Tuesday, May 21, 2002
Courts making us our brother's keeper, and ex-spouse's, and ...
Canadian law turns short relationships into lifetime of hard obligationsPaula Simons
It has been called the privatization of welfare -- and that's by the people who think it's a good idea.
Journal Stock / Justice Minister David Hancock
It's the trend in Canadian law to force people to take on financial obligations they never saw coming.
Call it the legal codification of the moral axiom, "I am my brother's keeper."
In 1998, the Supreme Court of Canada ruled that a Winnipeg man, Gerald Chartier, was responsible for the maintenance and support of his ex-wife's young daughter, even though the child was not his own.
The couple had lived together, off and on, for two years. They were married exactly 11 months, before they separated. The man never adopted the child.
He and the girl's mother lived together as man and wife for less than a year. The girl's mother never applied to the child's biological father for support. The country's highest court concluded Chartier should be responsible for the little girl's support until she reached adulthood.
That same year, the B.C. Supreme Court granted an interim order to a 74-year-old man, a former Vancouver business tycoon, who'd lost all his money and sued his six estranged children for support.
An abusive alcoholic who had provided little in the way of child support, the man hadn't spoken to some of his children for 15 or 20 years. Nonetheless, the court determined, initially, that the children were responsible for keeping deadbeat dad off welfare. The court later held that the children were not responsible for their father's long-term maintenance.
In 1999, the Supreme Court ruled that a B.C. man, Frank Bracklow, had to indefinitely support his ex-wife, who had become permanently disabled after their marriage ended.
In this case, the man was this woman's third husband. She had been divorced twice before. And while the couple lived together for four years before they got married, their actual marriage lasted only three years. They agreed on a formula of support payments when they divorced.
But after Marie Bracklow's medical condition worsened and she was forced to live on a disability pension, she applied for enhanced long-term support from her last husband and won.
Now add to the mix Alberta's new Bill 30, the law which will require platonic, as well as gay, roommates who've lived together for at least three years and developed relationships of economic interdependence to assume all the financial obligations of married couples.
As Alberta Justice Minister David Hancock explains it, if someone lives with you, and becomes financially dependent on you, you will be responsible for taking care of them if your living arrangement dissolves.
Hancock frames it as simple fairness -- giving non-conjugal partners the same legal recourse as traditional couples.
But in an effort to sidestep the controversy over gay marriage, Bill 30 opens a legal and moral minefield.
Hancock says we can rely on the common sense of the courts to interpret Bill 30 fairly. But given the court's recent predilection for "hot potato" law, I worry that Bill 30 will give the courts licence to assign long-term financial obligations to whomever can afford to pay them.
Worse, Bill 30 will be retroactive. If you lived with another adult for three years any time in the past -- a grown child, a maiden aunt, a sickly sister -- and they were financially dependent on you, Bill 30 could make you liable for their support in perpetuity.
In a perfect world, we would all be happy to support our friends and relations and ex-spouses when they fall on hard times.
Ideally, welfare and disability payments would be reserved for friendless orphans and childless widows, and poor relations would be cared for solely through the charity of their extended families.
But our urban industrial society doesn't work that way, and wishful social engineering on the part of courts and legislators can't make it so.
This law could actually backfire and frighten people from exercising charity to their friends and relatives. How likely would you be to let someone who's ill or in trouble or down on his or her luck move in with you if you thought you could be responsible for them even after your death?
In the guise of providing overdue justice for gay spouses, Bill 30 is really another stealthy step towards the piecemeal privatization of the welfare state. Whether you're gay or straight, some day Bill 30 could leave you holding the hot potato.
© Copyright 2002 Edmonton Journal