Quebec Cohabitants' Battle Raises Hurdle for Charter Claims

Robert Leckey for The Lawyers Weekly

May 28, 2010

A famous Quebec billionaire and his ex-partner (a court order protects their identities) recently pursued the legal consequences of relationship breakdown before the Quebec Court of Appeal. Court watchers across Canada should look beyond the drama because as this affair has serious implications for Charter litigation.

Looking beyond the facts isn't easy. During the trial last year, the media salivated over personalities they nicknamed "Eric" and "Lola". The couple's meeting on a Brazilian beach while she was a teenager and their subsequent jet-set lifestyle evoked a made-for-TV movie more than the dry stuff of law reports.

Observers outside Quebec might suppose that the province's unique regime limits the case's relevance. The woman is challenging Quebec family law under the equality guarantee in s. 15 of the Charter. Under Quebec's Civil Code, unmarried partners owe one another nothing as such. By contrast, all other provinces provide for possible spousal support when cohabitants separate.

What matters across the country is that this case's final resolution (both sides have vowed to fight to the Supreme Court) risks raising the hurdles for Charter claimants.

The trial judgment rejected the woman's claims (Droit de la famille-091768, [2009] Q.J. No. 7153). Two of the trial judge's main justifications call for special care by appellate judges.

One was that the claimant had failed to discharge her burden of proof. It was fatal to her claim that she had not proven that the law's distinction between married and unmarried partners produced any "concrete effect" at the moment of breakdown. The judge relied on Gosselin v. Quebec (Attorney General), [2002] S.C.J. No. 85 and Danson v. Ontario (Attorney General), [1990] S.C.J. No. 92.

Uncritically affirming the trial judge on this point would raise the bar for Charter claimants. It's true that a Charter claimant must demonstrate infringement of a right. After that the burden shifts to the government to try to justify that infringement. But it's also true that successful claims in the past have relied on inference, logic, and common sense to conclude that excluding a group from a statutory benefit harms that group.

In Law Society British Columbia v. Andrews, [1989] S.C.J. No. 6, the Supreme Court assumed that preventing non-citizens from practising law disadvantaged them. It didn't require data comparing the earnings of Canadian lawyers practising their profession and those of non-citizens forced into other occupations.

In Miron v. Trudel, [1995] S.C.J. No. 44, the judges presumed that refusing an insurance indemnity because the victim and the beneficiary were unmarried produced a concrete effect. The claimant didn't need to amass social science evidence.

In M. v. H., [1999] S.C.J. No. 23, the court accepted that the Family Law Act's failure to include same-sex couples denied them a benefit. Unlike the trial judge in the Quebec case, the Supreme Court didn't require evidence that legal exclusion from a family regime caused disadvantage.

Evidence has a key role to play in equality and other Charter cases. It is particularly important in establishing claims of indirect or effects-based discrimination concerning laws that appear neutral. It's also necessary for characterizing a distinction as discriminatory or not.

But the trial judgment in the Quebec case imposes new obstacles for Charter claimants. They must now prove the harm caused by exclusion from a regime that the legislature unquestionably views as a benefit for those to whom it applies.

The other justification worth scrutinizing was that unmarried couples in the province could secure the benefits of the family regime by contract. True, couples can agree for one to pay support to the other or to share assets. But such reasoning reduces the state's obligation to treat its citizens without discrimination. It downloads its duty to respect Charter rights into the private sphere.

The same-sex partners in M. v. H. might have allocated resources via contract. The claimant in Miron might have negotiated an agreement with the insurance company. But those possibilities didn't immunize general laws from Charter scrutiny.

In other words, in past equality cases, the possibility that individuals might bargain around a law didn't exempt governments from their constitutional duty to provide everyone an equal benefit under the law without discrimination.

Admittedly, elements of the claim that the Charter calls for treating unmarried couples in Quebec like married ones remain genuinely controversial. Does the legislature's omission regarding unmarried couples reflect prejudice and moral disapproval? Or does it show a sincere desire to foster choice as to family form? Given the wide impact of any Charter remedy-over one-third of couples in the province are unmarried-appellate judges will likely proceed cautiously.

In deciding this matter, the judges should address the central issues rather than hiding behind technicalities. If not, they risk distorting the framework for Charter claims generally.

Robert Leckey teaches family law and constitutional law at McGill University.
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