The court is being asked to impose a new law retroactively
The Supreme Court of Canada heard arguments on January 18, 2012 about whether or not a Quebec billionaire should have to pay spousal support to his former common-law spouse.
It’s a colourful case: a poor but beautiful Brazilian teenager met a wealthy Canadian entrepreneur vacationing in Brazil. Eventually, she moved into his Quebec home. Although she wanted to get married, he declined repeatedly. He had seen male friends fork over large sums of money following their divorces, and he didn’t want to do the same.
Caution was justified
His caution proved justified. After seven years of cohabitation and the births of three children, the couple split up. “Eric” currently allows “Lola” (their real names are banned by court order) to live in his $2.5 million home with the kids and a couple of household servants, whom he pays. He also gives Lola more than $400,000 per year for child support.
Quebec law grants spousal support rights only to legally married partners, not to unwedded live-ins. Lola is asking the court to change that, alleging that the law unfairly “discriminates” against common-law spouses like her, contrary to Canada’s Charter.
There are two major problems with her argument. First, the law will always have to discriminate against someone, no matter what rule we select in granting support rights. If we draw the line at three years of cohabitation, that would discriminate against people who cohabited for only 2 years and 364 days. If that group then launched a lawsuit claiming discrimination, would we have to move the line back again? Taken to its logical conclusion, the result would be that anyone could sue anyone else for spousal support, even if they haven’t lived together.
Time limits to qualify for support will always be arbitrary. No particular time limit has any inherent merit when compared with any other time limit.
The concept that is not arbitrary, however, is mutual consent. When two people unmistakably signify their willingness to be bound together in a relationship which might some day entail support obligations, that is a clear and unambiguous line. Getting legally married shows mutual consent. So does signing a cohabitation agreement that explicitly adopts mutual support obligations. The Quebec law makes sense.
The other major problem is that Lola is asking the court to impose new law on Eric retroactively. Eric deliberately organized his affairs in reliance upon the law as it stood during his years of cohabitation. He had no inkling that the courts might someday saddle him with an obligation which he clearly had no intention of assuming. Had he known, he might well have acted differently: he might have refused to cohabit with Lola at all, or he might have given Lola the option of signing a written cohabitation agreement explicitly waiving support.
Legislating retroactively is completely contrary to our legal traditions and our concept of “the rule of law”. For instance, if some act you perform is legal at the time you perform it, you can’t be charged with a crime later simply because the law has changed.
The Women’s Legal Education and Action Fund (LEAF) has intervened in the court proceedings to support Lola’s side. LEAF purports to represent Canadian women, but they certainly don’t represent me. I find their arguments illogical, demeaning and repugnant.
Lola had a choice. She didn’t take it
LEAF argues that the Supreme Court should not respect the concept of “choice” in spousal relationships because women don’t always choose not to be married. Sometimes, LEAF says, men stubbornly refuse women’s demands for marriage, as Eric did. “There can be no freedom of choice where one partner holds a veto over the other partner’s choice,” LEAF asserts. Nonsense. Lola’s choice, once Eric made it clear that he didn’t want to marry her, was to find someone else who would.
After all, if it’s unfair for Eric to veto Lola’s choice, how can it be fair for her to ask the court to veto his choice?
Lola lost her case at trial, but won at the Quebec Court of Appeal. We probably won’t hear the Supreme Court’s decision for many months. If it rules in Lola’s favour, the Quebec legislature might still maintain its law intact by invoking the infamous “notwithstanding” clause in the Charter. Meanwhile, this case has received so much publicity that women in Quebec will be unable in future to argue credibly that they didn’t know they needed to be married to get spousal support.
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