© 1994 Karen Selick
 Thrifty Ways to Leave Your Lover
An edited version of this article first appeared in the April, 1994 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.



 Thrifty Ways to Leave Your Lover

If the Ontario Law Reform Commission has its way, Paul Simon's famous advice in the song Fifty Ways to Leave Your Lover ("Slip out the back, Jack....Get on a bus, Gus") will soon have special significance for many Ontario residents.  The Commission has recommended that cohabiting heterosexual couples be subjected to the same rules of property confiscation--referred to in the legislation as "equalization"--as married couples, after they have lived together for three years.

It wasn't hard to see this coming.  The Supreme Court of Canada gave seven thumbs up to the philosophy underlying this proposal in the case of Peter v. Beblow last year.  That was the case of the common-law wife who walked away with the whole of the common-law husband's mortgage-free home because the court believed that our society undervalues housework.

I wrote about the Peter v. Beblow case in this column before, but space did not permit me to dwell upon all of the many marvels it contained.  One little gem I had to bypass was the passage in which Madam Justice McLachlin observes that compensation for household services has been recognized in both the Divorce Act and in provincial family law statutes, but that "....society has not been visibly harmed."

With all due respect, I suggest that the data are not all in yet.  I have certainly met many embittered individuals, both male and female, who believe they have been harmed by the current state of matrimonial property law.  

But harm or no harm, one thing is certain:  as spousal property rights have continually expanded in law, society has been visibly changed.  The change, of course, is that fewer and fewer couples are opting for marriage, and more and more couples are opting for simple cohabitation.  In other words, one of the reasons why there may have been no visible harm so far has been the existence of the escape hatch--the safety valve--of unmarried cohabitation, which allowed people to satisfy their mating instincts without abandoning their self-preservation instincts.  Now the hatch is being slammed shut.

What we can expect to see if this proposal is enacted is a lot of Jacks sneaking out the back as their three-year deadlines approach, a lot of once-burned twice-shy Jills scurrying into lawyers' offices to get cohabitation agreements, and a lot of litigation to determine when, exactly, the clock started ticking.  Was it when she first left a toothbrush permanently in his bathroom, or when she finally gave notice to her landlord?  If it achieves nothing else, the new law promises to be a Full Employment Act for matrimonial lawyers.

Maybe this is the real reason behind it.  Heaven knows, it would make more sense than the official reason given by the Law Reform Commission.  They argue that the current law may violate the Charter of Rights, because it discriminates on the basis of marital status, giving married people different privileges from unmarried people.  Their brilliant solution?  Adopt a new definition of "spouse" and draw a different line in the sand. 

It apparently hasn't occurred to them that this new rule will be just as discriminatory as the old one.  It will just discriminate against a different group of people--namely, those who have cohabited for only two years and 364 days or less.  These people will be defined as lacking "spousal status" and the discrimination will be based on precisely that condition.

If the Law Reform Commission really wants to eliminate discrimination on the basis of marital or spousal status, there are two and only two logical possibilities:  either everyone can make a claim against the property of some other person, or no-one can.  Any other dividing line necessarily discriminates between the two groups of people it divides.

The name for a system under which everyone has an equal claim against all existing property is communism.  Perhaps we should send the Law Reform Commission to Russia to find out why it didn't work.

The other system, under which no-one can claim another's property by virtue of mere status, has never been tried.  In this era when women and men have been recognized as legal, moral and intellectual equals, there is no excuse for anything else.  Any person who wants to cash in on his or her lover's wealth should have to negotiate for it and obtain the lover's voluntary agreement--preferably in writing.

The Law Reform Commission also recommends that homosexual and lesbian couples be given the right to register as "Domestic Partners" and thereby opt in to the same statutory treatment as married or cohabiting hetero couples; or, they could sign domestic contracts tailored to their individual wishes; or they could do nothing and remain entirely free of this morass.  Again, this is supposed to end discrimination on the basis of sexual orientation.

What it actually does is discriminate in favour of gay and lesbian couples, because it allows them to opt in or out of a Draconian system which is compulsory for everyone else. 

In fact, the system which is being proposed for gays is exactly what we should all be entitled to: freedom of choice and freedom of contract.

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June 07, 2000