Family law firm urges Quebec to help unmarried couples and their children

The law firm of Goldwater, Dubé has served notice on Quebec’s attorney general, challenging the province’s absence of a legal framework supporting unmarried couples during their relationship and upon separation, and arguing it deprives them of rights granted to other Canadian couples.

Anne-France Goldwater and Marie-Hélène Dubé, senior partners at the Montreal-based family law firm, contended that depriving unwed couples in Quebec of the rights enjoyed by other Canadian couples is unacceptable. In a blog post, Goldwater responded to the proposed solution to vest these rights to only unmarried couples with children by saying that it was time to put a stop to such systemic sexism.

“It is shameful for a society that prides itself on its feminism to fail to accord a legal status to unmarried couples, with or without children,” Goldwater said in the post.

The article referred to Droit de la famille — 102866, 2010 QCCA 1978, commonly known as Eric v. Lola, a case in which economic interdependence developed between the partners over three decades, resulting in significant economic inequality upon separation. Goldwater and Dubé represented “Lola” before the Quebec Court of Appeal to argue that a woman’s contribution to the family goes far beyond bearing children, and that the household’s gains should be more equitably divided upon separation to account for both partners’ contributions, financial or otherwise.

“The only difference between this couple and a married couple is that this couple did not participate in a celebration three decades ago,” Goldwater said in the post. “How they are viewed by the government makes no sense whatsoever.”

The COVID-19 pandemic has disproportionately affected women, the article said, especially racialized women who encounter other social inequities, and has demonstrated that women never stopped being economically disadvantaged. Women most often bear the brunt of household responsibilities such as the care of children, grandchildren, sick family members and aging parents. Goldwater suggested that the province “mitigate this phenomenon by granting rights to unmarried couples.”

It is a myth that, for unmarried couples, both parties have equal rights upon separation in Quebec’s legal and justice system, the post stated. In reality, women in common law partnerships are severely disadvantaged as compared to women in lawful marriages and civil unions, and do not benefit from equal treatment under the Quebec Charter of Human Rights and Freedoms.

This inequality affects most children in the province, considering that most Quebec children are born to parents in common law relationships, Goldwater, Dubé’s post continued. Only families with married parents benefit from rights such as spousal support, the family patrimony and the presumption of paternity; Quebec has implemented the least generous child support guidelines in Canada for the children of unmarried couples, it said.

“We urge the Quebec government to make the right choice, and end this debate with the stroke of a pen, without creating more bureaucracy and new inequalities,” Goldwater said. The simplest solution would be to give the same status as a married couple has to a couple who has been living in a conjugal union for three years, or who have a child together, she added.

If lawyers in Canada really care about Confederation, they should care about bringing Quebec into the fold, Goldwater told Canadian Lawyer. She emphasized that women and children do not benefit from the changes in the Divorce Act, the interprovincial agreements about execution of judgments and the Federal Child Support Guidelines.

“To heck with ‘cooperative federalism’ which really means Quebec does what it wants,” Goldwater said. “Let’s go back to ‘occupied field.’ This will be necessary for the Divorce Act in particular.”

Goldwater urged Canada to exercise its plenary constitutional power to define marriage in the country. “We have an amending formula, so let's use it!” she said.