1. Objectifs

Intentions :
«This thesis is a study of the Spousal Support Advisory Guidelines [Advisory Guidelines] and the related phenomenon of judicial reliance on non-legislated, or soft law, instruments in Canada. [Notably,] the thesis undertakes a comparative analysis of Quebec and the rest of Canada, with respect to judicial reception of the Advisory Guidelines, as a means of gaining further insight into that province’s understanding of the function of spousal support, addressing both substantive and formal objections to their use.» (p. 6)

2. Méthode

Échantillon/Matériau :
L’autrice analyse différents textes judiciaires en matière de pensions alimentaires conformément au droit de la famille du Québec et du Canada.

Type de traitement des données :
Réflexion critique

3. Résumé

«This thesis concludes that the Advisory Guidelines are an important tool in the pursuit of economic gender equality that grounds the law of spousal support.» (p. 6) Moreover, «the thesis attempted to bring out the constant contest in Quebec family law between the cultural ideals of formal equality and freedom of choice, on the one hand, and a paternalistic legislative landscape aimed at protecting the economically vulnerable, on the other. Indeed, Quebec family law has consistently sought to balance cultural mores with protective legislative priorities. That tension, however, is not limited to Quebec; the conceptual challenges raised by continuing post-marital support obligations transcend provincial lines. This observation supports the idea that where families are concerned, the historical purity, difference, and impermeability of the civil law are things of the past, as is the conception of a pure civil law that violates the principle of reciprocity, which characterizes the relationship between Canada’s two legal systems. […] But at a time when Quebec family law may be on the potential brink of legislative reform, the Advisory Guidelines question provides a new and relevant lens with which to approach these complex questions. Accordingly, the failure of the Advisory Guidelines to conform to a particular civilian mould should not affect the legitimacy of judicial reliance on them, but rather, would promote a vision of Quebec civil law as a space for legal creativity and the intermingling of traditions.» (p. 271)