Annotation to Droit De La Famille – 102866

Rollie Thompson

Abstract


In Droit de la famille - 102866 (2010), 89 R.F.L. (6th) 1, 2010 QCCA 1978, the Quebec Court of Appeal has declared invalid Quebec's denial of spousal support for common-law partners and suspended that declaration for 12 months. The discriminatory article 585 of the Quebec Civil Code will have to be rewritten to include common-law partners. Article 585 reads:

585. Married or civil union spouses, and relatives in the direct line in the first degree, owe each other support.

On December 15, 2010, the Quebec Attorney General announced his intention to seek leave to appeal to the Supreme Court of Canada. Justice Minister Jean- Marc Fournier emphasised that Quebec legislators had made a deliberate political choice not to regulate common-law relationships, a choice based upon freedom of contract and personal autonomy. If nothing else, said the Minister, an appeal would determine the scope of the government's legislative alternatives in addressing the problem. For the 35 per cent of Quebec couples who live common law, 1.2 million potential payors and recipients of spousal support, the outcome of this case is critical. It is difficult to see how the Supreme Court of Canada could come to a different conclusion than the Quebec Court of Appeal, given the High Court's previous decisions. And there is not a lot of room for improvement upon the clear and detailed reasons of Justice Julie Dutil for the Court of Appeal. Still, leave will likely be granted, as there are important issues at stake here, most importantly the precise scope of the court's own decision in Walsh v. Bona, [2002] 4 S.C.R. 325, 32 R.F.L. (5th) 81.

The only point of division between the majority and the minority in the Court of Appeal was remedy. Beauregard J.A. dissented here, as he was quite prepared to read in the definition of "conjoints de fait" found in s. 61.1 of the Quebec Interpretation Act, a fact-based definition that presumes such status after one year of cohabitation or parenting a child. Dutil J.A., with Giroux J.A. concurring, took the less intrusive declaration/suspension approach, the same approach that the Supreme Court of Canada took in M v. H, [1999] 2 S.C.R. 3, 46 R.F.L. (4th) 32. The majority reservations reflect a concern for drafting a provision that will affect many individuals in family law cases, and the likely need to harmonise other provisions in the Civil Code. This remedy means that the appellant "wife" will likely not get an individual remedy, unless any new legislative provision is given some form of retroactive effect by the Legislative Assembly.

Keywords


Family Law

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