This article will take a look at theevolution of the jurisprudence on unjustified enrichment as a viable recourse forde facto couples, whoare otherwise completely deprived of any recourse to resolve the consequencesof the economic inter-dependency that may have grown during their unions, tothe detriment of one of the partners at the time of relationship breakdown. Theunion may in fact be «libre» in some abstract romantic sense, but judging bythe number of women in economic distress I have received in my office over 27years of the practice of family law in Québec, I also wonder if «libre» is notthe descriptor that reflects just how terrific these unions are for men.

Certainlythe Québec legislator has been obstinate in refusing to recognize de facto unions as legal entities meritworthy ofconsideration and protection in the corpus of our civil law. Although the legislator generallyprohibits public institutions (government agencies, companies) and privateindividuals (landlords, seizing creditors, as two examples) from treating defacto 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 inQuébec keep repeating this dictum between ourselves, despite the SupremeCourt’s frequent reminders that de facto couples should attract the same respect and dignity as marriedcouples.

Thiscredo is philosophically justified under the banner of “free choice,” adoctrine rejected in many other domains of civil life in Québec. We do notpermit women in Québec to act as surrogate mothers, nor do we permit Québecwomen to take their husband’s surname upon marriage. We do not permit landlordsto 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 legalprotections against their employers. In these various domains of socialjustice, “freedom” and “choice” are viewed as antithetical to the protection offundamental social values which we cherish, yet we do not consider thewithdrawal of a degree of “freedom” and “choice” as inconsistent with thedignity of the individuals so protected (certainly residential tenants andconsumers 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 relationshipbreakdown as favourable for the de facto partner who has been enriched, is generallyexperienced 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 provinceof 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 favouringcaretaking responsibilities over career advancement, it is no surprise that thegrand 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, especiallyconsidering the absence of any recourse to spousal support or the family patrimonyor the partnership of acquests for these women, and the bitter reality of ChildSupport Guidelines in Québec that are the lowest in Canada, therebyexacerbating the poverty into which many of these women are thrust for the mistake of having failed to insist upon weddingvows before entering into a union and founding a family.

Itis worth noting the adverse effects of the Québec Child Support Guidelines forchildren and mothers of de facto unions. All the other provinces have to all intentsand purposes accepted to apply the Federal Child Support Guidelines mandated byOttawa under the aegisof 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 leastone parent residing in any province but Québec, have access to child support that is often well inexcess 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 somewhathigher than the federal level; for the middle class and up, for families wherethe mother works, for families where there is joint custody, in all thesescenarios, women receive less child support in Québec than anywhere else inCanada. For well-to-do families, the child support is twice as high elsewherein Canada as within Québec; if there is joint custody to boot, the childsupport may be four times as high elsewhere in Canada as within Québec.

Itis already bad enough that women in Québec do not complain about this,doubtless because they are simply unaware of this legal reality. What is morestriking is that the overwhelming majority of the demands for derogationfrom 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 thanwomen, even when children are concerned. It should not be surprising then that so many womenfind themselves at the end of their conjugal relationships in dire economicstraits. 

Thishas led at least some impoverished de facto spouses to heed the siren call of the civil law’s petitionof last resort, the claim for compensation by reason of the unjust enrichmentof the other partner, borrowed from the general rules of the civil law, and setout 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.

Asthis article will discuss, de facto partners have had some success recently in invokingthis doctrine, benefiting mightily from years of evolution of the jurisprudenceon unjust enrichment, followed by the jurisprudence which then evolved withrespect to the compensatory allowance, back in the era when married spouses hadto resort to this doctrine to obtain compensation which the contractualmatrimonial regime did not provide.

Nonetheless,recourse to the doctrine of unjust enrichment remains hazardous; theappreciation 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 beginwith, but because of an almost instinctual fear of not being perceived to underminethe sacrosanct “freedom of choice,” with the result that justice forimpoverished women may be forgotten.

Philosophically,it is almost as if the choice to strive for equality in society has requiredthat women accept the loss of protection from society. This is not a soundequation conceptually, nor a wise trade-off practically for women.

Equality means that men and women are entitled to equalityof 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 ofprotection comes to bear, indeed for either sex (although the beneficiaries ofsuch protection will continue overwhelmingly to be women). Society is able tomaintain its commitment to equality between the sexes by offering the samescope of protection to both sexes within conjugal relationships, and indeed thepanoply of legal benefits which exist for married spouses of both sexes hasmaintained a reasonable equilibrium that does not affront social peace, whilein fact providing economic benefits generally for women.[2]

Wouldit not then at last be time to grant de facto spouses the same recognition and protection that theLoi 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 toadmit, continue to be treated in the law in Québec as second class citizens.