Private Law Theory

ABSTRACT
Much has been written on the idea of marriage as status-like. However, less time has been dedicated to the idea of common law relationships as status. In the decision of Quebec v A, the Supreme Court of Canada was asked whether the exclusion of unmarried couples from Quebec’s division of property and spousal support legislation was unconstitutional. In answering no, the majority of the Court described common law relationships as free from state regulation, labeling them a ‘no regime’ or at best ‘a regime of freedom of contract’.

This article argues that this framing of common law relationships as unregulated and privately ordered was incorrect. It demonstrates that, on the contrary, common law relationships in Canada have been a form of status for decades, in some ways more so than marriage itself. Ascription into this status happens more organically and unwittingly than that of marriage. When common law couples separate, the termination of their common law status is regulated by governments in tandem to those laws that govern the dissolution of marriage. This regulation however is both inefficient and uncertain, in roughly half of the country. The result is unnecessary and costly litigation, the wasting of court resources, the creation of barriers to justice, and ultimately, financial and social strain on the state.

Exposing the frailty of the Court’s logic in Quebec v A provides a strong argument for future constitutional challenges to provincial legislation that excludes common law couples from the obligations and protections assigned to separating, married persons in Canada. However, this article concludes that the more likely route, as we are seeing in real time since Quebec v A, is legislative reform.

Thomson, Jane, Both Sides Now: Common Law Relationships as Status in Canada (July 1, 2024), University of New Brunswick Law Journal volume 75, coming Fall 2024. This article is subject to minor edits and formatting changes in anticipation of its formal publication in the Journal. The pagination and citations of this preliminary version should not be relied upon when citing the article.