1. Objectifs

Intentions :
«This article [examines] the basis for Quebec’s distinctive approach to adjudicating spousal support claims following a divorce.» (p. 933)

Questions/Hypothèses :
The author suggests «that resistance to the Advisory Guidelines may be grounded in unfounded beliefs about Quebec’s system of matrimonial law, specifically, the centrality of notions of autonomy and individualism, rooted in a formal conception of gender equality. The article argues that this outlook is based on former legislative policies and judicial beliefs, which have since, to a large degree, become obsolete. Moreover, judicial scepticism toward the Advisory Guidelines also does not correspond with the applicable federal law on spousal support and thus, is less likely to adequately respond to the economic interdependence that typically results from marriage and the financial vulnerability commonly associated with divorce.» (p. 933-934)

2. Méthode

Échantillon/Matériau :
L’auteure s’appuie sur un examen historique de la législation québécoise appliquée aux couples mariés, ainsi que sur les Lignes directrices facultatives en matière de pensions alimentaires conformément au droit de la famille du Canada.

Type de traitement des données :
Réflexion critique

3. Résumé

«This article has sought to demonstrate that the available critiques of the Advisory Guidelines in Quebec—set out as they are in the relevant decisions—may not stand up to meaningful scrutiny, as they reflect neither provincial matrimonial law nor federal divorce law. Instead, they lend credence to the observation by the authors of the Advisory Guidelines that some of the criticisms of the Advisory Guidelines in Quebec are “really criticisms of the current law” and, in some cases, reflect a judicial preference for a non-compensatory approach to support. In an area of shared federal and provincial jurisdiction such as spousal support, resistance might then be anchored in an unstated rebuff of federal legislation dealing with a matter traditionally at the heart of provincial private law. However, the non-compensatory approach adopted by some Quebec judges, insofar as it is ostensibly rooted in Quebec family law, has little foundation in the current context of the province’s matrimonial law, save for pre-existing interpretations of the alimentary obligation between separating spouses set out in the Civil Code. Moreover, while in the absence of federal law on the subject, Quebec would be within its jurisdiction in regulating family matters, the Quebec approach does not always give sufficient weight to the existing provisions of the applicable federal law, and their interpretation by the Supreme Court of Canada.» (p. 971)