Developments in Family Law: The 2012-2013 Term

Developments in Family Law: The 2012–2013 Term Robert Leckey* I. INTRODUCTION This year the Supreme Court of Canada released judgment in a single family case, Quebec (Attorney General) v. A.1 The case was a challenge to the constitutionality, under the Canadian Charter of Rights and Freedoms,2 of a fundamental policy of Quebec family law. The legislatures of all the common law provinces have conferred an obligation of support on unmarried cohabitants. Manitoba, Saskatchewan, British Columbia, the Northwest Territories, Nunavut and Yukon have also included cohabitants in their regimes for the division of family property or the equalization of its value. In contrast, the Civil Code of Québec3 attaches spousal rights and duties only to formalized couples, namely, spouses by marriage or by civil union.4 To be fair, in a handful of places the Civil Code regards unmarried cohabitants, or de facto spouses, as they are called, as forming a couple so as to produce effects towards third * Associate Professor and William Dawson Scholar, Faculty of Law and Paul-André Crépeau Centre for Private and Comparative Law, McGill University. This research was supported by the Social Sciences and Humanities Research Council, and by the Wainwright Fund of McGill University. For comments on earlier drafts, I am indebted to Nicholas Bala, Angela Campbell, Iris Graham, Catherine Le Guerrier, Roderick Macdonald, Mary Jane Mossman, Allison Render, Carol Rogerson, Marc Roy and Rollie Thompson. 1 [2013] S.C.J. No. 5, 2013 SCC 5 (S.C.C.) [hereinafter “Quebec v. A”]. The author assisted counsel for A prior to the hearing at the Supreme Court of Canada. The transcript and all factums cited are from the appeal to the Supreme Court. 2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter “Charter”]. 3 S.Q. 1991, c. 64 [hereinafter “Civil Code” or “C.C.Q.”]. 4 The civil union was enacted in 2002 and is open to same-sex and different-sex couples. It is celebrated similarly to marriage and incorporates the corpus of marital rights and duties (arts. 521.1, 521.6 C.C.Q.). The Civil Code at times opposes de facto spouses to spouses by marriage or by civil union, convoking a class of de jure spouses. Electronic copy available at: http://ssrn.com/abstract=2327179 242 SUPREME COURT LAW REVIEW (2014), 64 S.C.L.R. (2d) parties.5 Moreover, the province‟s social and fiscal laws include de facto and de jure spouses on equal footing. But under the Civil Code‟s book on the family, a de facto union as such, whatever its length (or fertility), produces none of the rights and obligations of married spouses: no right to occupy the family residence or withhold consent to its disposition on the part of the spouse who does not hold title to it; no right to divide the economic fruits of the partnership; no right to claim support during the relationship or afterwards. In the context of a case involving former de facto spouses, of whom one was exceptionally wealthy, the Supreme Court was required to assess the constitutionality of the scope of application of Quebec‟s matrimonial law in the light of the equality guarantee and the analogous ground of marital status. The decision in this case could have invalidated the law in Quebec and, by implication, undermined the validity of law in those common law provinces that reserve regimes of family property to married spouses. In the end, it invalidated not an iota of family law. Some scholars will assess the judgment‟s implications for equality litigation under the Charter.6 Others may engage critically with the appropriateness of Quebec‟s regime as family policy and with the judicial deference it received. The present discussion aims to analyze the judgment primarily from the perspective of family law. The next two parts of the paper present the facts and judgments below and cursorily summarize the Supreme Court‟s decision. Discussion follows in three subsequent parts. Part IV delineates the judgment‟s appropriate scope, which is different from what the text by the Court indicates at first blush, and its effect on family law across Canada. Part V examines the theme of choice and autonomy that was central to the failure of the claimant‟s case. It highlights the difficulty of reconciling the Court‟s focus on autonomy and choice with Quebec‟s positive law of the family, as well as the narrow focus on formal measures as evidence of consent to familial duties. Part VI notes problems with the judges‟ characterizations of the challenged regimes of Quebec matrimonial law, underscoring contrasting views as to whether or not the regimes formed an inseparable package. The conclusion suggests that the judgment is a reminder of the constraints on Charter adjudication in the family context. 5 The standard examples are arts. 15 (consent to care), 555 (adoption of partner‟s child by special consent), 1938 (maintained occupancy of leased premises without lessee) C.C.Q. See also art. 1974.1 C.C.Q. (resiliation of residential lease on account of spouse‟s violence). 6 See, e.g., Lynn Smith & William Black, “The Equality Rights” in Gérald-A. Beaudoin & Errol Mendes, eds., The Canadian Charter of Rights and Freedoms, 5th ed. (Markham, ON: LexisNexis Canada, 2013) 951. Electronic copy available at: http://ssrn.com/abstract=2327179 (2014), 64 S.C.L.R. (2d) FAMILY LAW 243 II. FACTS AND JUDGMENTS BELOW A word about Quebec‟s regulation of de jure spouses‟ rights and obligations is in order. Spouses by marriage or by civil union owe one another support. The regime of the family residence protects a de jure couple‟s dwelling, for example, by prohibiting unilateral alienation of the residence and its furnishings.7 The regime of the family patrimony attaches on marriage. On marriage‟s winding down, it presumes an equal sharing of the increase in value during the marriage of the family residences and their furnishings and of motor vehicles used for family use. It also divides the value of contributions to registered pension plans and their appreciation during the marriage.8 The compensatory allowance is a discretionary mechanism allowing a spouse to seek redress, on principles of unjust enrichment, for disproportionate contributions to the other‟s patrimony.9 Unlike their equivalents in the common law provinces, the foregoing regimes are of public order or obligatory.10 For assets outside the family patrimony, the default matrimonial regime of the partnership of acquests leaves spouses title and control of their property during the marriage or civil union, but operates a deferred sharing of gains on its winding down.11 Spouses may opt out of the partnership of acquests in favour of separate property by a notarized marriage or civil union contract. As the constitutional challenge failed and the Supreme Court did not apply provisions of family law, the parties‟ facts are less directly important than in other family appeals. A brief summary will suffice. The claimant, A, was 17 years old and in high school in her native country when she met B in 1992.12 He was then a highly successful 32-year-old businessman. They began a relationship and A eventually moved to Quebec. The couple separated and resumed cohabitation several times. During their time together, A “regularly accompanied B on his trips, and he provided for all her needs and for the children‟s needs”.13 If the judges at the appellate levels in this litigation were circumspect in discussing B‟s 7 Arts. 401-413 C.C.Q. Arts. 414-426 C.C.Q. 9 Arts. 427-430 C.C.Q. 10 Art. 391 C.C.Q. 11 Arts. 448-484 C.C.Q. 12 Family law cases in Quebec do not use the parties‟ names and the media dubbed the parties “Éric” and “Lola”. 13 Quebec v. A, supra, note 1, at para. 5, per LeBel J. 8 Electronic copy available at: http://ssrn.com/abstract=2327179 244 SUPREME COURT LAW REVIEW (2014), 64 S.C.L.R. (2d) wealth and the standard of living to which B‟s “provid[ing] for all her needs” had amounted, journalists were less restrained, regularly referring to B as a billionaire and to the parties‟ “lavish jet-setting lifestyle”.14 A wanted to get married but B told her he did not believe in the institution of marriage. They had three children and, overall, lived together for seven years. They finally separated in 2002. In 2002, A filed a motion seeking custody of the children and child support. She also sought remedies limited by Quebec law to married spouses: monthly spousal support in the net amount of $56,000, a lump sum of $50 million, and division of the family patrimony and the partnership of acquests.15 She sought to reserve her right to claim a compensatory allowance. A accompanied her motion with notice of her intention to challenge the constitutionality of her exclusion from the regimes governing the economic relations of married spouses. The parties eventually settled her claim regarding the use of the family residence, agreeing that A would occupy a residence owned and maintained by B. There was no issue as to the constitutionality of the relevant provisions relating to the children, which treat children the same irrespective of their parents‟ marital status,16 and the Superior Court gave the parties joint custody and awarded A indexed child support of $34,260.24 per month.17 At trial, A challenged federal and provincial definitions of marriage that excluded de facto spouses. She contended that certain provisions in the Civil Code were ultra vires their enacting legislature on federalism Andrew Chung, “Quebec Must Give Common-Law Spouses the Right to Alimony, Judges Rule”, The [Toronto] Star (November 3, 2010), online: <http://www.thestar.com/news/ canada/2010/11/03/quebec_must_give_commonlaw_spouses_the_right_to_alimony_judges_rule.html>; see also e.g., Martin Patriquin, “A Billionaire, The Law, His Brazilian Ex”, Maclean’s (February 19, 2009), online: <http://www2.macleans.ca/2009/02/19/a-billionaire-the-law-his-brazilian-ex/>. 15 Droit de la famille — 091768, [2009] Q.J. No. 7153, [2009] R.J.Q. 2070, at para. 25 (Que. S.C.). 16 See text accompanying notes 49-54. 17 As LeBel J. summarized (Quebec v. A, supra, note 1, at para. 7), the judge of the Superior Court also made a series of orders requiring B to pay certain specific expenses, including the children‟s tuition fees, expenses related to their extracurricular activities, the salaries of two nannies and the salary of a cook working for A. As well, the court ordered B to continue paying all costs, school and municipal taxes, home insurance premiums and general maintenance and renovation costs required for the residence where the parties had agreed that A and the children would live. B‟s obligations included paying for airplane tickets for the children and their two nannies and generous per diems for vacations each year. B was also ordered to make a Lexus available to A during her periods of child custody. Droit de la famille — 091768, supra, note 15, at para. 23. 14 (2014), 64 S.C.L.R. (2d) FAMILY LAW 245 grounds and that any federal definition of “marriage” excluding de facto spouses unjustifiably limited their equality right in section 15(1) of the Charter. She also challenged, as discriminatorily under-inclusive, the provincial law applicable to married spouses regarding the obligation of support, the family residence, the compensatory allowance, the family patrimony, and the partnership of acquests. In a long trial judgment, Hallée J. rejected all of A‟s claims. She dismissed the challenges to provincial and federal definitions of “marriage”; those arguments were abandoned on appeal. Justice Hallée provided two grounds for dismissing the claim that the restrictive application of Quebec‟s marriage law infringed A‟s right to equality. One was that A, as an evidentiary matter, had failed to demonstrate any substantively discriminatory effects flowing on relationship breakdown from de facto spouses‟ exclusion from the protections of the Civil Code.18 It was not self-evident, that is, that de facto spouses‟ exclusion from the ensemble of provisions developed over decades to ensure a fair and orderly unwinding of conjugal relationships amounted to a disadvantage for them. The other concerned the Supreme Court of Canada‟s judgment in Nova Scotia (Attorney General) v. Walsh.19 In that case, in the context of provincial law that recognized a duty of support on the part of cohabitants, a majority of the Supreme Court had rejected the claim that excluding them from the regime dividing matrimonial property was discriminatory. Justice Bastarache for the majority had emphasized the imperative of respecting parties‟ autonomy and ability to make fundamentally important choices in matters of their interspousal relations. Justice Hallée understood Walsh as establishing the constitutionality, vis-à-vis de facto spouses, of all elements of Quebec marriage law.20 The Court of Appeal allowed A‟s appeal in part.21 Justice Dutil, with whom Giroux J.A. agreed, affirmed the trial judge‟s finding that Walsh stood for the proposition that it was permissible under the Charter to exclude de facto spouses from the property regimes applicable to de jure spouses.22 On her reading, however, Walsh did not speak to the obligation of support. She referred to the “clear distinction” drawn by Gonthier J. in his concurrence in Walsh between the division of property‟s contractual 18 19 20 21 22 Droit de la famille — 091768, id., at paras. 220-222. [2002] S.C.J. No. 84, [2002] 4 S.C.R. 325 (S.C.C.) [hereinafter “Walsh”]. Droit de la famille — 091768, supra, note 15, at para. 263. Droit de la famille — 102866, [2010] Q.J. No. 11091, [2010] R.J.Q. 2259 (Que. C.A.). Id., at para. 59, per Dutil J.A. 246 SUPREME COURT LAW REVIEW (2014), 64 S.C.L.R. (2d) basis and the obligation of support‟s social objective.23 Justice Dutil interpreted the obligation of support as a legislative recognition of “the interdependence that can arise in conjugal relationships”.24 In the face of de facto spouses‟ historical disadvantage and their functional similarity to married spouses, the legislative failure to include them in the obligation of support reflected the stereotype that their unions were “not sufficiently stable or serious” to warrant legal protection of the spouses‟ right to meet their basic needs on relationship breakdown.25 Justice Beauregard agreed that excluding de facto spouses from the obligation of support was unconstitutional. He did so, however, on the broader basis that marriages and de facto unions were functionally equivalent and that the current definition allowed individuals to enjoy the benefits of conjugal life while evading its corollary duties.26 III. THE SUPREME COURT‟S DECISION The ultimate judgment stretches across 450 paragraphs. It consists of four sets of reasons, authored by McLachlin C.J.C. and LeBel, Deschamps and Abella JJ. In a nutshell, eight justices upheld the exclusion of de facto spouses from the division-of-property measures (four judges on the basis that it was not discriminatory and four that it was discriminatory but justifiably so) and five upheld de facto spouses‟ exclusion from the obligation of support (four judges on the basis that it was not discriminatory and the fifth that it was discriminatory but justifiably so). The result was to affirm the constitutionality of Quebec‟s regulation of de jure spouses‟ rights and obligations. Given the disagreements amongst the judges, however, the votes that led to the outcome did not line up behind a set of reasons justifying that outcome. Although Abella J. dissented on the result, her discussion of section 15 and her finding that all the impugned provisions were discriminatory amounted to the sole set of reasons to secure the support of a majority of the justices. In a decision written by LeBel J., four justices held that the entirety of Quebec‟s marriage law complied with section 15(1).27 They viewed 23 Id., at para. 67, quoting Walsh, supra, note 19, at paras. 203, 204, per Gonthier J., concurring. 24 Droit de la famille — 102866, id., at para. 96. 25 Id. 26 Id., at paras. 174, 175, 179, per Beauregard J.A. (dissenting as to remedy). 27 Justice LeBel‟s reasons secured the support of Fish, Rothstein and Moldaver JJ. (2014), 64 S.C.L.R. (2d) FAMILY LAW 247 Walsh as a precedent for their analysis.28 A key starting point of the LeBel camp was that the leading equality decision, R. v. Kapp,29 is rightly read as holding that prejudice or stereotyping, and not mere disadvantage, is essential to a claim of substantive discrimination.30 While Quebec had in the past disadvantaged de facto spouses, the law no longer treated them with prejudice or stereotype.31 On LeBel J.‟s understanding, Quebec had adopted a policy by which spousal obligations attach only on the formal expression of consent, making it natural that none applies to de facto spouses.32 In short, Quebec‟s policy is consistent with de facto spouses‟ freedom to choose their relationship form and duties. Justice Abella held that all the challenged provisions infringed section 15 and that none was justifiable under section 1. In doing so, she reached an understanding of Quebec‟s law regarding spouses by marriage or civil union that was radically different from LeBel J.‟s. Disagreeing with him, she held that a distinction‟s discriminatory impact does not turn on evidence that it perpetuates prejudice or stereotype.33 She declared Walsh to be overruled on the basis that the equality analysis under section 15(1) of the Charter had subsequently “evolved substantially”.34 Developments in the regimes applicable to married spouses in Quebec, including the mandatory or public-order character of most of them, attested that the legislative policy prioritized protecting vulnerable spouses over promoting freedom and autonomy.35 Justice Abella concluded that the restrictive reach of all the challenged elements of marriage law made them discriminatory.36 For Abella J., none of the discrimination was reasonably justifiable under section 1. On her assessment, de facto spouses‟ total exclusion failed minimal impairment,37 and the law‟s harmful effects were disproportionate to its benefits.38 She would, however, have accepted the possibility of de facto spouses‟ opting out from presumed protections as a 28 29 30 31 32 33 34 35 36 37 38 Quebec v. A, supra, note 1, at para. 226. [2008] S.C.J. No. 42, [2008] 2 S.C.R. 483 (S.C.C.). Quebec v. A, supra, note 1, at para. 178, per LeBel J. Id., at paras. 248, 267, 272. Id., at paras. 254-256. Id., at para. 327, per Abella J. Id., at para. 338. Id., at paras. 305-309. Id., at para. 356. Id., at para. 360. Id., at para. 377. 248 SUPREME COURT LAW REVIEW (2014), 64 S.C.L.R. (2d) justifiable limit on section 15(1).39 Chief Justice McLachlin agreed with Abella J.‟s analysis under section 15,40 as did Deschamps J. and two others.41 While Abella J.‟s judgment on discrimination thus represents the majority position, those four judges departed from her analysis under section 1, leaving her to dissent on the result. Justice Deschamps concurred with Abella J.‟s conclusion that the legislature‟s confinement of the support obligation to married spouses was unjustifiable.42 But she saw justification for the property regimes‟ restrictive scope of application.43 As for the Chief Justice, she viewed the entire regime as justifiable, given the important legislative objective of promoting de facto spouses‟ choice and autonomy.44 The impairment was minimal on the basis that no alternative would equivalently advance the legislative objective.45 In addition, federalism considerations entered her analysis. Respect for Quebec‟s constitutional responsibility to legislate for its population cautioned against imposing a single preferable approach to a social issue, at the stage of minimal impairment and under proportionality.46 IV. SCOPE AND IMMEDIATE IMPLICATIONS It is worth delineating what the appeal decided. The Chief Justice‟s principal constitutional question stated ran as follows: “Do arts. 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of Québec … infringe s. 15(1) of the Canadian Charter of Rights and Freedoms?”47 That formulation referred broadly to section 15(1) of the Charter, without specifying an enumerated or analogous ground. As for the provisions listed, they consisted of the regimes respecting the family residence, the family patrimony, the compensatory allowance and the partnership of acquests. 39 Id., at para. 376. Id., at para. 416, per McLachlin C.J.C. 41 Id., at para. 382, per Deschamps J. Her reasons were adopted by Cromwell and Karakatsanis JJ. 42 Id., at para. 399. 43 Id., at para. 408. 44 Id., at para. 415, per McLachlin C.J.C. 45 Id., at para. 442. 46 Id., at paras. 440, 449. 47 Id., at para. 31 [reference omitted]. 40 (2014), 64 S.C.L.R. (2d) FAMILY LAW 249 Despite the stated question‟s generality, the Court decided the challenge only on the basis of marital status. The claimant had argued solely that ground. Analysis centred on the marital-status precedents in Walsh and in Miron v. Trudel.48 In Miron, a majority of the Court had found unjustifiable discrimination where statutorily imposed standard terms for car insurance had restricted accident benefits to married spouses. Accordingly, the Supreme Court has not yet pronounced on the constitutionality of the treatment of unmarried cohabitants from the angle of other grounds. It may be a long shot, but a litigant might allege indirect discrimination on the basis of sex, demonstrating the law‟s disproportionate impact on women. It might also be argued that the law indirectly disadvantages the children of unmarried parents — a circumstance over which the children exercise no choice — relative to those of married or divorced parents. Despite the ringing statement that “[a]ll children whose filiation is established have the same rights and obligations, regardless of their circumstances of birth”,49 their parents‟ marital status still has legal effects for children. For example, unlike the Divorce Act,50 and the family law of most provinces, the Civil Code recognizes no support obligation on the part of a parent‟s de jure or de facto spouse towards a stepchild. Furthermore, the possibility of a right to use of the family residence — ancillary to an award of custody of a child — appears not in the title on parental authority, applicable to all parents and children, but in the title on marriage, amongst the protections of the family residence.51 In addition, children of divorced parents, one of whom is resident outside Quebec, will benefit from the entitlement accorded them by the Federal Child Support Guidelines,52 as opposed to the usually lesser amount prescribed by Quebec‟s guidelines.53 No child of unmarried parents in Quebec will be entitled to support under the more generous federal guidelines.54 Even in the context of the marital-status challenge, the way [1995] S.C.J. No. 44, [1995] 2 S.C.R. 418 (S.C.C.) [hereinafter “Miron”]. Art. 522 C.C.Q. R.S.C. 1985, c. 3 (2nd Supp.). 51 Art. 410, para. 2 C.C.Q. 52 SOR/97-175. 53 Regulation respecting the determination of child support payments, CQLR c. C-25, r. 6. 54 On the impact for children of Quebec‟s approach to de facto spouses, see Dominique Goubau, Ghislain Otis & David Robitaille, “La spécificité patrimoniale de l‟union de fait : le libre choix et ses „dommages collatéraux‟” (2003) 44:1 C. de D. 3. 48 49 50 250 SUPREME COURT LAW REVIEW (2014), 64 S.C.L.R. (2d) in which the children “go missing” from the analysis,55 despite an intervener‟s insistence on the importance of the law‟s impact on them,56 will bother many readers. As for the challenge‟s scope, the set of provisions was arguably both too broad and too narrow. For breadth, the range included the protective regime of the family residence with the rest. On the face of the judgment, four judges found no discrimination respecting the family residence, while another four found justifiable discrimination. The judgment may not, however, definitively uphold de facto spouses‟ exclusion from those provisions. Since A and B had settled her claim regarding the use of the family residence,57 it is arguable that all discussion regarding that regime is obiter.58 As for narrowness, the obligation of support reaches into the Civil Code‟s book on successions, which stipulates that for a time the obligation survives the debtor.59 Aside from the circumstances of A‟s inter vivos claim against B, those measures on the devolution of intestate successions, limited to spouses by marriage or civil union,60 might reasonably be seen as standing or falling with those in the book on the family. More broadly yet, A‟s claim may be read as having called into question the formal approach and fundamental architecture of the Civil Code‟s book on the family. The latter consists of five titles. The first three — marriage, civil union, filiation — define the principal recognized family relationships and the means for their establishment.61 Without alteration, those statuses operate throughout the rest of the book on the family (and other books of the Civil Code).62 In the case of marriage and Rollie Thompson, “Annotation: Droit de la famille — 091768” (2013) 21 R.F.L. (7th) 325, at 331 [hereinafter “Thompson, „Annotation‟”]. 56 Mémoire de l‟intervenante, Fédération des associations de familles monoparentales et recomposées du Québec, at paras. 17, 20, 22, 23. 57 Quebec v. A, supra, note 1, at para. 6; also at para. 132, per LeBel J. 58 Robert Leckey, “Gimme Shelter” (2011) 34:1 Dal. L.J. 197, at 209 [hereinafter “Leckey, „Gimme Shelter‟”]. Justice Deschamps noted that the courts, without legislated authorization, “have taken a flexible approach, exercising their incidental powers with regard to the family residence” (Quebec v. A, id., at para. 407). 59 Arts. 684, 688 C.C.Q. 60 Art. 653 C.C.Q. See generally Brigitte Lefebvre, “L‟union de fait : enjeux de l‟encadrement dans un contexte successoral” in Alain-Charles Van Gysel, ed., Conjugalités et discriminations (Bruxelles: Anthémis, 2012) 105 [hereinafter “Van Gysel”]. 61 The book on successions refers to a wider set of relations, including various ascendants and descendants. 62 Compare the definition of “spouse” at issue in the challenge, on behalf of same-sex couples, to the obligation of support‟s scope of application in M. v. H., [1999] S.C.J. No. 23, [1999] 2 S.C.R. 3 (S.C.C.). The Family Law Act, R.S.O. 1990, c. F.3, already had, in its s. 29, an expanded 55 (2014), 64 S.C.L.R. (2d) FAMILY LAW 251 civil union, those titles also set out rights and obligations. The next two titles — the obligation of support and parental authority — set out the rights and obligations entailed by the statuses defined in the preceding titles. A finding that required, say, de facto spouses‟ inclusion in the title on the obligation of support would logically have required structural amendments, such as the addition of a new title defining de facto union. The province‟s Interpretation Act has, since 2002, included a suppletive definition of de facto spouse.63 If that concept were to assume importance in the civil law‟s regulation of the family, however, relying on an ordinary statute for its definition would undermine the Civil Code‟s vocation of being the primary and fundamental written expression of the general private law.64 Having affirmed the validity of Quebec‟s regimes, the judgment is likely to have little practical effect on family law in the common law provinces. Although a majority of the Court held that the equality analysis in Walsh is no longer good law, that judgment‟s outcome remains valid.65 Indeed, the British Columbia Court of Appeal recently rejected a challenge to the former Family Relations Act for its exclusion of cohabitants.66 Walsh was “no longer applicable”,67 but the outcome in Quebec v. A denied any effect to that development.68 The sole and limited direct impact of the Supreme Court‟s judgment for family law may have been to re-characterize the situation in jurisdictions, such as Nova Scotia, that have extended spousal support but not division of property to cohabitants. Walsh had held that Nova Scotia‟s law in this respect complied with section 15 of the Charter, indeed, that it “enhance[d] … respect for the autonomy and self-determination of unmarried cohabitants”.69 That holding had appeared to apply straightforwardly to the state of affairs in other common law provinces, such as Ontario. definition of “spouse” for the purposes of the support obligation in the statute‟s Part III; the litigation simply pressed for a further expansion. For comparison of Quebec‟s formal approach to family regulation and the common law provinces‟ functional approach, see Robert Leckey, “Family Outside the Book on the Family” (2009) 88:3 Can. Bar Rev. 545, at 547-56. 63 CQLR c. I-16, s. 61.1. On that definition‟s limits, see Brigitte Lefebvre, “Union de fait” in Pierre-Claude Lafond, ed., JurisClasseur Québec : Personnes et famille (Markham, ON: LexisNexis Canada, 2012), fasc. 28, at 8-9, para. 6. 64 Preliminary provision, C.C.Q. 65 Thompson, “Annotation”, supra, note 55, at 326. 66 R.S.B.C. 1996, c. 128. 67 Jackson v. Zaruba, [2013] B.C.J. No. 545, 335 B.C.A.C. 30, at para. 10 (B.C.C.A.), leave to appeal refused [2013] S.C.C.A. No. 169 (S.C.C.). 68 Id., at para. 16. 69 Supra, note 19, at para. 50, per Bastarache J. 252 SUPREME COURT LAW REVIEW (2014), 64 S.C.L.R. (2d) Quebec v. A now suggests that such a legislative policy is valid, but only as discrimination that can be saved under section 1. Although a majority of judges in Quebec v. A found discrimination, the overall tenor of the judgment is not one of enthusiasm for using the equality guarantee to override legislative determinations in the family field. After rendering judgment in Quebec v. A, the Supreme Court has refused leave to appeal in two cases in which courts of first instance had found a limit on section 15(1), only to be reversed on appeal.70 Viewed together, the Supreme Court‟s recent decisions might reasonably be expected to dampen the enthusiasm for invoking section 15 in further Charter challenges to family law. If Charter litigation is unlikely to alter unmarried cohabitants‟ legal situation, the legislative forum may be more promising than some observers had supposed in the decade following Walsh. Absent any constitutional compulsion, the legislature of British Columbia undertook a major overhaul. Its Family Law Act includes in the definition of “spouse”, along with individuals who are married, a person having lived with another in a marriage-like relationship for two years or who has a child with the other person.71 In Quebec, there is scholarly optimism that, the debate having been “freed” from the explosive question of the current family policy‟s allegedly discriminatory character, the real reflection and law reform can now begin.72 Indeed, on April 19, 2013 the Minister of Justice announced the creation of a consultative committee on family law — chaired by Professor Roy — with a broad mandate to evaluate the appropriateness or not of reviewing the entirety of Quebec family law. 73 Perhaps the law reformers in Quebec, and in other provinces, will find 70 Droit de la famille — 111526, [2011] Q.J. No. 6193, [2011] R.J.Q. 907 (Que. S.C.) (a challenge to the federal government‟s recognition of Quebec‟s child-support guidelines for divorce cases; discrimination saved under s. 1), affd on other grounds Droit de la famille — 139, [2013] Q.J. No. 36, [2013] R.J.Q. 9 (Que. C.A.), leave to appeal refused (sub nom. H.C. v. P.N.), [2013] S.C.C.A. No. 113 (S.C.C.); Pratten v. British Columbia (Attorney General), [2011] B.C.J. No. 931, 2011 BCSC 656 (B.C.S.C.) (a challenge to the province‟s failure to take steps to safeguard identifying information for children conceived by anonymous donor sperm; discrimination), revd [2012] B.C.J. No. 2460, 357 D.L.R. (4th) 660 (B.C.C.A.), leave to appeal refused [2013] S.C.C.A. No. 36 (S.C.C.). 71 S.B.C. 2011, c. 25, s. 3(1). 72 Benoît Moore, “„Auprès de ma blonde ...‟” in Brigitte Lefebvre & Antoine Leduc, eds., Mélanges Pierre Ciotola (Montreal: Thémis, 2012) 359, at 380 [author‟s translation] [hereinafter “Moore, „Auprès de ma blonde‟”]; for a sketch of reform options, see Alain Roy, “Affaire Éric c. Lola: Une fin aux allures de commencement” [2013] 1 C.P. du N. 259, at 292-306 [hereinafter “Roy”]. 73 See “Le ministre de la Justice annonce la création d‟un comité consultatif sur le droit de la famille”, online: <http://communiques.gouv.qc.ca/gouvqc/communiques/GPQF/Avril2013/19/ c7087.html>. (2014), 64 S.C.L.R. (2d) FAMILY LAW 253 food for thought in Abella J.‟s discussion of how a presumptively protective regime, subject to opting-out, might balance protection of vulnerable spouses and respect for freedom of choice. That analysis appreciates the importance of protective default rules.74 Within Quebec, failure via the route of constitutional litigation may intensify the pressure on judges to respond to the circumstances of former de facto spouses under the auspices of the codified civil law. In the context of a former de facto union, some judges have increased a parent‟s support obligation to his or her children in order to palliate “undue hardship” on the part of the other parent, as contemplated by article 587.2.75 Outside family law, strictly speaking, further litigation is foreseeable under the general private law of property and obligations. Surprisingly,76 the Court‟s lengthy judgment made no reference to its major cohabitation case from two years previous, Kerr v. Baranow.77 That judgment had substantially adapted the common law of unjust enrichment as it applies to unmarried cohabitants, injecting the spirit of the constructive trust into the rules for monetary orders. Justice LeBel spoke in Quebec v. A of unjust enrichment‟s being interpreted “cautiously but generously” in the context of de facto unions.78 Justice Deschamps called for interpreting that doctrine “generously and in a manner consistent with the Charter”.79 It remains to be seen how well judges in Quebec will adapt the general private law to the family lives they see before them.80 74 Compare LeBel J.‟s finding it “odd” to suppose that a regime of presumptive protection, subject to opting-out, should be preferable to no protection unless the parties conclude a contract, in part on the basis that opting-out itself depends on “mutuality of consent”. Quebec v. A, supra, note 1, at para. 268. 75 Jocelyne Jarry, Les conjoints de fait au Québec: vers un encadrement légal (Cowansville, QC: Yvon Blais, 2008), at 141-43. 76 Thompson, “Annotation”, supra, note 55, at 335. 77 [2011] S.C.J. No. 10, [2011] 1 S.C.R. 269 (S.C.C.) [hereinafter “Kerr”]. 78 Quebec v. A, supra, note 1, at para. 117. 79 Id., at para. 402. 80 A had made no claim in unjust enrichment. She had framed her initial claims in 2002, nearly a decade before Kerr. In any event, on many views the civil law‟s doctrine of unjust enrichment — unlike the common law‟s, post-Kerr — limits the possible indemnity to the lesser of the debtor‟s enrichment or the creditor‟s impoverishment (Robert Leckey, “Unjust Enrichment and De facto Spouses” (2012) 112:3 R. du N. 475, at 486-89). Given the increase in B‟s wealth during their union, the scale of A‟s entitlement if she could access the regimes applicable to de jure spouses would far outstrip any demonstrable impoverishment on her part. For a bold application of Kerr that seems to indicate that where de facto spouses had formed a joint family venture the value-surviving measure is appropriate, freed from the limit of the rule of the lesser amount, see Droit de la famille — 132495, [2013] Q.J. No. 11898, 2013 QCCA 1586 (Que. C.A.). 254 SUPREME COURT LAW REVIEW (2014), 64 S.C.L.R. (2d) V. CHOICE AND AUTONOMY Notions of choice and autonomy lie at the heart of the reasons rejecting A‟s claims. This section of the paper draws out two strands of the judgment‟s treatment of those concepts: the reading of Quebec family law as fundamentally choice-promoting and the understanding of individual de facto spouses‟ autonomy and consent. Justice LeBel accepted the contention that Quebec family law‟s “basic premise” is the “exercise of autonomy of the will”.81 By accepting the averred legislative aim of “preserv[ing] the freedom of those who wish to organize their patrimonial relationships outside the mandatory statutory framework”82 and the reasonableness of legislation under which marital rights and obligations depend on mutual consent,83 he found no discrimination. For her part, the Chief Justice accepted the promotion of “choice and autonomy for all Quebec spouses” regarding support and property division as a valid legislative objective under section 1.84 Without evaluating the soundness of Quebec‟s family policy, it is possible to identify respects in which these accounts do not square easily with the current positive law. The focus on choice reads the present-day decision whether to marry or to live in a de facto union into the legislative past. A “social indifference” may today prevail regarding marital status, such that individuals make their choices without risk of “social stigma”.85 But that state of affairs is recent. The legislative drafters who in the 1960s, 1970s, and 1980s devised the key pieces of current marriage law — the partnership of acquests, protection of the family residence, compensatory allowance and family patrimony — understood themselves to be regulating the entire set of socially acceptable or legitimate families. They were not elaborating a binary option between marriage and de facto union (called “concubinage” in the Civil Code until 2002,86 throughout the parties‟ union). The legislative drafters regarded the chief scope for choice as internal to marriage, in the possibility of opting out of the default partnership of acquests by notarized marriage contract in favour of separate property. It is a presentist understanding that takes marriage, as a 81 Quebec v. A, supra, note 1, at para. 270. Id., at para. 256. 83 Id., at para. 259. 84 Id., at para. 435. 85 Moore, “Auprès de ma blonde”, supra, note 72, at 369-70 [author‟s translation]. 86 The legislative drafters replaced the Civil Code‟s references to “concubinary” with “de facto spouse” (An Act instituting civil unions and establishing new rules of filiation, S.Q. 2002, c. 6). 82 (2014), 64 S.C.L.R. (2d) FAMILY LAW 255 device for triggering rights and duties, to be a proxy for formal consent to obligations rather than a marker for the class of legitimate families.87 A similarly revisionist view of marriage and de facto union as socially equivalent alternatives colours the Chief Justice‟s discussion of the legislature as having “adopted” a “dual regime approach”88 and of Quebec law as “contemplat[ing] two completely different and distinct legal regimes” for de jure and de facto spouses.89 Indeed, since de facto spouses benefit only from unimpeded access to the general law of property and obligations as individuals, it is a stretch to speak of their enjoying a “legal regime” as such. Furthermore, the theory that choice and autonomy are paramount legislative objectives founders on the obligatory character of major elements of marriage law. The distinctiveness of Quebec law relative to that of the other provinces calls for emphasis. Recall that the rules addressing the obligation of support, the protection of the family residence, the compensatory allowance, and the family patrimony are mandatory. For example, so long as their bond subsists, de jure spouses may not renounce the obligation of support. Rights in the family patrimony are not renounceable by marriage contract. Only on the other spouse‟s death, or from the judgment of divorce, separation from bed and board, or nullity of marriage, may a spouse renounce those rights before a notary.90 Even then, there is an enlarged basis for annulling the renunciation.91 The legislative record establishes that the obligatory character of the family patrimony followed acknowledgement that freedom of contract in matrimonial matters had proven a failure; too many spouses had opted out of the default partnership of acquests, marrying in separation as to property, and courts had applied the compensatory allowance timidly in deference to freedom of contract. It is Abella J.‟s account that best integrates the public-order character of those features of Quebec‟s matrimonial law. She wrote that, “[F]ar from being designed to reflect the actual choices 87 The Attorney General of Quebec‟s effort to rewrite history under the banner of choice included describing the civil union as a choice-promoting option “to permit couples who did not wish to marry (heterosexual and homosexual) to establish for themselves rights and obligations similar to those entailed by marriage” (Mémoire de l‟appelant, le Procureur général du Québec at para. 54 [author‟s translation]; see also at para. 117). Justice LeBel righted the record: the civil union had “provided same-sex couples … with a first mechanism for making their unions official” (Quebec v. A, supra, note 1, at para. 94). 88 Id., at para. 414. 89 Id., at para. 412. 90 Art. 423 C.C.Q. 91 Art. 424 C.C.Q. 256 SUPREME COURT LAW REVIEW (2014), 64 S.C.L.R. (2d) made by married spouses, these measures subordinated those choices to the agenda of protection.”92 Further discussion would exceed this paper‟s ambit by slipping into an evaluation of Quebec‟s legislative policy. It suffices to note that scholarship has explored the implications for unmarried cohabitation of the legislature‟s decision in that province, unique in Canada, to make obligatory so much of the law applicable to married spouses.93 Turning from the characterization of the marital regime towards the understanding of individual choice, the judges‟ discernment of consent to familial obligation reveals a narrow conception. The LeBel camp adopted an individualist discourse regarding de facto union and a conception of the autonomy of the will which, “everywhere in the law of contract, is today seen as archaic and fantastic”.94 For them, the key evidence of consent to spousal obligations is a “juridical act”: marriage, civil union, or a cohabitation agreement.95 The only choice manifested implicitly, or by conduct, is the individual‟s “decision to continue living with a spouse who refuses to marry”. 96 Such a decision is valuable on account of the individual‟s “freedom to decide and personal autonomy”.97 On LeBel J.‟s understanding, the individual who sets out to live unencumbered by family obligations and, years later, finds himself or herself enmeshed in familial relationships, supporting a partner and children who live under his or her roof, is liable for child support, but has not consented to any other responsibilities arising from that situation. Although invited to do so, the justices who rejected A‟s claim espied no hint of undertaking in the conduct of a shared life. A had suggested that 92 Quebec v. A, supra, note 1, at para. 307. Professor Moore has written trenchantly about the “irrationality” of combining mandatory protections for de jure spouses with laissez-faire for de facto spouses. Benoît Moore, “L‟union de fait : enjeux de l‟encadrement juridique en droit privé dans un contexte de rupture” in Van Gysel, supra, note 60, 87, at 99. By leaving to private ordering that which is a matter of public order in marriage, the legislature allows de facto spouses to evade its own legislative imperative: Moore, “Auprès de ma blonde”, supra, note 72, at 374. 94 Benoît Moore, “Variations chromatiques : l‟union de fait entre noir et blanc” in Générosa Bras Miranda & Benoît Moore, eds., Mélanges Adrian Popovici : Les couleurs du droit (Montreal: Thémis, 2010) 97, at 109 [author‟s translation, references omitted]; see also Louise Langevin, “Liberté de choix et protection juridique des conjoints de fait en cas de rupture : difficile exercice de jonglerie” (2009) 54:4 McGill L.J. 697, at 711-12; Louise Langevin, “Liberté contractuelle et relations conjugales : font-elles bon ménage?” (2009) 28:2 Nouvelles questions féministes 24. 95 In the civil law, a juridical act is “designed to produce effects in law”: Quebec Research Centre of Private & Comparative Law, Private Law Dictionary and Bilingual Lexicons: Obligations (Cowansville, QC: Yvon Blais, 2003), s.v. “juridical act”, at 162 [hereinafter “Private Law Dictionary”]. 96 Quebec v. A, supra, note 1, at para. 260. 97 Id. 93 (2014), 64 S.C.L.R. (2d) FAMILY LAW 257 her former partner, B, while having made no public gesture of consent to spousal obligations, “had doubtless made thousands in private, in daily life.”98 In that spirit, Deschamps J. referred to the “state of dependency that can gradually take hold in the parties‟ relationship”.99 During the hearing, she had asked whether a person‟s state of dependence or vulnerability might not flow from a mutual decision; how probable was it that a partner could withdraw from the labour force and devote herself to caring for the family without the other‟s consent?100 The “formalistic methodology”101 of the reasons supporting the outcome in Quebec v. A contrasts with the Court‟s recent unanimous opinion on unjust enrichment. In Kerr, Cromwell J. for the Court had elaborated factors indicative of a “joint family venture” so as to attach legal consequences to familial conduct.102 He nodded to the parties‟ autonomy as an “appropriate concern”103 in connection with consideration for the parties‟ actual intent. But he set out three other potentially countermanding factors for making sense of “how the parties actually lived their lives”:104 mutual effort, economic integration and priority of the family. To be sure, the contrast must not be overblown. Kerr was a private law case. It involved judge-made rules, with no Attorney General playing the card of legislative intent or democratic legitimacy. Nor did Kerr call into question the ostensible distinctiveness of the federation‟s sole civilian jurisdiction and its Civil Code, with which the justices may have been wary to interfere. In addition, as the Chief Justice pointed out to counsel for A during the hearing, the doctrine of unjust enrichment does not turn on consent.105 Moreover, unlike an enacted regime of property division, presumptively applicable to a class of spouses, the doctrine of Mémoire de l‟intimée « A », at para. 129 [author‟s translation]. Quebec v. A, supra, note 1, at para. 402. 100 Transcript, at 7. Justice Beauregard had similarly seen the possibility of attributing effects to the decision to live together, speaking of the legislature as exempting de facto spouses from the “moral obligations they will incur by enjoying the benefits of a life in a conjugal relationship and at the expense of a partner”. Droit de la famille — 102866, supra, note 21, at para. 184. For an illuminating analysis of exogenous factors that may condition a woman‟s “choice” to assume a homemaking role, see Dominique Barsalou, Ma mère ne travaille pas : Le traitement juridique de la mère au foyer en droit québécois de la famille (Cowansville, QC: Yvon Blais, 2013), at 46-56. 101 Thompson, “Annotation”, supra, note 55, at 326. 102 In Kerr, the conduct of family lives becomes a “juridical fact”, something “to which the law attaches legal effects independently of the will of the persons concerned”: Private Law Dictionary, supra, note 95, s.v. “juridical fact”, at 162. 103 Kerr, supra, note 77, at para. 94. 104 Id., at para. 88. 105 Transcript, at 67. 98 99 258 SUPREME COURT LAW REVIEW (2014), 64 S.C.L.R. (2d) unjust enrichment and the Court‟s search for a joint family venture aim “to attach just consequences to the way the parties have lived their lives”, with individual claims necessarily “well-grounded in the evidence”.106 These features provide a basis for distinguishing Quebec v. A from Kerr (as they had for insisting that Kerr was “fully consistent with Walsh”).107 Nevertheless, some readers will sense tension between the depictions of family life in the two judgments, detecting a much greater measure of judicial creativity and intervention in Kerr. A firm grip on lawyerly distinctions is required to avoid perceiving inconsistency at a general level. Relatedly, the opinions upholding the law in Quebec v. A reflect a thin conception of autonomy. A had argued that “freedom and autonomy are not advanced by a legal void”.108 Nevertheless, the judgment presents the division of property and support as contrasting with “a regime of full autonomy”.109 It appears that autonomy is the state of owing nothing to others. On this understanding, the individual family member “becomes responsible for herself and for her familial choices”.110 The justices who rejected the claim did not explore A‟s proposition that autonomy might call for honouring relationships and the responsibilities that take root through them. VI. VIEWS OF SPOUSES‟ RIGHTS AND DUTIES The justices of the Supreme Court of Canada each adopted one of two understandings of the rules applicable to spouses by marriage or civil union in Quebec. On what can be called the bundle view of Quebec marriage law, the regimes contested in the litigation — the obligation of support, the family residence, the compensatory allowance, the family patrimony, the partnership of acquests — form a unity, its constitutional validity determinable in an all-or-nothing fashion. On the contrasting view, those regimes are separable, making it conceivable to invalidate the exclusion of de facto spouses from one or more elements of marriage law, but not all. Despite their disagreement on the Charter questions, the understanding of marriage‟s rights and obligations as inseparable unified six justices. Justice LeBel and three colleagues rejected the property/support 106 107 108 109 110 Kerr, supra, note 77, at para. 88. Id., at para. 82. Mémoire de l‟appelante « A », at para. 181 [author‟s translation]. Quebec v. A, supra, note 1, at para. 438, per McLachlin C.J.C. Alison Diduck, “What Is Family Law For?” (2011) 64:1 Curr. Legal Probs. 1, at 22. (2014), 64 S.C.L.R. (2d) FAMILY LAW 259 distinction drawn by the Court of Appeal and by Deschamps J. — be it under section 15(1) or section 1 — as inconsistent with the legislatively imposed character of marriage and civil union as an “economic partnership”.111 Viewed globally, the impugned measures had the same function or effect of shaping the spouses‟ private economic relationship and rebalancing the distribution of resources between them.112 For McLachlin C.J.C., “the protective effects of support and property division are intertwined and cannot be readily separated”.113 On Abella J.‟s reading, a legislative concern for protecting economically vulnerable spouses and a willingness to subordinate individual choices to that protective agenda unified Quebec‟s marriage law.114 Conversely, she regarded the alternative remedies under the general private law as inadequate substitutes not only for spousal support, but also for property division.115 This bundle view calls to mind L‟Heureux-Dubé J.‟s proposition, in her dissent in Walsh, that functionally “no real dividing line” separated support obligations from those imposed by matrimonial property regimes.116 In contrast, only Deschamps J. and two colleagues distinguished support from the rest, doing so under section 1. They rejected Abella J.‟s view of “all these measures as a package” and LeBel J.‟s understanding by which the protective measures constituted “a mandatory primary regime with a single dominant objective”.117 Justice Deschamps distinguished the protective effects of the impugned measures from their respective bases or justifications.118 The challenged provisions were internally diverse on account of varying legislative sources, objectives, and means.119 She contrasted the obligation of support, understood as a remedy for the “interdependence that sometimes steals into conjugal life, over which the parties have no real control”,120 with division of property, construed as a response to the deliberate acquisition of property such as the family residence or pension plans.121 Justice Deschamps elaborated the notion that the family patrimony is consciously constituted: “property 111 112 113 114 115 116 117 118 119 120 121 Quebec v. A, supra, note 1, at para. 229. Id., at para. 230. Id., at para. 446. Id., at paras. 305, 307, 349. Id., at para. 365. Walsh, supra, note 19, at para. 104. Quebec v. A, supra, note 1, at para. 382. Id., at para. 391. Id., at para. 392. Id., at para. 403. Id., at para. 393. 260 SUPREME COURT LAW REVIEW (2014), 64 S.C.L.R. (2d) becomes part of the family patrimony because the parties have deliberately decided to acquire it. Neither a residence nor movable property becomes part of a party‟s patrimony over time without concrete action being taken.”122 On her account, this character of deliberation justified the government in refraining from imposing similar effects on the property decisions of de facto spouses.123 The opposing views of Quebec‟s regimes applicable to de jure spouses inspire a number of remarks. The proposition that property and support are virtually inextricable is challenging, as legislatures and judges regularly separate them. The Bankruptcy and Insolvency Act takes them as separable, singling out claims of support as claims provable in bankruptcy that remain enforceable against the bankrupt after his or her discharge, while claims for equalization of family property become unenforceable.124 So does the assumed constitutional division of labour by which the Divorce Act addresses spousal support and provincial laws deal with property division. The decision by all legislatures but Quebec‟s to confer spousal support on unmarried cohabitants without extending property sharing substantiates the sense that the two are distinct, the former being the more urgent of the two. That several provinces have later included cohabitants in property sharing does not undermine the point. In addition, the legislatures of some provinces have addressed spousal support in one statute and marital property in another.125 While guidelines and tables (and specialized software) quantify child support outside the Civil Code, the unified support regime applicable to de jure spouses as well as to parents and children signals that support must be separable from property, since the latter applies only to spouses. The Supreme Court‟s jurisprudence in family law also takes support as distinguishable from property. In its leading case on prenuptial agreements, the Court found it “highly significant” that the challenged contract preserved a right to spousal support, determinable after application of the agreement.126 That being said, in the context of A‟s Charter claim from Quebec, the line between support and property raises objections. Arguably, the 122 123 124 Id., at para. 403. Id. R.S.C. 1985, c. B-3. See Schreyer v. Schreyer, [2011] S.C.J. No. 35, [2011] 2 S.C.R. 605 (S.C.C.). 125 See, e.g., Maintenance and Custody Act, R.S.N.S. 1989, c. 160; Matrimonial Property Act, R.S.N.S. 1989, c. 275. 126 Hartshorne v. Hartshorne, [2004] S.C.J. No. 20, [2004] 1 S.C.R. 550, at paras. 56-59 (S.C.C.), per Bastarache J. (2014), 64 S.C.L.R. (2d) FAMILY LAW 261 protections accorded to the family residence belong on the side of support.127 Professor Roy submits that in Quebec law the better division would isolate the partnership of acquests, the sole regime from which the parties may derogate by contract.128 Sociological research suggests that jurists, obsessed with property rights, might have it entirely wrong: although the finding raises questions, de facto spouses may regard division of property — a one-time operation — as more suitable to their circumstances than an obligation of support linking them in their postrelationship future.129 Even retaining the separation between property and support, its justifications might have been richer. Justice Deschamps evoked the civil law‟s dichotomy of patrimonial rights, which are alienable, and extrapatrimonial rights, which, tightly connected to the person of their titulary, are not.130 In this context, however, those characterizations pull little justificatory weight. The notion that support aims to remedy unconscious patterns while property division addresses the “conscious act”131 of acquisition is underdeveloped. Is it correct to say that the family patrimony increases in value only as the result of conscious acts? Corporeal property, such as furniture or a car, enters the family patrimony simply by its use for family purposes. Think too of the appreciation in value of the residences ordinarily used by the family or the accumulation of pension credits, pay cheque by pay cheque. The focus on conscious acquisition obscures that the family patrimony is especially crucial for spouses who acquire no property during the marriage, perhaps as a result of having made their “respective contributions by their activities within the home”.132 Moreover, why should the “interdependence that sometimes steals into conjugal life”, beyond the parties‟ control133 — to which Deschamps J. rightly ad127 Leckey, “Gimme Shelter”, supra, note 58, at 213. Noting the regime‟s protective ambition, LeBel J. asked the Attorney General of Quebec at the hearing whether the protection of the family residence was a matter of the support obligation or the division of property; the answer is unclear (Transcript, at 13). 128 Roy, supra, note 72, at 285; see also Benoît Moore, “Passé et avenir de l‟union de fait : entre volonté et solidarité” in Conférences des juristes de l’État 2013 (Cowansville, QC: Yvon Blais, 2013) 65, at 78-79. 129 Hélène Belleau & Pascale Cornut St-Pierre, “Conjugal Interdependence in Quebec: From Legal Rules to Social Representations about Spousal Support and Property Division on Conjugal Breakdown” C.J.L.S. [forthcoming], DOI: <http://dx.doi.org/10.1017/cls.2013.34>. 130 Quebec v. A, supra, note 1, at paras. 401, 402. 131 Id., at para. 393. 132 Art. 396, para. 2 C.C.Q.; see Roy, supra, note 72, at 285. 133 Quebec v. A, supra, note 1, at para. 403. 262 SUPREME COURT LAW REVIEW (2014), 64 S.C.L.R. (2d) verted in respect of support — not undermine the integrity of ostensibly conscious and consensual decision-making in precisely such circumstances? One insight latent in Deschamps J.‟s discussion of acquisition may be that major purchases provide a moment when de facto spouses may discuss the suitability of co-ownership and that decisions at such junctures may merit deference (“title” may, however, matter relatively little to many people who assume that their relationship will endure). Another might be that the distinction between support and property has a policy basis in how the law deals with time. That basis may be discernible in opposing (and similarly messy) categories in other legal areas, such as taxation‟s income versus capital gains and the civil law of property‟s capital versus proceeds and fruits.134 In any event, more might have been said about the differences between support and property.135 Given its inability to absorb complexity in a field that has developed incrementally, the bundle view contributed to distorted accounts of Quebec family law. The parties‟ submissions aimed for the justices to focus on marriage law‟s overall effects, not the regimes‟ respective bases or justifications. The approach was analogous to one by which the common function in rewarding individuals involved in a business‟s success would override distinctions amongst stock options, salary, dividends and proceeds from the sale of shares. In short, the bundle required shoehorning a complex set of legal devices into a single model. The preceding part has addressed how the LeBel camp overemphasized autonomy and choice‟s weight in Quebec family law. In her desire to do justice for A, Abella J. exaggerated the protection of vulnerable spouses relative to family law‟s other aims. Independent of need and vulnerability, division of property and support also pursue objectives of compensation and 134 Fruits, proceeds and capital may be best understood not as clear and separate categories but as forming a continuum. See Roderick A. Macdonald, “Fruit Salad” (2008) 38:2 R.G.D. 405, at 449-50, paras. 72, 73. 135 After Hallée J.‟s trial judgment, Professor Thompson listed differences between the two mechanisms, elaborating on M. v. H. and Gonthier J.‟s distinction in Walsh. He set out six: unlike property, spousal support is statutory, without alternatives under the general private law; property looks backward, spousal support, forward; property is divided by rules, spousal support involves substantial discretion; spousal support is a functional remedy, not driven by status, such that the fact of marriage does not produce entitlement; spousal support interacts with child support; spousal support serves broader public purposes and, unlike property, is not a purely “private” remedy between spouses. Rollie Thompson, “Case Comment: Droit de la famille — 091768, the Quebec Common Law Case: Liberty vs. Equality, Part Deux” (2009) 71 R.F.L. (6th) 337, at 346-48. (2014), 64 S.C.L.R. (2d) FAMILY LAW 263 fairness.136 In contrast with attention to need, and its effect of casting claimants as supplicants, legislative warrant for equal sharing and compensation is a major achievement of Canadian family law.137 The law presumes a spirit of partnership and the equal value of the spouses‟ contributions during the marriage. Consequently, the spouse of means, like the indigent one, is entitled to his or her share. Justice Deschamps rightly spoke of measures aiming “to ensure autonomy and fairness for couples who have been able to, or wanted to, accumulate property”.138 In turn, an emphasis on protection at the expense of compensation may have led the Deschamps camp to a “truncated” view of spousal support.139 Their account emphasizes need and support‟s noncompensatory basis. Indeed, Deschamps J. denied the compensatory vocation of support associated with Moge v. Moge,140 distinguishing support from the compensatory allowance, the family patrimony and the partnership of acquests on the basis that the former has no compensatory function and does not depend on the debtor‟s consent.141 Some explanation of this narrow view of spousal support may come from the challenge‟s having borne on article 585 of the Civil Code. In the context of de jure spouses, that provision concretizes the duty of succour listed amongst the “rights and duties of spouses”.142 Article 585 recognizes a reciprocal obligation that is quantifiable on account of the parties‟ “needs and means …, their circumstances and, as the case may be, the time needed by the creditor of support to acquire sufficient autonomy”.143 Doctrine defines the civil law‟s alimentary obligation as the duty to “provide to the spouse the resources necessary to life”,144 regarding a Thompson, “Annotation”, supra, note 55, at 329. For criticism of a focus on protection of the vulnerable at the expense of concern for rights and justice in the context of legal aid for family cases, see John Eekelaar, “„Not of the Highest Importance‟: Family Justice under Threat” (2011) 33:4 J. Soc. Welfare & Fam. L. 311. 137 Compare the law of England and Wales, which did not divide property on the basis of fairness with a yardstick of equality until White v. White, [2001] 1 A.C. 596 (H.L.), instead addressing the claimant‟s reasonable needs (thereby leaving any marital surplus to the respondent). 138 Quebec v. A, supra, note 1, at para. 392. 139 Thompson, “Annotation”, supra, note 55, at 332-33; see also Roy, supra, note 72, at 286-88. 140 [1992] S.C.J. No. 107, [1992] 3 S.C.R. 813 (S.C.C.). 141 Quebec v. A, supra, note 1, at para. 383. 142 Art. 392, para. 2 C.C.Q. 143 Art. 587 C.C.Q. 144 Jean Pineau & Marie Pratte, La famille (Montreal: Thémis, 2006), at 132, para. 108 [author‟s translation] [hereinafter “Pineau & Pratte”]. While the spouses live together, their reciprocal alimentary obligation “disappears behind their obligation to contribute towards the expenses of the marriage” (id., at 133, para. 108 [author‟s translation]). 136 264 SUPREME COURT LAW REVIEW (2014), 64 S.C.L.R. (2d) compensatory objective for spousal support as the product of reference, in the Divorce Act, to economic advantages or disadvantages arising from the marriage and financial consequences of child care.145 The civilian conception of support as addressing current needs emerges from its character as ordinarily payable as a pension, and only exceptionally as a lump sum.146 In the light of the difficulties raised in this part, it is significant that all of the parties,147 and half of the interveners,148 advanced the bundle view, although for different strategic reasons. It is understandable why the parties pleaded the bundle approach. The financial stakes for A made a win respecting division of property vastly more attractive than a partial victory on spousal support. Perhaps for B and the Attorney General of Quebec it was a matter of principle. Nevertheless, the “all-or-nothing arguments” of A, B and the Attorney General of Quebec did not help the Court.149 Especially since the Court of Appeal had seen separable elements, not a bundle, it is regrettable that the parties did not, even in the alternative, offer the Supreme Court the benefit of argument as to the most appropriate division and its justification.150 VII. CONCLUSION If the Supreme Court of Canada‟s judgment in Quebec v. A has disappointed some observers, it may be a reminder of the limits of appellate litigation, in particular Charter litigation, in the field of family law. Often those family cases that reach the Supreme Court of Canada, and even the appellate courts in the provinces, involve parties with significant wealth. Courts are called, then, to consider principles of family law in the context of factual situations of wealth. These principles are subsequently binding in the context of families whose financial circumstances are much more modest. 145 Supra, note 50, ss. 15.2(6)(a), (b), 17(7)(a), (b); Pineau & Pratte, id., at 405, para. 303. Compare art. 589 C.C.Q.; Divorce Act, id., s. 15.2(1). 147 Mémoire de l‟appelante « A », at para. 97; Mémoire d‟appelant de « B », at para. 122; Mémoire de l‟appelant, le Procureur général du Québec, at para. 11; see also at paras. 94, 95; Mémoire de l‟intimé Procureur général du Québec, at paras. 46-48. 148 Mémoire de l‟intervenante, Procureure générale du Nouveau-Brunswick, at para. 5; Factum of the intervener, Women‟s Legal Education and Action Fund (LEAF), at paras. 5, 33. 149 Thompson, “Annotation”, supra, note 55, at 334. 150 For elaboration of the framing of the challenged legislation, including discussion of how it obscured the connection between the private obligation of support and public regimes such as welfare, see Robert Leckey, “Strange Bedfellows” 64:4 U.T.L.J. [forthcoming in 2014], available at <http://ssrn.com/abstract=2337168>. 146 (2014), 64 S.C.L.R. (2d) FAMILY LAW 265 This disconnect may play out differently with different principles. Perhaps anxious to minimize the influence of the parties‟ exceptional circumstances, the judges at the Court of Appeal and the Supreme Court of Canada did not even specify the amounts sought by A. The justices must, however, have been aware of them. Recall too the generosity of the orders around child support specific to those parties — including B‟s obligations to pay salaries for nannies and cook and to supply A with a Lexus during her periods of custody. Those orders reduced the gap between the standards of living that their children would enjoy at A‟s home versus B‟s.151 In contrast to the situation of a former de facto spouse in straitened circumstances, did those facts relating to A and B provide especially fertile terrain for arguments based on autonomy and choice? In any event, A‟s access to a residence and to funds, whatever the amounts, will presumably cease when the children reach adulthood and her custody lapses. At that time, she will have no capital assets and no income stream. Although the judges at all levels must have been conscious of this characteristic of child support, news accounts were insensitive to it, depicting A as herself wealthy. As for the Charter more specifically, some readers will draw a lesson of the inadequacy of Charter analysis for dealing with the complexity of family law policy and the nuanced balancing of factors that policy decision-making in this area involves. Although the justices of the Supreme Court regularly insist that their approach to the equality guarantee in section 15 is contextual, the question of cohabitation in Quebec raises a number of issues — arguably the sociologist‟s remit, not the jurist‟s — that simply did not enter the framework of the analysis.152 Nor is it clear, given the doctrinal frameworks, how they might have done so. The ball is plainly in the court of the Quebec legislature and action of some kind is necessary. Whether or not one shares the view of the majority of the Supreme Court of Canada that it is discriminatory, the present 151 Although the Supreme Court has expressed concern about such a gap when deciding the child-support obligation of a high earner under the federal guidelines (Francis v. Baker, [1999] S.C.J. No. 52, [1999] 3 S.C.R. 250, at para. 41 (S.C.C.)), the rules applicable in Quebec do little to bridge that gap. 152 These issues include the causal factors for Quebec‟s high rates of cohabitation (see, e.g., Benoît Laplante, “The Rise of Cohabitation in Quebec: Power of Religion and Power over Religion” (2006) 31:1 Canadian Journal of Sociology 1) and cohabitants‟ perceptions of their socio-legal position (see, e.g., Hélène Belleau, Quand l’amour et l’État rendent aveugle: le mythe du mariage automatique (Québec: Presses de l‟Université du Québec, 2012); Hélène Belleau & Pascale Cornut St-Pierre, “La question du „choix‟ dans la décision de se marier ou non au Québec” (2011) 66 Lien social et Politiques 65). 266 SUPREME COURT LAW REVIEW (2014), 64 S.C.L.R. (2d) law‟s misalignment between social and legal norms in Quebec is troubling. The broad social acceptance of de facto unions made it harder for A to establish prejudice or stereotyping in making out her claim of discrimination. Today there is little suggestion in the province‟s public discourse that a couple is more committed if they are married. Nor is it implied that parents who are married are better parents. Yet once little social pressure channels individuals towards marriage, attaching serious legal consequences to marital status becomes inappropriate. Whatever the justices of the Supreme Court decided, might the judgment best be read as a reminder that legal norms, to function properly, depend on social ones?