Ten years after the Éric versus Lola case, reform is still pending

Spread the love

Ten years after the Éric case against Lola, reform is still pending

Ten years after the defeat of Lola in the Supreme Court against Éric, what about the rights of common-law spouses? Will the government finally deliver on the promise made to the Lolas of Quebec? Because, in the meantime, many are paying the price.

A female judge holds a gavel justice.

Some 43% of Quebecers live in common-law unions, and yet family law is slow to adapt, despite the promises of reforms made by Quebec the day after Eric's Supreme Court victory against Lola on 25 January 2013. A situation that is not without consequences.

The cases of Anne* and Sophie* illustrate this well. After their separations, both found themselves with only a few bags of clothes and two children under their arms. According to them, if they had been married, everything would have been different.

We had been in a relationship for 13 years and I lived in my spouse's house, says Anne. I had offered to put my name on the house and I had even asked for an act of cohabitation, but my spouse told me that it was not necessary, that if something happened thing, I wouldn't miss anything, nor the children. Unfortunately, the opposite happened!

“All these years I was paying for groceries, electricity, going out, vacations, everything necessary for children. In fact, everything that has no value when parting! »

—Anne

When she separated, she had to appeal to the court to be able to recover her property, since she no longer had access to the house where she lived. It was not my house. It took months to recover my memories, even my children's clothes, she laments.

Sophie had been in a relationship for three years when she separated. If I had been married, it would have been better, she said. Because the only thing I had was 20 minutes with the police to take some things and my children's clothes.

The house belonged to my spouse. When we moved in together, I was in an apartment. I sold all my furniture to live together. So when I left with my two children, I had to start all over again. I didn't even have any toys, no plates, not even a crib for my daughter, nothing! says the woman.

Today she has rebuilt her life. She is in a relationship with a new partner, but she has done everything to avoid getting caught again.

“I protected myself. We have already settled everything with a notary. All of our assets are itemized and shared in the event of separation. Besides, we're getting married, but I didn't want to wait. It's not when you hate each other's face that you have to talk about these things. That's when it's good!

— Sophie

For her part, Anne, scalded, remained single and does not wish to be in a relationship soon. However, she believes that the Government of Quebec must change the law so that this type of situation does not happen again.

Anne-France Goldwater, Lola's lawyer in this case.< /p>

Lawyer Anne-France Goldwater, who represented Lola at the time, has forgotten nothing of her lost battle in the Supreme Court.

I cried all the tears in my body, she says in her downtown Montreal office, recalling the moment the Court ruled.

The Court had just confirmed the constitutionality of the Quebec regime for de facto spouses, unique in Canada.

We lost because the fifth judge, who was our chief justice at the time, decided that even if the situation was discriminatory, because of the specificity of Quebec, it was necessary to leave the choice to the government to redress the situation, recalls Anne-France Goldwater.

Even today, the lawyer does not agree with this judge's argument and believes that trusting politicians to change things is illusory, deploring discussions which, according to her, drag on in Quebec without succeeding.

“When you phoned me to say it's time to mark 10 years since the Supreme Court decision, I was like, 'Damn it! But what has the Government of Quebec done since this judgment?" The answer is nothing! As usual, absolutely nothing! »

— Lawyer Anne-France Goldwater

To shake things up, the lawyer is ready to return to the fight. Why do all the other Canadian provinces support de facto spouses and not Quebec? I am waiting for the cause that will make us go back to court. I'm not going to let go before I retire, she says.

Alain Roy, full professor at the Faculty of Law of the University of Montreal.

Alain Roy, today special adviser to the Minister of Justice Simon Jolin-Barrette for the reform of family law, believes, unlike Me Goldwater, that many things have been made for 10 years.

The full professor at the Faculty of Law of the University of Montreal knows Éric well against Lola, since he was then acting as an expert for the Attorney General of Quebec in the case. If this role seems to put him at odds, he affirms that this victory offered, in fact, to the Quebec legislator a horizon devoid of obstacles to rethink family law in its foundations.

“The Attorney General and Eric, who had the same point of view, won, but that didn't mean those and those who rejoiced in victory did not hope for reform. I am living proof of that. »

— Alain Roy, professor and adviser

After the judgment, the Minister of Justice at the time, Bertrand Saint-Arnaud, seized the opportunity and constituted the advisory committee on family law that I chaired, he recalls. We came up with a report in 2015 which was received favorably, but the Couillard government shelved it.

The change of government has however changed the situation, says Alain Roy.

When the CAQ came to power, he continues, there was a very firm will to proceed with the reform. You have to understand that all of family law has not been reviewed since the 1980s, so it has been divided into two: a parentage component and a conjugality component, that is Eric and Lola.

In June 2022, the draft law on parentage was partially adopted, but articles were excluded from it. They will need to be settled before tackling the common-law component, but proposals are on the table.

“What has been proposed in the report is that the legal status of the couple should no longer be the gateway to the system. What should be the basis for the application of rights and obligations between spouses is whether or not they have children. There could be compensation for de facto spouses, because they are parents. »

— Alain Roy, Professor and Advisor

The committee also proposed changes for married couples without children. In a de facto union, if you don't have children, if you want rights between you, make a contract, that doesn't change! If you want to get married, we propose a legal regime from which you could opt out of certain rights. You may want to get married for cultural and religious reasons, but without wanting to share everything, he nuances.

Since the report was tabled in 2015, the councilor of the minister even took a step further in his thinking.

Me, I am an independent. I am for autonomy of will and freedom of contract, but I am now leaning towards an automatic division of property, of the family patrimony type. On the other hand, one of the spouses could request its reduction or cancellation if he demonstrates that there have been no economic disadvantages between the partners. I therefore shift the burden to the person who does not agree with the compensation, concludes Alain Roy.

At the office of the Minister of Justice, Simon Jolin-Barrette, it is explained that the reform is taking its course. With regard to the portion on conjugality, further work needs to be done. Several elements and several issues remain to be analysed. We have to do things right!

The General Manager of the Federation of Single Parent Families and recomposed from Quebec.

The Eric vs. Lola case was highly publicized at the time. It must be said that it concerned a multi-millionaire businessman whose common-law wife, mother of their three children, was claiming alimony, a lump sum of $50 million and access to his financial assets.

But if the Federation of Single Parent and Recomposed Families of Quebec took up the cause of Lola at the time, it was because the issue was much larger, as evidenced by the stories of Anne and Sophie.

We went to the Court of Quebec, the Court of Appeal and the Supreme Court and we were immersed in the media whirlwind! It was quite an experience for a community organization like ours, says its executive director Sylvie Lévesque, who was at the heart of all these steps.

Of course, many people criticized us for taking a case where the woman was not badly taken, because it was big amounts and she would have a big alimony. What we gave as an argument was that regardless of the amounts, it is a matter of principle. It was to highlight that in Quebec there is discrimination and that we are the only ones to act like this compared to all the rest of Canada, she explains.

“In Quebec, there is no legal recognition of de facto spouses. On the other hand, there is recognition at the fiscal level [taxes]. The government rushed to get the money from common-law couples and did not consult anyone. »

— Director General Sylvie Lévesque

10 years after the Eric and Lola affair, the Federation's position has not changed. We are an association for single-parent families, so we defend our members who have children, and we consider that when there are children in question, it should be like when you are married, defends its general manager.

According to Sylvie Lévesque, even if the Supreme Court in 2013 did not rule in favor of Lola, the case will have sparked a social debate and changed mentalities on the subject . The law now remains to be changed!

*The names of Anne and Sophie are pseudonyms used to protect their identity, due to past situations of domestic violence.

Previous Article
Next Article