Canada’s highest court, the Supreme Court of Canada (SCC), has ruled that Quebec can continue to exclude separated common law couples from receiving spousal support. A majority found that the exclusion does violate the Charter right to equality, s. 15. However, the court split 5:4 in favour of not striking the law down.
Around 1.2 million individuals will be affected by this decision, as Quebec holds the largest concentration of unmarried couples worldwide. Professor Rollie Thompson of Dalhousie University says, “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.”
The decisive vote came from Chief Justice McLachlin. While she agreed with the minority in concluding that the law violated equality rights, she decided that the law should not be struck down. She reasoned that the Quebec government has given proof that it has a good rationale for the law, and states that the spousal support provision violates the rights of common law partners as little as possible. Justice Abella was the sole judge who concluded that the entire law should be stuck down, including provisions that relate to division of property.
Women’s Legal Education and Action Fund lawyer Martha McCarthy comments, “The decision shows a complete disconnect from the reality of people’s intimate relationships…Generally, people get married or live together in unmarried relationships because they love each other, not because they are making conscious decisions about which economic regime might suit them on separation.”
Gender seemed to play a part in the decision. Four of five males judges, Justice LeBel, Justice Fish, Justice Rothstein and Justice Moldaver, held that the exclusion of common law couples from spousal support did not violate s. 15. All four female judges concluded that it did violate equality.
For the full article from The Globe and Mail: