A proposed Quebec legislative reform that recognizes and regulates surrogacy in order to protect the best interests of the child, establishes new regulations on parentage, and aims to protect children born as a result of sexual assault has been commended by notaries but drawn mixed reaction from family law experts.
Bill 12, part of an ongoing effort by the provincial government to revamp family law, allows a child born as a result of rape to challenge his filiation to the assailant, compels the aggressor to pay compensation to meet the child’s needs, amends the Civil Code of Québec to specify the various ways of establishing filiation, and puts Quebec on the same footing as several other provinces by giving legal recognition to surrogacy contracts.
The Quebec government, after scant debate and without the input or testimony of several major legal actors, has forged ahead in spite of forceful opposition by lawyers’ organizations with a controversial and divisive bill that will allow notaries to be appointed to the bench of provincial courts.
Under the guise of an access to justice bill that will make free mediation mandatory and arbitration automatic for small claims cases, Quebec Justice Minister Simon Jolin-Barrette has amended the Quebec Courts of Justice Act to allow notaries with more than 10 years of experience to be appointed as a Court of Quebec judge, justice of the peace or municipal judge in order to “diversify” the makeup of the magistrature, a line of reasoning that has perplexed a slew of lawyers’ organizations. ”In essence, notaries and lawyers are put on an equal footing,” said Jolin-Barrette at the Quebec National Assembly during the clause-by-clause consideration of Bill 8. “I believe that notaries are as competent as lawyers to become judges. We do not have the luxury of depriving ourselves of all the jurists we have in Quebec.”
But for Martine Valois, author of “Judicial Independence: Keeping Law at a Distance From Politics,” this part of the bill is yet another striking example of the provincial government acting hastily without fully taking into consideration its impact nor the necessary financial and human resources it will require. “The Quebec Justice Minister introduces bills that are drafted in a rush, without asking himself how we are going to implement them,” just as was the case with Bill 92, said Valois, a Université de Montréal law professor. Bill 92, assented in November 2021 with much fanfare, created a new division within the Court of Quebec to deal with conjugal and sexual violence offences but has yet to be implemented.
The Quebec government should establish a comprehensive “made in Quebec” legal framework to tackle intimate partner violence by creating a specific right to adequate housing under the Quebec Charter of Human Rights and Freedoms and introduce comprehensive legislation that institutes a right to be free from domestic violence that includes legal recourses in civil matters, according to a report by legal experts.
Successive governments in Quebec have made important strides to provide better support to victims of intimate partner violence but “the time has come” to establish necessary policy foundations for a rights-based approach that should be anchored by Quebec’s international human rights obligations, affirms the report. The expert panel calls on the provincial government to follow in the footsteps of the federal government’s 2019 National Housing Strategy Act and explicitly incorporate the International Covenant on Economic, Social and Cultural Rights (ICESCR), a multilateral treaty signed by the United Nations General Assembly that came in force in 1976, in Quebec law.
“When you build your legal framework around a positive right, that’s going to change the entire approach,” remarked Pearl Eliadis, a McGill law professor and co-chair of the Gender Research Stream, one of several branches of the Québec Homelessness Prevention Policy Collaborative, that penned the report. The collaborative, founded in 2021, was established to advance policy reforms in Quebec to prevent homelessness. It is a joint effort between the McGill Department of Equity, Ethics, and Policy and the Old Brewery Mission, Quebec’s largest service provider for homeless men and the largest in Canada for homeless women.
In an “important precedent,” the Quebec Court of Appeal held that Ottawa and Quebec breached their duty to act honourably after it refused to adequately finance the police department of a First Nation to ensure that its services were equal in quality to those offered to non-Indigenous communities, according to aboriginal law experts.
The ruling, deemed by pundits as a “pretty striking way of reading” Canada’s agreements with First Nations on programs and services, ordered both the federal and the Quebec government to pay the Pekuakamiulnuatsh Takuhikan First Nation, located in Quebec’s Saguenay-Lac-St-Jean region, $1.6 million to cover years of underfunding of its police force. A year ago, the Canadian Human Rights Tribunal concluded in Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation) v. Public Safety Canada, 2022 CHRT 4 that the same First Nation were victims of discrimination due to inadequate police funding, a decision Canada is seeking judicial review.
The Quebec justice system is in the midst of “collapsing,” sagging under the weight of underfinancing and bedevilled by a “catastrophic” shortage of court personnel, with more than 20 per cent of employees resigning in a year, prompting leading legal actors to describe the situation as “embarrassing” and even more alarmingly, kindling a public lack of confidence in the province’s justice system.
The situation has never been so dire, worse than late this spring when a vexed legal community warned the Quebec government that the justice system, mired in a series of crippling labour standoffs that spurred mounting adjournments, was desperately in need of more funds to prop up the justice system. But while tense labour relations with a host of legal actors have subsided since the fall thanks to new collective agreements and a new legal aid accord, legal pundits assert far more has to be done to halt the exodus of courtroom personnel who are leaving in droves because remuneration is simply not competitive.
“There is a crisis in the justice system that has led to a crisis of confidence,” noted Catherine Claveau, president of the Quebec Bar. “And I, as the president of a professional order whose primary mission is the protection of the public, when the situation of underfunding in particular means that our institutions are undermining the right of citizens to have access to effective and quality justice, well for me, this corresponds to a real crisis.”
A sperm donor was granted access rights by the Quebec Court of Appeal after he was deemed as a “significant” third party whose presence “could probably benefit” the child in a decision that has perplexed some family law experts.
The Appeal Court decision has ostensibly watered down the notion of significant third parties, leaves open the question whether a similar finding would have been reached if the third party did not have a biological connection with the child, and serves as a timely reminder that parents involved in a “parental project,” or assisted procreation, should carefully consider whether they want to hand third parties access rights, according to family law experts.
“It’s an assisted reproduction project that deviated into something else, and this is a phenomenon that we are now seeing and will be seeing more often,” remarked Michel Tétrault, a leading family law expert and author of a series of tomes on Quebec family law. “From the time that these ladies allowed access to take place, a form of status quo was created. That’s a message that needs to be sent out: the moment you allow a third party who is supposed to be in no way involved in the parental project to become involved, it opens a door.”
First Nations that have implemented youth protection legislation under the auspices of the federal Bill C-92 have jurisdiction over youth welfare regardless of place of residence held a provincial court judge in a decision viewed by legal experts as a precedent.
The long-awaited decision, widely regarded by legal pundits as an important stepping stone towards the right to self-government for First Nations, reaffirms the generic right to self-determination, confirms the authority of Aboriginal communities to withdraw children from the care of Quebec youth protection authorities, and highlights the importance of negotiating in good faith.
“This is the first judgment in such a matter, and we hope it will create a precedent,” said Frédéric Boily, a lawyer with Simard Boivin Lemieux in Dobeau-Mistassini in the Saguenay-Lac-Saint Jean region who represented the the Conseil des Atikamekw d’Opitciwan, an intervener in the case. “So another Aboriginal community that wanted to follow in our client’s footsteps would indeed have good moorings on which to build.”
A series of wide-ranging concrete administrative and structural reforms, coupled with a new regional or municipal court, legal aid for all Inuit, and greater inclusion for traditional Inuit dispute resolution methods, should be implemented by the Quebec government and legal authorities to provide greater access to justice and tackle the alarming and increasing caseload in Nunavik, according to a recently published report.
After seven years at the helm of Quebec Superior Court, the last two particularly challenging and exhausting, Justice Jacques Fournier has stepped aside and became a supernumerary judge, with the reins being handed to Marie-Anne Paquette, a puisne judge of the Superior Court of Quebec for the district of Montreal.
In a tenure he described as not “not being a calm river” or not without obstacles, former Chief Justice Fournier began his mandate in 2015 dealing with the introduction of a new Quebec Code of Civil Procedure, a major reform that “needed to be assimilated” as it granted judges broader case management powers and bestowed a greater role to the principle of proportionality, followed by the landmark Jordan ruling and a legal battle with the Court of Quebec over monetary thresholds that wound up before the nation’s highest court, culminating with coming to grips with the “very demanding” pandemic.
“The decision (to step down) was very difficult, extremely difficult,” the 71-year old Justice Fournier told me. “I am going to miss it. But after seven years, you also have to know when to leave. At some point, it takes its toll without realizing it. I loved it, but there’s more to life than that.”
“During these incidents the offender punched the victim in the knees, hit her on the head and on her ears, pushed her, dragged her on the ground, slapped her, bit her, spat in her face, head-butted her, shook her, pulled her hair and grabbed her by the shoulders while threatening to throw her off a balcony. During one incident, he threw various objects at her. During another, he took a knife and threatened to remove the baby she was carrying in her womb.”
The courts are beginning to take a harder line against domestic abuse. Over the past year Quebec Superior Court has awarded damages to victims of spousal abuse. Ontario Superior Court followed suit in late February 2022 after it recognized a new tort in family violence.
So too is the justice system and Quebec government, a movement that gained much traction over the past year, particularly since the beginning of the year.
The architecture of the Canadian Constitution has been dramatically altered, with the emergence of a third level of government, after the Quebec Court of Appeal ruled that Indigenous people possess an existing right of self-government that is protected by section 35 of the Constitution Act, 1982, according to legal experts.
The “bold” decision, a reference case brought by the Attorney General of Québec after it challenged the constitutionality of the federal government’s Indigenous child welfare law, marks the first time a self-government right has been clearly recognized by the courts as a right of all Indigenous peoples in Canada, added aboriginal and constitutional legal experts.
“The Court recognized that Indigenous peoples in Canada have a right to self-government over child and family services recognized and affirmed by section 35 of the Constitution Act, 1982,” said Claire Truesdale, a Vancouver lawyer with JFK Law Corporation who practices Aboriginal, environmental and constitutional law. “This is remarkable.”