Hear the name "Lola" and you might think about a court case about common-law partners who want the same rights as married couples.
When it comes to offering protection, the law in Quebec often overlooks common-law partners.
For example, unlike married or civil-union spouses:
- Partners don't automatically inherit from each other.
- If they break up, common-law partners don't have a right to spousal support or a share of the family property, unless they signed a cohabitation contract that gives them these rights.
Lola, a woman in a common-law relationship, challenged the way Quebec law treats partners differently than married or civil-union spouses. Part of her argument was based on the Canadian Charter of Rights and Freedoms, a law that guarantees Canadians the right to equal protection of the law without discrimination.
The judge found that there was no proof that common-law partners were stigmatized or marginalized. She found that in our society, living in a common-law union is as legitimate and accepted as being married. She concluded that there was no discrimination.
The judge also said that it wasn’t up to the court to change the law. Instead, the government had to decide whether to change it.
Lola lost her case.
What can judges do?
Many people think that a judge can do whatever she wants in a case. This is not true. A judge must make a decision based on the law. She must apply the law to the facts of the case.
However, a judge can do two very important things:
- Interpret the Law
When a law is unclear, a judge can interpret it. “Interpreting” doesn’t mean deciding a case based on personal opinion. It means that the judge listens to arguments of the lawyers about what the law means and how it should apply to the facts of the case. Lawyers base their arguments on previous court cases, the writings of legal experts in the field, etc.
But if the law is very clear, it’s the end of the story.
Let's imagine this scenario: the law says that if a person dies without a will, his spouse inherits 1/3rd and the children inherit 2/3rds of what he leaves behind. Three people come before a judge asking for the inheritance: the deceased’s former spouse, his current partner, and his children. Unfortunately for his current partner, the law is clear: only the children and spouse will inherit. The judge cannot decide any differently. She must apply the law to the facts, no matter what her personal opinion is.
- Declare a Law Unconstitutional
A judge also has the power to declare a law "unconstitutional". The Canadian Charter of Rights and Freedoms is part of the Constitution of Canada, the supreme law of the land. Any law that does not respect the Charter is unconstitutional and can be struck down.
Lola wanted the judge to declare certain sections of Quebec law dealing with the rights of married and civil-union spouses unconstitutional. But the judge rejected this argument. She found that those sections respected the Constitution.
It is important to understand that judges cannot create laws or change existing laws. Only the National Assembly of Quebec and the Parliament of Canada can create or change laws that apply in Quebec.
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, review her case.