Unjustified Enrichment Between De Facto Spouses: A Renewal of the law, or History Being Re-written?
This article will take a look at the evolution of the jurisprudence on unjustified enrichment as a viable recourse for de facto couples, whoare otherwise completely deprived of any recourse to resolve the consequences of the economic inter-dependency that may have grown during their unions, tothe detriment of one of the partners at the time of relationship breakdown. The union may in fact be «libre» in some abstract romantic sense, but judging by the number of women in economic distress I have received in my office over 27 years of the practice of family law in Québec, I also wonder if «libre» is not the descriptor that reflects just how terrific these unions are for men.
Certainly the Québec legislator has been obstinate in refusing to recognize de facto unions as legal entities merit-worthy of consideration and protection in the corpus of our civil law. Although the legislator generally prohibits public institutions (government agencies, companies) and private individuals (landlords, seizing creditors, as two examples) from treating de facto couples asdifferent than married couples, the legislator remains proud to confirm as asound political doctrine that as between themselves, de facto partners are strangers in the law. And we jurists in Québec keep repeating this dictum between ourselves, despite the Supreme Court’s frequent reminders that de facto couples should attract the same respect and dignity as married couples.
This credo is philosophically justified under the banner of “free choice,” a doctrine rejected in many other domains of civil life in Québec. We do not permit women in Québec to act as surrogate mothers, nor do we permit Québec women to take their husband’s surname upon marriage. We do not permit landlords to contract with tenants freely, any more than we permit merchants to contract with consumers freely; the legal constraints are considerable, just as they are for salaried workers who also benefit from a myriad of legal protections against their employers. In these various domains of social justice, “freedom” and “choice” are viewed as antithetical to the protection of fundamental social values which we cherish, yet we do not consider the withdrawal of a degree of “freedom” and “choice” as inconsistent with the dignity of the individuals so protected (certainly residential tenants and consumers and salaried workers do not think of themselves as “victims” whenthey exercise the public order recourses that the law affords them, that cannotbe derogated from freely).
Conjugally, this philosophical freedom, generally experienced at the time of relationship breakdown as favourable for the de facto partner who has been enriched, is generally experienced as a disaster for the de facto partner who has been economically impoverished. Given the perpetuation of systemic inequalities between men and women insociety at large – as in the recent statistical analysis that in the province of Québec, women on average earn 70 cents for every dollar earned by men, forthe same work – and given the choices that women tend to make favouring caretaking responsibilities over career advancement, it is no surprise that the grand majority of successful claims for unjust enrichment are presented by women. It is women in general who suffer the most economically at the end of a defacto union, especially considering the absence of any recourse to spousal support or the family patrimony or the partnership of acquests for these women, and the bitter reality of Child Support Guidelines in Québec that are the lowest in Canada, thereby exacerbating the poverty into which many of these women are thrust for the mistake of having failed to insist upon wedding vows before entering into a union and founding a family.
It is worth noting the adverse effects of the Québec Child Support Guidelines for children and mothers of de facto unions. All the other provinces have to all intentsand purposes accepted to apply the Federal Child Support Guidelines mandated by Ottawa under the aegis of the Divorce Act, and jurisprudence has then extended the application of these Federal Guidelinesto the children of de facto couples. The result is that all children in Canada who have at least one parent residing in any province but Québec, have access to child support that is often well in excess of the level mandated in Québec. It is only the poorest fathers who arerequired by the Québec Child Support Guidelines to pay support that is somewhat higher than the federal level; for the middle class and up, for families wherethe mother works, for families where there is joint custody, in all these scenarios, women receive less child support in Québec than anywhere else in Canada. For well-to-do families, the child support is twice as high elsewhere in Canada as within Québec; if there is joint custody to boot, the child support may be four times as high elsewhere in Canada as within Québec.
It is already bad enough that women in Québec do not complain about this, doubtless because they are simply unaware of this legal reality. What is more striking is that the overwhelming majority of the demands for derogation from the strict application of the Québec Child Support Guidelines arepresented by men, notwithstanding their highly advantaged status in Québec.[1] This should be taken as a striking lesson that men are more combative toassert their rights and more inclined to protect themselves economically than women, even when children are concerned. It should not be surprising then that so many women find themselves at the end of their conjugal relationships in dire economic straits.
This has led at least some impoverished de facto spouses to heed the siren call of the civil law’s petition of last resort, the claim for compensation by reason of the unjust enrichment of the other partner, borrowed from the general rules of the civil law, and set out in article 1493 C.C.Q.:
Art. 1493. Celui qui s'enrichitaux dépens d'autrui doit, jusqu'à concurrence de son enrichissement, indemniserce dernier de son appauvrissement corrélatif s'il n'existe aucune justificationà l'enrichissement ou à l'appauvrissement.
As this article will discuss, de facto partners have had some success recently in invokingthis doctrine, benefiting mightily from years of evolution of the jurisprudence on unjust enrichment, followed by the jurisprudence which then evolved withrespect to the compensatory allowance, back in the era when married spouses had to resort to this doctrine to obtain compensation which the contractual matrimonial regime did not provide.
Nonetheless, recourse to the doctrine of unjust enrichment remains hazardous; the appreciation of the quantum of a petitioner’s claim is often quite subjective; and the appellate courts seem remarkably willing to intervene to reduce lowercourt awards, not because such awards were really all that generous to begin with, but because of an almost instinctual fear of not being perceived to underminethe sacrosanct “freedom of choice,” with the result that justice for impoverished women may be forgotten.
Philosophically,it is almost as if the choice to strive for equality in society has required that women accept the loss of protection from society. This is not a sound equation conceptually, nor a wise trade-off practically for women.
Equality means that men and women are entitled to equality of opportunity in society– in the workplace as in the home – but equality of opportunity does not entail equal outcome, and this is where society’s role of protection comes to bear, indeed for either sex (although the beneficiaries of such protection will continue overwhelmingly to be women). Society is able to maintain its commitment to equality between the sexes by offering the same scope of protection to both sexes within conjugal relationships, and indeed the panoply of legal benefits which exist for married spouses of both sexes has maintained a reasonable equilibrium that does not affront social peace, while in fact providing economic benefits generally for women.[2]
Would it not then at last be time to grant de facto spouses the same recognition and protection that the Loi favorisant l’égalité économique des époux provides to married couples, and, in this fashion, create a legally recognized family patrimony to the benefit of de facto families, who, it is embarrassing to admit, continue to be treated in the law in Québec as second class citizens.
[1] Les barèmes fixant les pensions alimentaires pour enfants: Dixièmeanniversaire (Cowansville, Qc: Yvon Blais, 2008).
[2] Which is not to say that the standard of living of women and their children does not continue to plunge dramatically after divorce, as statistics continue to show us. Worse yet, the standard of living of men post-divorce improves, which means the systemic impoverishment of women post-divorce indirectly subsidizes the systemic enrichment of men post-divorce. So much for substantive equality between the sexes.
