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In a judgment handed down on February 16, 2021, in a case involving former de facto spouses, the Superior Court dismissed an interlocutory injunction filed by the plaintiff seeking the eviction of the defendant from what had been their common residence. After having lived together in a de facto union for 32 years, the parties separated. The plaintiff, sole owner of the family residence, left the residence while the defendant continued to live there. The parties’ adult children were financially independent and no longer lived in the residence. After a few weeks of separation, the plaintiff decided to put the residence up for sale and asked the defendant to leave the residence in preparation for a buyer who had shown interest to take possession of it. The defendant refused, which led to the plaintiff’s application for an interlocutory injunction to evict the defendant from the residence. The defendant simultaneously instituted proceedings against the plaintiff for unjust enrichment. Prima facie case In the case of a mandatory interlocutory injunction, the burden of proof that the plaintiff must meet is what the Court describes as a “strong prima facie case.”01 One of the reasons for this is that there are few situations where a plaintiff will not obtain relief at a trial on the merits. TDhe significant consequences of a mandatory interlocutory injunction on the defendant do indeed require that the judge conduct such an analysis. In this regard, the plaintiff argued that he was the sole owner of the residence, as evidenced by the title. The defendant raised the issue of unjust enrichment resulting from the family obligations that she had had to bear, leaving her unable to work while the plaintiff was free to invest in his increasingly successful career. She also raised the financial arrangements that the parties had made during their life together. Defendant argued that since the beginning of their relationship, they had reached an agreement on the partition of accumulated assets. The defendant considered that the combining of the parties’ efforts and assets during their life together also applied to the residence from which the plaintiff was trying to evict her. According to the defendant, it had always been clear that she was a co-owner of the residence, although no title made mention of this. According to the Court, [translation] “the parties’ family arrangement as part of a long-term, traditional, de facto union”2 precluded the plaintiff’s claim to a unilateral right to make decisions about the family residence. Irreparable prejudice On the issue of irreparable prejudice, the Court found that it was not plausible that the residence would lose value simply because it could not be sold immediately. Moreover, should there be any prejudice, it could not be described as irreparable. On the contrary, for the Court, it was rather the defendant who would suffer serious and irreparable prejudice, and the sale of the house before the hearing on the merits would preclude her from proposing to acquire the plaintiff’s share in the house should the Court find that she was entitled to a portion of its value. Balance of convenience The Court concluded that the balance of convenience favoured the defendant. The only inconvenience for the plaintiff was a financial one. The inconvenience for the defendant, who has no assets or income and suffers from multiple sclerosis, would be much more serious, as she would have to move during winter, probably at a significant distance from the environment that she had become accustomed to living in for the past 30 years. Conclusion This Superior Court judgment dismissing the plaintiff’s injunction in the context of a de facto union will certainly be significant for the advancement of the rights of de facto spouses, as it allows a former de facto spouse without minor children to stay in a residence for which she has no title of ownership at the time of the interlocutory injunction. In 2013, the Supreme Court ruled on the much-publicized Eric and Lola case, and the majority opted to maintain the status quo; that is, no right to obtain support and no right to the partitioning of assets that a de facto spouse does not own.3 However, many de facto spouses may find themselves in precarious situations after a separation. What Laroche c. Couillard teaches is how important agreements made during de facto unions are, and that such agreements are valid even if the relationship ends. This decision on interlocutory injunction will certainly be useful for other former de facto spouses who find themselves in a similar situation after their separation. The residence that de facto spouses live in during their life together is often a substantial asset, and protecting it is advantageous. Thus, consulting a family law lawyer can help avoid ambiguous situations at the end of a relationship and protect the rights of the parties beforehand. Lavery’s Family, Estate and Personal Law team is at your disposal to assist you in your projects and in finding solutions to protect your rights. We would be happy to discuss our legal service offerings with you to help you determine which one is best for you. R. v. Canadian Broadcasting Corp.,2018 SCC 5, para. 15. Laroche c. Couillard, 200-17-031680-200, February 16, 2021, para. 21. Quebec (Attorney General) v. A., 2013 SCC 5.; Caroline Harnois, “Eric and Lola: The Supreme Court rules on the rights of de facto spouses in Quebec” (2013), Lavery Lawyers – Publications
The Ontario Superior Court of Justice refuses to suspend a father’s access rights to his child and specifies the criteria for determining the urgency to intervene in family matters The global crisis we are going through brings its share of challenges and worries, including the protection of our loved ones. Several parents wonder about the protective measures to be taken and the advisability of maintaining the arrangements for shared custody or access with the non-custodial parent. Should these modalities be maintained despite the present crisis or, on the contrary, should they be suspended because of the social distancing requirements? The Ontario Superior Court of Justice rendered the first published Canadian judgment which sheds light on these important issues and bring guidance not only to Ontarian parents and lawyers but to those across the country, including in Quebec. Moreover, a judgment rendered recently in Quebec puts forward the principles established in the Ontario judgement. In Ribeiro v Wright1, the Ontario Superior Court of Justice was seized of an urgent motion brought by the Mother of a 9-year-old boy to suspend all in-person access with his father because of COVID-19. The mother was concerned that the father would not maintain social distancing for the child during periods of access while she and her family were practicing social isolation in their home for the duration of the COVID-19 crisis. She did not want her son leaving her house for any reason, including seeing his father. In his judgment of March 23, 2020, Justice A. Pazaratz of the Ontario Superior Court of Justice did not authorize this matter to proceed on an urgent basis but explained his reasons in detail. First of all, the Court insisted that the health, safety and well-being of children and families remained its foremost consideration during the COVID-19 crisis which is an extremely difficult and stressful period for everyone. Orders should be respected and complied with In the above-mentioned case, the Court stressed that there was an existing custody and access judgment. Justice Pazaratz insisted that there is a presumption that all judgments should be respected and complied with even during the COVID-19 crisis and that an existing judgment granting custody or access rights to parents reflects a determination that meaningful personal contact with both parents is in the child’s best interest. As a general rule, existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to, including strict social distancing. The Court indicated that in “many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset”. In the Court’s opinion, a general policy that children should never leave their primary residence, even to visit their other parent, would be inconsistent with a comprehensive analysis of the best interests of the child. In some cases, parents may have to forego temporarily their time with their child, for example in the following cases: When a parent is under self-isolation for a 14-day period as a result of recent travel; Because of personal illness or exposure to illness; Because of a parent’s personal risk factors (for example through employment); The Court insisted, however, that there would be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk, such as failure to comply with social distancing or to take reasonable health precautions. Justice Pazaratz acknowledged that each family will have its own unique issues and complications, that temporary changes may be required and that there will be no easy answers but “no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.” Justice Pazaratz called upon the parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings. The Court mentioned that despite extremely limited resources during this crisis, it would always prioritize cases involving children. If parents have concerns that COVID-19 creates an urgent issue in relation to custody and access arrangement, they may initiate an emergency motion but should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of access or custody time nor that it will necessarily result in an urgent hearing. The Court indicates that it will deal with COVID-19 custody and access issues on a case-by-case basis according to the following test which will be used to determine whether it is urgent for the Court to intervene: The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols; The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing, use of disinfectants, compliance with public safety directives, etc.; Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner; Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home. Justice Pazaratz dismissed the mother’s urgent motion as he was not satisfied that she had established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future. The judge concluded that “none of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.” The Superior Court of Quebec confirms that as a general rule the status quo must be maintained The judgment Droit de la famille - 204742 rendered on March 27, 2020, the Superior Court of Quebec applied essentially the same principles as those set out in the above-mentioned Ontario decision, namely that : The existing custody or access orders are maintained allowing the child to benefit from the presence of both parents; A parent wishing to suspend existing orders must establish: the urgency of his request; sufficient grounds; A parent's living environment that threatens the health or safety of the children, or presents symptoms of the disease, may constitute sufficient grounds; Both parents must comply with the health and safety directives; This decision indicates that for the Superior Court of Quebec, as for the Superior Court of Ontario, existing judgments on custody and access must be maintained, except when there is a concrete risk to the child’s health because of one of the parents’ behaviour or living environment, which may give an opening to a modification. Parental authority to be exercised jointly by both parents Furthermore, it is worth noting that in Quebec parental authority allows parents to jointly take decisions relating to their child even when they no longer live together, except in the rare cases where a parent is deprived of this right by a judgment of the court. Thus, regardless of the applicable custody arrangement, both parents must consult each other on any matter of importance relating to the child, in particular with regards to his health. Before making an important decision regarding the health of a child, a parent should consult with the other parent and discuss the best options under the circumstances. Professionals to help you see more clearly In summary, we are living in an exceptional situation that requires flexibility and understanding on the part of each parent while complying with the directives issued with respect to COVID-19. If you have any doubts or concerns about your child's situation, or if your discussions with the other parent prove fruitless, it may be helpful to consult with professionals to determine the best course of action in the circumstances. Our Family, Personal and Estate Law team remains available and fully functional to assist you, advise you and take the legal steps required in the best interest of your child. 2020 ONSC 1829, available online: http://canlii.ca/t/j60jj. 2020 QCCS 1051.
It is not surprising that there has been so much discussion and debate surrounding the saga of Eric and Lola in the past few years. Indeed, this litigation raises issues that directly affect a large number of Quebec couples who live in de facto unions. The legal issues raised pit two competing interests: the freedom of choice of individuals versus the need to protect the de facto spouse suffering from the economic consequences of the breakdown of the relationship.On January 25, 2013, the Supreme Court of Canada issued a ruling which ended the litigation between Eric and Lola as regards the rights of de facto spouses. In a decision with a strong dissent,1 the Supreme Court upheld the constitutional validity of the articles of the Civil Code of Québec which provide that the support obligation and the division of the family property apply exclusively to couples who are married or who have entered into a civil union and not to de facto spouses, thereby leaving Quebec civil law unchanged on the matter.As such, in the absence of an agreement to the contrary, de facto spouses in Quebec cannot, upon the breakdown of their relationship, claim spousal support or the division of property that is owned by one of the de facto spouses only, regardless of the length of the relationship or whether they had children.It should however be noted that child support is determined on the basis of the type of custody and the parents’ incomes in accordance with the applicable guidelines, without regard to whether the parents are married, in a civil union or a de facto union.While the Supreme Court’s judgment does not change the law applicable to de facto spouses, the broad media coverage of the litigation between Eric and Lola contributed to informing Quebecers about the fundamental differences that exist between the rights of couples who are married or in a civil union versus those living in a de facto union.FACTUAL AND PROCEDURAL HISTORYThe following is a brief summary of the relevant facts and proceedings concerning the relationship between Eric and Lola and its breakdown.Eric and Lola met in 1992 when Lola was 17 years of age, living with her parents in her country of origin, and pursuing her studies. Eric was 32 years of age and at the head of a prosperous international business.After traveling several times around the world together, Lola became pregnant in 1996 with their first child and moved to Quebec where Eric lived. They subsequently had two more children in 1999 and 2001.During the time they lived together, Lola did not work outside the home and frequently accompanied Eric in his travels abroad. Eric provided for all the needs of Lola and the children. Lola expressed her desire to marry Eric, but he indicated that he did not believe in the institution of marriage. Eric and Lola separated in 2002 after living together for seven years.In February 2002, Lola filed a motion in the Superior Court of Québec, district of Montreal, seeking sole custody of the children as well as child support. To this motion was annexed a notice to the Attorney General of Quebec of Lola’s intention to contest the constitutionality of several articles of the Civil Code of Québec so that she could obtain the same legal regime that applied to married spouses, namely, spousal support, a lump sum, the division of the family patrimony and the partnership of acquests, and the reserve of her rights to claim a compensatory allowance. The use of the family residence was dealt with during the proceedings in an agreement between the parties on child custody.The Honourable Carole Hallée, judge of the Superior Court, in her judgment rendered on July 9, 2009,2 dismissed Lola’s constitutional arguments and concluded that the provisions of the Civil Code of Québec did not infringe upon the right to equality. Indeed, Justice Hallée found that Lola had not succeeded in showing that the distinction made in the Civil Code of Québec between de facto spouses and married spouses had any substantively discriminatory effects, and that the lack of evidence in this regard was fatal to her action.Lola sought leave to appeal to the Court of Appeal of Québec. The appeal was allowed in part,3 and the article relating to spousal support (article 585 C.C.Q.) was declared to be of no force or effect and unconstitutional. However, the Court of Appeal confirmed Justice Hallée’s decision to the effect that the provisions dealing with the family residence, family patrimony, compensatory allowance and partnership of acquests were constitutional. The Court of Appeal suspended the declaration of invalidity of article 585 C.C.Q. for a period of twelve months in order to allow the Quebec legislature time to determine a constitutional solution.Eric and the Attorney General of Quebec appealed the Court of Appeal’s decision on the invalidity of article 585 C.C.Q. before this country’s highest court, while Lola appealed the ruling upholding the constitutional validity of the provisions relating to the division of property.THE SUPREME COURT’S DECISIONOn January 25, 2013, the Supreme Court of Canada rendered a divided judgment on the constitutional issues, which can be summarized as follows:1. Do the articles in the Civil Code of Québec which provide for the obligation of support and the division of property between married spouses and those who have entered into a civil union only infringe section 15(1) of the Canadian Charter of Rights and Freedoms?2. If so, does the infringement constitute a reasonable limit prescribed by law which can be demonstrably justified in a free and democratic society under section 1 of the Canadian Charter of Rights and Freedoms?The reasons for the judgment were rendered by Justice LeBel with Justices Fish, Rothstein and Moldaver concurring. Justice Abella dissented as to the result and Justices Deschamps, Cromwell and Karakatsanis dissented in part in the result. In the end, Chief Justice McLachlin’s concurring opinion with that of Justice LeBel as to the result only determined the outcome of the Supreme Court’s decisions with regard to the rights of de facto spouses to claim support for their needs.According to Justices LeBel, Fish, Rothstein and Moldaver, support obligations form an integral and indissociable part of the measures that constitute Quebec’s mandatory primary regime.To establish discrimination within the meaning of section 15(1) of the Charter, Lola had to show, on a balance of probabilities, that the relevant articles of the Civil Code create a disadvantageous distinction based on an enumerated or analogous ground, and that this disadvantage is discriminatory because it perpetuates a prejudice or stereotype.It was found that those articles of the Civil Code do in fact create a distinction based on an analogous ground, namely one’s marital status. However, this distinction was not determined to be discriminatory as it does not create a disadvantage by expressing or perpetuating prejudice or by stereotyping. Rather, Justices LeBel, Fish, Rothstein and Moldaver were of the view that de facto unions have become a respected type of relationship and are not judged unfavourably by Quebec society. The legislature has not created any hierarchy between the different types of conjugal relationships, but has merely defined the legal framework which governs each form thereof.In their view, the Quebec legislature has determined that consent is the key to changing the legal framework that governs couples. Thus, express, and not deemed consent is essential to the creation of support obligations and the right to the division of the family property.Far from being unconstitutional, the disputed articles of the Civil Code of Québec rather respect the autonomy of individuals and de facto spouses’ freedom to organize their relationship based on their needs.Finally, while de facto unions fall outside the legislative framework which applies to marriages and civil unions, de facto spouses are still free to enter into agreements in order to organize their financial relationships during cohabitation, and to provide for the consequences of a potential breakdown of the union.Given the above, Justices LeBel, Fish, Rothstein and Moldaver held that it was not necessary to answer the second question as to whether the discrimination is a reasonable limit.Justice Abella, in dissent, was of the opinion that the outright exclusion of de facto spouses from the articles of the Civil Code of Québec on spousal support and the division of family property constitutes a violation of section 15(1) of the Canadian Charter of Rights and Freedoms. The distinction based on marital status is an analogous ground as regards the application of this section, and perpetuates an arbitrary disadvantage for spouses living in a de facto union. The fact that de facto spouses can decide to marry does not exclude them from the protection of section 15(1).In her view, the provisions of the Civil Code of Québec on support and the division of property between spouses who are married or who have entered into a civil union are, in a sense, a recognition of the roles assumed by each member of a couple during their life together, and aim to compensate for any situation of dependency or vulnerability arising from it. Moreover, the “functional characteristics” of a relationship and the disadvantages resulting from its dissolution are often the same for spouses who are married, who have entered in a civil union, or who live in a de facto union.According to Justice Abella, both the provisions dealing with support and those dealing with the division of property are protective measures which go beyond their contractual nature. In addition, it should be recognized that the decision to marry or to live in a de facto union is mutual, and is often influenced by a myriad of factors which are not necessarily within a sole individual’s control.Furthermore, the fact that de facto spouses are completely precluded from claiming support and the division of family property in the event of the breakdown of their relationship is not a reasonable limit and is not justified under section 1 of the Charter. In Justice Abella’s view, the infringement of the equality right of the more vulnerable spouse is neither minimal nor proportional.Moreover, one’s right to autonomy and freedom of choice could still be respected by creating a mechanism that would allow individuals living in a de facto union to opt out of the application of a legal regime which would, by default, grant the right to support and to the division of family property in the case of a breakdown of the relationship.Justices Deschamps, Cromwell and Karatsanis agreed with Justice Abella’s analysis under section 15(1) of the Charter and with her conclusion to the effect that the exclusion of de facto spouses from the provisions dealing with support and division of property in the Civil Code of Québec infringes the right to equality.However, in their view, the right to support should be distinguished from the right to the division of the family property. While the right to support is the result of the creation of a relationship of interdependence between spouses which is often not solely dependent on the will of the parties, the same is not true for the acquisition of property and the rights which result therefrom.For them, the exclusion of de facto spouses from the right to the division of property is justified under section 1 of the Charter, while the exclusion of the right to claim support is not. While the current Law’s objective which aims to favour the freedomof choice of Quebecers is important, the exclusion of the right of more vulnerable spouses to claim support for their needs in the event of the breakdown of the relationship infringes their right to equality in a disproportionate way. Certain individuals living in a de facto union suffer from the economic consequences of the breakup in the same way as those who were married or in a civil union do.Justice McLachlin also agreed with Justice Abella’s analysis and conclusion under section 15(1) of the Charter. However, her finding that the infringement of the equality right of de facto spouses is justified under section 1 of the Charter determined the final outcome of the Supreme Court’s decision. According to Justice McLachlin, the Law as it currently stands achieves the Quebec legislature’s primary objective of promoting individuals’ freedom of deciding whether to subject themselves to the provisions on the right to spousal support and the division of family property. Since it is necessary to take into account that it is each province’s responsibility to enact laws and, in so doing, to decide on certain difficult social issues, the infringement of the right to equality of de facto spouses is not disproportionate when considering the benefits of the Law, which enables Quebec couples to decide on the nature of the legal framework which will govern their relationship.CONCLUSIONIn the end, the result of this lengthy judicial saga is to the effect that the status quo is maintained for de facto spouses in Quebec. The situation is clear: in the event of separation, there exists no right to spousal support or to the division of property of which one de facto spouse is not the owner.The division within the Supreme Court perhaps reflects the division of opinion among Quebecers on these issues, particularly with regard to the right to claim support for de facto spouses. This will likely lead the Quebec legislature to examine the issue in greater depth.It is currently the responsibility of de facto spouses to determine the legal framework which will govern their relationship in accordance with their objectives. A cohabitation agreement that is properly drafted and suited to their needs can allow de facto spouses to decide in advance on the consequences of the breakdown of their relationship and on the contributions each is required to make to the couple’s expenses. This also applies to the ways in which individuals who live in a de facto union will choose to acquire property during the course of their relationship.Regardless of their respective economic situation, both individuals living in a de facto union may benefit from consulting a professional on these issues at the very beginning of the cohabitation. This may avoid, or at least minimize, the economic consequences of the breakdown of the relationship, which can sometimes be disastrous when individuals are misinformed. The importance of consulting a professional and understanding the consequences which may flow from an individual’s decision to marry, enter into a civil union, or a de facto union, should not be minimized. This will allow one to make decisions in a clear and informed manner.The Family, Personal and Estate Law team at Lavery, assisted by the lawyers in Tax Law and the Protection and Transmission of Estates and Assets, offer you a full range of legal services and solutions to protect your rights and achieve your objectives._________________________________________ 1 Quebec (Attorney General) v. A, 2013 SCC 5. 2 Droit de la famille-091768, 2009 QCCS 3210. 3 Droit de la famille-102866, 2010 QCCA 1978.