In the last two decades the Supreme Court of Canada has repeatedly turned to the different treatment of spousal relationships by  federal and provincial legislatures. The Court has considered the rights of same sex couples to marry and the rights of unmarried couples, whether same or opposite sex, to have the same financial entitlements as married couples. Now, the Court has dismissed the claim of an unmarried spouse who argued that Quebec’s denial of her right to claim spousal support or a share of property from her spouse, because they had lived together and did not marry, is unconstitutional. The claimant wanted to assert the same rights to spousal support and to a share in her spouse’s property that she would have enjoyed if her spouse had been willing to marry her. The names of the couple are not public; the Supreme Court of Canada reports the case as A. v. B.. In the press the case is known as Eric v. Lola.

All nine members of the Court heard the case. They splintered in the result issuing four separate sets of reasons. Of the nine, five judges held that Quebec’s denial of support and property rights to unmarried spouses is discriminatory. Four judges concluded that denying such rights to those who do not marry is not discriminatory. Of the five who found that the distinction between married and unmarried spouses was discriminatory, one found that the legislation is saved by s. 1 of the Charter which permits legislatures to impose reasonable limits on Charter rights.  Three of the remaining judges found that those provisions denying property rights to unmarried spouses were permissible under s. 1, although not the failure to provide unmarried spouses with spousal support rights. Only one judge concluded that the Charter requires our governments to treat married and unmarried spouses alike. In the result, the legislation has been upheld as constitutional. Quebec’s legislature may choose to reform family law legislation to extend protections to unmarried spouses or may prefer to retain the current distinction. For Quebecers the issue is now firmly back in the political arena.

The fundamental legal issue turns on what motivates unmarried couples. Have they chosen to avoid marriage because they wish to avoid economic obligations to each other? Or did they fall into a relationship gradually without heed of the economic consequences? The Supreme Court justices were divided on that issue and on the purpose of Quebec’s family legislation. They were also divided on whether the goal of family law support and property legislation is to acknowledge couples’ expectations or to protect dependant spouses from exploitation. As a practicing family lawyer my experience is that few married people have any comprehension of their mutual obligations for support and to share in their wealth.  Common law spouses similarly have little understanding of their legal obligations although many are under the impression that they have the same rights as married couples. At the outset of any spousal relationship most couples devote little thought to the business side of their relationship and virtually no thought to the possibility of separation. Even those couples who chose to enter marriage contracts or cohabitation agreements often have difficulty in imagining what the future may bring. Whether they will have children, whether the children will be healthy or have special needs, whether the spouses will have good or poor health, financial success or challenges, all these unknowns are hard to assess.

In Quebec, unless the provincial government is prepared to reform the legislation to extend protections to unmarried spouses, there is a clear financial advantage or disadvantage to marriage, depending on the economic position of the spouses. Marriage provides financial protection to the economically weaker or dependant spouse. As a perverse consequence to this distinction, economically more powerful spouses have a financial incentive to avoid marriage and simply cohabit. That leaves the weaker spouse only with the option of leaving the relationship which may be a very hard choice to make, particularly if there are children.

In every other jurisdiction in Canada, there are some financial protections for unmarried spouses. In some jurisdictions, including Ontario, there is a right only to spousal support. Only married spouses in Ontario have a statutory right to share in wealth accumulated during the relationship. In Saskatchewan, Manitoba, British Columbia, Northwest Territories and Nunavut, unmarried spouses also have rights to share in property. This presents a real problem for couples. Not only does the disparate treatment lead to confusion about what legal rights and obligations exist for married and unmarried alike, but moving to another province may entail the acquisition or loss of these rights. Even if a spouse is that rare creature who fully researches the legal obligations of marriage and of cohabitation in one province, what if she moves mid relationship? She might decide not to get married while living in Ontario and choose to leave the workforce to care for her children secure in the knowledge that she can seek spousal support from her partner if the relationship fails. If mid relationship her partner is transferred by his employer from Toronto to Montreal where she follows him with the children, she has suddenly lost all her rights to spousal support. What if a spouse living in Hamilton decides that she does not wish to get married because she does not want to have any property obligations to her partner but then is transferred to Winnipeg where he has property rights he can exercise against her? One answer is for all couples, whether married or not to enter into domestic contracts to structure their financial relationships and to keep a close eye on legislative developments in 13 jurisdictions. That seems an unlikely prospect. Given human nature, a more realistic goal is for Canada’s 13 provinces and territories to bring their family law regimes into conformity. Family law should be clear, predictable and accessible. There is no justification for the current situation which places such a high onus for financial and legal planning on individuals.