Eric v. Lola: 10 years later

Did you know that since the Eric and Lola case[1], which was decided by the Supreme Court of Canada in 2013, common-law spouses still don’t enjoy greater protection?

A brief review of the facts: after having been a couple for just under ten years, two de facto spouses separated.
Ms. (Lola) filed an application with the Court, asking for recognition of her rights in Mr.’s patrimony and for alimony payments, rights reserved exclusively for married spouses.
Ms. (Lola) argues that the provisions of the Civil Code of Québec are discriminatory under the Canadian Charter of Rights and Freedoms.

After nearly a decade of legal wrangling, the Supreme Court of Canada will confirm the constitutionality of Quebec’s de facto spousal regime:

[…] Nor is the exclusion of de facto spouses from the application of the contested provisions discriminatory through the expression of prejudice.
The legislature does not create a hierarchy between the various forms of conjugality, nor does it express a preference for marriage and civil union over de facto union.
It merely defines the legal content of the various forms of conjugal union.
It makes consent the key to modifying the mutual patrimonial relationships of the spouses.
It therefore preserves the freedom of those who wish to organize their property relations outside the imperative legal framework.
Explicit, not presumed, consent is the source of support obligations and the sharing of patrimonial interests between spouses.

[…]

In this sense, once the principle of autonomy of will has been recognized, which is also one of the values underlying the guarantee of equality set out in s. 15 of the Charter, the choices made by individuals in exercising this autonomy deserve to be respected by the courts. In this context, it will be up to the legislature to intervene if it considers that the consequences of these autonomous choices give rise to social difficulties that need to be remedied.”

It’s important to note that even though Lola didn’t win, the majority of Supreme Court justices nonetheless concluded that the law discriminates against de facto spouses, and that it’s up to the Quebec legislator to amend and modernize its law, the Civil Code of Quebec.
A committee of experts in family law was therefore mandated to submit their reflections on the legal issues raised by the new conjugal and family realities.
What is known as the Roy Report (“Pour un droit de la famille adapté aux nouvelles réalités conjugales et familiales”) was submitted to the Ministry of Justice in June 2015.

Faced with the Quebec government’s failure to act on this 600+ page report, the Chambre des notaires mobilized to form the “Citizens’ Commission on Family Law” in the spring of 2018.
The Commission’s final report was made public on September 11, 2018.

In March 2019, a vast public consultation on parenthood and conjugality was announced by the government and held in several cities across Quebec.

Legislative work began in 2020 to address the first part of the reform: issues relating to filiation and parental authority.
A bill (An Act respecting the reform of family law as regards filiation and amending the Civil Code of Québec as regards personality rights and civil status) was passed on June 7, 2022, partially settling this first part of the reform.

The bill does not, however, deal with the various conjugal regimes and their effects.
De facto spouses, divorce (and family patrimony/partnership of acquests), protection of the family residence and support payable between spouses are all subjects that have yet to be dealt with.

In the meantime, de facto spouses must remain cautious, as the law gives them no automatic protection.
Since the Civil Code of Quebec contains no article concerning them in the section dealing with family law, the law applicable to de facto spouses will be the law of their writings and contracts (deed of purchase, will, mandate, acknowledgement of debt, etc.).
Consultation with a lawyer is recommended, especially when important events occur (birth of a child or children, acquisition of real estate, illness, etc.).

[1] Eric v.
Lola (Quebec (Attorney General) v.
A[2013] 1 RCS 61)