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www.canadianlawyermag.com 47 try to mitigate some of the injustice perceived as arising when a couple breaks up after a long cohabitation," he says. The Supreme Court of Canada, however, has upheld the distinction between legal marriages and common law unions when deciding on property division and spousal support. In a case commonly referred to as Eric v. Lola (Quebec (Attorney General) v. A, 2013 SCC 5), the Supreme Court decided that the laws as they applied to common law couples did, in fact, violate the Charter, but that the violation could be justified under s. 1. And in an earlier decision known as Walsh v. Bona (Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83), the Supreme Court ruled that it was not discriminatory for the Nova Scotia Matrimonial Property Act to exclude common law couples from the definition of "spouse." In these decisions, "they say, people choose not to get married for a reason," says Stephen Grant of Grant Crawford Watson LLP in Toronto, who has handled the dissolution of common law as well as legal marriages in his practice. "The courts have been clear that there is a definite distinction between marriage and cohabitation." Robert Shawyer of Shawyer Family Law & Mediation in Toronto says the decision in Walsh v. Bono was made prior to more recent Charter cases, and the decision in Eric v. Lola dealt with the Civil Code of Quebec and not other provinces' property regimes. He says property regimes in provinces such as Ontario and Alberta would be held to be unconstitutional if challenged, "because, from my reading, [Quebec v. A] applied strictly to Quebec's civil law system and division of property, which is rules- and statute-based, as opposed to common law jurisdictions" which are rules- and precedent-based. In her dissenting reasons in Quebec v. A, Justice Rosalie Abella alluded to Walsh v. Bono, which challenged Nova Scotia's property law division. "She said the problem with that [decision] was that it . . . doesn't accord with the more updated jurisprudence in regards to how you determine whether something is discriminatory, [and it] conflates the government's obligation to defend the law under s. 1 with the moving party's obligation to prove discrimination," Shawyer says. "It really does come down to, all things being equal, a moral question, whether or not we are willing to accord the same rights to common law couples as to legally married couples." Amendments to the Divorce Act did not include property rights for common law couples, he says, and as a result there is a hodgepodge of property regimes. "If you look internationally, you'll see that other common law jurisdictions have the same sets of property rights for common law as for married couples." Encouragement by the federal government to make property division and spousal support in common law relationships consistent with the regime for married couples "would be helpful. But at the end of the day, what it's going to require is constitutional challenges." "Whether we should be extending the same . . . rights to common law spouses, it's a political/philosophical issue, whether you believe people have the right to make their own determination as to how they want to live their economic lives." Stephen Grant, Grant Crawford Watson LLP