The Lola Case in the Supreme Court of Canada: No Changes for Common-Law Couples in Quebec

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The highest court in Canada has announced its decision in the Lola case, which has made headlines for several years.

The case focused on whether common-law couples in Quebec can ask for support payments from an ex-partner and for a division of property if the couple separates.

In Quebec, common-law couples cannot ask for these support payments or a division of property, unless they agree about these issues ahead of time in a contract, or agree at the time they separate.

A majority of the Supreme Court judges found that the way Quebec law treats common-law couples discriminates against them, but decided that these rules are valid anyways.

To learn more about the Lola case, here is a reminder of the facts and the major questions the Supreme Court had to answer.

No Right to Support Payments: Is this Discrimination?

The Supreme Court of Canada had to decide whether it is discriminatory for the law to prevent common-law partners from getting support payments for their own needs from an ex-partner. Common-law couples are officially called ?de facto? couples in Quebec law.

To see whether the law discriminated, the Supreme Court had to answer these questions:

  • Is being married or not married a possible basis for discrimination along the same lines as ethnic origins, religion, gender, or age?
  • Did the law created a distinction based on being married or not married?
  • If the law did make this kind of distinction, did the distinction create a disadvantage that reinforced prejudices or stereotypes against certain groups of people?

Rules against discrimination are meant to ensure that the law applies the same way to everyone and does not harm a particular group.  

Protection against discrimination is a basic right found in the Canadian Charter of Rights and Freedoms. The Charter is part of the Constitution of Canada. This means that all laws in the country must respect the rights protected by the Charter.

The Ins and Outs of the Lola Case

This case has provoked a lot of discussion among Quebecers and in the media, especially after the November 2010 decision of the Court of Appeal of Quebec.  

The Court of Appeal found that it was discriminatory to deny common-law partners a right enjoyed by married couples: the right to ask for support payments for their own needs from an ex-partner. The Court of Appeal disagreed with a 2009 decision on this point by the Quebec Superior Court, a lower court.  But the Court of Appeal did agree with the Superior Court that common-law partners cannot ask for a division of the value of family property.

After the decision of the Court of Appeal, the Quebec government asked the Supreme Court of Canada to make a final decision on the issues. The Quebec government's position is that the Court of Appeal decision denied couples the right to choose to live common-law instead of getting married.

Support Payments for Common-Law Couples in Quebec

When they separate, common-law partners in Quebec cannot ask for support payments for their own needs from their ex-partners. Only married couples have this right.

However, common-law couples are free to sign a written agreement about some of the consequences of a separation. For example, they can agree in advance on details of support payments for one of the partners or on splitting up some of their property.

Quebec is the only Canadian province that does not let common-law partners ask for support payments for themselves.

Some Background on Lola

"Lola" (not her real name) lived many years with "Eric" (not his real name). They never married, because Eric did not want to get married. They lived as a common-law couple, also called a "de facto" couple. They separated in 2002. Lola was able to get support payments for the children, but by law she was not entitled to support payments for herself or a division of the family property.  Only married couples have these rights.

Statistics

According to the 2011 Census of Statistics Canada, 38% of Quebec couples are living common-law. This represents close to 1.4 million people!

For other statistics: http://uniondefait.ca/en/ and Statistics Canada: Portrait of Families and Living Arrangements in Canada