New Quebec Justice Minister Sonia LeBel is carrying through on an election promise to modernize family law in la belle province.
“The law has not been reformed since 1980 but the dynamics of couples and families have changed tremendously since then,” says LeBel. “The rules are no longer adequate for the realities of modern families. We want and need to change that.”
In March, LeBel announced a series of 11 public consultations across Quebec on the issue of family law reform.
Those meetings, which will be held between April 29 and June 3, will focus on and be organized according to three areas of discussion, namely parenthood, conjugal relationships and relationships with step-parents.
The discussions will also be both shaped by and based on the 82 recommendations contained in a sweeping 2015 report on family law in Quebec.
The 616-page report was written by a panel of family law experts who were commissioned by the former Liberal government in the aftermath of the Supreme Court of Canada’s divided judgment in Éric v. Lola in January 2013. That case raised still-unsettled legal issues related to Quebec couples living in de facto unions and pitted the issue of individual freedom of choice against the need to protect spouses in de facto unions from economic hardship when those relationships breakdown.
Led by Université de Montréal law professor and notary Alain Roy, the two-year study involved more than a dozen Quebec family law experts.
Their recommendations called for an overhaul of the province’s laws regarding common-law marriages.
They include a mandatory parental regime with clear obligations towards both children born in common-law unions and between the parents following their break up.
The report also recommends giving parents who are economically disadvantaged because of their separation a right to claim compensation for the time they spent providing care for the couple’s children in the home instead of pursuing a career in the workplace.
Another notable recommendation is the right to transfer parental authority to non-biological parents in certain cases.
“The child is a common responsibility of the two parents,” Roy said when the report was released in June 2015. “The economic disadvantages that come from being a parent should not be taken on by only one parent, regardless of what happens during a common-law relationship or a marriage.”
Though his report received widespread approval in Quebec family law circles, the former Liberal government did not act on it.
The issue resurfaced, however, during last fall’s provincial election campaign over a family law case that involved the principle of unjust enrichment which led to a landmark ruling by Superior Court of Quebec Judge Robert Mongeon in October.
By then, the Coalition Avenir Québec had been voted into power and LeBel, a Université de Montréal law graduate who spent more than 20 years with the Director of Criminal and Penal Prosecutions in Montreal before becoming chief prosecutor at the Charbonneau Commission, where she earned widespread public recognition as a feisty crime fighter, vowed to modernize family law in Quebec in her current role.
“It’s clear from social realities and some judgements that the current law is not well suited to modern family realities,” LeBel says in an interview with Canadian Lawyer.
“Thirty years ago, 65 per cent of children in Quebec were born to couples composed of a man and woman who were legally married,” she says. “Today the situation is completely reversed. And because the model has changed and fewer people are getting married or staying married, we have to change the legal obligations of living together.”
LeBel says the public consultations will help to begin what she says will be “a very long and broad discussion” over the parameters of what those legal changes should be.
“Should kids or marriage be triggers? If a parent stays at home and puts aside a career and then gets divorced 20 years later, what happens?” she asks.
“As a society, what do we want in regards to family law? What do we need? How do we act? These are open questions that we want and need to answer.”
LeBel notes that one issue that will not be addressed in the public hearings is the issue of filiation in regard to surrogate mothers and medically assisted procreation.
But she says those issues will be up for discussion at some point soon.
“It’s something we have to look at because there is a legal void on these issues in Quebec and we can’t put our heads in the sand,” says LeBel. “The focus of this reform is the welfare of the child. That is my primary concern.”
For her part, Danielle Gervais, a family law lawyer in Montreal and president of the province’s 500-member family law lawyers’ association ― the Association des avocats et avocates en droit familial du Québec ― says she is both happy and hopeful that long-promised reforms might finally happen.
“This is only a consultation and we’ll likely make a presentation ― though they’re only allowing ten minutes, which isn’t much,” says Gervais.
“But at least it gets the ball rolling on this. If ever it [results in legislation] the way it’s been proposed, everything will change. But we’ll have to wait and see. A little good faith can go a long way.”