Common Law Complications in Canada

                             Common Law Complications in Canada

                                            By George Piskor. Nov 2010

                

                           (Introduction by Robert Whiston & George Piskor)

 

Introduction:

The following article is a contribution from a Canadian colleague, George Piskor. Here he traces the roots of a recent case involving common law wives and their entitlements at separation.

The court chose not to reveal the real names to protect the children so the case is know as the “Lola case” based on the first name of the female plaintiff.

As Britain edges ever nearer to recognising common law partnerships – courtesy of the ‘eccentric’ Lord Lester – we would do well to draw lessons from it.  This article could very easily be subtitled “Franchising the Family.”

To fully grasp the situation it is essential to understand the broad sweep of the Canadian ‘Charter of Rights and Freedom’.

The ‘Charter of Rights and Freedom’  is a 60 section expansion of the existing Canadian Bill of Rights, 1960 incorporated into the original  Constitution Act, 1867 under which Canada was proclaimed a country by Westminster. With the proclamation of the revised Constitution Act in 1982 by Queen Elizabeth, Canada repatriated remaining requirements for  full legal authority for its affairs from Westminster while also enshrining expanded rights and freedoms  to be respected by both  federal and provincial legislatures.

The Charter guarantee specifically stipulates that it shall not be construed as denying the existence of any other rights and freedoms in Canada. In essence, this is a cautiously worded grandfather clause.

The Charter has four distinctive features:

1.    Property Rights are specifically not enshrined but exist in weaker form under common law and the earlier Bill of Rights. 

2.    Unlike the US Constitution which is based on absolute rights, the Canadian Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

3.    The Charter includes strong equality provisions for equality along with explicit provisions for what may be termed affirmative action programs to combat discrimination in an extensible list of categories (e.g. sex, race, age, marital status).

4.    The power of the judicial branch is expanded to a more activist legislative role via “legislating from the bench” as part of judicial review.

These distinguishing features require a careful balancing of affirmative action power against civil liberty encroachment making the Charter vulnerable to ideological predisposition by the Judiciary, especially in the area of gender equality where ostensibly neutral laws and weaker protection for property rights can be used to affect two-tiered equality and wealth distribution under the guise of discrimination amelioration.

The Charter structure thus exposes Family Law to ideological control, and many Canadians would agree that Family Law has been harnessed to support radical feminist doctrine, notwithstanding the ostensibly gender-neutral face of the law.

The poignancy is that in granting inviolable rights to all citizens, the Charter also allowed for positive discrimination in favour of women at the expense of men (see Sect 15, “Policies that appear to be “neutral” can lead to discrimination if, in their application, they have a disproportionate impact or adverse effect on women”).

For another example of institutionalised gender bias in Canada, see “Gender Based Analysis: a Guide for Policy Making” (pub. Canadian Gov’t).

 

                 The “Lola” case – Canada’s alimony and common law put in perspective

                                                         by George Piskor. Nov 2010

Quebec is the only remaining Canadian province in which common-law relationships exclude alimony entitlements. The recent outcome of the “Lola” case can be considered to bring Canada to a fork in the road regarding treatment of diverse forms of conjugal relationships, i.e. spousal and non-spousal unions between heterosexuals.

Quebec’s Court of Appeal (COA) over-turned an earlier (and lower) Superior Court judgement which had ruled that the Quebec law, which specifically barred common-law spouses from claiming alimony, was appropriate and not discriminatory.

Quebec’s Court of Appeal took the opposite view. It ruled that the exclusion of alimony provisions violated Canada’s constitutional provisions, and specifically the Charter’s ‘equality’ provisions on marital status.

Courts in North America (Canadian and American) can ‘direct’ governments to alter and/or amend legislation – unlike Britain where courts can only rule against legislation or suggest a review of the law. This legislative power was given to the Canadians courts via the ‘Charter of Rights and Freedom.’

Using that power the Court of Appeal in Quebec has given the state government one year to amend its legislation after which “Lola” would automatically be entitled to file (as a non-spouse) for ‘spousal support.’

Essentially, the status quo has been frozen for one year with the courts deferring to the legislature, in the expectation that it will adhere to, or constitutionally override the judgment through legislative re-drafting and/or override procedures.

In one respect, the judgment of the Quebec Court of Appeal (COA) is consistent with Miron v. Trudel (1995). This was a Supreme Court of Canada (SCC) case that held that a common-law ‘spouses’ (technically, cohabitees) could not be excluded from claiming benefits on a motor car insurance because to do so would constitute discrimination on the grounds of marital status under Sect.15 of the Charter’s equality provisions.

Subsequently, in Nova Scotia v. Walsh (2002), the Supreme Court reversed itself by finding that different forms of relationships have inherently different expectations and understandings, and that recognition of these differences would not impair “human dignity” as the new requisite introduced into a finding for discrimination. Thus, the Quebec Court of Appeal finding is squarely at odds with the Supreme Court.

NB. It is troubling to note that in the “Lola” case the Court of Appeal made it a point to define alimony as a public rather than a private issue. A motor car accident and/or insurance is clearly a public and 3^rd party injury issue but matrimonial matters are exclusively not the domain of the state or public issues. It is a stretch to move from divorce and matrimony as a “public policy issue” to one where alimony of or to a non-matrimonial couple becomes an issue for “public policy”.

The “Lola” case once again highlights the on-going constitutional debate regarding the appropriate boundary in defining personal and family relationships as ‘private matters’ under the Charter’s ‘liberty and freedom of association’ provisions versus legitimate ‘public interests’ in family relationships.

The legal trend of the past quarter century has two distinguishing characteristics: first, increasing state intervention in the family – ostensibly justified under public interest; second, legal harmonisation in all forms of personal relationships.

Both represent ‘a tyranny of the centre’ where centre is the ever-expanding power wielded by a state government.

This is a form of governance favoured by totalitarianism, both of the extreme right and the extreme left. The world, however, has had more experience of it in ‘socialist societies.’ Socialist inclined regimes of the 20^th century have been less interested in the rights of the individual than in centralised power.

This has easily marked them out from regimes where “freedom, liberty and the democratic choice” of the individual are valued more highly than the state’s lust for power. Ironically, these very individual, citizen rights against overt ‘statism’ are guaranteed under Sect.1 of the Canadian Charter of Rights and Freedom.

No doubt both issues will form part of any challenge to the Court of Appeal decision – assuming the Quebec government doesn’t intervene first with clarifying legislation.

Any challenge will force an airing on the judicial substantive equality interpretation of s.15 based on socialism’s “equality of outcome” mantra, as opposed to the classic formal equality interpretation namely ‘equality of opportunity.’ We should expect the federal government to ‘encourage’ Quebec to bring in overriding legislation in the “Lola” case simply to retain the legal status quo. The reason for this is that any discussion on substantive equality raises the prospect that it is the state rather than the individual that must underwrite substantive equality costs.

The prospect of such underwriting should see rapid legislative back-peddling on equalisation over a huge range of inter-locking social legislation, e.g. child / spousal support quantum. 

As for other conclusions in the Lola case, even a non-lawyer can see that the COA was straining to find a justification with specious logic that a primary school student would find laughable were it not for the seriousness of the debate. And let us be clear, the debate is ostensibly about alimony, but the real debate is whether Canada is a democracy or a socialist state in which the family is a state franchise with children being lease-back state commodities.

Substituting the freedoms to find and form relationship best suited to an individual’s needs and replacing them with a straight-jacketed range of option is nothing short of a tyranny.

How politically ironic that Quebec, the province associated with separatism, may have the distinction of saving democracy in Canada !

Postscript:

As matters stand now, common-law relationships have the same rights as married couples (whether heterosexual or same-sex), in Canada – except for property division, and it is only a matter of time before this is raised as part of judicial insistence on one-size-fits-all relationship norms among adults.

With a final judgment pending in the Lola case, a case from British Columbia has meanwhile moved centre stage. It is a case involving the validity of polygamous relationships.

Last week a constitutional reference was filed by the provincial government in British Columbia to have the court make a ruling on the validity (or not) of polygamous relationships.

END