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Éric vs. Lola… The Time for Reform is Now!

The Supreme Court of Canada has recently upheld the constitutionality of the provisions set forth in the Civil Code of Québec which were called into question in the Éric vs. Lola case. The Chambre des notaires was convinced of this outcome.

However, the Chambre des notaires is of the opinion that this case highlights the need for an in-depth coherent review of Quebec family law. In the event of an unfavourable ruling on the position of the Attorney General of Quebec, the Chambre des notaires du Québec had called upon the Québec government to invoke the notwithstanding clause. The motive of the Chambre in making such a request to the Québec government was not to preserve the status quo but rather to avoid further patchwork legislation in response to a specific situation.

The Chambre des notaires suggested this approach in order to afford Québec's elected representatives an opportunity to debate the broader issues with all the options and information on the table.

More than 30 years have passed since Québec's family law was reformed in 1980. This is not the time for minor adjustments, however important they may be. The principles and foundations underlying every aspect of family law need to be re-examined in the light of new conjugal and family structures.

Fundamental reforms to the entire law on conjugality and parenthood

The major family law reform enacted on July 1, 1980, established partnership of acquests as the legal matrimonial regime. It also awarded equal rights to men and women within marriage and to children born in and out of wedlock. When this reform were introduced, the legislature also repealed the existing provisions of the Civil Code of Lower Canada that denied common law spouses the right to make a legal agreement as to the economic and financial aspects of their union.

The 1980 legislation reforming family law was enthusiastically received with good reason. Québec had adopted a modern family law based on equality. Family and conjugal situations have continued to evolve, however. Naturally, the legislature has continued to update the law from time to time, but not always in keeping with Québec's unique civil law tradition. Moreover, successive amendments to the Civil Code have decidedly diminished its coherence and clarity. The following examples will make this clear.

Family patrimony

The family patrimony provisions were introduced into the Civil Code in 1989. Only the political context of the time can explain why the legal concept of "family assets" inspired by the common law tradition was integrated into a Civil Code that had always recognized the institution of matrimonial regimes. In 1989, the matrimonial regime of partnership of acquests—which provides for but does not impose a greater degree of asset sharing than does family patrimony—was chosen by 60% of new couples.

While the legislature's goal was to ensure economic equity for the many couples married in the 1950s and 1960s under the regime of separation as to property, juxtaposing two regimes from separate legal traditions was bound to lead to certain problems for anyone subjected. Balancing family patrimony with partnership of acquests—to which 85% of couples are now subject—remains problematic. The same can be said of couples whose marriage is still subject to the earlier regime of community of property.

An examination of the underlying issues raises questions about the current relevance of requiring all married couples to share assets, whatever their wishes and personal situation. In a pluralistic society such as Québec, where a variety of conjugal and family profiles coexist, can all couples be legitimately considered from the same legal perspective? Has the time perhaps come to give the legal framework greater flexibility, as some countries have already done? Just consider the example of financially independent spouses, each with children from a first union, who decide to marry for the second time at age 60. Family patrimony is obviously not intended for such a situation. If these two spouses wish to ensure that their patrimonies go to their respective descendants, are they not forced to renounce a legal union? In addition to dealing with problems of legal coherence caused by the introduction of family patrimony, the legislature needs to address fundamental questions of principle.

Civil union

In 2002, civil union was introduced into the Civil Code in order to allow couples of the same sex to enjoy the rights and obligations accorded to couples joined in marriage, an institution reserved for heterosexual couples at that time under federal law. Operating from a gender-equal perspective, the legislature decided to open civil union to all couples, including heterosexuals.

Since 2005, the federal Civil Marriage Act has allowed marriage between couples of the same sex. Civil union in Québec, which is practically identical to marriage from a legal perspective, is therefore no longer relevant. The Civil Code of Québec sets out two virtually identical legal regimes that are available to the same categories of people. It is certainly not the mission of the Civil Code to preserve vestiges of history. Should civil union be removed from the Civil Code or should it be given new purpose by revising its legal framework? Perhaps it could become an intermediary status between marriage and common law union. Or maybe consideration should be given to making the legal ramifications of civil union less restrictive than those applying to marriage. At a time when recomposed families are increasingly common, this notion may offer a more appropriate legal context for second and third unions.

Family residence

The inconsistencies in Québec family law also extend to the family residence. In 1980, the legislature made it mandatory for the spouse owning the family residence (or holding the lease to the family dwelling) to obtain spousal agreement before disposing of the property. By limiting the corollary rights to owning property in this way, the government was preventing dispositions of property that were potentially harmful to economically vulnerable family members. Although innovative for its time, this protection does not currently apply to common law families that need it. Is it not somewhat aberrant that financially independent 60-year-old spouses without children enjoy this protection while parents of young children in a common law union do not? In 1980, the legislature chose marriage as the eligibility criterion for provisions protecting the family residence. Should this criterion now be changed to the presence of children in the family residence?

Assisted reproduction

We now turn to the provisions concerning assisted reproduction added to the Civil Code in the early 2000s following rather brief deliberations by the legislature. These provisions allow lesbian couples, heterosexual couples and women living alone to turn to a third-party donor in order to become parents. What are the rights of the ensuing child to know about his or her biological origins? How do you justify that a child conceived through donated gametes cannot, as an adult, seek the donor's identity—even if that donor had signed consent to disclose this information? What of surrogate mother contracts, which, despite being totally invalid under the Civil Code since 1994, continue to gain popularity in the shadow of the law (with predictable consequences)? Is it not time for the legislature to call on the expertise of ethicists, sociologists, psychologists and jurists in addressing these contemporary issues?

Why is common law union so popular?

This is an important question: why does Québec have the second highest rate of common law unions in Canada? Why are so many Quebecers choosing not to formalize their union by means of marriage or civil union? The popular explanation is the result of legal misinformation, for common law spouses are under the false impression that after a certain number of years of living together, they become subject to the provisions governing married couples. Could it be, however, that the legal framework governing marriage (and civil union in Québec)—one of the strictest in the Western world—is part of the problem? Is the rigid, monolithic nature of legal provisions that are systematically applied to everyone with no consideration for individual circumstances a factor in driving away people who feel capable of organizing their own financial affairs? Just asking the question serves to underscore the complex relationship of the applicable legal frameworks.

Notwithstanding the conclusion of the Supreme Court, the time for reform has arrived. Let's seize the opportunity to restore cohesion and consistency of the Civil Code following 30 years of erosion. It should be remembered that the Civil Code is no ordinary law. It is the foundation of all other laws, as pointed out in its preliminary provision. Provisions that raise barriers must be eliminated and the law made inclusive so that all couples can feel comfortable with it. Anything less would be unacceptable.

Jean Lambert, notary
Chambre des notaires du Québec