Courts Rule on Rights for ?Non-Traditional? Families
Family law regulates one of our most basic social institutions: the family unit. Under the current law, this may include a longer-term relationship between two adults or the relationship between parents or guardians and children. The scope of what family law deals with has changed and expanded over the years. This is because society’s idea of what a “family” is has changed and expanded. The age-old heteronormative model of the family, one rooted in narrow concepts like that the purpose of a family is to have children (no assisted reproductive technology allowed), that only male-female romantic relationships are legitimate, and that only couples that tie the knot are legitimately a family has slowly been eroded. Families under family law are now more broadly understood in terms of the behaviours and responsibilities between people, not their gender, their fertility, or whether they got a marriage license at City Hall.
Compared to the rest of the world, Canadian law has been quite progressive in recognizing and giving rights to families who do not fit the traditional mold of the male-female-married-couple-with-children. These “non-traditional” families include single parents, non male-female partners, individuals who wish to live as a couple but don’t wish to marry, amongst others. For example, we were among the first nations to remove the gendered definition of marriage, so that it is no longer a union between a man and a woman, but a union between two people. We’ve also gone further than most nations in recognizing that unmarried partners—often referred to as common-law spouses—require protections and rights like those historically offered to married partners.
For young people today, this means a freedom in the choice of forming personal relationships unmatched by any time in Canada’s history, and not found in most other parts of the world. The fact of legal recognition, however, is only a first step. When the law changes to accept, recognize, and grant rights to a certain group of people, there inevitably remain residual inequalities or areas that lawmakers overlooked or chose to leave unchanged. One of the means of addressing these problem areas is to challenge them in court, and this is precisely what people who feel the effects of the inequity in their daily lives do. This, further, is a task that today’s younger generation must take on to ensure that new laws that get passed comprehensively provide for equality for the groups that they are meant to protect.
Two important decisions released by the courts in early 2013 offer an interesting picture of the legal landscape in Canada as it pertains to non-traditional families. They are also examples of the ways in which members of a group, in this case, non-traditional families, challenge laws that leave loopholes through which their rights are negatively affected.
Hincks v. Gallardo
The first decision was released in January by the Ontario Supreme Court of Justice. The case involved a same-sex couple, Hincks and Gallardo, who entered into a civil partnership in the U.K. in 2009. The U.K. does not recognize same-sex marriage and instead created a law in 2005 that allows same-sex couples to enter into civil partnerships. The civil partnership is virtually identical to marriage in terms of the protections and rights it offers. Same-sex couples in the U.K. can thus enter something that is identical to civil marriage, minus the name. This form of offering rights to a group (most often a minority group) is called an “equal but different” approach and is problematic, as the Ontario court in this case recognized. It perpetuates the idea that somehow the group is not worthy of being given all the same rights as are offered to the remainder of society.
Hincks and Gallardo, who were Canadian citizens, moved to Toronto shortly after entering the civil partnership. Their relationship began to deteriorate and, after two years, they separated. Hincks went to court seeking a divorce, equal division of the couple’s property, and spousal support from Gallardo. (Hincks would have likely not met the legal definition of a common-law spouse because in Ontario a couple has to live together for three years or longer to be considered common-law spouses). Gallardo, in turn, claimed that their relationship, being a civil partnership, was not a marriage, as defined by Canadian law. If it was not a marriage, then Hicks had no right to seek a divorce, division of family property, or spousal support from Gallardo.
Justice Mesbur, the judge in this matter, examined the definition of “marriage” in Canada, which is found in the federal Civil Marriage Act. The definition states that “marriage” is “the lawful union of two persons to the exclusion of all others.” Prior to the 2003, the definition of marriage was “the voluntary union for life of one man and one woman to the exclusion of all others.” The Ontario Court of Appeal in Halpern v. Toronto (City) decided that this definition violated the Canadian Charter of Rights and Freedoms—specifically, by discriminating against persons based on their sexual orientation. The present definition of marriage, which is non-gendered, was subsequently created, and Canada joined the small but growing group of countries that recognized same-sex marriage.
Justice Mesbur decided that accepting Gallardo’s argument that a U.K. civil partnership is not a “marriage” under Canadian law would go against the grain of Canadian values and the Charter. After all, the civil partnership was functionally and legally identical to marriage. Most importantly, same-sex couples in the U.K. have no choice to enter anything but a civil partnership, and to them, a civil partnership is marriage.
The decision that a U.K. civil partnership meets the definition of “marriage” under Canadian law has important ramifications. The creation of alternative mechanisms for same-sex couples to enter into something like marriage, but not exactly marriage, is not limited to the U.K. It is widespread across Europe, certain nations in Central and South America, New Zealand, Australia, and some U.S. States. It is a way to satisfy competing groups’ interests—those who are opposed to opening the institution of marriage to anyone other than male-female couples and the LGBT community. Canada has now rejected the use of such alternative mechanisms, rightly recognizing that they send a strong message in their exclusion of non male-female couples from the “official” institution of marriage. Because of the existence of these alternative unions in other countries, however, Canada is bound to encounter more and more couples who have entered into such a partnership abroad and then separate after moving here. Hincks v. Gallardo has set a precedent for closely examining whether the union that was entered into is like a marriage—and, if it is, for recognizing it as a marriage in Canada. This, in turn, allows the separating couple to obtain a divorce and apply for all the protections and benefits of a divorce, such as division of property accumulated during the relationship and spousal support payments.
Eric and Lola In Hincks v. Gallardo, Judge Mesbur decided that the parties were legally married, and Hincks received the benefits of a legal divorce. But what happens when a separating couple isn’t legally married—specifically, when they’re common-law spouses? While the law of divorce is federal, the law that deals with separation after a common-law relationship is provincial. Benefits for separating common-law partners thus vary by province and territory.
In Quebec, for instance, common-law couples can’t obtain spousal support or apply to divide family property. In January of this year, the Supreme Court of Canada released an important decision on the issue of Quebec’s exclusion of common-law couples from both of these benefits. The parties’ names in this case were withheld from publication so as to protect their privacy, but they came to be called “Eric and Lola” in the media. Eric was a wealthy Quebec businessman, and Lola was a woman whom he met while visiting her country of birth. At the time, Lola was 17 and Eric was 32, nearly twice her age. Eric eventually brought Lola to live with him in Quebec, where they had three children and enjoyed a lavish lifestyle. After being together for seven years, they separated. Lola, because she was not married to Eric, was unable to go to court and try to obtain spousal support and a division of the family property (though Eric did provide her with money for the care of their children.)
Lola challenged the exclusion of common-law spouses from Quebec’s family law protections. She claimed it was discriminatory to exclude a group from a benefit based on marital status. The Supreme Court of Canada judges were fairly divided in their analysis, which required a close look at discrimination and the reason why spousal support and property division is granted to married but not common-law spouses.
There are specific policy reasons behind spousal support and division of family property—and gender plays a major role. Spousal support is, for the most part, a way to address inequality that results for spouses who have given up their ability to earn an income for their family. In heteronormative relationships, this role is usually taken on by the woman, who will leave school, leave employment, or reduce her working hours, to give birth to children and accommodate the family’s need for a caretaker.
In the meantime, the other spouse, often the husband, is able to continue working outside of the home, attaining seniority, pay raises, and experience. When such a couple separates, the spouse who limited their role outside of the home will have difficulty re-entering the workforce, retraining, and earning an adequate income. Policy makers have determined it is only fair that the spouse who was able to improve their economic situation during the relationship pay spousal support, meaning monthly monetary payments, to the dependent spouse until that dependent spouse is able to make a living on their own.
The division of property has a slightly different policy reason. When couples are in longer-term relationships, they typically begin to behave as a single economic unit. What this means is that they pool their resources and their energy to buy things. Dividing property (and debt) acquired during a relationship on more or less a 50/50 basis is a way for the courts to recognize that the relationship was an economic partnership.
Generally, arguments for giving these two rights to common-law spouses focus on the fact that common-law couples function much like married couples. Unmarried couples will often have one person care for the children and home while the second person works, or they will both devote their earnings and energy to buying a home and other possessions. The difference between married and common-law spouses might often just be the fact that one went through a marriage ceremony and the other one didn’t.
In the Eric and Lola case, the Supreme Court judges recognized these policy reasons but ultimately decided that the exclusion of common-law couples from Quebec’s family law did not violate the Charter. In other words, the law was saved. The main argument that saved it was the autonomy argument, which says that couples should have the freedom to choose whether they wish to be bound by family law or not. If they want to, they can marry. By not marrying, the argument goes, couples are saying they wish to remain outside the law of marriage—and this should be respected. (In Quebec couples also have a third option: they can register their relationship in a government office as a “civil union” and be considered like a married couple but without a marriage.)
The Eric and Lola case was especially important because while some other provinces, including Ontario and Alberta, exclude common-law spouses from property division, no other province or territory excludes these couples from the right to seek spousal support in court. The reason why spousal support is extended to common-law spouses Canada-wide is because it is recognized as an important tool for helping vulnerable persons in a relationship. As already mentioned, most often these persons are women.
The rate at which women come to take on—for myriad reasons—a role where their financial security is sacrificed for the family is so prevalent that spousal support is recognized as an essential right. The judges who were in the minority in the Eric and Lola case—meaning they did not agree with the decision ultimately reached—recognized this. They also stressed that not every unmarried couple is unmarried by choice. In many situations, one person wants marriage while the other does not agree to it. In a relationship where one person has more money, more education, and more resources (including legal advice), this power imbalance can easily result in one person knowing that their interests are better protected if they don’t marry.
Lola, being a much younger woman brought to Canada—a settler state made possible by colonialism—from a developing country by a wealthy man, is a great example of someone who would likely have little power over deciding how their relationship should be structured. In other situations, people do not know that they are missing out on legal protections by not marrying. The law is complicated and not easy to understand and access. Lawyers are expensive. It’s usually only after deciding to break up that a couple will truly turn their mind to any legal issues related to separation. It’s easy not to think about these matters or care about family law when a couple is still together and happy.
Despite the disappointing decision in Eric v. Lola, the trend in Canada has generally been to recognize more rights for common-law spouses. In March 2013, for instance, British Columbia became the latest province to allow common-law spouses to obtain property division after separation; perhaps Ontario and Alberta will follow suit in years to come. Statistics Canada indicates that common-law couples are on the rise, and have been for years. The rights extended to this family type will no doubt have to increase along with their numbers.
The changing face of the family—the non-traditional families that society comes to accept as the heteronormative cookie-cutter idea of the family is distilled—makes reform in family law a fascinating topic. The law is in constant flux and changes at an exciting pace. Having the Charter as a tool, and the option of going to court, persons that believe themselves unfairly discriminated can challenge the law. The result is newer and wider definitions that are more inclusive and recognize that personal relationships, romantic and otherwise, are variable and unique, and will have far-reaching effects for Canadian youth today.
Things to do for young people who need legal help with personal relationships:
• Many provincial governments now have websites giving basic information about family law and the process for people who need legal help. Look for websites from the Attorney General office of your province or territory. • Provincial and territorial Legal Aid offices provide people who fall within a certain economic bracket with a free lawyer, or a certificate for a meeting for free legal advice. Give them a call to check if you meet their criteria for obtaining free legal help. • Law schools often have a legal clinic where law students, supervised by lawyers, offer free legal advice. If you live near a university with a law school, contact them and ask whether they run a legal clinic that offers family law advice. • Some lawyers will offer an initial half-hour or so consultation for free where they will listen to your situation and give you an overview of your legal options. If there is a family law lawyer near where you live, contact them and ask if they provide such a service.