation created by the Code. In this way “The process that leads to the acquisition of a right of ownership is different from the one that causes a spouse to become economically dependent” (paragraph 393). According to Justice Deschamps, the property division entitlements are minimally impairing because they do not relate to the parties’ abilities to meet their basic needs—this is covered by spousal support. Instead, the property division regime results from consent—marriage or civil union—that property will be shared and as such, the legislature was correct to allow for an option whereby people could choose not to consent to this kind of property sharing regime. Furthermore, Justice Deschamps goes on to state the cohabiting couples can form economic unions in relation to property by purchasing such property jointly, entering into a cohabitation agreement or, at separation, by putting forth a claim of unjust enrichment. By contrast, the spousal support entitlements fall at the minimal impairment stage. Justice Deschamps stated:

 “A total exclusion from the right to support benefits only de facto spouses who want to avoid the obligation of support, and it impairs the interests of dependent and vulnerable former spouses to a disproportionate extent. The legislature could, for example, have imposed on the parties  an obligation to resolve their separation fairly and imposed on the dissatisfied party the burden of proving that the conditions of separation are unfair. Such a requirement would respect the autonomy of the parties while preventing abuse. This is only one of a number of possible solutions, and I mention it only to illustrate the fact that the legislature has less intrusive means at its disposal” (paragraph 399).

Whereas spousal support entitlements arise from the nature of a relationship of interdependence which is functionally similar as between married, civil union, and cohabiting spouses, the property sharing entitlements result from positive action taken by both spouses. It seems that the opt-out regime proposed by Justice Abella would not have satisfied Justice Deschamps’ concerns because the basis for the opt-out regime does not connect with the rationale underlying the property division regime. This is so because from Justice Deschamps’ perspective spousal support entitlements exist to protect the vulnerable spouse at relationship breakdown, property division entitlements exist because the spouses have made a conscious decision to enter into an economic union in relation to property; in other words, the property division entitlements are activated not because of need, but because of action taken by the parties.

It is also important to note that Justice Deschamps’ emphasis on the use of unjust enrichment, domestic contracts, and joint ownership as evidence that cohabiting couples are not left without recourse may not be entirely comforting to cohabiting couples. Each of these options (except perhaps joint ownership) still requires the couple to incur significant expense for legal expertise to bring these options into fruition. Married and civil union spouses have access to property division as of right through the legislation; cohabiting couples would, on Justice Deschamps’ decision, have to incur costs to have access to these rights.

Justice Deschamps also placed a lot of emphasis on a couple’s decision to remain cohabiting as an indication that the parties do not want to share their property with each other and have it divided amongst the two of them at separation. Inertia, therefore, becomes synonymous with an informed decision to remain outside of the legal regime. Expert evidence was provided by Lola to indicate that individuals rarely think about their legal obligations and rights when entering into a relationship and that, perhaps more importantly, cohabiting couples think that they have access to the same kind of rights and obligations—whether in relation to spousal support or division of property—as do married and civil union spouses. Justice Abella recognized this and emphasized that people do not enter into marriage with legal foresight—in fact many cohabiting couples (and individuals generally) presume that they will have access to the same rights as married couples if they were to separate. Similarly, in a Globe and Mail article, Professor Rollie Thompson at Dalhousie University emphasizes that the decision to remain in a cohabiting relationship does not necessarily signify a conscious choice to remain outside the legal regime for property division (or spousal support entitlements):

 “Prof. Thompson said it is folly to assume that common-law partners undertake a calculated assessment of their future. ‘They just leave a toothbrush at the other’s place one week and, boom, 10 years later find themselves still not married, with a couple of kids,’ he said.”

Changing Tides? Comparing Eric v Lola to Nova Scotia v Walsh:

This case arose about 10 years after Nova Scotia v Walsh, 2002 SCC 83. In Walsh, the applicant challenged the statutory regime that applied to married couples at relationship breakdown as unconstitutional under section 15(1) of the Charter because the same regime was not applied to cohabiting couples. The SCC considered the issue of whether the failure to include cohabiting couples from its ambit violated section 15(1) of the Charter. In an 8-1 majority decision, the Supreme Court concluded that the statutory regime was not a violation of section 15(1). Justice Bastarache, writing for the majority, essentially concluded that it would be unfair to impose a matrimonial property regime on couples who had chosen not to marry.

Interestingly, Justice Bastarache’s reasoning, which carried the support of the majority in 2002, is echoed in Justice Lebel’s dissent in 2013. By contrast, Justice L’Heureux-Dube’s dissent in Walsh seems to have found favour with a majority of the judges in Eric v Lola. In her dissent, she stated that what is relevant is not the reasons the parties chose to cohabit in the first place (i.e. to avoid the application of the matrimonial property regime at separation), but the economic consequences of a cohabiting relationship at separation. The goal of family property regimes is to reorganize economic resources when the relationship breaks down, and fundamental to these goals is the recognition that, as a result of inequitable division of labour, one spouse may be more dependent on the other.

To be clear, the cases are not identical. Walsh focused mainly on property entitlements, whereas Eric v Lola focuses on both the property division regime as well as spousal support entitlements. Furthermore, by the time Walsh came before the Supreme Court of Canada, the Nova Scotia legislature had enacted a registration system that would allow cohabiting couples to declare domestic partnerships and have access to the same obligations and rights as married couples at separation. It is important to note, however, that registration required the consent of both parties and as such it is not clear whether it would have been available to Walsh and her partner at separation. An additional difference between Walsh and Eric v Lola, is that Lola provided expert evidence suggesting that the legal regime did not play a role in most couple’s decisions about whether to marry or not, and that most cohabiting couples tend to assume the family law principles governing married couples also applied to them.

Notwithstanding these differences, some have suggested that the journey from Walsh to Eric v Lola indicates that the Court is changing its perspective regarding the permissibility of excluding cohabiting couples from statutory regimes governing married and civil union spouses. While this may be true, the Court still seems to be holding on tightly to the notion that choice is paramount. The difference between the two cases on this point rests on the place “choice” occupies in the analysis itself: in Walsh, the notion of choice was incorporated into the section 15(1) analysis whereas in Eric v Lola its weight fell into the section 1 stage.

Conclusion:

As this case indicates, Canadian courts are not settled on the proper way to navigate the tension between protection of vulnerable family members on the one hand, and respect for choice and autonomy on the other. Complicating this picture is that, given the amount of financial resources required to pursue a case at the Supreme Court of Canada, the parties litigating are typically quite wealthy—and this is certainly true in this case.  The wealth of the parties may skew the balance in favor of choice and autonomy since the courts may presume that the vulnerable spouse is not sufficiently vulnerable to need protecting. For the vast majority in cohabiting relationships, however, a more accurate picture would prioritize the need for protection of the vulnerable spouse over and above a commitment to respect for choice—choice which may very well be illusory.