Robert Leckey responds May 28: I think that Margot, by agreeing with LeBel J. (on one thing, at least), overstates the irony of Abella J.’s invocation of opting-out. Opting-in and opting-out are distinguishable from the perspective of someone skeptical of liberal ideas of choice. A consensual opting-out from inclusive default rules provides a moment at which the more powerful spouse must persuade the other to conclude a transaction, what the civil law calls a juridical act. In turn, there are legal tools for scrutinizing the integrity of the opting-out – not just the common law’s doctrines of duress, mistake, and unconscionability, but also more searching judicial review under some provinces’ family legislation. Or a rule that independent legal advice is strongly advisable. So there is at least a hook, in the law, for interrogating the conditions in which a “choice” was ostensibly made and given legal effect.
Margot Young: Robert’s comments here illustrate well the failure of judges other than those signed on to Justice Abella’s judgment to “open the box”—that is to unwrap the package of marriage law and reveal the reasons for the particular property and support protections mandated for married and civil status partners. Justice Abella herself notes this—her analysis operates more substantively reflecting the social and economic reasoning that underpins the legislative regime. And, then, her analysis nicely notes that this analysis pertains equally to those in relationships akin to Eric and Lola’s.
Robert also highlights the inconsistency in rationale across public and private law. These sorts of inconsistency are revealing—often they signal the tip of a larger ideological iceberg. Here, one wonders about the gender, class, and social norms that inform Justice LeBel’s assumptions about the meaningfulness or the availability of choice in intimate relationships. Indeed, Justice LeBel seems to understand the position that choice is not a meaningful gauge for relationship legitimacy as itself a harmful stereotype, one that his judgment proudly rejects.
We see in this case the persistence of legal liberalism, that is, a particular shaping of the “justice-worthy subject” and the preeminence of choice as agency-anchor and legitimator of social and political oppression. In contrast, “…a left political orientation begins with a…focus on the social powers producing and stratifying subjects that liberalism largely ignores.” (Wendy Brown and Janet Halley “Introduction” in Wendy Brown & Janet Halley, eds, Left Liberalism/Left Critique (Durham: Duke University Press, 2002) 1 at 6.) For example, “male dominance”.
There is an irony to both sides in this case. Justice Abella in rejecting the adequacy of consent, then relies on it to constitute her “opt out” scheme. Justice LeBel points this out:
My colleague Abella J. adopts a position that would require these spouses to perform positive acts to opt out of a regime they did not intend to adopt. She would thus require them to exercise a freedom of choice whose validity and relevance she nonetheless denies in the context of opting for a particular form of conjugality. (para 261)
Choice is a distraction from the real question.
However, equally, Justice LeBel is subject to this same critique—only in mirror image. He too accepts imposition regardless of consent for the obligations in marriage and civil unions., Yet, he denies its relevance to de facto couples, despite similar larger contexts. It seems to me that the way out of this box is to look to the justice of the status quo that persists independent of consent for de facto couples for each scheme. For LeBel, it is the unregulated but long (otherwise) acknowledged state of gendered unfairness. For Justice Abella, it is the state regulated insistence on mutual property and support obligations as remediation of such gendered unfairness and disempowerment. Choice is a distraction from the real question.
Margot Young’s comments respond to Robert Leckey’s post – which you can find either here, with all our other Eric & Lola posts, or below.
Robert Leckey: Hester has nicely set out the different takes on choice (see below for Hester Lessard’s post). Wearing my hat as a Quebec family lawyer, what disappoints me is that the judges other than Abella J. signed onto accounts of choice that don’t square with the contested positive law.
LeBel J. accepts Quebec’s claim that protecting unmarried partners’ freedom of choice is its key aim. But reading Quebec family law as a whole, protecting individuals from the vulnerability arising from conjugality has outweighed choice for decades. That’s the only way of understanding the decision to shield married spouses’ sharing of the family home’s and pension plans’ gains during the marriage from contracting out.
Deschamps J. does better with her division, under section 1, between support and property. But the idea of conscious, acquisitive transactions fails to distinguish the “property” regimes from the concerns underlying support. The property regimes include measures protecting the family home, which I’ve argued elsewhere are alimentary in character. And automatic pension or RRSP contributions off every paycheque or a home’s appreciation in value are hardly conscious transactions.
The key point about choice lies at private and public law’s intersection. Quebec already assimilates unmarried to married spouses for purposes such as taxation, workers’ compensation, public pensions, and welfare. Good or bad for a couple, there is no “opting out” from that treatment.
The unanswerable reason that excluding unmarried couples from the private law’s obligation of support is unjustifiably discriminatory is that public laws already claw back benefits on the irrebuttable presumption that cohabitants support one another (thanks on this point to Rod Macdonald).
If Quebec were serious about the justifications it advanced for its private law—preserving a zone of autonomy for informed, rational unmarried couples to shape their destinies—it would allow cohabitants to opt out from public law’s spousal designation.
Robert was responding to Hester’s post & my question, which are set out below:
HL: Satisfactory? Well, at least we get more choices about what the choice to tie the knot, or not, means.
LeBel J. aligns the “knot, or not” choice with “personal autonomy and freedom,” (para 267). This broad principle, we find out elsewhere, concerns the “freedom of those who wish to organize their patrimonial relationships outside the mandatory framework” (para 256). The plural possessive is deceiving, for it is B.’s patrimonial relationship that gets “freely” organized. It turns out that A. alone has made what is primarily a “marital status” choice, namely to live “with a spouse who refuses to marry,” a choice that, for LeBel J., is on a par with the choice of “a spouse who gives in to insistent demands to marry” (para 260). LeBel J. concedes that the A.s of the world will likely end up in financially precarious positions when relationships end, but, he points out, each conjugal form has disadvantages for “one” of the spouses (para 242). The marriage disadvantage presumably refers to those who, unlike B., cave to “insistent demands” and find they must submit to the protective regime. And so, in LeBel J.’s judgment, choice language is the “ideological glue” (see H. Lessard Charter Gridlock: Equality Formalism and Marriage Fundamentalism” in Sheila McIntyre and Sanda Rogers, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (LexisNexis 2006)291-316 at 316 – not available online, sorry!) binding the twin pillars of classical liberalism – formal equality and negative liberty – to a conception of conjugality and property rights rooted in a conservative and patriarchal tradition.
For Deschamps J., choice need not masquerade as liberal principle; rather it is, quite unapologetically, economic self-interest. The purpose of the legislative protections (more precisely, the lack of protections for defacto spouses) is “to ensure the autonomy and fairness for couples who have been able to, or wanted to, accumulate property” (para 392). Oh foolish A., for seeking to “bridal” this freedom! Deschamps J. further explains that it makes sense to speak of decisions about property as “choices” because property acquisition, of necessity, involves a transactional moment, what she calls a “conscious act,” unlike “a plan to live together” that can evolve gradually into “a relationship of interdependence over which one of the parties has little or no control…” (para 393). And preserving choice for the propertied by upholding the patrimonial protections would not compromise economic justice because Deschamps J. would remove A.’s exclusion from support remedies.
Abella J. seems aware of the treachery that choice language can wreak, locating it some distance from “principle” by relegating it to the status of legislative policy, and even then reluctantly (para 358). When talking of conjugal relationships, she prefers the language of “mutual decision” (para 375), underscoring the fact that “knot, or not” choices involve a two way negotiation structured by inequality that is too often gendered. Like all her other colleagues, she sees the ultimate choice at stake in terms of contractual freedom, but, for her alone, equality and economic justice should prevail without qualification. A less impairing regime, she offers, would apply property and support provisions presumptively to all, allowing couples to “opt out.” Bargaining for financial security would be thereby untethered from marital status, rendering conjugal “choice” less illusory (para 376).
McLachlin C.J.’s intervention is profoundly conflicted. She embraces Abella J.’s view that marital status is emphatically not about choice and that the exclusions violate substantive equality, but then upholds the entire regime in the name of the public interest in a “state free zone” of private choice. She rejects Abella J.’s less equality-impairing “opt out” alternative because it is more choice-impairing. Not even the “ideological glue” of choice language can hold this judgment together!