Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Sunday, September 22, 2013

Leckey on "Developments in Family Law: The 2012-2013 Term"

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.

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