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How satisfactory is the law that governs the financial disputes between unmarried cohabitants after their relationship? Some provinces and territories – most recently Alberta and British Columbia – have passed laws that extend to cohabitants the same sharing of property that applies to married couples. Those not having done so include Ontario and Quebec. The result is that most Canadians live in a jurisdiction where family law requires no sharing between cohabitants on separation or one’s death.

In those places, a cohabitant’s best route to seeking their share of the wealth accumulated during the union but held in the other’s hands is a claim in “unjust enrichment.” In 2011, the Supreme Court of Canada altered the law to recognize the reality that some cohabitations function like marriages. It declared that a higher degree of sharing may be appropriate within the subset of cohabitations that function like a “joint family venture.”

That doesn’t seem to be enough. A small-scale empirical study interviewed family lawyers in Quebec about their experiences with their unmarried clients under this revised law. The forthcoming results indicate that, despite the Supreme Court’s efforts, the prevailing situation is highly unsatisfactory. They strengthen the case for the legislatures in question to presume an equal sharing of property between cohabitants, as they do for married spouses.

Unknown rights that are hard to enforce

The lawyers interviewed reported that cohabitants do not know the differences between how family law treats them and married couples. This finding corresponds with sociological research in Quebec and Ontario. This ignorance of their rights undermines the idea that cohabitants make informed choices about their finances and property.

Interviews also reported that bringing a claim under the modified doctrine of unjust enrichment is complex and expensive. To seek the richer remedy enabled by the Supreme Court, the claimant must establish that the union was a joint family venture. The other partner may resist such a finding, leading to a lengthy dispute about their past life. Judges are thought to apply the criteria for the joint family venture unevenly and unpredictably.

A cohabitant claiming unjust enrichment must prove the extent of her contribution to the other partner’s wealth during their time together. Doing so can require substantial evidence that can be hard to find, at times years afterwards, and marshalling it in court is expensive. Again, the other partner may dispute the evidence and the claim.

Troublingly, the lawyers interviewed reported that the shares awarded to cohabitants varied so much that there is a feeling of arbitrariness. While all litigation involves an element of luck, there were repeated references to a “roll of the dice.”

For the interviewees, the unpredictable outcomes in court make it hard to negotiate a fair settlement. This is problematic, given how long and expensive it is to have a family dispute resolved by a judge. Indeed, with a widely acknowledged crisis in access to justice, especially in family matters, public policy encourages family members to reach agreements outside court.

One foot in the door

In a high-profile case from Quebec, the Supreme Court of Canada ruled in 2013 that the Canadian Charter of Rights and Freedoms does not require legislatures to impose property sharing on cohabitants. Five of the nine judges held that restricting such sharing to married spouses discriminates against unmarried couples. But the discrimination was found to be a reasonable limit on the equality guarantee. Consequently, the legislatures in Quebec, Ontario, and the other provinces that do not regulate the property relations between unmarried cohabitants have no constitutional imperative to change course.

The question of unmarried cohabitation may be a difficult one for the political process. As a participant in the study noted, those most harmed by the status quo are unrepresented by chambers of commerce and other associations. Indeed, a complication is that the current situation benefits one partner, and a change would benefit the other.

While present in several provinces, this problem may be especially acute in Quebec, which has the highest rate of cohabitation. Moreover, unmarried couples in that province have more children than do married couples. Although the province’s Civil Code is different from the common law in Canada’s other jurisdictions, the Quebec Court of Appeal has received the Supreme Court’s approach into provincial law. Indeed, a case in which a former cohabitant received more than $2 million from her ex made headlines.

Aiming for more than the minimum

Our courts have tried to take account of the reality of how many cohabiting couples entwine their affairs and collaborate in the interest of the family. But there are clear limits on what the courts can do. The results of the study, described above, strengthen the case for a legislated presumption of equal sharing. Recall that, in the jurisdictions that have done so, unmarried couples (like married ones) may contract out of the presumed sharing.

Lawmakers in Ontario, Quebec, and some other provinces have an opportunity to show that they are alert to the realities of contemporary family life – and that they do not limit their sense of good policy to the minimum required by the Charter.

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Robert Leckey
An advocate emeritus of the Barreau du Québec, Robert Leckey is the dean of the faculty of law of McGill University and Samuel Gale Professor.

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