Lawyer Pierre Bienvenu checks messages on his phone as he stands outside the Supreme Court of Canada in Ottawa on Friday, January 25, 2013. By a slim majority, the Supreme Court of Canada ruled Quebec does not have to give common-law spouses the same rights as married couples. THE CANADIAN PRESS/Adrian WyldAdrian Wyld/The Canadian Press
On the surface, it seemed to be a straightforward case about spousal support. But in order to reach a result, the Supreme Court of Canada delved deeply into social science, culture and the meaning of marriage in a pluralistic society.
The result was a court divided on what constitutes "choice" when it comes to marriage and what motivated a socially progressive province – Quebec – to balk at extending the benefits of marriage to common-law partners.
While a five-judge faction found that the provision violates the Charter right to equality, a puzzling split in the group led to a narrow 5-4 vote in favour of leaving the unconstitutional law intact.
The decision leaves 1.2 million Quebec residents who are in common-law relationships ineligible to receive spousal support if their relationship should break down.
Were the litigants typical common-law partners?
Hardly. One was a billionaire, the other was a former Brazilian model half his age. They had three children during their seven-year relationship.
Does the decision affect Quebeckers exclusively?
In terms of spousal support, yes. When it comes to division of property, however, Quebec is one of several provinces that leave common-law spouses out in the cold. Eight of nine judges found that Quebec is within its rights to do so, which put a stamp of approval on other provinces with similar regimes.
Could the gender of the nine judges have played a role in their decision?
Activists and law students will debate this for years to come. Suffice it to say that four of the five male judges on the court – Mr. Justice Louis LeBel, Mr. Justice Morris Fish, Mr. Justice Marshall Rothstein and Mr. Justice Michael Moldaver – concluded that excluding common-law couples from spousal-support obligations does not violate the right to equality. All four female judges on the court concluded that it did.
What about the four judges who found no Charter breach whatsoever?
They said that the law is not born of prejudice and that common-law couples are free to enter into agreements that relate to property and finances. "Although there was a period of Quebec history during which de facto spouses were subjected to both legislative hostility and social ostracism, nothing in the evidence suggests that de facto spouses are now subject to public opprobrium," they said.
Since a majority found that Quebec discriminates against common-law partners, how could it stop short of striking them down?
Every Charter challenge involves two stages. First, judges decide whether a provision breaches a Charter right. If it does, they look to whether the breach can be justified. Is it aimed at achieving a pressing and substantial goal? Are the means of achieving that goal proportionate and rationally connected to its objective? Does it harm a Charter right as minimally as possible?
At the first stage, five judges concluded that the Quebec law breaches the Charter S.15 equality guarantee. But Chief Justice Beverley McLachlin parted company with them at the second stage, finding that Quebec diligently tailored the law to its objectives.
What argument won the day for the Quebec government?
The court accepted that common-law partners are conscious that their union does not carry the benefits of a marriage. In swinging her vote, Chief Justice McLachlin reasoned: "While schemes adopted in other Canadian provinces impair the equality right of de facto spouses to a lesser degree, such approaches would be less effective in promoting Quebec's goals of maximizing choice and autonomy for couples in Quebec."
To family lawyer Martha McCarthy, this argument was inconsistent and out of touch. "The decision shows a complete disconnect from the reality of people's intimate relationships," she said. Numerous clients are shocked to learn that they have no property-sharing rights regardless of how long they lived in common law.
Did any judges favour of full equality for common-law partners?
Madam Justice Rosalie Abella alone found the exclusion of common-law partners from both spousal support and property division to be unacceptable Charter breaches. She said that even laws passed in good faith can negatively affect particular groups: "In Quebec and throughout the rest of Canada, the right to support does not rest on the legal status of either husband or wife, but on the reality of the dependence or vulnerability that the spousal relationship creates."
Were the rights of children considered?
Separation often means a severe drop in living standards for the children of common-law spouses. Rollie Thompson, a family law professor at Dalhousie University, said this was lost on the court: "The decision does seem to mark the end of an era in constitutional and family law in Canada, with this court giving marriage status and parental 'choice' greater priority over family function and the interests of children," he said.