(Quebec) Two former members of the advisory committee on family law chaired by Professor Alain Roy, which was established by the Marois government after the judgment of the Supreme Court in the case known as Éric c. Lola in 2013, say they are disappointed by the overly “timid” reform presented Wednesday by Quebec, which plans to create “parental union” for de facto spouses with children.
Céline Le Bourdais, professor emeritus of the sociology department at McGill University, says that Bill 56 by Justice Minister Simon Jolin-Barrette is “very timid,” “cuts the pear in two” and does not adequately protect common-law couples with children who have made economic sacrifices and pay the price at the time of separation.
Dominique Goubau, lawyer and associate professor at the faculty of law at Laval University, believes for his part that Quebec’s bill contains “paradoxes” which could again be contested in court, as in the case of Eric c. Lola which ended with a very close judgment from the highest court in the country in 2013.
For his part, the full professor of the faculty of law of the University of Montreal and expert in family law Alain Roy, who chaired the committee which submitted its report to the Couillard government in 2015, declined all requests for interview this week. By email, the man who has been special advisor to the minister on the family law reform project in recent years wrote that he is “extremely happy and very proud of this new stage” and that he “lifts [son] Hats off to Minister Jolin-Barrette, without whom we would not be here today.”
Alimony
According to Me Goubau, who claims to have heard many people say that the reform presented Wednesday is bold, “the bold minister has taken a very timid step forward”.
“This bill intends to respond to what the Supreme Court wrote in the case of Éric c. Lola, where we understood that the Civil Code was fragile and that the differential treatment of de facto spouses compared to married spouses was problematic. More than ten years later, we are responding to this problem with a status given to unmarried parents which differs very significantly from the status of married parents. I see there an important paradox, even an open door to contesting certain aspects of the bill,” he judges.
With Bill 56, Quebec intends to create a parental union regime which would automatically come into force upon the arrival of a child in the lives of two de facto spouses. The unmarried parents would then hold joint family assets consisting of the family residence, its furniture and the cars used for the family’s use. In the event of separation, the property included in this heritage would be shared between the spouses.
The big thing missing, according to Dominique Goubau, is the possibility for a de facto spouse to claim alimony.
“It was the most fragile point on which [la Cour suprême] judged that the Civil Code is discriminatory, but that Quebec could maintain [ce caractère distinct] within the framework of a free and democratic society,” he recalls.
“All observers agree that the Supreme Court has put its finger on the most fragile point of Quebec legislation. However, the bill does not provide for alimony between de facto spouses, even if there are children. I think it’s one of the big disappointments,” he added.
The compensatory benefit
Céline Le Bourdais, for her part, deplores the fact that Bill 56 does not provide for the establishment of a “parental compensatory benefit”, as proposed by the Roy committee. To calculate this benefit, she explained, it involves taking all the lost income or all the opportunity losses that a parent has accumulated during their common-law union, after the birth of a child, and estimate the amount lost at the time of separation and which is likely to continue in the coming years.
“I understand that it’s a little complicated, but it takes into account the fact that when there is a child, there is a parent who can stop working, work part-time or refuse promotions that would otherwise give them better income,” said Mme Le Bourdais.
In the bill, Mr. Jolin-Barrette plans to grant “spouses [de fait], after the end of the parental union, the right to make a request for compensatory benefit to the court if they consider themselves to have become impoverished after having contributed to the enrichment of the assets of the other spouse. The amount of compensation would then be calculated “based on the market value of the goods and services received”.
The professor emeritus of McGill University explains that this type of compensatory benefit already exists, “but [que] the only times it has been applied in court is when a spouse participated in the business of the other person with whom they formed a common-law union, without being paid, and therefore directly contributed to its enrichment in this sense.
“When I contributed by taking care of the child, did I contribute directly to his enrichment? In most cases this was not accepted [en cour] “, she added.