Attorney General of Quebec Appellant v. A, 2013 SCC 5

SUPREME COURT OF CANADA Citation: Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61 Date: 20130125 Docket: 33990 Between: Attorney General of Quebec Appellant and A Respondent And Between: B Appellant and A Respondent And Between: A Appellant and B and Attorney General of Quebec Respondents - and - Attorney General of New Brunswick, Attorney General of Alberta, Fédération des associations de familles monoparentales et recomposées du Québec and Women’s Legal Education and Action Fund Interveners Official English Translation : Reasons of LeBel J. and Deschamps J. Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

Reasons for Judgment: (paras. 1 to 282) Reasons Dissenting in Result: (paras. 283 to 381) Reasons Dissenting in

Part in Result: (paras. 382 to 409) Reasons Concurring in Result: (paras. 410 to 450) LeBel J. (Fish, Rothstein and Moldaver JJ. concurring) Abella J. Deschamps J. (Cromwell and Karakatsanis JJ. concurring) McLachlin C.J. Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61 Attorney General of Quebec Appellant v. A Respondent - and - B Appellant v. A Respondent - and - A Appellant v.

B and Attorney General of Quebec Respondents and Attorney General of New Brunswick, Attorney General of Alberta, Fédération des associations de familles monoparentales et recomposées du Québec and Women’s Legal Education and Action Fund Interveners Indexed as: Quebec (Attorney General) v. A 2013 SCC 5 File No.: 33990.

2012: January 18; 2013: January 25.

Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. on appeal from the court of appeal for quebec Constitutional law — Charter of rights — Right to equality — Discrimination based on marital status — De facto spouses — Whether provisions of Civil Code of Québec dealing with family residence, family patrimony, compensatory allowance, partnership of acquests and obligation of spousal support infringe guaranteed right to equality because their application is limited to private legal relationships between married spouses and civil union spouses — If so, whether infringement justified — Civil Code of Québec, S.Q. 1991, c. 64, arts. 401 to 430, 432, 433, 448 to 484, 585 — Canadian Charter of Rights and Freedoms, ss. 1 , 15(1) .

Constitutional law — Charter of rights — Right to equality — Analytical framework applicable to claim under s. 15(1) of Canadian Charter of Rights and Freedoms — Whether prejudice and stereotyping are separate elements into which claim of discrimination must fit — Distinction between two stages of analysis on right to equality, namely stage of review under s. 15 and that of justification under s. 1 — Stage of analysis at which freedom of choice and autonomy of spouses should be considered in relation to partition of property and support.

Family law — De facto spouses — Separation — Support — Spousal support — Family assets — De facto spouses not being covered by protections granted in Civil Code of Québec to married and civil union spouses in relation to support and partition of property — Whether failure to grant same rights to de facto spouses infringes right to equality guaranteed by s. 15(1) of Canadian Charter of Rights and Freedoms — Civil Code of Québec, S.Q. 1991, c. 64, arts. 401 to 430, 432, 433, 448 to 484, 585. A and B met in A’s home country in 1992.

A, who was 17 years old at the time, was living with her parents and attending school. B, who was 32, was the owner of a lucrative business. From 1992 to 1994, they travelled the world together several times a year. B provided A with financial support so that she could continue her schooling. In early 1995, the couple agreed that A would come to live in Quebec, where B lived. They broke up soon after, but saw each other during the holiday season and in early 1996. A then became pregnant with their first child. She gave birth to two other children with B, in 1999 and 2001.

During the time they lived together, A attempted to start a career as a model, but she largely did not work outside of the home and often accompanied B on his travels. B provided for all of A’s needs and for those of the children. A wanted to get married, but B told her that he did not believe in the institution of marriage. He said that he could possibly envision getting married someday, but only to make a long-standing relationship official. The parties separated in 2002 after living together for seven years. In February 2002, A filed a motion in court seeking custody of the children.

The motion was accompanied by a notice to the Attorney General of Quebec stating that A intended to challenge the constitutionality of several provisions of the Civil Code of Québec (“ C.C.Q. ”) in order to obtain the same legal regime for de facto spouses that existed for married spouses. A thus claimed support for herself, a lump sum, partition of the family patrimony and the legal matrimonial regime of partnership of acquests. She also sought to reserve her right to claim a compensatory allowance. A’s claim concerning the use of the family residence was settled in an agreement between A and B.

These appeals relate solely to the constitutional aspect of the case. The Quebec Superior Court rejected A’s constitutional arguments and found that the impugned provisions did not violate the right to equality guaranteed by s. 15 of the Charter . A appealed to the Quebec Court of Appeal, which allowed A’s appeal in part and declared the provision that provides for the obligation of spousal support to be of no force or effect.

However, the Court of Appeal upheld the Superior Court’s decision as regards the constitutionality of the provisions concerning the family residence, the family patrimony, the compensatory allowance and the partnership of acquests. The majority of the court suspended the declaration of constitutional invalidity of art. 585 C.C.Q. for 12 months. B and the Attorney General of Quebec are appealing the Court of Appeal’s decision to strike down art. 585. A appeals the conclusion that the provisions concerning the partition of property are constitutionally valid.

Held (Deschamps, Cromwell and Karakatsanis JJ. dissenting in

part in the result and Abella J. dissenting in the result) : The appeals of the Attorney General of Quebec and B should be allowed, and the appeal of A should be dismissed. Articles 401 to 430 , 432 , 433 , 448 to 484 and 585 of the Civil Code of Québec are constitutional. The constitutional questions should be answered as follows: 1. Do arts. 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of Québec , S.Q. 1991, c. 64, infringe s. 15(1) of the Canadian Charter of Rights and Freedoms ? Answers: McLachlin C.J. and Deschamps, Abella, Cromwell and Karakatsanis JJ. would answer yes.

LeBel, Fish, Rothstein and Moldaver JJ. would answer no. 2. If so, is the infringement a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answers: LeBel, Fish, Rothstein and Moldaver JJ. would answer that it is not necessary to answer this question. McLachlin C.J. would answer yes. Deschamps, Cromwell and Karakatsanis JJ. would answer that only art. 585 is not justified under s. 1 .

Abella J. would answer no. ____________________________ (1) Section 15(1) of the Charter Per LeBel, Fish, Rothstein and Moldaver JJ. (minority on s. 15(1) ): The Civil Code of Québec establishes a mandatory primary regime in a

chapter that defines the fundamental effects of marriage. This regime creates mutual rights, duties and obligations and radically alters each spouse’s patrimonial rights. More specifically, the primary regime results in the formation of a partial economic union between the spouses. Aside from the primary regime, where there is no marriage contract providing for separation as to property

or for changes to the legal regime, the legal matrimonial regime of partnership of acquests applies to the spouses as a result of their marriage. Like the primary regime, the regime of partnership of acquests significantly changes the rights of both spouses in relation to their patrimony. The Quebec legislature has imposed these regimes only on those who, by agreement with another person, have demonstrated that they wish to adhere to them. Their consent must be explicit, and must take the form of marriage or a civil union. The Civil Code of Québec does not lay down the terms of the union of de facto spouses.

Since the de facto union is not subject to the mandatory legislative framework that applies to marriage and the civil union, de facto spouses are free to shape their relationships as they wish, having proper regard for public order. They can enter into agreements to organize their patrimonial relationships while they live together and to provide for the consequences of a possible breakdown.

By arguing that arts. 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of Québec are contrary to s. 15(1) of the Charter and not justified under s. 1 , A is claiming the benefit of certain aspects of the primary regime that applies in cases of separation from bed and board, divorce, or dissolution of a civil union. She is also seeking the automatic and mandatory application of the legal matrimonial regime of partnership of acquests. In R. v. Kapp , 2008 SCC 41 , [2008] 2 S.C.R. 483 , and Withler v.

Canada (Attorney General) , 2011 SCC 12 , [2011] 1 S.C.R. 396 , the Court reworked and provided important clarifications to the analytical framework for applying the equality guarantee provided for in s. 15(1) of the Charter . As can be seen from this framework, a discriminatory distinction is as a general rule an adverse distinction that perpetuates prejudice or that stereotypes. The existence of a pre-existing or historical disadvantage will make it easier to prove prejudice or a stereotype. However, the existence or perpetuation of a disadvantage cannot in itself make a distinction discriminatory.

Substantive equality is not denied solely because a disadvantage is imposed. Rather, it is denied by the imposition of a disadvantage that is unfair or objectionable, which is most often the case if the disadvantage perpetuates prejudice or stereotypes. Thus, according to the established analytical framework, a court analyzing the validity of an allegation that s. 15(1) has been infringed must address the following questions:

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? The claimant can show that the impugned law creates a distinction expressly or that it creates one indirectly. The majority of the Court would have reached the same conclusion in Nova Scotia (Attorney General) v. Walsh , 2002 SCC 83 , [2002] 4 S.C.R. 325 , if its analysis had been based on the reworked analytical framework from Kapp and Withler .

Although the statute at issue in Walsh imposed differential treatment based on marital status by limiting the presumption of equal division of matrimonial property to married couples and excluding persons in common law relationships, that distinction did not create a disadvantage by perpetuating prejudice or stereotyping. The majority’s analysis was thus based on the wish to promote substantive equality.

Walsh was based on a principle of freedom to choose between different marital statuses that had different consequences for spouses, and that principle did not in that context infringe the constitutional equality guarantee. The principle in question continues to be valid in the circumstances of the case at bar despite the subsequent developments in the case law.

Although Walsh concerned not the obligation of support, but the equal division of family assets, the majority’s comments on the sources of the distinctions between the various forms of relationships and the consequences of those distinctions remain relevant. To dispose of these appeals, it would be inappropriate to distinguish the partition of property from the obligation of support. Such a distinction disregards the character of an “economic partnership” that the Quebec legislature has established for marriage and the civil union.

It also disregards the fact that this partnership is structured around a mandatory primary regime that has both patrimonial and extrapatrimonial aspects and that the primary regime establishes the obligation of support as an effect of marriage and of the civil union. In this sense, the obligation of support is tied to the other effects of marriage and of the civil union, such as the obligation to contribute to household expenses, rights and obligations with respect to the family residence, and the creation of a family patrimony.

It forms an integral and indissociable part of the set of measures that constitute Quebec’s primary regime. What must therefore be determined in these appeals is not whether the exclusion of de facto spouses from the obligation of support is discriminatory, but whether their exclusion from the entire statutory framework imposed on married and civil union spouses is discriminatory under s. 15(1) of the Charter .

To prove that she has been discriminated against, A must show on a balance of probabilities that the provisions of the Civil Code of Québec at issue create an adverse distinction based on an enumerated or analogous ground and that the disadvantage is discriminatory because it perpetuates prejudice or stereotypes. The provisions relating to the family patrimony, the family residence, the compensatory allowance, the partnership of acquests and the obligation of support apply only to persons who are married or in a civil union, and do not apply to de facto spouses.

These provisions therefore have the effect of creating a distinction based on the analogous ground of marital status. That distinction may result in disadvantages for those who are excluded from the statutory framework applicable to a marriage or a civil union. Generally speaking, when de facto spouses separate, one of them will likely end up in a more precarious patrimonial situation than if the couple had been married or in a civil union.

As a result, unless these de facto spouses have exactly the same earning capacity and exactly the same patrimony, one of them will be in a worse position after the relationship ends than would a married or civil union spouse in a similar patrimonial situation. However, the distinction is not discriminatory, because it does not create a disadvantage by expressing or perpetuating prejudice or by stereotyping.

Although there was a period of Quebec history during which de facto spouses were subjected to both legislative hostility and social ostracism, nothing in the evidence suggests that de facto spouses are now subject to public opprobrium. The expert reports filed by the parties tend to show the contrary. According to them, the de facto union has become a respected type of conjugality and is not judged unfavourably by Quebec society as a whole. Likewise, the legislature’s traditional hostility generally seems to have changed into acceptance of the de facto union.

In this regard, Quebec social legislation no longer draws distinctions between the various types of conjugality either in granting benefits to or imposing obligations on spouses where their relations with government institutions are concerned. The distinction continues to exist in the context of relations between the spouses themselves, within their conjugal relationship, where there is still a will to preserve the possibility of choosing between various types of conjugality.

Nor is the exclusion of de facto spouses from the application of the impugned provisions discriminatory on the basis of an expression of prejudice. 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 theprotective regimes provided for by law depends necessarily on mutual consent. In this regard, the conclusion of a cohabitationagreement enables de facto spouses to create for themselves the legal relationship they consider necessary without having to modify theform of conjugality they have chosen for their life together.

In this context in which the existence of a set of rights and obligationsdepends on mutual consent in one of a variety of forms, it is hard to speak of discrimination against de facto spouses. The resultingchoice has become a key factor in the determination of the scope of the right at issue, and not only in the justification of a limit on thatright. It is not imperative that there be an identical framework for each form of union in order to remain true to the purpose of s. 15(1).

In the instant case, the fact that there are different frameworks for private relationships between spouses does not indicate that prejudiceis being expressed or perpetuated, but, rather, connotes respect for the various conceptions of conjugality. Thus, no hierarchy of worth isestablished between the different types of couples. The articles of the Civil Code of Québec whose constitutional validity is being challenged by A therefore do not express orperpetuate prejudice against de facto spouses.

On the contrary, it appears that, by respecting personal autonomy and the freedom ofde facto spouses to organize their relationships on the basis of their needs, those provisions are consistent with two of the valuesunderlying s. 15(1) of the Charter. They were enacted as part of a long and complex legislative process during which the QuebecNational Assembly was concerned about keeping step with changes in society and about adapting family law to new types of conjugalrelationships in a manner compatible with the freedom of spouses.

Furthermore, there is no evidence in the Court’s record that would justify finding that the exclusion of de facto spouses fromthe primary regime and the regime of partnership of acquests is based on a stereotypical characterization of the actual circumstances ofsuch spouses. More specifically, none of A’s evidence tends to show that the policy of freedom of choice, consensualism and autonomyof the will does not correspond to the reality of the persons in question.

Nor can judicial notice be taken of the fact that the choice oftype of conjugality is not a deliberate and genuine choice that should have patrimonial consequences but necessarily results from thespouses’ ignorance of the consequences of their status. Such a fact is clearly controversial and not beyond reasonable dispute. It is notunreasonable to believe that, in theory, individuals sometimes make uninformed choices and that some individuals may be unaware ofthe consequences of their choice of conjugal lifestyle.

Nevertheless, to take judicial notice of the fact that the voluntary choice not tomarry does not reflect an autonomous decision to avoid the legal regimes would be to exceed the limits of legitimate judicial notice,especially in relation to an issue at the centre of the controversy. In this case, A has not established that it is stereotypical to believe thatcouples in a de facto union have chosen not to be bound by the regimes applicable to marriage and civil unions.

The Quebec scheme, theeffect of which is to respect each person’s freedom of choice to establish his or her own form of conjugality, and thus to participate or notto participate in the legislative regime of marriage or civil union with its distinct legal consequences, is not based on a stereotype. In thissense, recognition of the principle of autonomy of the will, which is one of the values underlying the equality guarantee in s. 15 of theCharter, means that the courts must respect choices made by individuals in the exercise of that autonomy.

In this context, it will be up tothe legislature to intervene if it believes that the consequences of such autonomous choices give rise to social problems that need to beremedied. In conclusion, although arts. 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of Québec draw a distinction basedon marital status between de facto spouses and married or civil union spouses, they do not create a disadvantage by expressing orperpetuating prejudice or by stereotyping. These provisions accordingly do not violate the right to equality guaranteed by s. 15 of theCharter.

Per Abella J. (majority on s. 15(1)): The total exclusion of de facto spouses — the term used in Quebec for those who areneither married nor in a civil union — from the legal protections for both support and property given to spouses in formal unions is aviolation of s. 15(1) of the Canadian Charter of Rights and Freedoms. When spouses who are married or in civil unions separate ordivorce in Quebec, they are guaranteed certain legal protections. They have the right to claim support from each other and an equaldivision of the family property.

The spousal support and family property provisions in Quebec are aimed at recognizing andcompensating spouses for the roles assumed within the relationship and any resulting interdependence and vulnerability on itsdissolution. Many de facto spouses share the characteristics that led to the protections for spouses in formal relationships. They formlong-standing unions; they divide household responsibilities and develop a high degree of interdependence; and, critically, theeconomically dependent, and therefore vulnerable, spouse is faced with the same disadvantages when the relationship is dissolved.

Yetde facto dependent spouses in Quebec have no right to claim support, no right to divide the family patrimony, and are not governed byany matrimonial regime. As the history of modern family law demonstrates, fairness requires that we look at the content of the relationship’s socialpackage, not at how it is wrapped. In Quebec and throughout the rest of Canada, the right to support does not rest on the legal status ofeither husband or wife, but on the reality of the dependence or vulnerability that the spousal relationship creates.

The law dealing withdivision of family property also rests on a protective basis rather than a contractual one. The provisions in Quebec on compensatoryallowance and the family patrimony regime are part of public order, applying mandatorily to all married spouses and those in civilunions. The mandatory nature of both the compensatory allowance and family patrimony regimes highlights the preeminent significanceQuebec has given to concerns for the protection of vulnerable spouses over other values such as contractual freedom or choice.

Historically, unmarried spouses in Canada were stigmatized; but as social attitudes changed, so did the approaches oflegislatures and courts, which came to accept conjugal relationships outside a formal marital framework. This change reflected anenhanced understanding of what constitutes a “family”. As attitudes shifted and the functional similarity between many unmarriedrelationships and marriages was accepted, this Court expanded protection for unmarried spouses. In Miron v.

Trudel, (SCC), [1995] 2 S.C.R. 418, for example, the Court found that “marital status” was an analogous ground under s. 15(1) of the Charterbecause of the historic disadvantage of unmarried spouses. Notably too, the Court observed that while in theory an individual is free tochoose whether to marry, there are, in reality, a number of factors that may place the decision beyond his or her effective control. Thiswas a recognition of the complex and mutual nature of the decision to marry and the myriad factors at play in that decision.

It was alsoan acknowledgment that the decision to live together as unmarried spouses may, for some, not in fact be a choice at all. The purpose of the s. 15 equality provision is to eliminate the exclusionary barriers faced by individuals in the enumeratedor analogous groups in gaining meaningful access to what is generally available. In Kapp, this Court reaffirmed its commitment to the

test that was set out in Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, whereby s. 15 was seenas an anti-discrimination provision. The claimant’s burden under the Andrews test is to show that the government has made a distinctionbased on an enumerated or analogous ground and that the distinction’s impact on the individual or group perpetuates disadvantage. Ifthis has been demonstrated, the burden shifts to the government to justify the reasonableness of the distinction under s. 1. Kapp, and laterWithler restated these principles as follows:

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Doesthe distinction create a disadvantage by perpetuating prejudice or stereotyping? In referring to prejudice and stereotyping in the second step of the Kapp reformulation of the Andrews test, the Court was notpurporting to create a new s. 15 test. Prejudice and stereotyping are not discrete elements of the test which a claimant is obliged todemonstrate. Prejudice is the holding of pejorative attitudes based on strongly held views about the appropriate capacities or limits ofindividuals or the groups of which they are a member.

Stereotyping, like prejudice, is a disadvantaging attitude, but one that attributescharacteristics to members of a group regardless of their actual capacities. Attitudes of prejudice and stereotyping can undoubtedly leadto discriminatory conduct, and discriminatory conduct in turn can reinforce these negative attitudes. But Kapp and Withler should not beseen as establishing an additional requirement on s. 15 claimants to prove that a distinction will perpetuate prejudicial or stereotypicalattitudes towards them.

Such an approach improperly focuses attention on whether a discriminatory attitude exists, not a discriminatoryimpact, contrary to Andrews, Kapp and Withler. It is the discriminatory conduct that s. 15 seeks to prevent, not the underlying attitude ormotive. Requiring claimants, therefore, to prove that a distinction perpetuates negative attitudes about them imposes a largely irrelevant,not to mention ineffable burden. The root of s. 15 is our awareness that certain groups have been historically discriminated against, and that the perpetuationof such discrimination should be curtailed.

The key is whether a distinction has the effect of perpetuating arbitrary disadvantage on theclaimant because of his or her membership in an enumerated or analogous group. If the state conduct widens the gap between thehistorically disadvantaged group and the rest of society rather than narrowing it, then it is discriminatory. Assessment of legislative purpose is an important part of a Charter analysis, but it is conducted under s. 1 once the burdenhas shifted to the state to justify the reasonableness of the infringement.

To focus on the legislative purpose — freedom of choice — atthe s. 15(1) stage is not only contrary to the approach in Andrews, it is also completely inconsistent with Miron and undermines therecognition of marital status as an analogous ground. Having accepted marital status as an analogous ground, it is contradictory to findnot only that de facto spouses have a choice about their marital status, but that it is that very choice that excludes them from theprotection of s. 15(1) to which Miron said they were entitled.

Moreover, this Court has repeatedly rejected arguments that choiceprotects a distinction from a finding of discrimination. Because the equality analysis under s. 15(1) of the Charter has evolved substantially in the decade since Walsh was decided,Walsh need not be followed. In particular, the majority in Walsh relied on the dignity test and on comparator groups, neither of which isany longer required as part of the s. 15(1) analysis. The exclusion of de facto spouses from the economic protections available to formal spousal relationships is a distinctionbased on marital status, an analogous ground.

That it imposes a disadvantage is clear: the law excludes vulnerable and economicallydependent de facto spouses from protections considered so fundamental to the welfare of vulnerable married or civil union spouses thatone of those protections is presumptive, and the rest are of public order, explicitly overriding freedom of contract or choice for thosespouses.

The disadvantage this exclusion perpetuates is an historic one: it continues to deny de facto spouses access to economicremedies of which they have always been deprived, remedies Quebec considered indispensable for the protection of married and civilunion spouses. There is little doubt that some de facto couples are in relationships that are functionally similar to formally recognizedspousal relationships.

Since many spouses in de facto couples exhibit the same functional characteristics as spouses in formal unions,with the same potential for one partner to be left economically vulnerable or disadvantaged when the relationship ends, their exclusionfrom similar protections perpetuates historic disadvantage against them based on their marital status. There is no need to look for anattitude of prejudice motivating or created by the exclusion of de facto couples from the presumptive statutory protections.

There is nodoubt that attitudes have changed towards de facto unions in Quebec, but what is relevant is not the attitudinal progress towards them,but the continuation of their discriminatory treatment. Per Deschamps, Cromwell and Karakatsanis JJ. (concurring with Abella J. on s. 15(1)): There is agreement with Abella J.’sanalysis of s. 15 of the Charter and with her conclusion that the right protected by that

section has been infringed. The Quebeclegislature has infringed the guaranteed right to equality by excluding de facto spouses from all the measures adopted to protect personswho are married or in civil unions should their family relationships break down. The Court has recognized the fact of being unmarriedas an analogous ground because, historically, unmarried persons were considered to have adopted a lifestyle less worthy of respect thanthat of married persons. For this reason, they were excluded from the social protections.

Even though society’s perception of de factospouses has changed in recent decades and there is no indication that the Quebec legislature intended to stigmatize them, the denial ofthe benefits in question perpetuates the disadvantage such people have historically experienced. The Attorney General of Quebectherefore had to justify this distinction. Per McLachlin C.J. (concurring with Abella J. on s. 15(1)): The s. 15 analysis set out in Abella J.’s reasons is agreed with,as is her conclusion that there is a breach.

While the promotion or the perpetuation of prejudice, on the one hand, and false stereotyping,on the other, are useful guides, what constitutes discrimination requires a contextual analysis, taking into account matters such aspre-existing disadvantage of the claimant group, the degree of correspondence between the differential treatment and the claimantgroup’s reality, the ameliorative impact or purpose of the law, and the nature of the interests affected.

The issue of whether the law isdiscriminatory must be considered from the point of view of the reasonable person, dispassionate and fully apprised of the circumstances,possessed of similar attributes to, and under similar circumstances as, the claimant. It is important to maintain the analytical distinction between s. 15 and s. 1. Walsh does not bind the Court in the presentcase. Public policy considerations such as freedom of choice and individual autonomy, which were held in Walsh to negate a breach ofs. 15, are better considered at the s. 1 stage of the analysis.

Here, the Quebec approach of applying mandatory protections only to married and civil union spouses limits the s. 15

equality right of de facto spouses. A reasonable person in A’s position would conclude that the law in fact shows less concern for people in A’s position than for married and civil union spouses on break-up of a relationship. As it applies to people in A’s situation, the law perpetuates the effects of historical disadvantage rooted in prejudice and rests on a false stereotype of choice rather than on the reality of the claimant’s situation.

While the legislative animus against de facto spouses in Quebec has disappeared, the present law continues to exclude de facto spouses from the protective schemes of Quebec family law. Moreover, the law assumes that de facto partners choose to forgo the protections it offers to married and civil union partners. This assumption fails to accord to the reality of the situation of de facto spouses such as A.

(2) Section 1 of the Charter Per LeBel, Fish, Rothstein and Moldaver JJ.: Since the exclusion of de facto spouses from the scope of the provisions of the Civil Code of Québec at issue is not discriminatory within the meaning of s. 15(1) of the Charter and does not violate the constitutional right to equality, it is not necessary to proceed to the s. 1 stage of the Charter analysis. Per McLachlin C.J.: The limit on the equality right of de facto spouses is justified under s. 1 of the Charter .

The objective of the Quebec legislature, which is to promote choice and autonomy for all Quebec spouses with respect to property division and support, was pursued in response to rapidly changing attitudes in Quebec with respect to marriage and is sufficiently important to justify an infringement to the right to equality. The distinction made by the law is rationally connected to the state objective: the Quebec approach only imposes state-mandated obligations on spouses who have made a conscious and active choice to accept those obligations.

The law falls within a range of reasonable alternatives for maximizing choice and autonomy in the matter of family assets and support. While schemes adopted in other Canadian provinces impair the equality right of de facto spouses to a lesser degree, such approaches would be less effective in promoting Quebec’s goals of maximizing choice and autonomy for couples in Quebec. The question at the minimum impairment stage is whether the legislative goal could be achieved in a way that impacts the right less, not whether the goal should be altered.

Finally, the effects of the Quebec scheme on the equality rights of de facto spouses are proportionate to the scheme’s overall benefits for the group. The scheme enhances the freedom of choice and autonomy of many spouses as well as their ability to give personal meaning to their relationship.

Having regard to the need to allow legislatures a margin of appreciation on difficult social issues and the need to be sensitive to the constitutional responsibility of each province to legislate for its population, the unfortunate dilemma faced by women such as A is not disproportionate to the benefits of the scheme to an extent that warrants a finding of unconstitutionality. Per Deschamps, Cromwell and Karakatsanis JJ.: Although support and the measures relating to patrimonial property have some of the same functions and objectives, they cannot and must not be confused with one another.

The needs they address and how the legislature has dealt with them in the past warrant their being considered separately. The measures that protect the patrimony of spouses are not, like support, focused on the basic needs of the vulnerable spouse. Their purpose is to ensure autonomy and fairness for couples who have been able to, or wanted to, accumulate property. The process that leads to the acquisition of a right of ownership is different from the one that causes a spouse to become economically dependent.

Whereas a plan to live together takes shape gradually and can result in the creation of a relationship of interdependence over which one of the parties has little or no control, property can be acquired only as a result of a conscious act. This analysis leads to the conclusion that only the exclusion of de facto spouses from support is not justified under s. 1 of the Charter . The objective of promoting the autonomy of the parties is pressing and substantial. There is also a rational connection. However, the minimal impairment test is not met.

The affected interest is vital to persons who have been in a relationship of interdependence. The rationale for awarding support on a non-compensatory basis applies equally to persons who are married or in a civil union and to de facto spouses.

If the legal justification for support is based on, among other things, the satisfaction of needs resulting from the breakdown of a relationship of interdependence created while the spouses lived together, it is difficult to see why a de facto spouse who may not have been free to choose to have the relationship with his or her spouse made official through marriage or a civil union, but who otherwise lives with the latter in a “family unit”, would not be entitled to support.

For someone in such a position, the possibility the parties have, according to the Attorney General, of choosing to marry or to enter into a civil union does not really exist. The concept of “mutual obligation” as the non-compensatory basis for the obligation of support must guide legislators in seeking ways to promote the autonomy of the parties while interfering as little as reasonably possible with the right to support itself.

A total exclusion from the right to support benefits only de facto spouses who want to avoid the obligation of support, and it impairs the interests of dependent and vulnerable former spouses to a disproportionate extent. Per Abella J.: The breach of s. 15(1) is not saved under s. 1 , failing the minimal impairment and proportionality steps of the Oakes test. Th e exclusion of de facto spouses from spousal support and property regimes in Quebec was a carefully considered policy choice. It was discussed and reaffirmed during successive family law reforms from 1980 onwards.

But the degree of legislative time, consultation and effort cannot act as a justificatory shield to guard against constitutional scrutiny. What is of utmost relevance is the resulting legislative choice. Neither the deliberative policy route nor the popularity of its outcome is a sufficient answer to the requirement of constitutional compliance. An outright exclusion of de facto spouses cannot be said to be minimally impairing of their equality rights. This Court has generally been reluctant to defer to the legislature in the context of total exclusions from a legislative scheme.

The antipathy towards complete exclusions is not surprising, since the government is required under s. 1 to explain why a significantly less intrusive and equally effective measure was not chosen . This will be a difficult burden to meet when, as in this case, a group has been entirely left out of access to a remedial scheme. The current opt- in protections may well be adequate for some de facto spouses who enter their unions with sufficient financial security, legal information, and the intent to avoid the consequences of a more formal union.

But their ability to exercise freedom of choice can be equally protected under a regime with an opt- out mechanism. The needs of the economically vulnerable, however, require presumptive protection no less in de facto unions than in more formal ones. The evidence discloses that many de facto spouses simply do not turn their minds to the eventuality of separation.

This lack of awareness speaks to the relative merit of a system of presumptive protection, under which they would be protected whether aware of their legal rights or not, while leaving de facto spouses who wish to do so the freedom to choose not to be protected. A further weakness of the current opt-in system is its failure to recognize that the choice to formally marry is a mutual and complex decision, as Miron pointed out . Where one member of a couple refuses to marry or enter into a civil union, he or she thereby deprives the other of the benefit of needed economic support when the

relationship ends. Every other province has extended spousal support to unmarried spouses. They have set minimum periods of cohabitationbefore couples are subject to their regimes, and have preserved freedom of choice by allowing couples to opt out. Some have alsoextended statutory division of property to unmarried spouses.

These presumptively protective schemes with a right on the part of defacto spouses to opt out are examples of alternatives that would provide economically vulnerable spouses with the protection they need,without in any way interfering with the legislative objective of giving freedom of choice to those de facto spouses who want to exerciseit. At the end of the day, the methodology for remedying the s. 15 breach lies with the Quebec legislature, and Quebec is in no wayobliged to mimic any other province’s treatment of de facto spouses.

But the fact of these other regimes can be helpful in determiningthat there is a less impairing way to fulfill the objective of preserving freedom of choice without infringing the equality rights of de factospouses. The choices for de facto spouses in Quebec are to enter into a contract to enshrine certain protections, to marry and receiveall the protections provided by law, or to remain unbound by any mutual rights or obligations. It is entirely possible for Quebec to designa regime that retains all of these choices without violating s. 15.

Spouses who are aware of their legal rights, and choose not to marry sothey can avoid Quebec’s support and property regimes, would be free to choose to remove themselves from a presumptively protectiveregime. Changing the default situation of the couple, however, so that spousal support and division of property protection of some kindapplies to them, would protect those spouses for whom the choices are illusory and who are left economically vulnerable at the end ofthe relationship.

The deleterious effect of excluding all de facto spouses, who represent over a third of Quebec couples, from the protection ofthe family support and division of property regimes is profound. Being excluded requires potentially vulnerable de facto spouses, unlikepotentially vulnerable spouses in formal unions, to expend time, effort and money to try to obtain some financial assistance. If thevulnerable spouse fails to take these steps, either through a lack of knowledge or resources, or because of the limits on his or her optionsimposed by an uncooperative partner, he or she will remain unprotected.

The outcome for such a spouse in the event of a separation canbe, as it is for economically dependent spouses in formal unions, catastrophic. The difference is that economically dependent spouses informal unions have automatic access to the possibility of financial remedies. De facto spouses have no such access. The salutary impactof the exclusion, on the other hand, is the preservation of de facto spouses’ freedom to choose not to be in a formal union. Those forwhom a de facto union is truly a chosen means to preserve economic independence would still be able to achieve this result by optingout.

Since the salutary effect can be achieved without in any way compromising a de facto spouse’s freedom of choice, it cannot be saidto outweigh the serious harm for economically vulnerable de facto spouses that results from their exclusion from the family support andproperty regimes. Cases Cited By LeBel J. Applied: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1S.C.R. 396; Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325; distinguished: M. v. H., (SCC), [1999] 2 S.C.R. 3; discussed: Law v.

Canada (Minister of Employment and Immigration), (SCC), [1999] 1S.C.R. 497; Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143; referred to: Miron v. Trudel, (SCC), [1995] 2 S.C.R. 418; M.T. v. J.-Y.T., 2008 SCC 50, [2008] 2 S.C.R. 781; Droit de la famille — 977, (QC CA), [1991] R.J.Q. 904; Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420; G.B. v. C.C., (QC CA), [2001] R.J.Q. 1435; Couture v. Gagnon, (QC CA), [2001] R.J.Q. 2047, leave to appeal refused, [2002] 3S.C.R. vii; Ponton v. Dubé, 2005 QCCA 413 ; Bourbonnais v. Pratt, 2006 QCCS 5611, [2007] R.D.F. 124; M.B. v.

L.L., (QC CA), [2003] R.D.F. 539; Peter v. Beblow, (SCC), [1993] 1 S.C.R. 980; Cie Immobilière Viger Ltéev. Lauréat Giguère Inc., (SCC), [1977] 2 S.C.R. 67; Benzina v. Le, 2008 QCCA 803 ; Barrette v. Falardeau,2010 QCCA 989 ; C.L. v. J.Le., 2010 QCCA 2370 ; Droit de la famille — 121120, 2012 QCCA 909 ; Blencoev. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Gosselin v. Quebec (Attorney General), 2002 SCC84, [2002] 4 S.C.R. 429; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30; Rodriguez v.

British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519; Eldridge v.British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624; Hodge v. Canada (Minister of Human ResourcesDevelopment), 2004 SCC 65, [2004] 3 S.C.R. 357; Egan v. Canada, (SCC), [1995] 2 S.C.R. 513; Corbiere v. Canada(Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R. 203; Thibaudeau v. Canada, (SCC),[1995] 2 S.C.R. 627; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; Alberta v. Hutterian Brethren of Wilson Colony, 2009SCC 37, [2009] 2 S.C.R. 567; Ermineskin Indian Band and Nation v.

Canada, 2009 SCC 9, [2009] 1 S.C.R. 222; A.C. v. Manitoba(Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181; Alberta (Aboriginal Affairs and Northern Development) v.Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670; R. v. Turpin, (SCC), [1989] 1 S.C.R. 1296; Lavoie v. Canada, 2002SCC 23, [2002] 1 S.C.R. 769; Trociuk v. British Columbia (Attorney General), 2003 SCC 34, [2003] 1 S.C.R. 835; Eaton v. BrantCounty Board of Education, (SCC), [1997] 1 S.C.R. 241; R. v. Williams, (SCC), [1998] 1 S.C.R.1128; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458.

By Abella J. Applied: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; not followed: Nova Scotia(Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325; discussed: Miron v. Trudel, (SCC), [1995] 2 S.C.R.418; referred to: Québec (Procureure générale) v. B.T., 2005 QCCA 748, [2005] R.D.F. 709; Moge v. Moge, (SCC),[1992] 3 S.C.R. 813; Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420; M. (M.E.) v.

L. (P.), (SCC),[1992] 1 S.C.R. 183; Droit de la famille — 977, (QC CA), [1991] R.J.Q. 904; Rathwell v. Rathwell, (SCC), [1978] 2 S.C.R. 436; Murdoch v. Murdoch, (SCC), [1975] 1 S.C.R. 423; Pettkus v. Becker, (SCC), [1980] 2 S.C.R. 834; M. v. H., (SCC), [1999] 2 S.C.R. 3; Ontario Human Rights Commission v. Simpsons-SearsLtd., (SCC), [1985] 2 S.C.R. 536; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission),

(SCC), [1987] 1 S.C.R. 1114; Law v. Canada (Minister of Employment and Immigration), (SCC),[1999] 1 S.C.R. 497; Griggs v. Duke Power Co., 401 U.S. 424 (1971); Corbiere v. Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R. 203; Brooks v. Canada Safeway Ltd., (SCC), [1989] 1 S.C.R. 1219; Lavoie v.Canada, 2002 SCC 23, [2002] 1 S.C.R. 769; Janzen v. Platy Enterprises Ltd., (SCC), [1989] 1 S.C.R. 1252; Nova Scotia(Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Alberta v. Hutterian Brethren of Wilson Colony, 2009SCC 37, [2009] 2 S.C.R. 567; RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199;Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624; McKinney v. University of Guelph, (SCC), [1990] 3 S.C.R. 229; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), (SCC), [1991] 2 S.C.R. 22; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493. By Deschamps J. Not followed: Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325; referred to: R. v. Kapp, 2008SCC 41, [2008] 2 S.C.R. 483; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Law v.

Canada (Minister ofEmployment and Immigration), (SCC), [1999] 1 S.C.R. 497; Miron v. Trudel, (SCC), [1995] 2 S.C.R.418; Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420; Moge v. Moge, (SCC), [1992] 3 S.C.R. 813;M. v. H., (SCC), [1999] 2 S.C.R. 3. By McLachlin C.J. Not followed: Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325; referred to: Miron v. Trudel, (SCC), [1995] 2 S.C.R. 418; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Withler v. Canada (Attorney General),2011 SCC 12, [2011] 1 S.C.R. 396; Law v.

Canada (Minister of Employment and Immigration), (SCC), [1999] 1S.C.R. 497; Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713; Irwin Toy Ltd. v. Quebec(Attorney General), (SCC), [1989] 1 S.C.R. 927; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009]2 S.C.R. 567; Lavoie v. Canada, 2002 SCC 23, [2002] 1 S.C.R. 769; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; McKinney v. University of Guelph, (SCC), [1990] 3 S.C.R. 229; R. v.

Advance Cutting& Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209. Statutes and Regulations Cited Act instituting civil unions and establishing new rules of filiation, S.Q. 2002, c. 6, s. 143. Act respecting duties on transfers of immovables, R.S.Q., c. D-15.1. Act respecting financial assistance for education expenses, R.S.Q., c. A-13.3. Act respecting financial services cooperatives, R.S.Q., c. C-67.3. Act respecting industrial accidents and occupational diseases, R.S.Q., c. A-3.001. Act respecting insurance, R.S.Q., c. A-32. Act respecting labour standards, R.S.Q., c. N-1.1.

Act respecting legal aid and the provision of certain other legal services, R.S.Q., c. A-14. Act respecting matrimonial regimes, S.Q. 1969, c. 77. Act respecting school elections, R.S.Q., c. E-2.3. Act respecting the Civil Service Superannuation Plan, R.S.Q., c. R-12. Act respecting the conditions of employment and the pension plan of the Members of the National Assembly, R.S.Q., c. C-52.1. Act respecting the Government and Public Employees Retirement Plan, R.S.Q., c. R-10. Act respecting the legal capacity of married women, S.Q. 1964, c. 66. Act respecting the Pension Plan of Certain Teachers, R.S.Q., c. R-9.1.

Act respecting the Pension Plan of Elected Municipal Officers, R.S.Q., c. R-9.3. Act respecting the Pension Plan of Peace Officers in Correctional Services, R.S.Q., c. R-9.2. Act respecting the Québec Pension Plan, R.S.Q., c. R-9. Act respecting the Québec sales tax, R.S.Q., c. T-0.1. Act respecting the Teachers Pension Plan, R.S.Q., c. R-11. Act respecting trust companies and savings companies, R.S.Q., c. S-29.01. Act to amend the Civil Code and the Code of Civil Procedure respecting the civil rights of women, S.Q. 1931, c. 101, s. 27.

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C-67.2. Courts of Justice Act , R.S.Q., c. T-16. Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), s. 15.2 . Divorce Act , S.C. 1967-68, c. 24. Domestic Relations Act , R.S.A. 2000, c. D-14. Family Law Act , R.S.N.L. 1990, c. F-2. Family Law Act , R.S.O. 1990, c. F.3. Family Law Act , R.S.P.E.I. 1988, c. F-2.1. Family Law Act , S.N.W.T. 1997, c. 18. Family Maintenance Act , R.S.M. 1987, c. F20. Family Maintenance Act, 1997 , S.S. 1997, c. F-6.2. Family Relations Act , R.S.B.C. 1996, c. 128. Family Services Act , S.N.B. 1980, c. F-2.2. Individual and Family Assistance Act , R.S.Q., c. A-13.1.1.

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Section 15 at Twenty”, in Sheila McIntyre and Sanda Rodgers, eds., Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms . Markham, Ont.: LexisNexis Canada, 2006, 45. Young, Margot. “Unequal to the Task: ‘Kapp’ing the Substantive Potential of

Section 15”, in Sanda Rodgers and Sheila McIntyre, eds., The Supreme Court of Canada and Social Justice: Commitment, Retrenchment or Retreat . Markham, Ont.: LexisNexis, 2010, 183. APPEALS from a judgment of the Quebec Court of Appeal (Beauregard, Dutil and Giroux JJ.A.), 2010 QCCA 1978 , [2010] R.J.Q. 2259 , [2010] R.D.F. 659 , 89 R.F.L. (6th) 1 , [2010] Q.J. No. 11091 (QL) , 2010 CarswellQue 15654 , SOQUIJ AZ-50685017 , affirming in part a decision of Hallée J., 2009 QCCS 3210 , [2009] R.J.Q. 2070 , [2009] R.D.F. 545 , 67 R.F.L. (6th) 315 , [2009] Q.J.

No. 7153 (QL) , 2009 CarswellQue 14051 , SOQUIJ AZ-50566038 . Appeals of the Attorney General of Quebec and B allowed, appeal of A dismissed, Deschamps, Cromwell and Karakatsanis JJ. dissenting in

part in the result and Abella J. dissenting in the result. Benoît Belleau and Hugo Jean , for the appellant/respondent the Attorney General of Quebec. Guy J. Pratte and Mark Phillips , for the appellant/respondent A. Pierre Bienvenu , Suzanne H. Pringle , Catherine Martel and Azim Hussain , for the appellant/respondent B. Gaétan Migneault , for the intervener the Attorney General of New Brunswick. Robert J. Normey , for the intervener the Attorney General of Alberta.

Jocelyn Verdon , Dominique Goubau and Mireille Pélissier-Simard , for the intervener Fédération des associations de familles monoparentales et recomposées du Québec. Martha McCarthy and Johanne Elizabeth O’Hanlon , for the intervener the Women’s Legal Education and Action Fund. English version of the judgment of LeBel, Fish, Rothstein and Moldaver JJ. delivered by LeBel J. — I. Introduction [ 1 ] The issue raised by the parties in these appeals is whether it is valid to exclude de facto spouses from the patrimonial and support rights granted to married and civil union spouses.

Does this exclusion violate the right to equality guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms (“ Charter ”)? [ 2 ] The Court must determine whether the provisions of the Civil Code of Québec , S.Q. 1991, c. 64 (“ C.C.Q. ”), dealing with the family residence (arts. 401 et seq. ), the family patrimony (arts. 414 et seq. ), the compensatory allowance (arts. 427 et seq. ), the partnership of acquests (arts. 432 et seq. ) and the obligation of spousal support ( art. 585 ) infringe s. 15(1) of the Charter because their application is limited to private legal relationships between married spouses and civil union spouses (see arts. 521.6 and 521.8 C.C.Q. ). [ 3 ] The Court must therefore decide whether the exclusion of de facto spouses from the scope of these provisions is discriminatory within the meaning of s. 15(1).

For the reasons that follow, I am of the opinion that the exclusion is not discriminatory within the meaning of s. 15(1) and accordingly does not violate the right to equality guaranteed by s. 15 of the Charter . II. The Dispute [ 4 ] Parties Ms. A and Mr. B met in 1992 in A’s native country. A, who was 17 years old at the time, was living with her parents and attending secondary school. B, who was 32 years old, was running a large international business. From 1992 to 1994,

the parties travelled the world together several times a year. B provided A with financial support so that she could continue her schooling. In early 1995, the parties agreed that A would come to live in Quebec, where B lived. [ 5 ] The parties broke up for the first time in late July 1995. They saw each other again during the holiday season, and then again in February 1996. A then became pregnant with her first child. The couple had three children together, born in 1996, 1999 and 2001. During the time they lived together, A did not hold employment.

She regularly accompanied B on his trips, and he provided for all her needs and for the children’s needs. A wanted to get married, but B told her that he did not believe in the institution of marriage and that he might consider getting married after living with her for 25 years. The parties separated in 2002. They had lived together for a total of seven years. [ 6 ] In February 2002, A filed a motion in the Quebec Superior Court seeking custody of the children, support, a lump sum, use of the family residence, a provision for costs and an interim order.

The motion was accompanied by a notice to the Attorney General of Quebec stating that A intended to challenge the constitutionality of several provisions of the Civil Code of Québec in order to obtain the same legal regime for de facto spouses that existed for married spouses. More specifically, A claimed support for herself, a lump sum, partition of the family patrimony and the legal matrimonial regime of partnership of acquests. She also sought to reserve her right to claim a compensatory allowance.

A claim concerning the use of the family residence was settled in an agreement between A and B. [ 7 ] Since the constitutionality of the provisions relating to child custody and the child support obligation had not been challenged, the Superior Court awarded the parties joint custody of the children and awarded A $34,260.24 a month in child support and a provision for costs on May 16, 2006.

The court also made a series of orders requiring B to pay certain specific expenses, including the children’s tuition fees, expenses related to their extracurricular activities, the salaries of two nannies and the salary of a cook working for A. As well, the court ordered B to continue paying all costs, school and municipal taxes, home insurance premiums and general maintenance and renovation costs required for the residence where the parties had agreed that A and the children would live.

B remained the owner of that residence. [ 8 ] The appeals relate solely to the constitutional aspect of the case and concern only the provisions of the Civil Code of Québec alleged by A to be invalid under s. 15 of the Charter . Hallée J. of the Superior Court ruled on the constitutional issues on July 16, 2009. She found that the impugned provisions did not violate the right to equality guaranteed by s. 15(1), and she denied A’s requests for a declaration of constitutional invalidity, which had been opposed by B and the Attorney General of Quebec.

A then appealed to the Quebec Court of Appeal. [ 9 ] On November 3, 2010, the Quebec Court of Appeal allowed A’s appeal in part. Dutil J.A., with whom Giroux J.A. concurred, declared art. 585 C.C.Q. , which provides for the obligation of spousal support, to be of no force or effect on the basis of an unjustified infringement of the right to equality set out in s. 15(1) of the Charter . However, Dutil J.A. upheld the Superior Court’s decision as regards the constitutionality of the provisions concerning the family residence, the family patrimony, the compensatory allowance and the partnership of acquests.

In her opinion, those provisions are not discriminatory and therefore do not infringe s. 15(1). Dutil J.A. also suspended the declaration of constitutional invalidity of art. 585 for 12 months to give the Quebec legislature time to amend the provision in order to make it consistent with the Charter . Beauregard J.A. dissented on the issue of the appropriate remedy.

He concluded that the declaration of constitutional invalidity of arts. 511 and 585 C.C.Q. should apply immediately so that A could benefit from the obligation of spousal support without delay. [ 10 ] In this Court, B and the Attorney General of Quebec are appealing the Court of Appeal’s decision to strike down art. 585 on the obligation of spousal support. A is also appealing that decision. She takes issue with the conclusion that the Civil Code ’s provisions concerning the family residence, the family patrimony, the compensatory allowance and the partnership of acquests are constitutionally valid.

To ensure that the issues in these appeals are fully understood, I will begin by reviewing the proceedings in the Superior Court and the Court of Appeal in greater detail. III. Judicial History A. Quebec Superior Court, 2009 QCCS 3210 , [2009] R.J.Q. 2070 [ 11 ] This case came before Hallée J. by way of a Charter motion. In addition to her claims based on s. 15 of the Charter , A originally made certain arguments concerning the division of constitutional powers between Parliament and the provincial legislatures as regards the definition of marriage.

Hallée J. rejected all those arguments, and A abandoned them on appeal. In this Court, the only remaining issues have to do with the equality guarantee set out in the Charter . [ 12 ] Hallée J. began with an overview of the legal situation of de facto spouses in Quebec. She noted that they cannot bring support proceedings against one another or partition the family patrimony, and that they are not governed by a legal matrimonial regime.

However, they are treated in the same way as married spouses for the purposes of life insurance (art. 2419 C.C.Q. ), annuities (art. 2380 C.C.Q. ) and the protective supervision of incapable or vulnerable persons (arts. 264, 266 and 269 C.C.Q. ). Moreover, they are authorized by art. 15 C.C.Q. to consent to care for a person of full age who is incapable of giving consent. Hallée J. added that the Quebec legislature has enacted a number of social or tax laws (including the Act respecting the Québec Pension Plan , R.S.Q., c. R-9, and the Taxation Act , R.S.Q., c.

I-3) that grant de facto spouses benefits similar to the ones already available to married spouses. With these exceptions, only a cohabitation agreement can govern the rights of de facto spouses. In such an agreement, de facto spouses can provide for, among other things, an obligation of support in the event of a breakdown. [ 13 ] Hallée J. then summarized the most relevant points from the expert reports filed by the parties. Although none of the experts had been heard during the trial, some of them had been examined out of court.

Hallée J. found on the basis of these reports that de facto unions were a growing phenomenon in contemporary Quebec society: [ translation ] After having read the expert reports attentively, the Court finds that the phenomenon of de facto unions is growing in Quebec. From 1981 to 2006, the proportion of couples living in a de facto union grew from 7.9% to 34.6%.

The 2006 Statistics Canada census indicates that 34.6% of Quebeckers live in a de facto union, while an average of 18.4% of couples throughout Canada choose to live in this type of relationship. Thus, Quebec is far in the lead in terms of the number of couples living in a de facto union. Moreover, according to the Institut de la statistique du Québec, 60% of children in Quebec are born out of wedlock.

Some experts would therefore like to see the legislature intervene to regulate these unions, while others believe that further study is required before drawing [actual] conclusions about this phenomenon. [paras. 59-61] [ 14 ] Hallée J. then noted that, in R. v. Kapp , 2008 SCC 41 , [2008] 2 S.C.R. 483 , this Court had adopted a two-part test for finding that a distinction is discriminatory in the constitutional sense:

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? [ 15 ] Hallée J. added that marital status has been recognized as a ground analogous to the grounds of discrimination enumerated in s. 15(1). She also noted that, to find that s. 15(1) has been infringed, it is not enough to establish the existence of a legislative distinction based on an analogous ground.

According to the case law, the claimant must prove that the differential treatment has a purpose or effect that discriminates in a substantive sense. [ 16 ] In this case, Hallée J. concluded that A had not shown that the distinction between de facto spouses and married spouses resulting from the impugned provisions had substantively discriminatory effects and added that the lack of evidence in this regard was fatal to A’s action. Hallée J. stressed the limitations of the expert reports filed by the parties.

Those reports indicated that living conditions were by and large better for intact married families than for the new forms of family, but they did not assess the impact of the impugned provisions, particularly in the event of a breakdown. Hallée J. found on the basis of this evidence that de facto spouses in Quebec are not subject to [ translation ] “any stereotypical disadvantages or prejudice”. In her opinion, “the legislature’s purpose in preserving a distinction between marriage and de facto union is to safeguard freedom of choice and to respect the dignity and autonomy of de facto spouses” (para. 222).

Finally, she concluded that A had not established concrete effects of the distinctions between de facto and married spouses either during the conjugal relationship or upon its breakdown. [ 17 ] However, Hallée J. did not stop there. She also took the precedential value of Nova Scotia (Attorney General) v. Walsh , 2002 SCC 83 , [2002] 4 S.C.R. 325 , into account. In that case, this Court had held that, when the rights and obligations of common law spouses vis-à-vis each other are in issue, the spouses’ choice to marry or not to marry becomes the most important factor for the purposes of s. 15(1) of the Charter .

Since the distinctions between the rights and obligations of married spouses and those of common law spouses reflect choices made by those individuals, the consequences of the choices do not infringe s. 15 . In short, Hallée J. found that Walsh fully disposed of A’s Charter -based constitutional arguments. In her view, Walsh showed that the possibility for de facto spouses to make such choices is consistent with the fundamental purpose of s. 15 of the Charter : [ translation ] In the view of this Court, this is the fundamental point in Walsh .

Whether to establish an identical protective regime, regardless of the choice made regarding marital status, is not a decision that falls within the purview of the courts, provided the choices made by the legislature are not discriminatory.

It is the legislature’s task to determine whether it is necessary to impose, in whole or in part, a universal and standardized protective regime that does not take into account the matrimonial status of the de facto spouses. [para. 249] [ 18 ] Hallée J. then rejected A’s argument that Walsh could be distinguished from the case at bar because there was an obligation of support between common law spouses in Nova Scotia that does not exist in Quebec law. In her opinion, the majority’s reasons in Walsh were not based on the existence of such an obligation in Nova Scotia.

Hallée J. found that Walsh instead reflected the fundamental importance of freedom of choice and that this factor is just as applicable in Quebec as in Nova Scotia. The rights of married couples are not denied to de facto spouses, who can choose to benefit from them in different ways, by, for example, contracting a civil union or entering into an agreement. In addi

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