Previous Headline
July 2009
Understanding the “Lola” judgment: a closer look at Quebec’s justice system
The name "Lola" has become synonymous with the cause of partners living in a common law union who wish to obtain the same rights as married couples. When it comes to offering protection, the
Civil Code of Québec often overlooks partners.
For example, unlike married or civil union spouses:
- partners do not automatically inherit from one another; and
- if they break up, they do not have the right to obtain spousal support or the division of the value of family goods (unless they signed a cohabitation contract that says otherwise).
"Lola", a partner in a common law relationship, decided to challenge the sections of the
Civil Code of Québec that treat partners differently from married or civil union spouses. She based her arguments in part on the
Canadian Charter of Rights and Freedoms which guarantees the right to equal benefit and equal protection of the law without discrimination.
The judgment
The judge found that there was no proof that partners were stigmatised or marginalized because of their status. She assessed that in our society, living in a common law union is a choice that’s as legitimate and accepted as being married. She concluded that there was no discrimination.
The judge also specified that it wasn’t up to the court to change the law, but for the National Assembly of Québec to decide whether or not to do so.
"Lola" lost her case.
What can a judge do?
Many people believe that a judge has the power to do whatever she wants in a case. This is untrue. The judge has to make a decision based on the law. She must apply the law to the facts of the case that’s before her.
However, the judge is given the authority to do two very important things:
- Interpret the law
When the law is unclear, a judge can interpret it. “Interpreting” doesn’t mean deciding a case based on personal opinion. It requires the judge to listen to the arguments of the lawyers who try to prove what the law means or how it should apply to their client’s case. How do lawyers do that? By showing the judge the government’s comments about that law, previous cases in which courts applied that law, the writings of legal experts in the field, etc.
On the other hand, if the law is very clear and matches the facts it’s the end of the story.
For example, the law says that if a person dies without having made a will, his spouse inherits 1/3 and the children inherit 2/3 of what he leaves behind. Let’s say that 3 people come before the judge asking for the inheritance: the deceased’s spouse with whom he isn’t living anymore, his current partner, and his children. Unfortunately for his partner, the law is clear: only the children and spouse will inherit. The judge cannot rule any differently. She must apply the law to the facts, no matter what her personal opinion is.
- Declare the law unconstitutional
A judge also has the power to declare a law "unconstitutional". The Canadian Charter of Rights and Freedoms ensures that the government respects the values that it protects, including the rights to equality and to be free from discrimination. The Charter is part of the Constitution of Canada which is the supreme law of the land. Any law that does not respect the Charter is "unconstitutional" and can be invalidated (struck down or made of no effect).
This is exactly what "Lola" was asking the judge to do. She wanted her to declare certain sections of the Civil Code of Québec dealing with the rights of married and civil union spouses to be "unconstitutional". Since the judge found that those sections respected the Constitution, she couldn’t do anything else for "Lola".
It is important to understand that judges cannot adopt laws or change existing laws. It is the National Assembly of Québec and the Parliament of Canada who have the power to make the laws that apply in Québec.
What can "Lola" do?
"Lola" has 30 days to challenge the judge’s decision. She can ask that a higher court, the Quebec Court of Appeal, hear and review her case.
Click
here to read the judgment (French version).
