Friday, January 25, 2013

Unmarried couples not entitled to support in Quebec

Quebec v A 2013 SCC 5 upholds Quebec law excluding unmarried couples from support obligations. The decision is complex but rests largely on s 1 of the Charter. A summary follows:

1. Do arts. 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of Québec, S.Q. 1991, c. 64, infringe s. 15(1) of the Canadian Charter of Rights and Freedoms?

Answers: McLachlin C.J. and Deschamps, Abella, Cromwell and Karakatsanis JJ. would answer yes. LeBel, Fish, Rothstein and Moldaver JJ. would answer no.

2. If so, is the infringement a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

Answers: LeBel, Fish, Rothstein and Moldaver JJ. would answer that it is not necessary to answer this question. McLachlin C.J. would answer yes. Deschamps, Cromwell and Karakatsanis JJ. would answer that only art. 585 is not justified under s. 1. Abella J. would answer no.


(1) Section 15(1) of the Charter

Per LeBel, Fish, Rothstein and Moldaver JJ. (minority on s. 15(1)): The Civil Code of Québec establishes a mandatory primary regime in a chapter that defines the fundamental effects of marriage. This regime creates mutual rights, duties and obligations and radically alters each spouse's patrimonial rights. More specifically, the primary regime results in the formation of a partial economic union between the spouses. Aside from the primary regime, where there is no marriage contract providing for separation as to property or for changes to the legal regime, the legal matrimonial regime of partnership of acquests applies to the spouses as a result of their marriage. Like the primary regime, the regime of partnership of acquests significantly changes the rights of both spouses in relation to their patrimony. The Quebec legislature has imposed these regimes only on those who, by agreement with another person, have demonstrated that they wish to adhere to them. Their consent must be explicit, and must take the form of marriage or a civil union. The Civil Code of Québec does not lay down the terms of the union of de facto spouses. Since the de facto union is not subject to the mandatory legislative framework that applies to marriage and the civil union, de facto spouses are free to shape their relationships as they wish, having proper regard for public order. They can enter into agreements to organize their patrimonial relationships while they live together and to provide for the consequences of a possible breakdown.

By arguing that arts. 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of Québec are contrary to s. 15(1) of theCharter and not justified under s. 1, A is claiming the benefit of certain aspects of the primary regime that applies in cases of separation from bed and board, divorce, or dissolution of a civil union. She is also seeking the automatic and mandatory application of the legal matrimonial regime of partnership of acquests. In R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, andWithler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, the Court reworked and provided important clarifications to the analytical framework for applying the equality guarantee provided for in s. 15(1) of the Charter. As can be seen from this framework, a discriminatory distinction is as a general rule an adverse distinction that perpetuates prejudice or that stereotypes. The existence of a pre‑existing or historical disadvantage will make it easier to prove prejudice or a stereotype. However, the existence or perpetuation of a disadvantage cannot in itself make a distinction discriminatory. Substantive equality is not denied solely because a disadvantage is imposed. Rather, it is denied by the imposition of a disadvantage that is unfair or objectionable, which is most often the case if the disadvantage perpetuates prejudice or stereotypes. Thus, according to the established analytical framework, a court analyzing the validity of an allegation that s. 15(1) has been infringed must address the following questions: (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? The claimant can show that the impugned law creates a distinction expressly or that it creates one indirectly.

The majority of the Court would have reached the same conclusion in Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325, if its analysis had been based on the reworked analytical framework from Kapp and Withler. Although the statute at issue in Walsh imposed differential treatment based on marital status by limiting the presumption of equal division of matrimonial property to married couples and excluding persons in common law relationships, that distinction did not create a disadvantage by perpetuating prejudice or stereotyping. The majority's analysis was thus based on the wish to promote substantive equality. Walsh was based on a principle of freedom to choose between different marital statuses that had different consequences for spouses, and that principle did not in that context infringe the constitutional equality guarantee. The principle in question continues to be valid in the circumstances of the case at bar despite the subsequent developments in the case law. Although Walsh concerned not the obligation of support, but the equal division of family assets, the majority's comments on the sources of the distinctions between the various forms of relationships and the consequences of those distinctions remain relevant.

To dispose of these appeals, it would be inappropriate to distinguish the partition of property from the obligation of support. Such a distinction disregards the character of an "economic partnership" that the Quebec legislature has established for marriage and the civil union. It also disregards the fact that this partnership is structured around a mandatory primary regime that has both patrimonial and extrapatrimonial aspects and that the primary regime establishes the obligation of support as an effect of marriage and of the civil union. In this sense, the obligation of support is tied to the other effects of marriage and of the civil union, such as the obligation to contribute to household expenses, rights and obligations with respect to the family residence, and the creation of a family patrimony. It forms an integral and indissociable part of the set of measures that constitute Quebec's primary regime. What must therefore be determined in these appeals is not whether the exclusion of de facto spouses from the obligation of support is discriminatory, but whether their exclusion from the entire statutory framework imposed on married and civil union spouses is discriminatory under s. 15(1) of theCharter.

To prove that she has been discriminated against, A must show on a balance of probabilities that the provisions of theCivil Code of Québec at issue create an adverse distinction based on an enumerated or analogous ground and that the disadvantage is discriminatory because it perpetuates prejudice or stereotypes. The provisions relating to the family patrimony, the family residence, the compensatory allowance, the partnership of acquests and the obligation of support apply only to persons who are married or in a civil union, and do not apply to de factospouses. These provisions therefore have the effect of creating a distinction based on the analogous ground of marital status. That distinction may result in disadvantages for those who are excluded from the statutory framework applicable to a marriage or a civil union. Generally speaking, when de facto spouses separate, one of them will likely end up in a more precarious patrimonial situation than if the couple had been married or in a civil union. As a result, unless these de facto spouses have exactly the same earning capacity and exactly the same patrimony, one of them will be in a worse position after the relationship ends than would a married or civil union spouse in a similar patrimonial situation.

However, the distinction is not discriminatory, because it does not create a disadvantage by expressing or perpetuating prejudice or by stereotyping. Although there was a period of Quebec history during which de facto spouses were subjected to both legislative hostility and social ostracism, nothing in the evidence suggests that de facto spouses are now subject to public opprobrium. The expert reports filed by the parties tend to show the contrary. According to them, the de facto union has become a respected type of conjugality and is not judged unfavourably by Quebec society as a whole. Likewise, the legislature's traditional hostility generally seems to have changed into acceptance of the de facto union. In this regard, Quebec social legislation no longer draws distinctions between the various types of conjugality either in granting benefits to or imposing obligations on spouses where their relations with government institutions are concerned. The distinction continues to exist in the context of relations between the spouses themselves, within their conjugal relationship, where there is still a will to preserve the possibility of choosing between various types of conjugality.

Nor is the exclusion of de facto spouses from the application of the impugned provisions discriminatory on the basis of an expression of prejudice. The legislature has not established a hierarchy between the various forms of conjugality, nor has it expressed a preference for marriage and the civil union at the expense of the de facto union. It has merely defined the legal content of the different forms of conjugal relationships. It has made consent the key to changing the spouses' mutual patrimonial relationship. In this way, it has preserved the freedom of those who wish to organize their patrimonial relationships outside the mandatory statutory framework. Express, and not deemed, consent is the source of the obligation of support and of that of partition of spouses' patrimonial interests. This consent is given in Quebec law by contracting marriage or a civil union, or entering into a cohabitation agreement. Participation in the protective regimes provided for by law depends necessarily on mutual consent. In this regard, the conclusion of a cohabitation agreement enables de facto spouses to create for themselves the legal relationship they consider necessary without having to modify the form of conjugality they have chosen for their life together. In this context in which the existence of a set of rights and obligations depends on mutual consent in one of a variety of forms, it is hard to speak of discrimination against de factospouses. The resulting choice has become a key factor in the determination of the scope of the right at issue, and not only in the justification of a limit on that right. It is not imperative that there be an identical framework for each form of union in order to remain true to the purpose of s. 15(1). In the instant case, the fact that there are different frameworks for private relationships between spouses does not indicate that prejudice is being expressed or perpetuated, but, rather, connotes respect for the various conceptions of conjugality. Thus, no hierarchy of worth is established between the different types of couples.

The articles of the Civil Code of Québec whose constitutional validity is being challenged by A therefore do not express or perpetuate prejudice against de facto spouses. On the contrary, it appears that, by respecting personal autonomy and the freedom of de facto spouses to organize their relationships on the basis of their needs, those provisions are consistent with two of the values underlying s. 15(1) of the Charter. They were enacted as part of a long and complex legislative process during which the Quebec National Assembly was concerned about keeping step with changes in society and about adapting family law to new types of conjugal relationships in a manner compatible with the freedom of spouses.

Furthermore, there is no evidence in the Court's record that would justify finding that the exclusion of de factospouses from the primary regime and the regime of partnership of acquests is based on a stereotypical characterization of the actual circumstances of such spouses. More specifically, none of A's evidence tends to show that the policy of freedom of choice, consensualism and autonomy of the will does not correspond to the reality of the persons in question. Nor can judicial notice be taken of the fact that the choice of type of conjugality is not a deliberate and genuine choice that should have patrimonial consequences but necessarily results from the spouses' ignorance of the consequences of their status. Such a fact is clearly controversial and not beyond reasonable dispute. It is not unreasonable to believe that, in theory, individuals sometimes make uninformed choices and that some individuals may be unaware of the consequences of their choice of conjugal lifestyle. Nevertheless, to take judicial notice of the fact that the voluntary choice not to marry does not reflect an autonomous decision to avoid the legal regimes would be to exceed the limits of legitimate judicial notice, especially in relation to an issue at the centre of the controversy. In this case, A has not established that it is stereotypical to believe that couples in a de facto union have chosen not to be bound by the regimes applicable to marriage and civil unions. The Quebec scheme, the effect of which is to respect each person's freedom of choice to establish his or her own form of conjugality, and thus to participate or not to participate in the legislative regime of marriage or civil union with its distinct legal consequences, is not based on a stereotype. In this sense, recognition of the principle of autonomy of the will, which is one of the values underlying the equality guarantee in s. 15 of theCharter, means that the courts must respect choices made by individuals in the exercise of that autonomy. In this context, it will be up to the legislature to intervene if it believes that the consequences of such autonomous choices give rise to social problems that need to be remedied.

In conclusion, although arts. 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of Québec draw a distinction based on marital status between de facto spouses and married or civil union spouses, they do not create a disadvantage by expressing or perpetuating prejudice or by stereotyping. These provisions accordingly do not violate the right to equality guaranteed by s. 15 of the Charter.

Per Abella J. (majority on s. 15(1)): The total exclusion of de facto spouses — the term used in Quebec for those who are neither married nor in a civil union — from the legal protections for both support and property given to spouses in formal unions, is a violation of s. 15 (1) of the Canadian Charter of Rights and Freedoms. When spouses who are married or in civil unions separate or divorce in Quebec, they are guaranteed certain legal protections. They have the right to claim support from each other and an equal division of the family property. The spousal support and family property provisions in Quebec are aimed at recognizing and compensating spouses for the roles assumed within the relationship and any resulting interdependence and vulnerability on its dissolution. Many de facto spouses share the characteristics that led to the protections for spouses in formal relationships. They form long‑standing unions; they divide household responsibilities and develop a high degree of interdependence; and, critically, the economically dependent, and therefore vulnerable, spouse, is faced with the same disadvantages when the relationship is dissolved. Yet de facto dependent spouses in Quebec have no right to claim support, no right to divide the family patrimony, and are not governed by any matrimonial regime.

As the history of modern family law demonstrates, fairness requires that we look at the content of the relationship's social package, not at how it is wrapped. In Quebec and throughout the rest of Canada, the right to support does not rest on the legal status of either husband or wife, but on the reality of the dependence or vulnerability that the spousal relationship creates. The law dealing with division of family property also rests on a protective basis rather than a contractual one. The provisions in Quebec on compensatory allowance and the family patrimony regime are part of public order, applying mandatorily to all married spouses and those in civil unions. The mandatory nature of both the compensatory allowance and family patrimony regimes highlights the preeminent significance Quebec has given to concerns for the protection of vulnerable spouses over other values such as contractual freedom or choice.

Historically, unmarried spouses in Canada were stigmatized; but as social attitudes changed, so did the approaches of legislatures and courts, which came to accept conjugal relationships outside a formal marital framework. This change reflected an enhanced understanding of what constitutes a "family". As attitudes shifted and the functional similarity between many unmarried relationships and marriages was accepted, this Court expanded protection for unmarried spouses. In Miron v. Trudel, [1995] 2 S.C.R. 418, for example, the Court found that "marital status" was an analogous ground under s. 15(1) of the Charter because of the historic disadvantage of unmarried spouses. Notably too, the Court observed that while in theory an individual is free to choose whether to marry, there are, in reality, a number of factors that may place the decision beyond his or her effective control. This was a recognition of the complex and mutual nature of the decision to marry and the myriad factors at play in that decision. It was also an acknowledgment that the decision to live together as unmarried spouses may, for some, not in fact be a choice at all.

The purpose of the s. 15 equality provision is to eliminate the exclusionary barriers faced by individuals in the enumerated or analogous groups in gaining meaningful access to what is generally available. In R. v. Kapp, this Court reaffirmed its commitment to the test that was set out in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, whereby s. 15 was seen as an anti‑discrimination provision. The claimant's burden under the Andrews test is to show that the government has made a distinction based on an enumerated or analogous ground and that the distinction's impact on the individual or group perpetuates disadvantage. If this has been demonstrated, the burden shifts to the government to justify the reasonableness of the distinction under s. 1. Kapp, and later Withler v. Canada (Attorney General), restated these principles as follows: (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

In referring to prejudice and stereotyping in the second step of the Kapp reformulation of the Andrews test, the Court was not purporting to create a new s. 15 test. Prejudice and stereotyping are not discrete elements of the test which a claimant is obliged to demonstrate. Prejudice is the holding of pejorative attitudes based on strongly held views about the appropriate capacities or limits of individuals or the groups of which they are a member. Stereotyping, like prejudice, is a disadvantaging attitude, but one that attributes characteristics to members of a group regardless of their actual capacities. Attitudes of prejudiceand stereotyping can undoubtedly lead to discriminatory conduct, and discriminatory conduct in turn can reinforce these negative attitudes. But Kapp and Withler should not be seen as establishing an additional requirement on s. 15 claimants to prove that a distinction will perpetuate prejudicial or stereotypical attitudes towards them. Such an approach improperly focuses attention on whether a discriminatory attitude exists, not a discriminatory impact, contrary to Andrews, Kapp and Withler. It is the discriminatory conduct that s. 15 seeks to prevent, not the underlying attitude or motive. Requiring claimants, therefore, to prove that a distinction perpetuates negative attitudes about them imposes a largely irrelevant, not to mention ineffable burden.

The root of s. 15 is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed. The key is whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group. If the state conduct widens the gap between the historically disadvantaged group and the rest of society rather than narrowing it, then it is discriminatory.

Assessment of legislative purpose is an important part of a Charter analysis, but it is conducted under s. 1 once the burden has shifted to the state to justify the reasonableness of the infringement. To focus on the legislative purpose — freedom of choice — at the s. 15(1) stage is not only contrary to the approach in Andrews, it is also completely inconsistent with Miron and undermines the recognition of marital status as an analogous ground. Having accepted marital status as an analogous ground, itis contradictory to find not only that de facto spouses have a choice about their marital status, but that it is that very choice that excludes them from the protection of s. 15(1) to which Miron said they were entitled. Moreover, this Court has repeatedly rejected arguments that choice protects a distinction from a finding of discrimination.

Because the equality analysis under s. 15(1) of theCharter has evolved substantially in the decade since Nova Scotia (Attorney General) v. Walsh was decided, Walsh need not be followed. In particular, the majority in Walsh relied on the dignity test and on comparator groups, neither of which is any longer required as part of the s. 15(1) analysis.

The exclusion of de facto spouses from the economic protections available to formal spousal relationships is a distinction based on marital status, an analogous ground. That it imposes a disadvantage is clear: the law excludes vulnerable and economically dependent de facto spouses from protections considered so fundamental to the welfare of vulnerable married or civil union spouses that one of those protections is presumptive, and the rest are of public order, explicitly overriding freedom of contract or choice for those spouses. The disadvantage this exclusion perpetuates is an historic one: it continues to deny de facto spouses access to economic remedies of which they have always been deprived, remedies Quebec considered indispensable for the protection of married and civil union spouses. There is little doubt that some de facto couples are in relationships that are functionally similar to formally recognized spousal relationships. Since many spouses in de facto couples exhibit the same functional characteristics as spouses in formal unions, with the same potential for one partner to be left economically vulnerable or disadvantaged when the relationship ends, their exclusion from similar protections perpetuates historic disadvantage against them based on their marital status. There is no need to look for an attitude of prejudice motivating or created by the exclusion of de facto couples from the presumptive statutory protections. There is no doubt that attitudes have changed towards de facto unions in Quebec, but what is relevant is not the attitudinal progress towards them, but the continuation of their discriminatory treatment.

Per Deschamps, Cromwell and Karakatsanis JJ. (concurring with Abella J. on s. 15(1)): There is agreement with Abella J.'s analysis of s. 15 of the Charter and with her conclusion that the right protected by that section has been infringed. The Quebec legislature has infringed the guaranteed right to equality by excluding de facto spouses from all the measures adopted to protect persons who are married or in civil unions should their family relationships break down. The Court has recognized the fact of being unmarried as an analogous ground because, historically, unmarried persons were considered to have adopted a lifestyle less worthy of respect than that of married persons. For this reason, they were excluded from the social protections. Even though society's perception of de facto spouses has changed in recent decades and there is no indication that the Quebec legislature intended to stigmatize them, the denial of the benefits in question perpetuates the disadvantage such people have historically experienced. The Attorney General of Quebec therefore had to justify this distinction.

Per McLachlin C.J. (concurring with Abella J. on s. 15(1)): The s. 15 analysis set out in Abella J.'s reasons is agreed with, as is her conclusion that there is a breach. While the promotion or the perpetuation of prejudice, on the one hand, and false stereotyping, on the other, are useful guides, what constitutes discrimination requires a contextual analysis, taking into account matters such as pre‑existing disadvantage of the claimant group, the degree of correspondence between the differential treatment and the claimant group's reality, the ameliorative impact or purpose of the law, and the nature of the interests affected. The issue of whether the law is discriminatory must be considered from the point of view of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant.

It is important to maintain the analytical distinction between s. 15 and s. 1. Nova Scotia (Attorney General) v. Walshdoes not bind the Court in the present case. Public policy considerations such as freedom of choice and individual autonomy, which were held in Walsh to negate a breach of s. 15, are better considered at the s. 1 stage of the analysis.

Here, the Quebec approach of applying mandatory protections only to married and civil union spouses limits the s. 15 equality right of de facto spouses. A reasonable person in A's position would conclude that the law in fact shows less concern for people in A's position than for married and civil union spouses on break‑up of a relationship. As it applies to people in A's situation, the law perpetuates the effects of historical disadvantage rooted in prejudice and rests on a false stereotype of choice rather than on the reality of the claimant's situation. While the legislative animus against de facto spouses in Quebec has disappeared, the present law continues to exclude de facto spouses from the protective schemes of Quebec family law. Moreover, the law assumes that de facto partners choose to forgo the protections it offers to married and civil union partners. This assumption fails to accord to the reality of the situation of de facto spouses such as A.

(2) Section 1 of the Charter

Per LeBel, Fish, Rothstein and Moldaver JJ.: Since the exclusion of de facto spouses from the scope of the provisions of the Civil Code of Québec at issue is not discriminatory within the meaning of s. 15(1) of the Charter and does not violate the constitutional right to equality, it is not necessary to proceed to the s. 1 stage of the Charter analysis.

Per McLachlin C.J.: The limit on the equality right of de facto spouses is justified under s. 1 of the Charter. The objective of the Quebec legislature, which is to promote choice and autonomy for all Quebec spouses with respect to property division and support, was pursued in response to rapidly changing attitudes in Quebec with respect to marriage and is sufficiently important to justify an infringement to the right to equality. The distinction made by the law is rationally connected to the state objective: the Quebec approach only imposes state‑mandated obligations on spouses who have made a conscious and active choice to accept those obligations. The law falls within a range of reasonable alternatives for maximizing choice and autonomy in the matter of family assets and support. While schemes adopted in other Canadian provinces impair the equality right of de factospouses to a lesser degree, such approaches would be less effective in promoting Quebec's goals of maximizing choice and autonomy for couples in Quebec. The question at the minimum impairment stage is whether the legislative goal could be achieved in a way that impacts the right less, not whether the goal should be altered. Finally, the effects of the Quebec scheme on the equality rights of de facto spouses are proportionate to the scheme's overall benefits for the group. The scheme enhances the freedom of choice and autonomy of many spouses as well as their ability to give personal meaning to their relationship. Having regard to the need to allow legislatures a margin of appreciation on difficult social issues and the need to be sensitive to the constitutional responsibility of each province to legislate for its population, the unfortunate dilemma faced by women such as A is not disproportionate to the benefits of the scheme to an extent that warrants a finding of unconstitutionality.

Per Deschamps, Cromwell and Karakatsanis JJ.: Although support and the measures relating to patrimonial property have some of the same functions and objectives, they cannot and must not be confused with one another. The needs they address and how the legislature has dealt with them in the past warrant their being considered separately. The measures that protect the patrimony of spouses are not, like support, focused on the basic needs of the vulnerable spouse. Their purpose is to ensure autonomy and fairness for couples who have been able to, or wanted to, accumulate property. The process that leads to the acquisition of a right of ownership is different from the one that causes a spouse to become economically dependent. Whereas a plan to live together takes shape gradually and can result in the creation of a relationship of interdependence over which one of the parties has little or no control, property can be acquired only as a result of a conscious act.

This analysis leads to the conclusion that only the exclusion of de facto spouses from support is not justified under s. 1 of the Charter. The objective of promoting the autonomy of the parties is pressing and substantial. There is also a rational connection. However, the minimal impairment test is not met. The affected interest is vital to persons who have been in a relationship of interdependence. The rationale for awarding support on a non‑compensatory basis applies equally to persons who are married or in a civil union and to de facto spouses. If the legal justification for support is based on, among other things, the satisfaction of needs resulting from the breakdown of a relationship of interdependence created while the spouses lived together, it is difficult to see why a de facto spouse who may not have been free to choose to have the relationship with his or her spouse made official through marriage or a civil union, but who otherwise lives with the latter in a "family unit", would not be entitled to support. For someone in such a position, the possibility the parties have, according to the Attorney General, of choosing to marry or to enter into a civil union does not really exist. The concept of "mutual obligation" as the non‑compensatory basis for the obligation of support must guide legislators in seeking ways to promote the autonomy of the parties while interfering as little as reasonably possible with the right to support itself. A total exclusion from the right to support benefits only de facto spouses who want to avoid the obligation of support, and it impairs the interests of dependent and vulnerable former spouses to a disproportionate extent.

Per Abella J.: The breach of s. 15(1) is not saved under s. 1, failing the minimal impairment and proportionality steps of the Oakes test. The exclusion of de facto spouses from spousal support and property regimes in Quebec was a carefully considered policy choice. It was discussed and reaffirmed during successive family law reforms from 1980 onwards. But the degree of legislative time, consultation and effort cannot act as a justificatory shield to guard against constitutional scrutiny. What is of utmost relevance is the resulting legislative choice. Neither the deliberative policy route nor the popularity of its outcome is a sufficient answer to the requirement of constitutional compliance.

An outright exclusion of de facto spouses cannot be said to be minimally impairing of their equality rights. This Court has generally been reluctant to defer to the legislature in the context of total exclusions from a legislative scheme. The antipathy towards complete exclusions is not surprising, since the government is required under s. 1 to explain why a significantly less intrusive and equally effective measure was not chosen. This will be a difficult burden to meet when, as in this case, a group has been entirely left out of access to a remedial scheme. The current opt in protections may well be adequate for some de facto spouses who enter their unions with sufficient financial security, legal information, and the intent to avoid the consequences of a more formal union. But their ability to exercise freedom of choice can be equally protected under a regime with an opt out mechanism. The needs of the economically vulnerable, however, require presumptive protection no less in de facto unions than in more formal ones. The evidence discloses that many de facto spousessimply do not turn their minds to the eventuality of separation. This lack of awareness speaks to the relative merit of a system of presumptive protection, under which they would be protected whether aware of their legal rights or not, while leaving de factospouses who wish to do so, the freedom to choose not to be protected. A further weakness of the current opt‑in system is its failure to recognize that the choice to formally marry is a mutual and complex decision, as Miron pointed out. Where one member of a couple refuses to marry or enter into a civil union, he or she thereby deprives the other of the benefit of needed economic support when the relationship ends.

Every other province has extended spousal support to unmarried spouses. They have set minimum periods of cohabitation before couples are subject to their regimes, and have preserved freedom of choice by allowing couples to opt out. Some have also extended statutory division of property to unmarried spouses. These presumptively protective schemes with a right on the part of de facto spouses to opt out, are examples of alternatives that would provide economically vulnerable spouses with the protection they need, without in any way interfering with the legislative objective of giving freedom of choice to those de facto spouses who want to exercise it. At the end of the day, the methodology for remedying the s. 15 breach lies with the Quebec legislature, and Quebec is in no way obliged to mimic any other province's treatment of de facto spouses. But the fact of these other regimes can be helpful in determining that there is a less impairing way to fulfill the objective of preserving freedom of choice without infringing the equality rights of de facto spouses.

The choices for de facto spouses in Quebec are to enter into a contract to enshrine certain protections, to marry and receive all the protections provided by law, or to remain unbound by any mutual rights or obligations. It is entirely possible for Quebec to design a regime that retains all of these choices without violating s. 15. Spouses who are aware of their legal rights, and choose not to marry so they can avoid Quebec's support and property regimes, would be free to choose to remove themselves from a presumptively protective regime. Changing the defaultsituation of the couple, however, so that spousal support and division of property protection of some kind applies to them, would protect those spouses for whom the choices are illusory and who are left economically vulnerable at the end of the relationship.

The deleterious effect of excluding all de factospouses, who represent over a third of Quebec couples, from the protection of the family support and division of property regimes is profound. Being excluded requires potentially vulnerable de facto spouses, unlike potentially vulnerable spouses in formal unions, to expend time, effort and money to try to obtain some financial assistance. If the vulnerable spouse fails to take these steps, either through a lack of knowledge or resources, or because of the limits on his or her options imposed by an uncooperative partner, he or she will remain unprotected. The outcome for such a spouse in the event of a separation can be, as it is for economically dependent spouses in formal unions, catastrophic. The difference is that economically dependent spouses in formal unions have automatic access to the possibility of financial remedies. De facto spouses have no such access. The salutary impact of the exclusion, on the other hand, is the preservation ofde facto spouses' freedom to choose not to be in a formal union. Those for whom a de facto union is truly a chosen means to preserve economic independence would still be able to achieve this result by opting out. Since the salutary effect can be achieved without in any way compromising a de facto spouse's freedom of choice, it cannot be said to outweigh the serious harm for economically vulnerable de facto spouses that results from their exclusion from the family support and property regimes.


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