Developments in Family Law: The 2012-2013 Term
McGill University - Faculty of Law
August 1, 2013
(2014) 64 Supreme Court Law Review (2d) 241-266
In Quebec (Attorney General) v. A., a sharply divided Supreme Court of Canada upheld the constitutionality of Quebec’s distinctive policy in family law, one combining obligatory protections for married spouses and laissez-faire for unmarried cohabitants. It rejected the contention that such a policy amounted to unjustifiable discrimination on the basis of marital status, contrary to s. 15 of the Canadian Charter of Rights and Freedoms. This paper delineates the judgment’s appropriate scope, which is not what the Court’s text indicates, and its effect on family law across Canada. It argues that it is difficult to reconcile the Court’s focus on autonomy and choice with Quebec’s positive law of the family. In addition, it points to problems with how the judges characterized the challenged regimes of Quebec matrimonial law. In particular, by focusing on autonomy and choice or on protection, the judges neglected matrimonial law’s compensatory aims.
Number of Pages in PDF File: 26
Keywords: cohabitation, Quebec, equality, Lola, de facto union, divorce law
JEL Classification: K19
Date posted: September 18, 2013 ; Last revised: January 31, 2014
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