It was time ! This is undoubtedly the first reaction inspired by the latest section of family law reform presented last week by the Minister of Justice, Simon Jolin-Barrette. Placing the best interests of the child at the center of its motivations, the Quebec government is finally proposing to adapt the law to Quebec family reality. The concept of “parental union” will guarantee de facto parents some of the rights and responsibilities of married spouses.
Bill 56 was eagerly awaited, to say the least. The last overhaul of family law worthy of the name dates from the early 1980s.
Since then, the composition of the family has changed considerably in Quebec. From 1981 to 2021, the share of married spouses has continued to decrease in favor of an increase in that of common-law spouses. Nearly 42% of couples were in a common-law union in Quebec in 2021 (compared to 8.2% in 1981); 58% were married (compared to 91.8% in 1981). This remains a particularity of Quebec, which stands out in this regard not only from other Canadian provinces, but also from other so-called progressive nations of the world.
However, this remained a particularity that Quebec law seemed to ignore superbly, which created legal loopholes putting less well-off spouses and children at a disadvantage in the event of a separation. This is what the Supreme Court of Canada came to say in Quebec in 2013, in the famous Éric c. Lola, which involved a billionaire and his ex-common law partner, who notably demanded alimony for herself, which the law did not provide for in cases where there had been no marriage. Lola lost her case. But, while recognizing the constitutionality of the Quebec regime, the Court deemed it discriminatory for de facto spouses and ordered Quebec to grant its right to reality.
Eleven years later, a bill is on the table. The first merit that must be recognized by the Coalition Avenir Québec is indeed that of having agreed to dust off family law. Minister Jolin-Barrette endorsed the conclusions and recommendations of the committee chaired by Professor Alain Roy, an authority in family law. In 2015, his group produced, after two years of hard work, a report of more than 600 pages containing 82 recommendations. The heart of this colossal work, unfortunately subsequently canceled by the liberal government, proposed that the entry point to the Family Code would no longer be the fact of being married, but rather having a child. The Minister of Justice has espoused this vision of things, which is wise.
The reform under study therefore proposes that de facto spouses and married couples who have had a child are (almost) equal before the law. In the event of a separation, there will be an equitable division of property (family residence, furniture, cars). Surprisingly, the Registered Retirement Savings Plan and Pension Plan are left out of the equation; we can expect that these exclusions will be called into question during the study of the bill, in particular because of the legitimate questions that this raises for the protection of the most vulnerable in situations of separation, i.e. -say women. The legislative reform is not retroactive, and it will therefore only apply to couples in a parental union who will have a child after the adoption of the law.
Being subject to it will then be automatic: to withdraw from the regime, couples in parental union will have to go before a notary to authenticate their desire to opt out of the law. It is also a part of the Jolin-Barrette reform, apparently imperfect, which will deserve particular attention, for the simple reason that it will be necessary to avoid that this withdrawal option regime (opt out) does not weaken a common-law spouse placed in a vulnerable situation facing a spouse exercising a form of control over her. The minister responds to this that the notary will have to assess the notion of “vulnerability” of the people before him, but it seems to us that this is a heavy responsibility for a single person.
Despite its imperfections, which a study and amendments will be able to correct based on the comments heard, this bill constitutes a formidable step in the right direction. Not only does he “marry” the right to the reality of families, but he uses the right approach by centering his actions on the interests of the child. It also confirms the freedom of choice of Quebec couples, not “marrying them by force”, but ensuring that, whatever decision they make regarding their marital status, children and spouses will not lose out on the matter. plan of rights and obligations.
The stage of consultation and possible amendments will be crucial. It is desirable that Quebec pay particular attention to the arguments of women’s rights groups, for example, who saw imperfections in the bill that weaken women rather than protect them, which goes to the contrary to the spirit of the bill.