Sunday, September 22, 2013
Robert Leckey, McGill University, "Developments in Family Law: The 2012-2013 Term," 64 Supreme Court Law Review (2013, forthcoming). Available here.
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.