Canadian Lawyer

8 J U L Y 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m \ AT L A N T I C \ C E N T R A L \ W E S T REGIONAL WRAP-UP A new era of family law? uebec common law spouses could soon be granted the same rights as married spouses if the govern- ment accepts the recommenda- tions of its special committee on family law. Its report, an impres- sive 600-plus pages, tackles not only couples but also parentage (adoption and assisted birth). In its own words, its mission was to "attack the foundations" of the family law system, which needs consolidation. The committee was created in 2013 by then PQ minister Bertrand St-Arnaud in the wake of the Supreme Court of Canada decision Eric v. Lola (fictitious names were given to the parties as is prescribed in family law instances). It pitted a Que- bec billionaire against his common law spouse with whom he had three children. Lola was claiming the unconstitutionality of Quebec's law, which bars any financial obligations toward a common law spouse thus depriving her of any direct sum from Eric. He had to pay for child support only. The SCC maintained the legality of the law, but only just: the ruling was 5-4. Eric claimed his right to contractual freedom. He had avoided marriage pre- cisely to protect his assets. Pressure has since been mounting to give common law spouses in Quebec at least some protec- tion. The committee proposes creating an "imperative parental regime" that would include a "compensatory parental allow- ance," which would, only when there are children, force a wealthier spouse to compensate the other through a one- time allowance when they separate. The innovation is that the financial obligation towards the other partner is based on the status of parent, regardless of the their marriage situation. Professor Benoît Moore, acting dean of law at Université de Montréal and a fam- ily law expert, told Canadian Lawyer the report is concerned with restoring con- tractual freedom. It thus would allow the parties to opt out of the legal regime by setting their own contract. The commit- tee even suggests people already married should be able to opt out of the current compulsory matrimonial regime. In 1989, the government enacted the Loi sur le patrimoine familial, which imposed a marriage contract on all mar- ried couples, regardless of their existing contractual situation. From then on, the family assets would be split 50-50 between the spouses. This voided any other con- flicting contractual provision. The aim was to protect spouses, mostly women, who had married when relationships were like the one you see on Mad Men, in other words, under marriage contracts that left them without protection, often dirt-poor, in growing cases of divorce. The new law created a huge debate about contractual freedom. In order to correct past injustices, it put unneces- sary restrictions on the freedom of future couples to arrange their affairs the way they wanted, some said. "You don't like the new law, just don't get married," was the government's response. Meanwhile, no protection existed for common law spouses. While Moore was not surprised by the committee's desire to allow more contrac- tual freedom, he thought it could have pushed for stronger common law spouse protection. He notes the parental allow- ance, which would be determined by the amount of work a parent would have put into childrearing compared to the other parent, is complex. He was expecting the committee to recommend couples split their assets down the middle and that spousal sup- port be granted, as in the 1989 marriage legislation, but with the possibility of opt- ing out. Overall, he thinks the committee did impressive work and that the report contains plenty of good ideas. He points specifically to the propos- als to clarify the law regarding surrogate mothers. The actual law forbids any such contracts. The courts have allowed, to a certain point, surrogate motherhood through adoption, but Moore laments the uncertainty of the actual law in Quebec, especially compared with the common law provinces. — PASCAL ELIE pascalelie636@gmail.com Q QUEBEC LAWYERS GET NEW CODE OF ETHICS I t was high time for a thorough review of the Code de déontologie des avo- cats to happen, according to Madeleine Lemieux, who led the task force in charge of the reform. Over the years, only a few changes had been made to Quebec's code of ethics just to keep up with new court decisions. New elements include: • The explicit definition of "client," which includes a person who consults a lawyer and who has "reasonable grounds to believe that a lawyer-client relationship exists." • The codification of the limits on free speech when commenting in the media on pending cases. It includes the use of social media. The practitioner must not make public comments or divulge information that could affect the authority of the courts or one's right to a fair trial. • The issue of limited scope representation (or unbundling of legal services) when a lawyer provides partial legal services, not covering all of the client's legal

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