07/21/2012 07:17 EDT | Updated 09/20/2012 05:12 EDT

The Quebec Divorce Case with Canada-Wide Implications


The Supreme Court of Canada still has under review the appeal from the Quebec Court of Appeal decision in the case known as Eric v. Lola.

This is the Quebec common law case between the billionaire businessman and his Brazilian beauty queen-like common law spouse.

The issue that has caused this high-powered litigation centers around the spousal support claim arising from the breakdown of the long-term common law relationship that produced a number of children. The appeal was heard in January 2012 and remains under reserve.

The implications of the decision are likely to be Canada-wide, notwithstanding that the case arises under the unique anomalies of Quebec family law.

In all provinces of Canada, other than Quebec, legislation provides for spousal support claims for common law provinces.

While legislation differs from province to province, the consistency of remedy exists. Most partners, upon the breakup of a common law relationship, can claim and receive statutorily mandated spousal support. However, Quebec is the exception.

Notwithstanding (or perhaps because of) the fact that the majority of unions in Quebec are common law rather than marital, no legislation exists to permit spousal support claims in that province. Hence, Lola (or whatever her real name is) filed her claim for spousal support together with a claim that the denial of same by reason of the absence of legislation constituted a breach of the equality provisions of the Charter of Rights and Freedoms (section 15).

This case has wound its way through the trial process in the Quebec Superior Court and the appeal process in the Quebec Court of Appeal. The four judges who have heard the case (one in Superior Court and three in the Quebec Court of Appeal) have differing views on the constitutionality of the denial of spousal support. The problem (or solution) has now been laid at the feet of the nine Supreme Court of Canada judges.

The determination of this case will test the court's resolve in applying the ancient doctrine of stare decisis (put simply, the requirement to respect prior decisions of the court).

In a property decision the Supreme Court, a number of years ago, upheld the constitutionality of property laws denying property claims to common law spouses. In that case, the court emphasized the need for respecting the choices couples make in marrying or not.

Will the court apply the same reasoning to spousal support claims arising from such circumstances? Will the court be swayed by the choice issue or will it see the issue as somewhat different when assessing need of a former partner to be supported financially after breakdown?

Time will tell, but regardless of the ultimate decision, which may appear at first blush to be of interest only to Quebec residents, and within that sample, to common law couples only, the ruling will have far-reaching implications.

The Supreme Court will be forced by the nature of the appeal to explore the law of spousal support at large. In measuring whether there has been a breach of equality rights under s. 15 of the Charter, the entire nature of spousal support must be considered.

Within this analysis there will be nuggets of guidance to claimants of spousal support or common law spousal support alike, to Quebec couples and couples across Canada. Given that spousal support claims represent one of the principal flash points in high conflict breakups across this country, lawyers and separating spouses should pay close attention.

Stand by, more to come once the decision is released.