Canadian Journal of Family Law Volume 30 Number 1 2017 A Feminist Critique of Quebec v. A.: Evaluating the Supreme Court's Divided Opinion on Section 15 and Common Law Support Obligations Natasha Mukhtar Follow this and additional works at: https://commons.allard.ubc.ca/can-j-fam-l Part of the Family Law Commons, and the Law and Society Commons Recommended Citation Natasha Mukhtar, "A Feminist Critique of Quebec v. A.: Evaluating the Supreme Court's Divided Opinion on Section 15 and Common Law Support Obligations" (2017) 30:1 Can J Fam L 129. The University of British Columbia (UBC) grants you a license to use this article under the Creative Commons Attribution- NonCommercial-NoDerivatives 4.0 International (CC BY-NC-ND 4.0) licence. If you wish to use this article or excerpts of the article for other purposes such as commercial republication, contact UBC via the Canadian Journal of Family Law at [email protected] A FEMINIST CRITIQUE OF QUEBEC V. A.: EVALUATING THE SUPREME COURT’S DIVIDED OPINION ON SECTION 15 AND COMMON LAW SUPPORT OBLIGATIONS Natasha Mukhtar* This paper is a case comment of Quebec v. A. In Quebec v. A., the Supreme Court of Canada tackled a Charter challenge to the Civil Code of Quebec. The claimant, A., alleged that the legislation violated her section 15 equality rights by discriminating on the basis of marital status in excluding common law couples from spousal support and division of property upon separation. The Court delivered a lengthy, controversial, and divided decision with three lines of dissent. Ultimately, the exclusion was upheld. Quebec continued to exclude common law couples from the division of property and remained the sole province to deny common law couples spousal support upon separation. This paper uses feminist theories of substantive equality to evaluate each of the four major judicial opinions in Quebec v. A., highlighting the ways in which women in common law relationships are more adversely affected by exclusion from the support regime than men. It does so to argue that striking down Quebec’s exclusion of common law couples from both spousal support and the division of property, as per Abella J.’s dissent, is more in keeping with feminist theories of substantive equality. This paper critiques the Supreme Court of Canada’s decision and reasoning in Quebec (Attorney General) v. A. from a feminist perspective. It does so by measuring the judicial opinions in Quebec v. A. against the standard of feminist theories of substantive equality. In Quebec v. A., the Court upheld the exclusion of unmarried cohabitants from the Quebec legislative scheme on spousal support and the division of property as justifiable discrimination on the 130 Canadian Journal of Family Law [Vol. 30(1), 2017] ground of marital status under section 15(1) of the Charter.1 The decision was controversial for its divided opinions and three lines of dissent,2 its alleged reinvention of the discrimination analysis under section 15(1),3 and the way it perpetuated disadvantaging women more than men in common law relationships. This paper is divided into two parts. The first section explains which feminist theories of substantive equality are used as an external standard in this paper and why. It then outlines the facts and judicial history of Quebec v. A. The second section analyzes the judicial opinions of Justices LeBel, McLachlin, Abella, and Deschamps. It does so to demonstrate that Abella J.’s analysis and decision under section 15(1) better responds to feminist theories of substantive equality than that of her colleagues. Although the Court in Quebec v. A. proceeded to a section 1 analysis, this paper focuses on the Court’s analysis at section 15(1). * Natasha Mukhtar wrote this paper as a second-year JD student at Queen’s University Faculty of Law, and is currently an LLM student at Harvard. She is grateful to Beverley Baines for her guidance and support in supervising this project, and to the editors of the Canadian Journal of Family Law. 1 Quebec (Attorney General) v A, 2013 SCC 5. 2 Carissima Mathen, “The Upside of Dissent in Equality Jurisprudence” (2013) 63 SCLR (2d) 111. 3 Jennifer Koshan & Jonnette Watson Hamilton, “The Continual Reinvention of Section 15 of the Charter” (2013) 64 UNBLJ 19. A Feminist Critique of Quebec v. A. 131 CONTEXT FEMINIST THEORIES OF SUBSTANTIVE EQUALITY USED IN THIS PAPER Unlike formal equality—which grants equal rights and treatment before the law—theories of substantive equality argue that equal treatment does not always produce equal benefits or outcomes for members of disadvantaged groups.4 Disadvantaged groups may be defined as those who face systemic discrimination. Feminist theorists such as Hester Lessard and Catharine MacKinnon argue that formal equality may be insufficient to produce equal outcomes for those of disadvantaged groups because it is characterized by a fiction of equal access to benefits provided by neutral laws.5 In this regard, formal equality assumes the sameness of experiences of individuals when doing so may not be appropriate. Instead, substantive equality demands a more contextualized approach to equality. A contextualized approach is one which recognizes that systemic inequalities faced by historically disadvantaged claimants pose a barrier to equal access and protection.6 Substantive equality requires analyzing the impact of equal treatment on claimants. Vanessa Munro argues that the concept of formal equality is flawed from a feminist perspective.7 It presumes that society is equal 4 Colleen Sheppard, “Equality, Ideology and Oppression: Women and the Canadian Charter of Rights and Freedoms” in Christine LM Boyle et al, eds, Charterwatch: Reflections on Equality (Toronto: Carswell, 1986) at 196. 5 Judy Fudge, “The Public/Private Distinction: The Possibilities of and the Limits to the Use of Charter Litigation to Further Feminist Struggles” (1987) 25 Osgoode Hall LJ at 495. 6 Ibid at 496. 7 Vanessa Munro, Law and Politics at the Perimeter: Re-Evaluating Key Debates in Feminist Theory (Oregon: Hart Publishing, 2007) at 133. 132 Canadian Journal of Family Law [Vol. 30(1), 2017] and thus, equal treatment by the law is sufficient to provide individuals with equality in society.8 However, women may face barriers in society such as economic disadvantage or the pressure to conform to gender roles that prevent them from achieving equal treatment and equal benefits from the law.9 In the context of Quebec v. A., women may experience the impact of the exclusion of unmarried cohabitants from the support regime differently than men. This is because women constitute a group of historically disadvantaged claimants;10 the barriers women face in society affect the ways in which they are impacted by neutral laws. This paper uses feminist theories of substantive equality to evaluate the Court’s reasoning in Quebec v. A. It does so because, since its first decision on section 15(1) equality rights in Andrews v. Law Society of British Columbia, the Supreme Court itself has emphasized a substantive approach to equality.11 This approach rejects mere sameness of treatment or formal equality in exchange for an effects-based analysis.12 Though the Court did not explicitly use the term “substantive equality” in Andrews, it described the approach as such in subsequent section 15(1) cases such as Withler v. Canada (Attorney General).13 The Charter explicitly references a goal of providing “equal benefit of the law” under section 15(1).14 This reflects feminist theories of substantive equality in their 8 Ibid at 133. 9 Ibid at 133. 10 Supra note 6 at 532. 11 Andrews v Law Society of British Columbia, [1989] 1 SCR 143. 12 Kathleen E Mahoney, “The Constitutional Law Of Equality in Canada” (1992) 44 Me L Rev 229 at 244. 13 2011 SCC 12 at para 2, [2011] 1 SCR 396. 14 Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. A Feminist Critique of Quebec v. A. 133 emphasis on equal outcomes rather than treatment. For these reasons, feminist theories of substantive equality are used in this paper to measure the extent to which the Court’s decision and reasoning in Quebec v. A. meet that goal. FACTS OF QUEBEC V. A. B was a 32-year-old businessman who began a relationship with A when she was 17. Their relationship lasted ten years, over which time they had three children. A was the primary caregiver to their children. Over the course of their relationship, B became a billionaire and icon in the Quebec business community.15 Though A wanted to get married, B refused stating that he did not believe in the institution of marriage.16 After separating, A demanded spousal support and division of property. JUDICIAL HISTORY OF QUEBEC V. A. A brought a claim against B and the Attorney General of Quebec using section 15(1) of the Charter. A argued that provisions of the Civil Code of Quebec made a discriminatory distinction based on the analogous ground of marital status by distinguishing between unmarried and married cohabitants. She claimed that it did so by excluding unmarried cohabitants from its spousal support and property regime. At the Superior Court, Hallée J. held that the impugned provisions did not violate A’s equality rights under section 15(1).17 15 Shantona Chaudhury & Nicolas M Rouleau, “When Equality, Autonomy and Politics Collide: Unpacking Eric v. Lola” (2013) 32 Advocates’ Soc J No 2 at 3. 16 Ibid. 17 Droit de la famille – 091768, 2009 QCCS 3210, [2009] JQ no 7153. 134 Canadian Journal of Family Law [Vol. 30(1), 2017] Hallée J.