November 8, 2010

Ruling will impact common-law couples

This week's landmark ruling in the much-publicized Eric v. Lola case will have an impact on the legal obligations of common-law Quebec couples -and the practice of family law in Quebec.

The groundbreaking Quebec Court of Appeal decision declares as "constitutionally invalid' article 585 of the Quebec Civil Code on the basis that it is discriminatory against couples in common-law relationships.

The code article states only that "married or civil union spouses ... owe each other support," shutting the door to alimony payments for common-law couples.

Wednesday's ruling by Quebec's highest court changes that, but two of the judges on the three-judge panel -justices Julie Dutil and Lorne Giroux -said the ruling of "constitutional invalidity" should be suspended for 12 months to allow Quebec legislators time to make changes to the code.

Marc Beauregard, the third judge, said in his statement in the ruling that the code should be interpreted to include common-law couples immediately while the legislator prepares to codify change.

The Quebec government has said it is studying the decision, but a suspension of the invalidity ruling undoubtedly stops what would be "a flood of cases tomorrow if it were enforced," said veteran Montreal family lawyer Ian Solloway.

Given that the Quebec Court of Appeal ruling allowed for alimony but not for the division of financial assets as petitioned, it is still unclear whether lawyers for "Lola" will head to the Supreme Court of Canada to seek a full victory for "Lola," Solloway said. That could have further implications.

How Quebec legislators actually define common-law couples is another question.

Elsewhere in Canada, it is "defined by time. You have to be together three years, or one year if there is a child born issue of the relationship."

The Quebec Court of Appeal ruling noted that some common-law couples already have social rights -in the case of benefits if a spouse is in a car accident, for example - and also threw cold water on what it termed were skewed statistics indicating that common-law relationships are less enduring and stable than those of married or civil union couples.

Solloway said that in addition to opening up a whole new area of possible litigation, family law lawyers will now move to encourage clients who are living in common-law relationships to sign the equivalent of a prenuptial agreement spelling out rights and obligations in the event of a split.

Such "cohabitation agreements," which do not preclude common-law spouses from "contracting out" of a financial support obligation, have been rare up to now because there were no rights or obligations because of common-law couples explicit exclusion from the civil code.

At least one-third of Quebecers are estimated to be living in common-law relationships.

Lawyers working alongside lawyer Anne-France Goldwater for "Lola" in the landmark case at the Quebec Court of Appeal were Marie-Helene Dube, both of the law firm Goldwater, Dube and Borden Ladner Gervais LLP's Guy Pratte and Mark Phillips.

Representing "Eric" in the case were Ogilvy Renault LLP's Pierre Bienvenu, working with Azimuddin Hussain and Andres Garin, and lawyers Suzanne H. Pringle and Johanne Thibodeau, from Suzanne H. Pringle, Avocats.

Lawyers Benoit Belleau and Hugo Jean acted for Quebec's attorney-general.

Eric Lapierre, manager of investment funds for the Autorite des marches financiers (AMF), is leaving the Quebec market regulator to practice securities law with the investment management group at the Montreal office of Borden Ladner Gervais LLP (BLG) starting next Monday. Before joining the AMF in 2008, Lapierre was director and legal counsel for Investors Group.

Fraser Milner Casgrain LLP has scooped two corporate lawyers from Colby Monet Demers Delage & Crevier to add bench strength to its national commercial group. Julie D. Gagnon and Catherine M. Peacocke, who often worked together on business acquisitions and corporate financing files at Colby Monet, have joined the firm as partners based in the Montreal office. Both have corporate counsel experience. Gagnon worked with the legal department of Laurentian Bank of Canada and Peacocke is a past assistant general counsel for BCE Inc.

McCarthy Tetrault LLP has added four lawyers to its Quebec ranks -three litigators who will specialize in medical liability and a business law lawyer. The new hires, brought on the past few months include: Pierre-Jerome Bouchard, Antoine Brylowski, Veronic Meilleur, David Tournier.

The Lawyer of the Week featured on Legal Matters, the Gazette's online legal page at Marie Giguere, who is the new lawyer responsible for all of the legal activities of the Caisse de depot et placement du Quebec. Giguere was appointed executive vice-president, legal affairs and secretariat, earlier this week, taking over from Claude Bergeron, who has been appointed as executive vice-president chief risk officer.

By Kathryn Leger, Freelance
November 5, 2010

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