Québec Family Law Reform Leaves Most Unwed Couples Unprotected

Apr 24, 2024

Me Anne-France Goldwater, senior partner of Goldwater, Dubé, a Canadian leader in family law since 1981, wishes to express her deep disappointment following the Québec government’s tabling of long-awaited family law reform last month with Bill 56, the Act respecting family law reform and establishing the parental union regime. The proposed legislation creates categorizations that will result in greater pressure on the judicial system with no new rights or effective progress for common-law spouses (conjoints de fait). 

Me Goldwater nonetheless does thank the Minister of Justice, Me Simon Jolin-Barrette, for his hard work consulting stakeholders in Québec’s family law community, including the firm’s founding partner herself in an August 2023 meeting. The Minister and Me Goldwater found much common ground in identifying the core challenge, that most Québec couples have children outside of marriage, and these children are harmed by the lack of legal protections for their parents. 

“I was enthused when I saw the CAQ was ready to try to fix what the Liberals and the PQ had so sorely neglected but, today, I am very disappointed. They were timid when we needed them to be bold. Sadly, the government failed to appreciate the need for simple and effective solutions,” said Me Goldwater. “I have invested decades of my life in fighting this battle. Today, there is a great diversity of families: married and unmarried, opposite-sex and same-sex, religious and secular, first unions and second unions. If we are serious as a society about respecting how people go about forming their unions, then our family law must protect all this broad range of families.”

It is the firm’s view that the bill in its current form does not grant additional rights to any children alive today, and barely touches upon limited future needs of children yet to be born. In the Eric v. Lola judgment, the Supreme Court of Canada boldly stated that the absence of protection for unmarried couples was discriminatory. This discrimination was (and still is) unconstitutional. But the Chief Justice decided to give one last chance to the Québec government to remedy the situation.

“Imagine: the way the bill is drafted today — which I hope will never pass! — the wealthy and powerful are calling the shots to prevent 100% of Québecois children from receiving the economic benefit of better child support and more legal protections for their mothers!”

 

Problems with the Parental Union Regime

Reforming our family law is an idea whose time has come. The Justice Minister understands this, but expresses the concern that he does not want to “marry Quebeckers by force.” As family law practitioners, our team understands the reality that marriage is important to many for its emotional, romantic and possibly religious significance. People generally do not choose to marry for legal reasons.

Goldwater, Dubé has long-held the position that when individuals choose to engage in a conjugal relationship, the two partners should naturally have mutual rights and obligations. We used to call these relationships “marriages”, but with religious influence waning, most people in Québec form their unions (and raise children) without a formal ceremony.

It is right and just for two partners in a conjugal relationship to have mutual rights and obligations. Governmental and financial institutions all treat married and unmarried partners as interchangeable in terms of their needs and aspirations. In fact, the Supreme Court has decided that it is discriminatory and unconstitutional for the government to treat married and unmarried couples differently.

“It is very strange that only in Québec do we maintain the fiction that actual partners are ‘strangers to each other,’ as every first-year law student learns,” Me Goldwater added. “The new bill is like throwing a quarter into the cap of a person who is begging. It gives the appearance of providing something for unmarried spouses, but in reality gives little to nothing. It will add to the confusion that already reigns: why is there a parental union patrimony and a family patrimony, and why are they different, etc. If this bill were to become law, it would create more litigation, which may be fine for lawyers but certainly not for people the law is supposed to protect.”

Me Goldwater urges the government of Québec to further consult professionals with specialized knowledge who represent people facing family law litigation on a regular basis, and to consider the following problems with the bill: 

  • Couples without children have no status. According to Me Goldwater, “this bill sends the message that a conjugal union only has value if the female partner’s uterus bears fruit. How insulting! More and more couples are deciding not to have children; this does not mean there is no economic interdependence between spouses without children, or who care for dependents other than children. And even if the bill makes a feeble attempt to be inclusive by mentioning that adopted children count, it does not take stepchildren into consideration at all. A couple may have children from a prior union, and those children would not be protected in any way.”

 

  • Couples with children can “opt out” of the parental union patrimony, leaving the door open for economic abuse to persist, leaving particularly women or any partner who is at a significant economic disadvantage vulnerable. “Québec already has a long and ignoble history of notaries systematically permitting even non-working wives to ‘opt out’ of the legal matrimonial regime of partnership of acquests. This is precisely why the government created the family patrimony in the first place, back in 1989! The government realized that the only way to ensure economic equality between spouses was by creating a regime where you could not opt out. Has this history lesson been forgotten so quickly?”

 

  • The “compensatory allowance” offers no new gains. To the contrary, under existing law, it has become very popular for an unmarried spouse to claim “unjustified enrichment” from his or her partner, if the partner has been “enriched” during the relationship. “Instead of leaving well enough alone, the government now proposes a new idea, the ‘compensatory allowance’, which would be far harder to establish and obtain. It is unbelievable that in the guise of giving a benefit, the government is in fact taking away a right that already exists.”

 

  • A spouse would be able to inherit if his or her partner dies but, it is worth noting, only once their biological child reaches one year of age. Me Goldwater asks: “Why does a child have a different status at 11 months and 13 months? Once there is a child in the union, if the other parent dies, the first parent will in most cases have an urgent need to access an inheritance. From another perspective, it is outrageous if we reflect for a minute: generally, people die when they are older, and no minor children are in the picture at all. So if, in a second union, a person has been taking care of his or her ailing spouse for 20 years as that spouse’s health deteriorates, how can it possibly be justified to refuse to recognize the legal right to inherit that married spouses enjoy?”

 

  • A public service to calculate child support will be introduced, avoiding the intervention of the court. Currently, such private arrangements are common practice but a hearing before a judge is always recommended to ensure the rights of all parties are respected, especially where there may be economic abuse. “Having a judgment is the only thing that protects you. Out-of-court settlements often do not reflect the higher earner’s true income. Eliminating the judicial approval requirement for child support will ultimately disadvantage children. In addition, we are the one province in all of Canada with complicated and stingy child support guidelines!”

 

  • Québec’s child support guidelines remain complicated and woefully inadequate, and the discrepancy between the provincial and federal guidelines remains unaddressed by the law. Adopting Canada’s Federal Child Support Guidelines would lead to more substantial child support awards for all children with working parents, and would provide some financial relief for non-custodial parents who work while the custodial parent is on welfare. “It is disturbing to see that the Québec government imposed higher child support figures without additional benefit to mothers (since the government keeps the money), while causing actual financial harm to low-income dads who have to pay more than their Canadian counterparts! At the end of the day, when both parents work and have revenues, why is child support in Quebec as much as 50% lower (and more!) than in the rest of Canada.”

 

  • Damages for “judicial violence”, a confusing term since Québec civil law already has mechanisms in place to protect against abusive procedures and so no new protections have been granted with this provision. Moreover, it was Me Goldwater herself who convinced the Québec Court of Appeal in 1991 to grant awards of legal fees (as “provision for costs”) in litigation between unmarried partners, without the need to prove “abuse” or “judicial violence” — “I already won this battle 31 years ago, surely the government must be able to do better all these years later! This initiative from the government of Québec is just smoke and mirrors.”

 

Photo: Jochen van Wylick // Unsplash

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