Family law | A reform already outdated?

The long-awaited reform in matters of conjugality has finally been tabled in the National Assembly. On March 27, the Minister of Justice proposed Bill 56 relating to the reform of family law and establishing the parental union regime.

We must salute the courage of the minister, because many of his predecessors refrained from tackling this thorny issue. The proposal, however, raises many questions.

Currently, de facto union does not create rights or obligations between spouses. The central idea of ​​the project is to recognize a legal status for de facto spouses who become parents of the same child after June 29, 2025.

Is this the right criterion for identifying couples who deserve the attention of family law?

Of course, de facto spouses who have completed a parental project demonstrate a commitment worthy of the attention of the law. My hesitation relates more to de facto unions that the law leaves aside.

First, this prospective reform does not concern couples who are already parents. Then, it would not change anything for the many reconstituted families whose children are not related to the two common-law spouses. Let’s also think about the person, often a woman, who provides care to the elderly parents of her common-law partner. These situations also demonstrate significant commitment. They are conducive to the exchange of resources and the development of an imbalance linked to the relationship.

Let us recall the famous affair ofEric c. Lola. Five judges of the Supreme Court of Canada have clearly recognized the exclusion of common-law relationships from family law as discriminatory, although constitutional. They spoke of all de facto unions, without isolating those built around a common child.

As for the proposed parental union, its effects would be very slight compared to those of marriage. Certainly, the family residence of spouses in a parental union would receive the protections that apply to that of spouses. Upon breakdown, the spouses in a parental union would share parental union assets. This is a reduced form of family assets applicable to spouses, in particular because parental union assets exclude retirement plans.

While the spouses are presumed to be subject to equal sharing of the partnership, the spouse in parental union could at most claim a compensatory benefit. This last resort requires that the spouse prove their contribution to the enrichment of the other and that they have become impoverished as a result of the relationship. The burden is heavy and the outcome uncertain.

Even more worrying, the regime is marked by the absence of measures which recognize the important commitment represented by parental union. Unlike spouses, spouses in a parental union do not owe each other respect, help and assistance. Nor will they be required to contribute to the expenses of the union in proportion to their respective faculties. In addition, they will not owe each other alimony, whether during or after the union.

Concretely, even for the subcategory of de facto spouses that it targets, the reform does not propose any measure based on solidarity or which would take into account the need or economic difficulty of a spouse.

The minister could have respected the autonomy of common-law spouses differently. This could be done by applying matrimonial regimes to de facto spouses, while allowing them to renounce them by consent. This solution would ensure better protection and fairer distribution. Moreover, empirical surveys show the presence of a broad consensus in Quebec (more than 70%) in favor of a legal framework for unmarried couples similar to that of married couples. ⁠1.

Quebec has long awaited a reform that would adjust family law to the social practices that have developed since the 1980s. However, Bill 56 risks establishing a regime that would already be outdated by the practices and opinions of the population. .

1. Read “A legal framework for common-law unions in Quebec? What the population thinks: The case of Quebec in 2022 »

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