National Post

Friday, December 20, 2002

Common law not equal to marriage

Unmarried couples denied right to 50/50 asset split

Janice Tibbetts
Southam News
National Post

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.

Copyright © 2002 National Post