Leckey, Robert. 2012. «Unjust Enrichment and de facto Spouses ». Revue du notariat, vol. 114, p. 475-500.
Intentions : Concernant le jugement Kerr v. Baranow de la Cour Suprême du Canada, l’auteur mentionne que «[t]he Court of Appeal has expressed the view that it is not the judges’ role to create a partnership of acquests for de facto spouses where the legislature has not done so. That being said, many judges on the front lines abjure the strict view that de facto spouses are legal strangers one to another, even if not authorized to do so by legislation or by opinio juris. Furthermore, in rejecting the contention that de facto spouses’ exclusion from the law of matrimonial property was unjustifiably discriminatory, justices of the Supreme Court of Canada have reaffirmed the role of unjust enrichment in assuring fairness when their unions unwind. A principled approach for understanding Kerr’s relevance to the civil law of Quebec is thus necessary. This paper ventures a contribution to addressing that need.» (p. 477-478)
Échantillon/Matériau : Données documentaires diverses
Type de traitement des données : Réflexion critique
«Conflicting views as to the appropriate impact of Kerr in Quebec are already in contention. […] A cautious reading would take Kerr as calling for heightened sensitivity, on the part of Quebec judges, to the specificity of de facto unions. The Supreme Court’s attention in Kerr to tacit signs of commitment in the unfolding of family life would counsel against taking de facto union as implying any affirmative intention not to share property.» (p. 493-494) L’auteur conclut que «[w]hatever path is chosen—the analogy of the compensatory allowance, the undeclared partnership, or another—Quebec judges will feel pressure to do something with Kerr. Indeed, some already do. To be sure, the process of systematically assimilating that judgment’s relevant lessons may be slow. After all, ten years elapsed before the Court of Appeal took up the pair of presumptions from Peter. But some circulation of ideas is probable, and likely to prove fruitful. Scholarly reflection and debate may help to ensure that the approach eventually adopted is a principled one, sensitive to the living tradition of Quebec civil law.» (p. 500)