National Post

Friday, June 14, 2002

Supreme Court to decide common-law rights

Different treatment of married couples faces Charter scrutiny

Luiza Chwialkowska
National Post

OTTAWA - The Supreme Court will consider today whether all unmarried couples who live together should be required to share their property 50-50 when their relationship ends.

Most provinces require married couples to divide their matrimonial property equally when they separate, but permit common-law partners to sue for only the share of wealth to which they contributed.

This unequal treatment was found to violate equality guarantees in the Charter of Rights and Freedoms in a June, 2000, ruling of the Nova Scotia Court of Appeal.

Nova Scotia's Attorney-General is now asking the Supreme Court to reverse that decision on the grounds that governments cannot impose the financial obligations of a marriage contract on couples who voluntarily choose not to marry. "Cohabitants have made the choice not to be held to the same obligations as married persons by not entering into a marriage contract," states Nova Scotia's written brief to the court.

"Some cohabitees may be experimenting to see whether they are compatible and have not made a long-term commitment to each other," wrote lawyer Edward Gores. The governments of Ontario, Alberta, B.C, and Quebec are intervening in the case in support of Nova Scotia.

Only the Northwest Territories, Nunavut, and Saskatchewan require equal division of property for some common-law partnerships, according to documents before the court.

The case arose out of a dispute over a cottage and 20 acres owned by Wayne Bona, of Richmond County, N.S., that was given to him by his father before he moved in with his partner, Susan Walsh.

The couple, who had two children, had lived together for 10 years according to Ms. Walsh, or seven years, according to Mr. Bona. After separating, Mr. Bona sold the cottage for $20,000 and used half the proceeds to pay for debts arising from the relationship. Ms. Walsh demanded a share of the remaining money.

They have since settled their dispute, but the decision means all other live-in couples in the province will face the presumption that their property will be split equally if they move apart.

Provincial lawyers will argue that common-law partners are already entitled to spousal support in cases of need. But a marriage contract creates shared matrimonial property that flows from a voluntary "equal partnership" into which some people may choose not to enter.

"There must be some recognition given to the fact that the ground of marital status often involves a freedom of choice. That freedom of choice must be respected," states a brief for the Attorney General of B.C., where common law couples are allowed to "opt in" to the property-related provisions of the B.C. Family Relations Act.

Katherine Briand and Stephen Robertson, lawyers for Ms. Walsh, counter that without the legal presumption that she is entitled to 50% of the property, the amount a common-law spouse may receive through a lawsuit is "entirely discretionary."

"The Respondent is not seeking to be declared married. She is simply seeking to have her family included in provincial property legislation designed to protect families," they write.

Unequal treatment sends the message that Ms. Walsh is "less capable or worthy of recognition or value as a human being," their brief states.

The federal Attorney-General is intervening to support Ms. Walsh's position, arguing that any distinctions between married couples and those who live-together are unconstitutional.

In 2000, Parliament passed the Modernization of Benefits and Obligations Act, which amended 68 laws, including the Income Tax Act, the Canada Pension Plan Act, and the Old Age Security Act, to give equal benefits and obligations to married spouses, common-law partners, and same sex couples. Shared property, an area of provincial jurisdiction, was not affected.

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