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In Quebec, people that are in a common-law relationship are not protected, and if they

sacrifice their careers by staying at home to raise children, they are still not protected. Many

persons mistakenly believe that unmarried couples with children have the same rights as

married couples, after a certain number of years. This assumption is absolutely false; if one of

them decides to abandon their career for the benefit of the family, they do so at their own risk.

In matters of separation, the women and children in common-law arrangements should have

the same rights concerning alimony and support as a legally married couple. In this essay, we

will try to understand how unmarried couples can better protect themselves, in light of a new

ruling from the Quebec Court of Appeal. The issue at hand can not only aid in the rights of

common-law couples, but also better protect all citizens of Quebec regardless of the status of

the family.

There are two types of unions in Quebec: married couples (including civil and religious

marriages), and unmarried or common-law couples. Married couples live under the patrimonial

law of the family. Family patrimony is the sharing of all property acquired during the duration of

the time of marriage. Thus, a woman who stays at home to raise the couple͛s children will not

see a change in living standards upon divorce. She will be entitled to alimony for her children,

as well as alimony for herself. She will also be entitled to half of everything: money in the bank,

the value of the house or other properties acquired during marriage, and the savings (RRSP,

retirement plans, etc.). In the case of an unmarried couple that has one or more children, the

equal share of family patrimony does not apply. The woman will be given a pension for the
children, based on the salary of the spouse, but nothing for herself. Even if she had contributed

to the enrichment of the family while she raised the children, she must prove by official papers

that she contributed financially to the acquisition of family assets. This lack of protection stems

from the judicial system in Quebec, in particular, the civil code of Quebec.

The civil code came into effect on January 1st, 1994. The Civil Code of Québec, as

defined by the Québec Portal, under the Justice section:

The civil code of Québec is a general law that contains all of the basic provisions that

govern life in society, namely the relationships among citizens and the relationships

between people and property. It governs all civil rights, such as leasing items or

property, sales contracts, etc. It also deals with family law, as in the case of

matrimonial regimes.

The history of the civil law in Quebec started in 1763 in New France with the abolishment of

the French system when the British took control of the territory. A few years later, in 1774,

French civil law was restored in Quebec. By the Act of Quebec, the English parliament gave its

power back to the province of Quebec in terms of civil law. Private and criminal law are still in

the Federal jurisdiction, and only civil law is under provincial jurisdiction in Quebec. This

demonstrates that the law is different here, and that for the spouse; it is Quebec that legislates,

independently from the other Canadian provinces. The other provinces within Canada

recognize common-law as equal to that of legal marriage. Quebec does not recognize common-

law unions. In the case of separation, you are not entitled to financial support from your spouse

regardless of how many years you spend living together, and not considering whether or not

you have children. The present law does not provide alimony for the spouse, despite the fact
that he or she may have contributed to the enrichment of the couple. The majority of the

population believes that unmarried couples are protected in the same way as married couples.

Often, this belief stems from the notion that once a couple has been living together for a

certain number of years, or if they have children together, they are protected by the civil law of

Quebec; again, this is false. As Quebec is still the weakest province in the country when it

comes to legislature in this matter, it proves to be a tough battle for those trying to fight the

system and get their voices heard.

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For several years, Anne-France Goldwater, a family law lawyer, worked very hard for the

recognition of de facto spouses. For over 10 years, Anne-France Goldwater has been defending

the rights of spouses. She has spent most of her time challenging the constitutionality of the

federal definition of marriage in the Civil Marriage Act, as well as many dispositions of the Civil

Code of Quebec, which discriminates against de facto spouses. Currently, she is challenging the

constitutionality of the guidelines on provincial child support in the province of Quebec. She,

among others, requested that non-married couples be granted the same protection as married

couples, especially in cases where one spouse has abandoned their career to care for the

couple͛s children. Currently, a parent who ends up with custody of children is entitled to

alimony, but only for the children, not for them. It is not taken into consideration whether or

not one of the parents worked at home for years. It is not taken into consideration that they

may have lost years of work to stay home and raise children, nor is it considered that both

members of the couple may have decided together that one of them should stay home for the
well being of their children. The alimony is established according to one of the parents͛ salary,

but only for the children[1]. What can be insidious about this way of assigning alimony is that

the parent with custody of the children may be left penniless, living under the poverty line for

months, years, or possibly for life. The parental contribution covers the basic needs of children,

but not those of the parent. To understand what might happen in the case of an unmarried

couple with children who decide to separate, let's review the case of Peter and Mary, which

should help us get a better picture of the situation.

Peter and Mary lived together for 10 years, and they had two children, 8 and 6 years of

age. They both decided not to marry, for personal reasons. After the birth of their first child,

Mary returned to work. She was a nurse and had five years of seniority at the hospital where

she worked. She had just got a permanent position, with a rather stable schedule and a good

salary. Then, at the birth of their second child, Paul, the situation became more complicated.

Paul suffered from respiratory problems and heart disease. His condition required special care

and many appointments with specialists. Mary returned to work anyway, but after six months

she was exhausted physically and mentally, as someone must always be present to care for

Paul. Peter and Mary decided together that Mary should stay home, in order to provide a

better environment for the children. Since Peter earned much more than Mary (his income was

close to 200 000 dollars a year), it was decided that Mary would stay home. Six years later, the

couple decided to separate. Mary received custody of the children, and she was entitled to

alimony of $ 14,390 per year, based on Peter͛s salary. She would have returned to work, but

Paul͛s condition still required for the same care. In addition, she had lost her seniority at work,

and if she returned, she should work the ͞on call͟ or night shift, which was out of the question.
In this case we see that Mary is in a precarious situation; she has no job, no money, and she had

lost several years of work experience. It will take time to rebuild her life and regain her

independence. It is obvious here that Peter should pay an amount of money to Mary, as they

had made a choice several years ago, a choice that had serious consequences on Mary͛s

professional life. Most people would agree that Peter should assume his share of the

responsibility. It seems unconstitutional for Mary and the children live under the poverty line

while the father obviously has the means to help his family. Real civil cases, such as this, have

been presented to the courts in the past, only to be cast aside, as the law does not support

common-law separation battles. Most of the time, the judge dismisses the case and thus little

to no progress has been made in this matter, until recently. A new ruling of the Court of Appeal

has held that: It is discriminatory that ͞Mary͟ is not protected simply because she and her

partner did not choose to get married.

The Court of Appeal of Quebec has recently ruled on common law. The court finally

made a formal statement, ruling that, by not protecting unmarried parents in case of

separation is discriminatory. Indeed, after many years and many battles, the court has given

ammunition to advocates of common law. The judge who was involved in the groundbreaking

decision has given the matter the push it needs to hopefully get the government to reevaluate

the law. The government must address the issue of de facto spouses, and it can hardly ignore

the ruling of the Court of Appeal. Let͛s be clear: it is not about being entitled to half the family

assets (house, savings, RRSP), but rather ͞to establish a system to meet the basic needs of

survival,͟ argues Marie-France Bureau, an associate professor at the Faculty of Law, University

of Sherbrooke. She adds, ͞If both spouses are self-sufficient and earn a good income, the law
will not apply. Support should be provided only in cases of economic dependency. A mere

difference of income is not a sufficient reason. It takes, on one hand, a financial dependence

because of the union, and on the other, a capacity to pay.͟ Of course, that implies that there

will still be a choice for non-married couples. They will now have the freedom to forego

marriage, should they choose to, and they won͛t have to comply with a new law on de facto

spouses. If both spouses agree to separate amicably, they may still do so.

 
 



The advantage of a law for non-married couples is to protect a spouse who is in a

situation of dependency. If the law does not hold both parties responsible, who is? Who will

support that person? The State? Us? Our taxes? There is nothing wrong with financially

supporting the most vulnerable members of our society; it is the foundation of our democracy.

The state should not take responsibility for a former spouse who has the means to care for his

family. Having a sound law in place ensures us, as a society, that families will not fall below the

poverty line. It guarantees us that children born out of wedlock do not have to bear the brunt

of a separation that goes wrong. That, in itself, is a social responsibility and we have, as a

civilization, a duty to protect all of our citizens, especially children. The judge, who has just

declared that it is discriminatory not to protect the spouses, has not changed the law. He acted

as a philosopher, and ruled on a situation that has persisted for too long in Quebec. Think about

it: in Québec, 60% of children are born outside of wedlock. It is high time the government put in

place laws that protect these children. Now that the court ruled, the government has what it
takes to review the law in Quebec, and make the necessary changes. Ultimately, all citizens will

benefit from an amendment to the Civil Code, since it will better protect each individual within

our society. And as everyone knows, a well-protected society is a stronger society.

Word count: 2011 words exactly! (Bibliography not included)

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