Posted on 12/20/2002 6:13:37 AM PST by Lorenb420
OTTAWA - The Supreme Court has ruled that common-law partners do not have a guaranteed right to a 50-50 split of assets when their relationships end, a decision critics say will have a devastating effect on hundreds of thousands of women and children.
In an 8-1 decision, the court found estranged cohabitants can fight it out in court, but provincial matrimony property laws do not have to be expanded to automatically cover people who are not married.
Justice Michel Bastarache concluded "choice must be paramount" for couples who have not legally wed.
"With married couples there is a permanent and reciprocal life commitment," Justice Bastarache wrote for the majority. "Unmarried couples do not make that same commitment and rights and duties akin to marriage should not as a result follow."
The province of Nova Scotia won its challenge against Susan Walsh, who spent several years in court fighting for half of her former partner's assets when their 10-year union fell apart.
The case could have high stakes for a growing number of common-law relationships because most provinces do not have laws guaranteeing an automatic right to shared assets.
"This totally disenfranchises hundreds of thousands of people," said Kathy Briand, Ms. Walsh's lawyer. "I think it is going to have a very negative effect on women and children, for sure, because they are, by and large, the parties in common-law relationships who don't have any assets when the relationship breaks down."
The case was the last one ever for Justice Claire L'Heureux-Dubé, who retired last summer but wound up her career with a trademark spirited dissent. An advocate for society's most vulnerable, she said there is a crucial flaw in the majority's logic: that many people are stuck in common-law relationships because their partners refuse to marry.
"To deny them a remedy because their partner chooses to avoid certain consequences creates a situation of exploitation," wrote Justice L'Heureux-Dubé.
Judge Bastarache acknowledged that inequities exist among some cohabitants that can result in unfairness at the end of the relationships. But that is not enough to entitle common-law couples to win constitutional protection on the grounds they are less worthy of respect or less valuable members of society, he reasoned.
"All cohabitants are deemed to have the liberty to make fundamental choices in their lives," he wrote.
In Canada, only the Northwest Territories, Nunavut and, most recently, Saskatchewan automatically include unmarried cohabitants in their matrimonial property laws.
Three other provinces -- British Columbia, Nova Scotia and Quebec -- allow cohabitating couples to register their unions and include a plan for property division in the event of collapse.
In the rest of the provinces, an equal division of assets only applies to married couples. However, common-law couples are not excluded from federal and provincial benefits packages.
The Supreme Court's decision overturns the Nova Scotia Court of Appeal, which sided with Ms. Walsh by ruling that excluding her from the province's Matrimonial Property Act was a violation of her Charter of Rights and Freedoms guarantee to equality.
In response, Nova Scotia modernized laws in 2000 by allowing common-law couples who have lived together for one year, including same-sex partners, to decide whether they want to register their relationships to have the same benefits and responsibilities as married couples.
British Columbia and Quebec have the same system and several other provinces are considering the prospect.
Ms. Walsh's road to the Supreme Court of Canada began in 1984 when she was an outreach worker in Dartmouth, N.S., and met Wayne Bona, a community support worker.
They moved in together a year later and had two children, Edwin in 1988 and Patrick in 1990.
When the couple moved to rural Nova Scotia in 1988 for Mr. Bona's new job, Ms. Walsh quit work to raise their children.
The couple split up in 1995, and Ms. Walsh was stunned to learn she was excluded from the province's Matrimonial Property Act, which she argued deprived her family of financial protection.
The couple have since settled their dispute, so the ruling does not affect them.
Ontario and Alberta, which intervened in the case, agreed with Nova Scotia that marriage is the reasonable marker for who should be included in matrimonial property laws.
It started out as a provision in state laws that allowed people to live legally as husband and wife back in the days when finding a judge, justice of the peace, or even clergy were not close by. Traveling what would today be an hour or so via car could take days before the US had an infrastrure for rapid transit.
What common-law marriage turned into in the latter half of the 20th century was little more than an opportunity for theft. Glad to see that parts of Canada have done away with it like many states in the US have.
As Fezzik would say: "I don't think that word means what you think it means."
Unless she means the ruling takes hundreds of thousands of potential fee-paying clients away from her.
I knew we were in trouble when modern American culture started referring to marriage as a "partnership" rather than a "union". Big difference to my mind.
Preach it, brother! No argument here.
Shacking up is not cheapening the instution of marriage at all. What cheapens a marriage today is that too many young people are clueless as to what a marriage is all about. They run to divorce court at the drop of a hat. Why go through marriage when the odds are better than average that it will fail?
Just to expand on the whole "cheapening" subject as it relates to marriage; Shacking up doesn't cheapen marriage...laws that treat shacking up like marriage, do.
It's a half-joke around the office that you really aren't grown-up until you have at least one bad marriage under your belt.
I'm no big fan of getting married...been there, done that, lost the t-shirt in divorce proceedings. I do respect marriage. Not the adoring kind...but the kind of respect you have for big, angry pit-bull on a leash. It may be a good, loving pet to it's owners, but getting to close to it can cost you dearly.
You nailed it. Marriage is now little more than a temporary business arrangement for the divorce industry...and usually a bad one for men when it turns sour.
Does widowhood count?
I don't really understand the concept of shacking up with someone one isn't committed to marrying. Just seems crazy to me. Of course, I also think it's crazy to do risk creating a bastard child (contraceptives fail, but a woman generally won't get pregnant without a man getting inside her).
If they don't want to marry going into the deal then why do they want it treated like a marriage going out of the deal? If they want marriage and divorce, that's what they should do.
They want all of the benefit and none of the responsibility. I'm surprised at this coming from Canada. Would love to see it here.
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