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Quebec Family Law
I. Quebec Civil Code - Evolution 1866 to 1980
Family law in Quebec when first adopted by the legislator in our Civil Code of 1866 was largely inspired by the Napoleonic Code of France.
Thus the family law in the Province of Quebec is very different from that of the rest of Canada. Quebec is the only province in the country that is not governed by common law in relation to matters pertaining to family law. The distinctive nature of our family law is interpreted in the light of the french doctrine and jurisprudence as opposed to that of the British system.
In family law, only minor modifications were made to the Civil Code in the Province of Quebec until the end of 1970s. For a true understanding of how "behind the times" some of the existing legislation of the Civil Code was up until the end of that decade, I will cite two specific articles.
Article 174 C.C. The wife participates with the husband in insuring the moral and material control of the family, in providing with its maintenance, in bringing up the children and preparing their establishment in life.The wife exercises these functions alone when the husband is unable to make his will known by reason of his incapacity, absence, remoteness or other cause.
Article 175 C.C. The wife is obliged to live with her husband and must follow him and reside wherever he fixes the residence of the family. The husband is bound to receive her there. When the residence chosen by the husband exposes the family to dangers of a physical or moral nature the wife may, by exception, be authorized to take up for herself and her children another residence fixed by the judge. Such authorization may be given upon a petition to a judge of the Superior Court, after service upon the husband.
Naturally the evolution of society necessitated a complete revamping and thus new legislation came into effect in 1980, the focus of the theme being the juridic equality between spouses.
II. Evolution - Divorce Act 1968, Divorce Act 1985
In Canada, under the federal system, the Constitutional Act of 1867 gave the federal parliament exclusive jurisdiction to legislate in matters pertaining to divorce, whereas the provincial governments have jurisdiction to legislate in matters pertaining to marriage and the family. In 1968 the Divorce Act came into effect, that act having been inspired by British law and as a result of very rapid and significant changes in society in the 1970s (which eventually wove their way into the judicial system through the development of case law - or jurisprudence),the Divorce Act itself was modified once again in 1985. As an example of one of the significant changes to the Divorce Act between 1968 and 1985, I will cite the specific examples relating to the criteria used by the Court in determining spousal support. Article 11(1) of the Divorce Act of 1968 states as follows:
Article 11(1) Upon granting a decree nisi of divorce, the Court may, if it thinks it fit and just to do so having regard to the conduct of the parties and the conditions, means and other circumstances of each of them, make one or more of the following orders (the article outlines different orders that the Court may make pertaining to the payment of alimony).
In relation to the aspect of "conduct" which is the first consideration outlined in Article 11(1) of the Divorce Act of 1968, section 15.2(5) of the analogous article of the Divorce Act of 1985 states:
Article 15.2(5)[Spousal misconduct] In making an order under (this section) for an interim order under (this section pertaining to alimony), the Court shall not take into consideration any misconduct of the spouse in relation to the marriage.
Thus there was a 180° reversal on the idea of linking "conduct" to the quantification of alimony.
Is this a change for the "better"? That depends on who is being asked. On the one hand it eliminates lengthy hearings based on airing out of the parties "dirty laundry" in order for a spouse to garner more sympathy from the judge with the objective of a more generous financial settlement and on the other hand it can also be argued that it simply makes it too easy for one individual to exchange one partner for another without there being any ramifications or consequence as a result of such conduct.
The judicial "pendulum" regarding alimony
It is very interesting to observe the evolution of judicial decisions that have arisen in relation to spousal support since the Divorce Act of 1985.
The Divorce Act of 1985 states that in awarding an order for spousal support the Court is to take into consideration the following:
Article 15.2 (4) [Factors] In making an order under subsection (1) or an interim order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
- the length of time the spouses cohabited;
- the functions performed by each spouse during cohabitation; and
- any order, agreement or arrangement relating to support of either spouse.
In relation to the objectives the act states as follows:
Article 15.2 (6) [Objectives of spousal support order] An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:
- recognize any economic advantages or disadvantages to the
spouses arising from the marriage or its breakdown;
- apportion between the spouses any financial consequences arising
from the care of any child of the marriage over and above any obligation
for the support of any child of the marriage;
- relieve any economic hardship of the spouses arising from the
breakdown of the marriage; and
- in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time;
Both the aspiration of economic independence for women that became prominent in society in the late 1960 as well as the jurisprudence reflecting that change was incorporated, with other objectives, into the Divorce Act of 1985. However, irrespective of the fact that the new Divorce Act outlined various factors and objectives to be considered by the courts, many of the first decisions that were rendered focused primarily on the single factor relating to economic independence.
In December of 1992 this anomaly was rectified by the Supreme Court of Canada in the decision of Moge vs. Moge. In that decision the Court ruled that economic self-sufficiency was only one of the many objectives enumerated in the Divorce Act and that it alone should not be given priority over the other factors. The Court acknowledged that in most marriages, the wife still remained the most economically disadvantaged partner and that it would be perverse in the extreme to assume that it was Parliament’s intention, in enacting the new Divorce Act, to penalize women in this regard. In fact, in a particular decision of the Supreme Court, it was recognized that in certain situations, the alimentary obligation could be based uniquely on a “social obligation” to meet the ongoing needs of an ex-wife. Judge McLaughlin noted that marriage must not be taken lightly, implying the possibility of an obligation for life. One thing is sure and certain, there are no hard and fast rules as to when alimony will cease. This being the case, one of the most attractive aspects of engaging qualified legal counsel in family law matters is to properly negotiate that which in most instances the payor spouse most desires and is least likely to achieve in a contested case on the merits. That is negotiating a “buyout” of ongoing monthly alimentary support to put an end to the ongoing uncertainty of term of the payments.