Developments in Family Law: The 2012-2013 Term

26 Pages Posted: 18 Sep 2013 Last revised: 31 Jan 2014

Robert Leckey

McGill University - Faculty of Law

Date Written: August 1, 2013

Abstract

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.

Keywords: cohabitation, Quebec, equality, Lola, de facto union, divorce law

JEL Classification: K19

Suggested Citation

Leckey, Robert, Developments in Family Law: The 2012-2013 Term (August 1, 2013). (2014) 64 Supreme Court Law Review (2d) 241-266. Available at SSRN: https://ssrn.com/abstract=2327179

Robert Leckey (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
514-398-4148 (Phone)
514-398-4659 (Fax)

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