No laws exist for common law unions in Quebec

Joyce Blond Frank, B.A., B.C.L., LL.M.

The need for companionship does not diminish with age and an increasing number of people are entering into a committed relationship for the second and third time. A frequent question is: should we marry or just live together?

Marriage is defined by law as “the lawful union of two persons to the exclusion of all others.” The common law relationship has been defined as co-habitation with an element of permanence. What are the legal differences between the two?

Entering into marriage is a formal procedure carried out by a legally authorized person and requires that the free consent of both parties be declared openly in the presence of at least two witnesses. In the case of a common law relationship, two people decide to live together. They set up house and make their own financial arrangements. They may or may not enter into a written agreement. They consider themselves married but the law of Quebec does not. In all other Canadian provinces two people can declare themselves to be married common law and the union will have the same effect as a regular marriage.

In Quebec, a common law marriage does not really exist. Although some social legislation does include common law couples, no laws exist setting out the rights and obligations of the parties one towards the other. This means that when the common law relationship breaks up, there is no obligation for one to provide support to the other, regardless of the difference in their respective incomes and regardless of the number of years they have been living together.

Neither is the family residence protected as it is in the case of married couples. This means that if the family home belongs exclusively to one of the parties, the other can be forced to leave. This may not seem fair but the position has been justified by the courts on the grounds that common law relationships are a threat to the institution of marriage, that unmarried couples do not make the same commitment as those who marry and therefore the rights and duties created by marriage should not follow. The theory is that where the choice of two people is to live common law, it is because they do not want to incur the obligations that result from marriage. Consequently, to presume that common law couples want to be bound by the same obligations as married couples would be contrary to that choice.

The decision to marry includes the acceptance of various legal consequences of the formalized marriage, including the obligation of mutual support between the spouses. Where individuals choose not to marry, it would undermine the choice they have made if the state were to impose upon them the very same burdens and benefits which it imposes upon married persons.

Statistics show that, In Quebec, about 30% of relationships are common law. Interestingly, it was the Council on the Status of Women back in 1991 that lobbied against granting legal recognition to common law couples on the grounds that it went against the autonomy, equality, and freedom of choice of women.

The time will come when the law will catch up with reality. Meanwhile common law couples be well advised to enter into a co-habitation contract as they begin life together.

Joyce Blond Frank is a Montreal attorney specializing in family and elder law.

Protection of the elderly against exploitation

Joyce Blond Frank

There are times when seniors are taken advantage of even by members of their own family, by friends, as well as by strangers pretending to be friends. In consequence, the law has made a special effort to protect them. Families, therefore, have a moral duty to protect their elderly members, and a legal one.

This protection is provided by legislation in the form of the Quebec Charter of Human Rights and Freedoms which allows an elderly person who has suffered abuse or exploitation to complain to the Human Rights Commission and sue for damages.

Exploitation legally includes all kinds of abuse of an elderly person by someone who is stronger or more dominant, if this dominant person makes a profit or receives a benefit from the abuse. For example, damages have been awarded to the abused where a physician borrowed money from a 79 year old patient; where the owner of a residence for the elderly borrowed money from a 90 year old resident who had no memory and was physically and psychologically dependent; and where a salesman deliberately sold defective wheelchairs and other orthopedic aids to those considered vulnerable.

The right to protection and security provided by law to the elderly has been held to override the rights to which others may be entitled. This is what happened in the case of a couple, 87 and 95 years old, who owned a duplex, lived in one section and rented the other. They required a certain amount of care. Neither had any family in Montreal and so they had to hire and rely on outside people care for them. They wanted to house these helpers in that section of the duplex which was rented, but the tenant objected to giving up occupancy of the premises.

Under Quebec law residential property can only be repossessed by the landlord for use by the owner himself, his children, or other family members whom he supports. The court decided that the tenant's premises were needed to replace the family who, were they present, would be obliged to ensure that the couple was properly cared for. Because the premises were required for their protection and security, the provisions of the Charter superseded the provisions of the Civil Code and the request to retake possession of the premises was granted.

In yet another case, a 47-year-old waitress worked at the residence in which an 81-year-old with Alzheimer’s lived. Their relationship flourished for two-and-a half years during which they spent his monthly income. He bought her expensive jewelry and a car, signed a mortgage for a house in which he never lived, and saw his assets diminish by about $110,000.

Two of the three judges who heard the case in appeal held that the Charter protects the elderly against all forms of exploitation, physical, psychological, social and moral, regardless of whether or not the person consents to the abusive acts. They found that, during the relationship, the defendant's faculties were diminished due to Alzheimer's and ordered the waitress to pay damages in excess of $66,000.

Consequently, where there is a significant imbalance between the vulnerable person and the other person resulting in disastrous consequences to the vulnerable party and benefit to the other, damages will be awarded to the victim.