Quebec (Attorney General) v. A, 2013 SCC 5

“A”, a “de facto spouse” who did not receive spousal support at the end of a seven-year conjugal relationship, challenged the constitutionality of Article 585 of the Quebec Civil Code, which establishes a right of spousal support in the event of divorce, but not in the event of the breakdown of a marriage-like relationship. This distinction, A argued, is contrary to the guarantee of equality in Section 15(1) of the Charter of Rights and Freedoms.

The Attorney General of Quebec joined A’s de facto spouse, “B”, in arguing that provincial governments have a right to treat different relationships differently under the law, based on the explicit or implicit wishes of the parties to those relationships.

The majority of the Supreme Court recognized that Article 585 established a distinction between married couples and other conjugal relationships, but found that the distinction is not based on a discriminatory “hierarchy” of relationships, but on a sincere legislative intent to base spousal support on principles of contract and mutual consent:

The legislature has not established a hierarchy between the various forms of conjugality, nor has it expressed a preference for marriage and the civil union at the expense of the de facto union. It has merely defined the legal content of the different forms of conjugal relationships. It has made consent the key to changing the spouses’ mutual patrimonial relationship. In this way, it has preserved the freedom of those who wish to organize their patrimonial relationships outside the mandatory statutory framework. Express, and not deemed, consent is the source of the obligation of support and of that of partition of spouses’ patrimonial interests. This consent is given in Quebec law by contracting marriage or a civil union, or entering into a cohabitation agreement. Participation in the protective regimes provided for by law depends necessarily on mutual consent.

Quebec (Attorney General) v. A makes it clear that Canadian provinces have the jurisdiction to legislate different rights and benefits for different types of conjugal relationships, so long as the distinctions made are based on the actions or agreements of the parties themselves.

The Supreme Court recognized that the Quebec government was not drawing a distinction “between the various types of conjugality either in granting benefits to or imposing obligations on spouses where their relations with government institutions are concerned,” but merely allowing for different levels of rights and obligations “in the context of relations between the spouses themselves.”

This is a different and far more sensible approach than that of previous Supreme Court decisions (particularly Vriend v. Alberta), which interpret Section 15(1) as a requirement that government impose equality on private actors. In Quebec (Attorney General) v. A, the Supreme Court reads Section 15(1) merely as a check on discriminatory government action, rather than an obligation for government to engage in social engineering.

Decided by the Supreme Court of Canada on January 25, 2013.
Click here for the full text of the decision.

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