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Part IV Federalism, B Federalism in Context, Ch.27 Marriage, Family, and Federal Concerns

Robert Leckey, Carol Rogerson

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 18 April 2021

(p. 575) Chapter 27  Marriage, Family, and Federal Concerns

1.  Introduction

Where is the family in a federal state? Textbooks of the Canadian Constitution locate it in the distribution of legislative powers between the two orders of government.1 We take a broader understanding, including other parts of our constitutional structure such as the entrenched guarantee of equality. This richer story about the place of marriage, families, and family law in our federation looks beyond formal constitutional text to consider institutional structures and practices. More sociologically, it acknowledges the effect of overlapping legal traditions, two official languages, and the dramatic social changes that have driven reform of family law across recent decades. Here as in other chapters, the distinctiveness of Quebec will emerge as significant—although one should not exaggerate it.

After an overview of the constitutional framework for family law and policy, we take up federalism’s conceptual tensions between centralization and decentralization and between unity and diversity. Centralizing, unifying forces in family law include: the Parliament of Canada’s power over marriage and divorce, entrenched fundamental rights, and principles of modern family law, such as the welfare or best interests of the child. Decentralizing, diversifying forces include the provinces’ broad legislative powers in relation to the family, as well as constitutionally enshrined elements of legal pluralism, chiefly the coexistence of the common law, civil law, and Aboriginal legal (p. 576) traditions. Furthermore, the language barrier between the French-speaking majority of Quebec and the English-speaking majorities of the other jurisdictions inhibits the cross-fertilization of family norms across provincial boundaries. Ultimately, these elements of uniformity and diversity, which find their sources both within and outside of our constitutional structure,2 coexist and interact in ways that defy easy categorization.

2.  History, Background, and Constitutional Texts

We begin with federalism and the division of powers in sections 91 and 92 of the Constitution Act, 1867 (originally the British North America Act, 1867)—the only explicit reference to family matters in our constitutional texts. Authority to legislate with respect to the family is divided, in a complicated way, between our two orders of government. Section 91(26) places ‘Marriage and Divorce’ within federal jurisdiction, thus allowing for uniform legislation on these matters, whereas section 92(12) enables the provincial legislatures to make laws respecting the ‘Solemnization of Marriage in the Province’.

The drafting history of these provisions indicates a desire to ensure uniformity in the status of persons across the country, thereby avoiding the domestic recognition issues plaguing the United States, where marriage and divorce fall within state jurisdiction.3 Concerns about religion also played a role. Making marriage and divorce a federal head of power was intended to minimize the role of religion in laws defining the institution of marriage. Specifically, doing so would protect the Protestant minority in Lower Canada (which became the province of Quebec) from laws influenced by a Roman Catholic majority. However, in response to countervailing concerns from Lower Canada that the federal power over marriage might eventually recognize a purely civil marriage, solemnization was carved out as a separate power for the provinces.4

On the conventional reading of the 1867 Act, the bulk of family law—apart from the federal powers over marriage and divorce—falls within provincial jurisdiction under section 92(13) (property and civil rights) or section 92(16) (matters of a ‘local or private’ nature in the province). Peter Hogg, who has written the leading English language text on the Canadian Constitution, confidently defends the wisdom of this allocation on the (p. 577) basis that the ordering of people’s lives is a private matter likely to reflect values that differ from one part of the country to another.5

However, these assumptions about the inherently ‘private’ nature of family law and the inevitability of significant regional diversity are open to question. Practice in Canada and other federal jurisdictions has shown that ideas about the nature of family law are shaped by social and political context: it is possible to understand family law as having a public dimension and as reflecting the evolution of national norms. In what follows, we will recount the complex, evolving pattern of shared provincial and federal responsibility over family law and family policy since Confederation. The federal order of government has come to play a larger role than the text of the 1867 Constitution might have suggested. Our constitutional evolution has not, however, centralized power over family law as much as in federations such as Australia6 and Germany.7 There are thus interesting questions about what explains the stronger centrifugal forces in our systems of constitutional and family law.8 Moreover, as we will show, patterns of uniformity and diversity in Canadian family law do not necessarily track the distribution of powers.

The 1867 Constitution also divides power over the judicial system, complicating the resolution of family law disputes. Section 96 authorizes the federal government to name the judges of the superior courts and makes it responsible for their remuneration. This provision has been interpreted as guaranteeing an exclusive core jurisdiction to those courts, one that includes the determination of property rights. For their part, the provinces have exclusive power over the administration of justice in the provinces (section 92(14)), including the establishment of provincial courts. Jurisdiction over family matters is spread across the superior and provincial courts, with legislative choices about jurisdiction constrained by section 96. Conversely, the constitutional order also secures elements of unity. Superior courts can hear matters under both federal and provincial law and the Supreme Court of Canada, which serves as the final court of appeal for all courts, is the final interpreter of federal and provincial law.

This initial inventory of constitutional provisions affecting the family must mention two arising from the reforms of 1982. First, the Canadian Charter of Rights and Freedoms, particularly the guarantee of equality in its section 15, has significantly shaped (p. 578) our family law, federally and provincially. But as we show below, it is important to not exaggerate the unifying effect of the Charter. Second, section 35 of the Constitution Act, 1982, which recognizes Aboriginal rights, pulls towards legal pluralism and diversity by affirming and reinforcing the distinctive Aboriginal laws governing family status and relationships.

3.  Centralizing/Unifying Forces

A.  Federal Jurisdiction

Looking only at section 91(26), one might conclude that the federal role in regulating families is a limited one, with the national interest confined to providing uniform rules for the recognition of marriage and divorce—matters of legal status. However, as we further examine the federal powers over marriage, divorce, and the family, we find a more complex story. In the exercise of its divorce power, the federal government has led in developing family law policy, and federal norms have influenced the enactment of provincial laws and their judicial interpretation. At the same time, federal authority does not necessarily translate into uniformity, either because the central government has abstained from exercising its powers or from testing their limits or because it has used its powers in a way that leaves room for expressions of provincial diversity.

Provincial power over ‘The Solemnization of Marriage in the Province’ limits the scope of the federal power over marriage. Guided by classifications used in private international law, judges have interpreted these provisions as placing matters relating to marriage’s essential validity (i.e., the capacity to marry) within federal jurisdiction and matters related to its formal validity (i.e., the ceremonial and procedural requirements) within provincial jurisdiction. The provincial power has been interpreted generously to include the granting of marriage licenses and the imposition of requirements regarding minimum age and parental consent.9 In practice, there is a certain amount of jurisdictional ‘fuzziness’ as it is often provincial officials who monitor compliance with federal requirements.

All of the common law provinces have enacted comprehensive Marriage Acts dealing with matters such as the requirement of a license, the authority of officiants, the form of the ceremony, and the need for witnesses.10 For its part, the Parliament of Canada has enacted no similarly comprehensive law setting out the requirements for marriage’s essential validity. Absent federal legislation, pre-Confederation law in a province governs the essential validity of marriage.11

(p. 579) Parliament’s first major exercise of its power over marriage came in 1990, modifying the common law’s ‘prohibited degrees of consanguinity and affinity’ (restrictions on marriage between closely related persons).12 Further reform followed in 2005 with the legalization of same-sex marriage.13 Although the constitutional drafters in the nineteenth century had obviously not contemplated legislation regarding same-sex marriage, the Supreme Court of Canada relied on the ‘living tree’ doctrine of constitutional interpretation to interpret the federal marriage power as not confined to the historical definition of marriage.14 Initially, the Civil Marriage Act only removed the common law’s requirement that spouses be of different sexes for their marriage to be valid. In 2015, amendments fuelled by a political agenda focussing on forced marriage and polygamy added requirements of ‘free and enlightened consent’, a minimum age of 16, and the dissolution of any prior existing marriage.15

Unlike its Australian counterpart,16 the Parliament of Canada has never tried to see whether its marriage power would sustain legislation dealing with the consequences of marriage. Nor has it claimed a general power to regulate marriage-like relationships such as civil unions and conjugal cohabitants.17

The Parliament of Canada has used its power over divorce more extensively, although only after leaving that power dormant for a century. Following Confederation, a patchwork of pre-Confederal law and federal laws enacted by request for a particular province prevailed. Until 1968, there was no judicial divorce in Quebec or Newfoundland and the only means to terminate a marriage in those provinces was a private member’s bill in Parliament. In 1968, the first federal Divorce Act introduced no-fault divorce across the country, based on spouses having lived separate and apart for three years.18 In 1985, our current Divorce Act further liberalized divorce by shortening that period to one year.19 Significantly, both laws also dealt with ‘corollary relief’ sought in the context of divorce—support for children and a former spouse (previously termed ‘maintenance’) and the exercise of parental authority (e.g. custody and access) regarding children of the marriage. This exercise of federal power over matters falling prima facie within provincial jurisdiction was justified on the basis that these provisions could be characterized as ‘ancillary’ to divorce.20 Significantly, there was no federal attempt to treat matters of matrimonial property in this way.

(p. 580) We thus have two sets of laws dealing with child support, spousal support, and custody and access. As a general rule, federal law applies to couples who are divorcing or have divorced, whereas provincial laws on these matters apply to unmarried couples and parents and to married couples who are not seeking a divorce. The dividing line is not always clear and there may be situations where both laws are potentially applicable. Where provincial and federal laws or judicial orders made under them conflict, the doctrine of federal paramountcy renders the provincial law or order inoperative to the extent of the conflict. Although one could imagine significant variation between federal and provincial laws and between the laws in one province and those in another, in practice the federal presence in these fields has had a unifying effect, with the exception of Quebec.

Federal and provincial governments worked together during the 1990s to standardize child support. Under the authority of the Divorce Act, the federal government promulgated the Federal Child Support Guidelines,21 which despite their name are a binding instrument that quantifies the support payable. Soon afterwards, all provinces except Quebec enacted virtually identical rules for determinations under provincial legislation. Quebec created its own regime, which applies to cases regulated by the province’s Civil Code and, by virtue of an accommodation built into the federal legislation, to cases in Quebec under the Divorce Act.22 We thus see co-operative federalism at work, with federal law creating space for provincial diversity. This is an example of a mechanism fairly common in Canadian federalism, that of allowing provinces to opt out of a federal scheme if they can demonstrate that they have an equivalent. However, despite the near uniformity achieved respecting the amount of child support, variation persists with respect to the basis for entitlement. For instance, provincial laws differ from the Divorce Act and from one another in their determination of when children over the age of majority receive child support.

Spousal support has taken a different path to uniformity. Some provinces have copied the language of the Divorce Act, but even where the statutory language differs, great weight is accorded to judgments on spousal support rendered by the Supreme Court of Canada in cases under the Divorce Act. A further unifying force has been the Spousal Support Advisory Guidelines (SSAG),23 a set of informal, advisory guidelines developed to assist in determining the amount and duration of spousal support under the Divorce Act. The SSAG have reduced the differences between the local cultures of family law that had developed under the Divorce Act’s highly discretionary provisions. Although a federal initiative for use under the Divorce Act, the SSAG have also been applied in cases under provincial legislation—although their uptake in Quebec has been relatively low.

(p. 581) Springboarding from its foothold in the area of divorce, the federal government has led in developing family law policy, often cooperating with the provinces. The federal–provincial relationship has been institutionalized in the form of the Federal-Provincial-Territorial Family Law Working Group, coordinating the development of policy across a number of issues, including the child support guidelines. Despite provincial responsibility for the administration of justice, the federal government has provided extensive funding to the provinces for court services to support families experiencing separation and divorce.

Consideration of the federal role in regulating families must also look to other powers that have allowed the Parliament of Canada to shape family policy. Under the Immigration and Refugee Protection Act,24 the federal government defines eligible family relationships for sponsorship purposes, a power recently driven by concerns about sham marriages and polygamous unions. Through its powers to tax and spend, the federal government distributes significant benefits to citizens based upon their family status. The power over criminal law allows the Parliament of Canada to define the basic contours of family relationships, for example by prohibiting bigamy, polygamy, and incest as well as the failure to provide the necessaries of life to a child or spouse. This power does not, however, allow Parliament to enact a detailed regulatory scheme, such as one regulating assisted reproduction.25

B.  The Charter

The entry into force of the Canadian Charter of Rights and Freedoms in 1982 presaged greater respect for fundamental rights across the federation. The converse of this respect for individual rights is a constraint on legislative policy. Commentators eager to protect provincial autonomy have expressed concern with the prospect of the Charter’s potential unifying force.26 At the same time, the Charter incorporates two mechanisms that might make space for interprovincial variation. Its derogation clause (section 33) allows the Parliament of Canada and provincial legislatures to make a law effective ‘notwithstanding’ the law’s incompatibility with one or more Charter rights. Furthermore, section 1 contemplates ‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. At the outset, nobody knew how often elected lawmakers would resort to the notwithstanding clause or how much judges would defer to governmental determinations as to what limits are reasonable. Over the decades, the experience of the Charter has consisted of movement between the poles of uniformity and diversity—including in relation to marriage and family.

(p. 582) The Charter appears to have played a major role in bringing about reforms typical of Western democracies over the past 40 years—or in accelerating their spread to each province and territory.27 Three broad issues represent the Charter’s involvement in changing family law and achieving greater uniformity. One concerns the identity and status of children born outside a traditional different-sex marriage. In the first years of the Charter, the courts several times addressed provincial legislation that disadvantaged the children of unmarried parents. Some such laws were held to unjustifiably limit the guarantee of equality in section 15. In 2003, the Court found unjustifiable discrimination—this time against fathers—in a provincial birth registration regime that, for unmarried parents, gave the mother the sole authority to decide whether the father would appear on the child’s birth certificate.28 Changes regarding same-sex couples as parents have drawn impetus from Charter rulings. In the mid-1990s, an Ontario court concluded that denying the partners of lesbian mothers the opportunity to have a ‘step-parent’ adoption unjustifiably violated the Charter’s equality guarantee.29 Courts have also found unjustifiable discrimination where a regime for birth registration provides no means for the same-sex partner of a child’s mother to declare her parentage.30 Although some jurisdictions had started recognizing same-sex couples as parents, these judgments have prompted legislative reforms. Principles of equality emerging from these judgments plainly apply across the federation.

The second issue concerns unmarried cohabitants. In 1995 the Supreme Court of Canada recognized marital status as analogous to the suspect grounds for governmental decision making listed in the Charter’s equality guarantee. The majority viewed as unjustifiably discriminatory a provincial law that provided for accident indemnities for married but not unmarried couples.31 Although some public regimes such as welfare, workers’ compensation, and taxation already recognized unmarried cohabitants as spouses, further legislative changes after Miron reflected the notion that the Charter might prohibit distinctions on the basis of marital status.

The third issue concerns gay and lesbian couples. Starting in the 1990s, authoritative interpretations of the equality guarantee have required legislatures to recognize same-sex couples. Initially, successful challenges bore on distinctions between different-sex and same-sex cohabitants.32 Ultimately, however, courts have interpreted the Charter as requiring a definition of marriage—a matter of exclusive federal competence—that permits same-sex couples to marry.33

(p. 583) We said above that the Charter ‘appears’ to have played a major role. The qualifier is appropriate because isolating causation is difficult. We know that Charter litigation played a high-profile part on the path to reform, but we cannot be certain that elected lawmakers would not have made those reforms but for the Charter. For example, as discussed below, every provincial legislature modified its approach to matrimonial property in order to advance a conception of women’s equal role in marriage before the advent of the Charter.

Further features caution against exaggerating the Charter’s unifying effects in the family field. The courts have developed the liberty interest and parents’ rights, such as their freedom of religion, less than some observers had predicted. Indeed, in some contexts the unifying impulse has proceeded not via the Charter, but by ordinary family law’s principle of the best interests of the child.

Next, although the courts have to a degree used the equality guarantee to refashion family law, they have also recognized countermanding values in the Charter. Some observers had read the equality decision in Miron on cohabitants broadly, as indicating the unconstitutionality of all legislative distinctions based on marital status.34 In 2002, however, a majority of the Supreme Court of Canada offered another view. It upheld a matrimonial property law restricted to married spouses on the basis that such a policy respected cohabitants’ autonomy and choice. The judges associated the absence of coercion and the ability to make fundamental choices with the Charter value of liberty.35 The idea that legislation withholding rights and obligations from cohabitants might legitimately respect their autonomy and choice returned, a decade later, when the Court heard an equality challenge against Quebec’s family policy. The Civil Code in that province imposes no rights or obligations on unmarried couples. A majority of the Court upheld that state of affairs as constitutionally compliant.36

Finally, courts occasionally signal respect for federalism and diversity in family policy across the federation. Consider again the challenge to Quebec’s restrictive approach towards cohabitants. The tie-breaking judge agreed with the claimant that excluding cohabitants from the protections enacted for married spouses was discriminatory. Under section 1 of the Charter, however, that judge upheld the limit on rights as reasonably justifiable. In doing so, she emphasized that values of federalism inform the test for minimum impairment.37 When weighing the benefits of pursuing the state objective against the impact on infringing the claimant’s rights, she underscored the ‘need to be sensitive to the constitutional responsibility of each province to legislate for its population’.38

(p. 584) Nor were these statements the first to express concern about using the Charter’s equality guarantee to attack Quebec’s distinctive family policy. Another challenge concerned the federal executive’s decision to designate Quebec’s child support guidelines as applicable for Divorce Act cases in that province. The complainants challenged the federal recognition of Quebec’s distinctive instrument, noting that they would receive more support under the federal guidelines. The trial judge agreed with the litigants that the Quebec guidelines discriminated against divorced or divorcing single mothers. She held, however, that ‘in a free and democratic society, cooperative federalism must have effect’.39

The suggestion that fundamental rights interpreted by judges threaten the distinctiveness of Quebec civil law exemplifies the concerns of those who fear centralization. An opposing view sees fundamental rights as enriching Quebec’s civil law, not as a disruption from the outside, but as an internal resource for positive change.40

C.  Best Interests of the Child

The unifying features of our family law system also derive from sources outside of our constitutional framework, reflected in the basic norms and principles that have come, over the course of the last 50 years, to structure Canadian family law.41 Gender equality is one such principle—at work in family law long before the advent of the Charter. Another is the best interests of the child. Now recognized as a central principle of international law in Article Three of the United Nations Convention on the Rights of the Child (1989), to which Canada is a signatory, the principle began to take root in Canada during the 1960s.42 Across a wide range of federal and provincial legislation affecting matters such as adoption, child protection, the exercise of parental authority, and consent to care, the best interests of the child is now recognized as the primary (if not sole) consideration when making decisions about children.

Although the principle is one of fundamental importance—recognizing children’s personhood and the priority of their interests over the rights of parents and other adults—its indeterminacy, even incoherence inspires criticism. The unity provided by the principle exists at a high level of generality and abstraction, while the term undergoes widely varying interpretations. Often it is understood as precluding the application of fixed rules, and requiring discretionary, highly individualized decision-making (p. 585) tailored to a particular child’s circumstances.43 Moreover, the principle’s discretion may make it the vehicle for dominant ideologies, reflecting the judiciary’s or experts’ sense of what is best for children. In the Canadian context, as in other settler states, the welfare of children has justified massive intrusions into Indigenous communities, including the institutionalization of vast numbers of children.44 Best interests of the child presents the somewhat paradoxical combination of near universality of principle with highly individualized, ‘decentralized’ decision-making. It thus serves as an apt transition between the forces we characterize as centralizing and those we see as decentralizing.

4.  Decentralizing/Disharmonizing Forces

A.  Provincial Jurisdiction

In the exercise of its powers under the 1867 Constitution, each province has enacted legislation dealing with matters such as solemnization of marriage, child and spousal support, matrimonial property, domestic contracts, maintenance enforcement, birth registration, parentage, custody and access of children, adoption, and child protection. Further to the unifying influences discussed above, some inter-jurisdictional copying occurs. For example, two smaller jurisdictions, Prince Edward Island and the Northwest Territories, modelled their matrimonial property statues on Ontario’s Family Law Act. In some areas one can see the influence of model uniform laws developed by the Uniform Law Conference of Canada, a volunteer organization composed largely of government policy lawyers. Finally, the Supreme Court of Canada also plays a unifying role. Its interpretation of one province’s legislation will typically govern that of another, while its decisions under the Divorce Act can affect the interpretation of provincial legislation.

Nonetheless, there remains significant variation between provincial family laws, at the level of principle as well as of detail. Three areas stand out as examples: matrimonial property, unmarried couples, and legal parentage.

All provinces during the 1970s or 1980s adopted schemes for sharing matrimonial property. The schemes incorporate the basic concept of marriage as an equal partnership, entitling spouses to a presumptive equal division of marital assets when the partnership ends. But the schemes differ with respect to the pool of assets subject to this presumption. Major differences of principle exist between those provinces where the (p. 586) basic premise is that all wealth generated during the marriage is shared equally and those that distinguish ‘family’ assets from ‘business’ assets, sharing only the former. At the level of detail, provinces deal variously with pre-marital property and gifted or inherited property and in the distribution mechanism—whether through an equalization payment or a proprietary interest in the assets. Given the increased mobility of persons across the country and the relative uniformity with respect to the other financial aspects of divorce and separation, is having 10 different schemes of matrimonial property justifiable? The explanation lies in our constitutional history, which has put property rights at the tenaciously guarded core of provincial jurisdiction.

The treatment of unmarried couples varies across the country and reflects a contentious issue of social policy: to what degree should the state respect the ‘choice’ such couples have made to not marry, and how meaningful are such ‘choices’? Although Canadian law as a whole accords significant legal recognition to unmarried couples, we have no uniform definition of the non-marital relationships treated as ‘spousal’ and no uniform set of consequent rights and obligations. As the federal marriage power does not extend to unmarried couples, the Parliament of Canada is restricted to dealing with spouses in the exercise of another power, as over taxation, bankruptcy, and immigration. Rights and obligations of unmarried couples fall chiefly under provincial jurisdiction and vary substantially from province to province.

All of the common law provinces have imposed a spousal support obligation on unmarried couples, but the definitions of eligible relationships differ. Fewer than half of the common-law provinces have included unmarried couples in their matrimonial property legislation. In Quebec, which has the highest rate of cohabitation outside of marriage, unmarried couples are subject to none of the rights and obligations entailed by marriage regarding spousal support and family property.

A distinguishing feature of Canadian family law is its broad recognition of de facto parent-child relationships under federal and provincial laws. In further evidence of interprovincial difference, the exception is again Quebec. However, this widespread recognition of de facto parentage contrasts with substantial variation in laws determining legal parentage, an exclusively provincial domain. Although all of the provinces have removed the status of illegitimacy, they have been slow to undertake comprehensive reform to take account of assisted reproduction. Here provincial unwillingness to exercise jurisdiction coexists with the absence of federal power to fill the legislative vacuum. Although Quebec and several other provinces have tackled these issues, the majority of provinces have left courts to address them or adopted piece-meal reform.45 It remains unclear whether there will be significant provincial take-up of the Uniform Law Conference of Canada’s Uniform Child Status Law, 2010.

A final point about provincial jurisdiction and diversity in family law policy is necessary. Provincial power over the administration of justice gives the provinces control of (p. 587) court procedure in family law cases, including those under the federal Divorce Act. The upshot is wide variation across provinces in forms and procedures for dispute resolution and in the support services available to families experiencing separation and divorce.46 Furthermore, the division of power over the justice system has slowed the introduction of unified family courts (UFCs) competent to address all aspects of a family dispute. The robust interpretation of the federal government’s appointment power for the judges of the superior courts, noted above, means that any UFC must be established at that level, requiring the federal government to appoint and pay those judges.47 Some provinces have undergone an arduous process of bargaining with the federal government to achieve such a UFC. In others, though, specialized courts created by the province deal with some family matters, while the federally appointed superior courts of general jurisdiction maintain exclusive competence regarding matrimonial property and matters under the Divorce Act.

B.  Legal Pluralism/Multiple Legal Traditions

Diversity does not arise only from the Constitution of Canada’s divided jurisdiction in relation to marriage and the family. Pluralism also arises from the multiplicity of legal sources within the Canadian constitutional order.

The distinction recognized most classically is that between the traditions of the common law and the civil law.48 The common law, received from England, establishes the general private law in the provinces and territories other than Quebec. The civil law, received from France, provides the general private law in Quebec. The Imperial Parliament at Westminster recognized this ongoing role for the civil law in the Quebec Act, 1774 and again in the Constitution Act, 1867. Of course, centuries of legislative and judicial developments have substantially altered the received law in Quebec and the common-law provinces. Canada now has living traditions of the common law and the civil law.

Here we identify several ways by which the coexistence of these traditions inherited from Europe contributes to diversity within the Canadian federation. One is the sources and forms of law. In the common-law provinces, the chief sources of family law are statutes and case law. Provincial regulation of families runs across different statutes and the residual common law plays a relatively minor role. By contrast, in Quebec, family law is set out in the civil code, first the Civil Code of Lower Canada (1866) and now the Civil Code of Québec (1991).

(p. 588) Differences across the two legal traditions condition the approach to families. The generalization by which the common law focuses on facts and remedies and the civil law on substantive rights applies here. The drafters’ ambition for the Civil Code is that it exhaustively elaborate all the institutions, rules, and concepts that govern interpersonal relationships and property rights. It aims to fix the meaning of these elements for the entire legal system.49 In keeping with this task, the Code defines the core family relationships—marriage and filiation, the institution connecting a child to his parents—and their legal consequences. In general, family law’s key terms—‘spouse’, ‘parent’, ‘child’—retain the same meaning across the Civil Code. This fixity and ambition for coherence contrast with the approach of the legislative drafters in the common-law provinces. Common-law drafters will adjust a term’s reach in specific contexts. Thus the classes of ‘parent’, ‘child’, and ‘spouse’ are larger in some contexts, such as maintenance and child custody, than in others, such as intestate successions.

Relatedly, although both traditions regulate using a mix of functional and formal bases, Quebec’s approach to family regulation is more formal than that of the common-law provinces. That is, family law in Quebec is based on formally recognized family statuses of marriage and filiation, whereas the common-law provinces grant more legal effects to lived family relationships on a factual basis, following a functional approach.50 This matter of style affects substance. For example, in Quebec, only formally recognized spouses owe one another support. In the common-law provinces, as noted above, the support obligation attaches to married spouses and to cohabitants who satisfy legislated criteria. Similarly, in Quebec, the obligation to support a child is an effect of the formal status of parent. In most common-law provinces, a legal parent owes support to a child, but so may a person having acted parentally towards the child.

The focus on formalism in Quebec goes hand in hand with a focus on individual freedom and a reluctance to attribute obligations absent consent. We see this connection in the approach to adult conjugality, which centres on marriage—a contract freely entered by informed consenting parties. The focus on formalism explains—whether or not it justifies—Quebec’s repeated decision against ascribing spousal rights and duties to unmarried couples.51 This approach contrasts with the common-law jurisdictions’ recognition of a reciprocal duty of spousal support and, in some cases, access to the regime of matrimonial property. In addition, the civil law’s emphasis on freedom of contract—and its relatively more restrained role for the judge, developed apart from the common law’s equitable jurisdiction—underpins the approach to prenuptial agreements. In the common-law provinces, such contracts may have effect, but legislation provides scope for judges to set them aside, for instance if unconscionable. On (p. 589) the contrary, in Quebec, a validly formed marriage contract that does not offend public order is binding. Faithful to its preference for regulating via formal means, Quebec recognized same-sex couples by adopting a form of civil union, whereas some common-law provinces extended the class of cohabitants defined functionally.

The interaction of federal and provincial law merits mention. Across the country, federal family law, such as the Divorce Act, interacts with provincial regimes, such as laws dividing matrimonial property. The general view is that federal legislation in family matters, as on many other topics, reflects a common-law more than a civil-law perspective. Accordingly, there is little discussion in the common-law provinces about conceptual conflict between federal and provincial law or about federal law as intruding into provincial law. On several matters, though, the Divorce Act introduces concepts that depart from their equivalents in Quebec civil law. For example, the Divorce Act’s concept of ‘custody’—drawing from the common law—includes major decision-making power. This approach contrasts with the civil law’s definition of ‘custody’ as merely an attribute of parental authority. Under the Civil Code of Québec, even if custody of the child is given to someone else, the holder of parental authority retains the rights and duties of education and supervision.52 Another point of difference concerns spousal support. The Divorce Act contemplates support as a lump sum, and judicial interpretations have emphasized its compensatory aim.53 Both contrast with the civil law’s conception of support as a pension to cover current needs. Finally, the Divorce Act provides that, where conditions are met, an individual may owe support to the child of his former spouse. A judge of the Quebec Court of Appeal has expressed the view that courts in that province should require clear evidence before finding the conditions satisfied. His basis was that the federal statute derogates from the general private law of Quebec, which imposes no such obligation on step-parents.54 We do not have data measuring the degree to which outcomes reflect this reticence about points on which federal family law differs from Quebec civil law. What we can observe is that characterizing federal family law as making exception to a province’s general private law is a move distinct to Quebec.

Differences arising from the legal traditions are amplified by linguistic dynamics. Whatever the constitutional guarantees for French and English, our concern here is sociological. The community of legal scholars and practitioners working in French in Quebec and the community of legal scholars and practitioners working in English in the other jurisdictions are divided by language. Distinct bodies of scholarship on constitutional law and family law have relatively little crossover. To be sure, there are exceptions, largely grounded in the law faculties that teach the common law in French or the civil law in English. But the separation remains.

Before we close on the common law and the civil law, it is important to acknowledge the risk of essentialism. Such rich traditions cannot be homogeneous. As confirmed (p. 590) by comparison with other jurisdictions, present arrangements regarding the family in the Canadian jurisdictions do not represent the sole possible approach under the common law or the civil law. Indeed, in Quebec and the common-law provinces, minority voices may call for reform, advancing alternative readings of their tradition’s resources. Nevertheless, the different legal traditions include robust patterns of thought manifested in the regulation of family.55 The upshot is abiding diversity within the Canadian federation.

Pluralism also arises from the place of Canada’s Indigenous peoples. One element of such pluralism stems from the federal distribution of powers. The provinces generally regulate family law in the exercise of their exclusive competence relating to property and civil rights in the province. Under section 91(24) of the 1867 Constitution, the Parliament of Canada enjoys exclusive competence relating to ‘Indians, and Lands reserved for the Indians’. Courts have held that provincial regimes of matrimonial property do not apply on First Nations reserves. For decades, Parliament failed to address the resultant legal vacuum. It was only in 2013 that it legislated to address family homes and matrimonial property rights on reserves.56 The statute empowered First Nations to enact laws for their reserves, and provided default rules that would apply in the event that First Nations failed to do so. Accordingly, the legal pluralism in relation to official family law includes provincial and territorial regimes, regimes adopted by a First Nation, and the federal default rules.

Another element of pluralism arises from the abiding normative force of Aboriginal law. Section 35 of the Constitution Act, 1982 recognizes and affirms the ‘existing aboriginal and treaty rights of the aboriginal peoples of Canada’. One practice relevant in the family domain is customary adoption. Although the modalities of the practice vary significantly, Aboriginal customary adoption generally proceeds informally. It departs radically from state adoption’s focus on the judge, herself acting on a bureaucratic assessment of the child’s best interests. Arguably, section 35 requires provinces to recognize Aboriginal customary adoptions without distorting the custom and subordinating it to the dominant legal culture.57 For example, British Columbia has legislated to provide that a court may recognize an adoption effected by Aboriginal custom, but on critical views that recognition process distorts the custom.58 Giving full scope to the constitutional protection of Aboriginal rights might call for attributing effect to customary adoptions without passing through a court, and for better acknowledging customary adoption’s differences from state adoption.

(p. 591) Before closing, we may observe that religion serves as an engine of state-recognized legal pluralism less than in some other jurisdictions and less than it might in Canada. In relation to children, the best interests of the child trumps a parent’s freedom of religion.59 Under legislation addressing consent to care, the court’s duty to act in the best interests of the child allows it to override a young person’s refusal of life-saving treatment—and her fundamental rights to freedom of religion and equality.60 Although private ordering in family matters may open space for religious norms, Quebec excludes family matters from its scheme of binding arbitration.61 For its part, Ontario requires that, to be binding, a ‘family arbitration’ be conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction.62 The province enacted this measure in response to a crisis triggered by the prospect of Muslim arbitrators applying religious law.63 Arguably, attempts to prevent the turn to religious norms in family matters are incoherent in the light of the liberal space that the Divorce Act and provincial laws open for private ordering in deviation from default entitlements.64 In any event, spouses may conclude effective separation agreements—based on advice from religious advisors. Practically speaking, for many cases, efforts to deny the legal force of family arbitration based on religious principles may be ‘a matter of form rather than normative substance’.65

5.  Conclusion

From a family law perspective, we can see that federalism further complicates an area of law already under pressure to meet the overwhelming legal and social needs created by the dramatic changes in marriage and family life since the 1960s. Federalism’s complications affect both policy makers and individuals seeking to resolve family disputes. A federal division of legislative powers produces line-drawing exercises that would not arise in a unitary state—such as that between the solemnization of marriage and the capacity to marry. In areas of overlapping jurisdiction, it can introduce confusion and complexity, raising questions as to which laws or orders apply and how to resolve conflicts between them. Implementing a Unified Family Court or UFC—what many (p. 592) view as the optimal institutional structure—requires an uncertain, arduous process of federal–provincial bargaining. The constitutional drafters in 1867 entrusted power over marriage to Parliament to assure uniformity regarding status, but they could not have foreseen the consequential variation across provinces regarding the treatment of parentage and unmarried couples. Conversely, the Federal Child Support Guidelines attest that inter-governmental co-operation can vault over federalism’s hurdles when all players recognize the value of harmonization.

More generally, our chapter holds four lessons for comparative constitutionalists. First, researchers should not examine the division of powers on its own, but must understand its interactions with other parts of the Constitution, such as the guarantees of fundamental rights. The interactions can centralize and decentralize: the Charter has exercised some unifying effect on family law, but judges will sometimes take federalism into account when applying it. Second, it is critical to look beyond the constitutional text, as the unfolding of governance will not always track what the federal constitution would lead observers to predict. Powers can be granted but not exercised. The exercise of federal authority may create space for provincial diversity, and provincial laws can mirror federal laws. Mechanisms of inter-governmental co-operation can ease the rigidities of the formal distribution of power, as can exercises of a spending power.66 Third, institutional structures merit serious attention. Diversity in court structures and procedures and in the services provided can affect the implementation and effectiveness of national laws. Moreover, regionally variable interpretations of national laws can give rise to local family law cultures. Fourth, what we think of as constitutional norms may have their anchorage outside the constitutional text. Although the Charter guarantee of equality has undoubtedly prompted legislative change, equality values began to shape family law long before the advent of the Charter. Our case study of the family in the Canadian federation thus attests to the dynamic potential of the federal model—as well as to the benefits for lawyers of enriching their accounts with the insights of others such as political scientists and sociologists.

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    • Cases

    • AC v Manitoba (Director of Child and Family Services) 2009 SCC 30, [2009] 2 SCR 181
    • A (V) v F (S) [2001] RJQ 36 (Qc CA)
    • Droit de la famille—111526 2011 QCCS 2662, [2011] RJQ 907
    • Fraess v Alberta 2005 ABQB 889
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    • In re Marriage Legislation in Canada [1912] AC 880
    • Kerr v Kerr [1934] SCR 72
    • Lamb v Lamb [1985] 1 SCR 851
    • M v H [1999] 2 SCR 3
    • Miron v Trudel [1995] 2 SCR 418
    • Moge v Moge [1992] 3 SCR 813
    • Nova Scotia (Attorney General) v Walsh 2002 SCC 83, [2002] 4 SCR 325
    • (p. 594) Papp v Papp [1970] 1 OR 331 (CA)
    • Quebec (Attorney General) v A 2013 SCC 5, [2013] 1 SCR 61
    • Re BC Family Relations Act [1982] 1 SCR 62
    • Reference re Adoption Act [1938] SCR 398
    • Reference re Assisted Human Reproduction Act 2010 SCC 61, [2010] 3 SCR 457
    • Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698
    • Ross v MacQueen [1948] 2 DLR 536 (Alta SC)
    • Rutherford v Ontario (Deputy Registrar General) (2006), 81 OR (3d) 81 (Ont SCJ)
    • Trociuk v British Columbia (Attorney General) 2003 SCC 34, [2003] 1 SCR 835
    • Young v Young [1993] 4 SCR 3
    • Zacks v Zacks [1973] SCR 891

Footnotes:

Dean and Samuel Gale Professor, Faculty of Law, McGill University, Montreal.

**  Professor of Law, Faculty of Law, University of Toronto.

1  E.g. Peter W Hogg, Constitutional Law of Canada, vol 1 (5th edn, Thomson/Carswell, 2007); Henri Brun, Guy Tremblay & Eugénie Brouillet, Droit constitutionnel (6th edn, Yvon Blais, 2014) 506 at paras VI-2.136 to VI-2.144.

2  See John Dewar, ‘Family Law and Its Discontents’ (2000) 14 International Journal of Law, Policy and the Family 59 for a discussion of the tensions between uniformity and diversity within modern family law systems across a number of Western jurisdictions.

3  A few years later, Australia followed the Canadian model: the Australian Constitution gives the Commonwealth the power to make laws with respect to ‘marriage’ (s 51(xxi)) and ‘divorce and matrimonial causes and in relation thereto, parental rights and the custody and guardianship of children’ (s 51(xxii)).

4  F J E Jordan, ‘The Federal Divorce Act (1968) and the Constitution’ (1968) 14 McGill Law Journal 209.

5  Hogg above (n 1) at 27-1.

6  In Australia, the Commonwealth enacted the Family Law Act, 1975 with the intention of assuming as plenary a jurisdiction over family law as the Constitution would allow. The Act, which dealt with all of the incidents to marriage and divorce, including matrimonial property rights, withstood constitutional challenge. In addition, with the exception of Western Australia, the states have used the referral power in the Australian Constitution (s 51(xxxviii)) to refer to the Commonwealth their powers over children born to unmarried parents and, more recently, their powers over unmarried couples.

7  Under the German Constitution family law, as an aspect of civil law, is a matter of concurrent jurisdiction, but state legislative power is pre-empted when the federal government has acted. Family law seems firmly controlled by the federal Parliament, governed by Book 4 of the German Civil Code, a federal statute that deals comprehensively with family law matters.

8  At the other end of the spectrum is the United States. Even there the federal role in shaping family policy has grown over time, but remains far less significant than in Canada: Ann Laquer Estin, ‘Sharing Governance: Family Law in Congress and the States’ (2009) 18 Cornell J Law and Public Policy 267.

9  Ross v MacQueen [1948] 2 DLR 536 (Alta SC); Kerr v Kerr [1934] SCR 72.

10  In Quebec see Rules respecting the solemnization of civil marriages and civil unions, CQLR c CCQ, r 3. In Ontario see the Marriage Act, RSO 1990, c M.3.

11  Constitution Act, 1867, s 129. For the history of post-Confederation marriage laws in Canada, see Jordan above (n 4).

12  This was accomplished by the Marriage (Prohibited Degrees) Act, SC 1990, c 46.

13  Civil Marriage Act, SC 2005, c 33.

14  Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698.

15  Zero Tolerance for Barbaric Cultural Practices Act, SC 2015, c 29, discussed in Martha Bailey, ‘Setting Boundaries’ in Bill Atkin (ed), The International Survey of Family Law 2015 Edition (Jordans 2015) 21.

16  In Australia the federal marriage power has been interpreted expansively to allow the federal government to deal with the property rights and maintenance obligations that attach to marriage; see n 6.

17  It likely does not have such a power; see Same-Sex Marriage Reference above (n 14) at para 33.

18  Divorce Act, 1968, RSC 1970, c D-8.

19  Divorce Act, RSC 1985, c 3 (2nd Supp).

20  See Papp v Papp [1970] 1 OR 331 (CA) and Zacks v Zacks [1985] 1 SCR 851.

21  SOR/97-175.

22  Divorce Act (n 19), ss. 2(1) and 2(5), allowing provincial guidelines to be designated as ‘applicable guidelines’.

23  Carol Rogerson & Rollie Thompson, ‘The Spousal Support Advisory Guidelines’ (Department of Justice Canada 2008) available at http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/index.html accessed 23 August 2016.

24  SC 2001, c 27.

25  Reference re Assisted Human Reproduction Act 2010 SCC 61, [2010] 3 SCR 457.

26  E.g. José Woehrling, ‘La Charte canadienne des droits et libertés et ses répercussions sur la vie politique’ in Réjean Pelletier & Manon Tremblay (eds), Le parlementarisme canadien (5th edn, Presses de l’Université Laval 2013) 89 at 122.

27  See generally Nicholas Bala & Robert Leckey, ‘Family Law and the Charter’s First 30 Years: An Impact Delayed, Deep, and Declining but Lasting’ (2013) 32 Canadian Family Law Quarterly 21.

28  Trociuk v British Columbia (Attorney General) 2003 SCC 34, [2003] 1 SCR 835.

29  K (Re) (1995), 23 OR (3d) 679 (Ont Ct (Prov Div)).

30  E.g. Fraess v Alberta 2005 ABQB 889; Rutherford v Ontario (Deputy Registrar General) (2006), 81 OR (3d) 81 (Ont SCJ).

31  Miron v Trudel [1995] 2 SCR 418.

32  E.g. M v H [1999] 2 SCR 3.

33  E.g. Halpern v Canada (Attorney General) (2003), 65 OR (3d) 161 (Ont CA).

34  Brenda Cossman & Bruce Ryder, ‘What Is Marriage-Like Like? The Irrelevance of Conjugality’ (2001) 18 Canadian Journal of Family Law 269, at 275.

35  Nova Scotia (Attorney General) v Walsh 2002 SCC 83, [2002] 4 SCR 325.

36  Quebec (Attorney General) v A 2013 SCC 5, [2013] 1 SCR 61.

37  Ibid at para 440.

38  Ibid at para 449.

39  Droit de la famille—111526 2011 QCCS 2662, [2011] RJQ 907 at para. 280, aff’d on other grounds, Droit de la famille—139 2013 QCCA 15, [2013] RJQ 9.

40  E.g. Mélanie Samson & Louise Langevin, ‘Revisiting Québec’s Jus Commune in the Era of the Human Rights Charters’ (2015) 63 American Journal of Comparative Law 719.

41  For an overview of this evolution, see Robert Leckey, ‘Families in the Eyes of the Law: Contemporary Challenges and the Grip of the Past’ (2009) 15:8 IRPP Choices 2.

42  See Nicholas Bala, ‘The Best Interests of the Child in the Post-Modern Era: A Central but Paradoxical Concept’ in Harold Niman & Gerald Sadvari (eds), The Best Interests of the Child—Special Lectures 2000 (Law Society of Upper Canada 2001) 1.

43  See Robert Leckey, ‘Particular Justice: Michel Bastarache and Family Law’ in Nicholas C G Lambert (ed), À l’avant-garde de la dualité: Mélanges en l’honneur de Michel Bastarache (Éditions Yvon Blais 2011) 117.

44  Marlee Kline, ‘Child Welfare Law, “Best Interests of the Child” Ideology, and First Nations’ (1992) 30 Osgoode Hall Law Journal 375.

45  See Carol Rogerson, ‘Determining Parentage in Cases Involving Assisted Reproduction: An Urgent Need for Provincial Legislative Action’ in Trudo Lemmens et al. (eds), Regulating Creation: The Law, Ethics and Policy of Assisted Human Reproduction (University of Toronto Press, 2017) 91.

46  Even in unitary states or federations where legislative powers over family law are highly centralized, such as Germany, similar decentralizing forces are at work, such that much of the actual administration of the family justice system is delegated to the regional and local level.

47  See Re BC Family Relations Act [1982] 1 SCR 62.

48  H Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (5th edn, Oxford University Press, 2014).

49  John E C Brierley & Roderick A Macdonald (eds), Quebec Civil Law: An Introduction to Quebec Private Law (Emond Montgomery Publications, 1993) 99 at para 87.

50  Robert Leckey, ‘Family outside the Book on the Family’ (2009) 88 Canadian Bar Review 545; Nicholas Bala & Rebecca Jaremko Bromwich, ‘Context and Inclusivity in Canada’s Evolving Definition of the Family’ (2002) 16 International Journal of Law, Policy and the Family 145.

51  Robert Leckey, ‘Cohabitation and Comparative Method’ (2009) 72 Modern Law Review 48.

52  Michelle Giroux, ‘Le partage des responsabilités parentales après une rupture: Une matière à débat’ (1998) 77 Canadian Bar Review 354.

53  Moge v Moge [1992] 3 SCR 813.

54  A (V) v F (S) [2001] RJQ 36 (Qc CA).

55  Pierre Legrand, ‘Foreign Law: Understanding Understanding’ (2011) 6:2 Journal of Comparative Law 67, at 110.

56  Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c 20.

57  Ghislain Otis, ‘La protection constitutionnelle de la pluralité juridique: le cas de “l’adoption coutumière” autochtone au Québec’ (2011) 41 Revue Générale de Droit 567.

58  Cindy L Baldassi, ‘The Legal Status of Aboriginal Customary Adoption across Canada: Comparisons, Contrasts, and Convergences’ (2006) 39 University of British Columbia Law Review 63.

59  Young v Young [1993] 4 SCR 3.

60  AC v Manitoba (Director of Child and Family Services) 2009 SCC 30, [2009] 2 SCR 181.

61  Art 2639 CCQ.

62  Arbitration Act, 1991, SO 1991, c 17, s 1 ‘family arbitration’.

63  Sherene H Razack, ‘The “Sharia Law Debate” in Ontario: The Modernity/Premodernity Distinction in Legal Efforts to Protect Women from Culture’ (2007) 15 Feminist Legal Studies 3.

64  Audrey Macklin, ‘Multiculturalism Meets Privatisation: The Case of Faith-Based Arbitration’ (2013) 9 International Journal of Law in Context 343.

65  Annie Bunting, ‘Family Law’s Legal Pluralism: Private Opting-out in Canada and South Africa’ in Albert Breton and others (eds), Multijuralism: Manifestations, Causes and Consequences (Ashgate, 2009) 77, at 83.

66  Regarding the spending power, see the chapter by Hoi L. Kong in this Handbook.