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:
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!