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Common law partners don't suffer social disapproval any more; so can't claim same financial regime as married partners, says SCC

1/19/2014

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The Supreme Court of Canada has held that common law partners do not experience disadvantage in Canadian society any more, and so they cannot claim that their equality rights are breached in comparison to married people.
The result is that a Quebec common law partner who broke up with her spouse cannot succeed in her claim to have the same laws applied to her as are applied to married or civil union partners when they break up.In Quebec v A, A had argued that her equality rights under the Charter of Rights were infringed, because when she broke up she could not claim a division of property or spousal support as people who were married or in a common law relationship could do.   To succeed, she had to show that common law partners suffered disadvantage and that the exclusion from the law contributed to the continuing stereotype or disadvantage.  The Supreme Court of Canada said that although there was a period of Quebec history during which de facto (in fact, rather than married) 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. 
This has been one of my more confused/confusing posts.  Here's the thing:  (1) yes, in B.C. common law and married partners, (including same sex) have EXACTLY the same rights and responsibilities - as they should - but in PQ the situation is different.  They enacted a 'domestic partnership' regime which lets people essentially sign up for common law status (I call it 'marriage light' ).  This case was brought by people who were neither married nor in a domestic partnership.  Personally, I think the SCC got it wrong, because I don't think prejudice against people who are "not really married" is over by a long shot.  And I think people kind of 'slide into' living common law: they get together, decide to live together...then maybe have children...then...  find the relationship ending with no rights attached.  The flip side though is that such a relationship ends with no responsibilities attached.  For every ending, one partner wishes they did, and one is glad they don't, have a regime like a marriage regime governing the financial aspects of their breakup.  NOTE: in BC you 'become' common law after you have lived together for 2 years.  In Ontario, it takes 3 years; federally, it takes 1 year.  

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Huge changes to BC family law to come into force next springĀ 

6/20/2012

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The law governing rights and responsibilities of BC couples will be changed dramatically.  Shirley Bond announced today that the Family Law Act, which has been passed by the Legislature but had not been 'proclaimed' (come into force) will be effective March 2013.

Would you share your property 50/50 if you broke up?
The Family Law Act will transform the law applying to couples and families in BC.  One of the biggest changes is that common law couples (those who have lived together for more than two years, but are not married) will now have the same property rights that married people have.   If they separate, each person will be entitled to 50% of the family property - something that till now has not been the case.  In addition, each person will be responsible for 50% of the family debt - even credit card debts in the name of only one of them!

The only way for queer couples NOT to be liable to divide their family property if they break up will be to have a cohabitation, or marriage agreement. This is the opt-out choice if you don't like the property regime under the Family Law Act.  I have always recommended cohabitation agreements:  it is the way for partners to decide what is right for them, rather than relying on the default provisions of the law.  While many people find it 'unromantic' to talk about such things at the beginning of a relationship, it is guaranteed to be much harder to do if the relationship ends!  (There is an Out/Law guide for people thinking about a cohabitation agreement:  "Living Together - Some Questions to Consider")

Good news for same sex parents who conceive with known donors
A positive development for same sex parents is that sperm or egg donors will have no legal rights or responsibilities with respect to the child. This is hugely important for children  conceived with assisted reproduction, and their parents.  It removes any possibility that a sperm donor might change his mind and sue for custody or access.

It will continue to be necessary for the non-biological parent to adopt the child her or his partner is biologically related to.  Though both same sex parents can be named on a child's birth certificate, that is only 'evidence' but not 'proof' of a child's parentage. 

In a separation, the only consideration in deciding about the future ofa  child will be the best interests of the child.  It remains to be seen how that will be interpreted.  And there are new mechanisms to enforce agreements or orders about when each parent spends time with a child.

Other changes
The Family Law Act has a new emphasis on ways to resolve family issues without going to court, including mediation, parenting coordination, or arbitration.  This is a welcome development since court always increases bitterness between the parties, which is especially harmful if there are children.

There are also new provisions to address violence in the home.

What about you?
Changes in the law WILL apply to relationships already begun.  So, if you are in a relationship of more than two years, the law that applies if you break up will be different than it was when you entered the relationship.  Be proactive:  make your own decisions about what you want the financial aspects of your relationship to be, both while you are together, and if you separate.  Otherwise you will find yourself in a situation you didn't plan for and don't want, with a judge making decisions instead of you. 

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