‘The well-being of children should be the primary consideration’ in reform of family law

A provincially-constituted commission with a mandate to uphold Quebecers’ human rights concludes in a memorandum that Bill 56, now before the National Assembly, will not provide adequate protection to women and children involved in common law relationships – although they say it is a step in the right direction.

Common law recognition

In the memo, tabled during recent public hearings for Bill 56 in Quebec City, the Commission des droits de la personne et des droits de la jeunesse said the legislation to reform the province’s family law system “represents a first step towards the recognition of the implications of domestic partnership in family law.”

“However, the Commission notes that the parental union regime would be offering insufficient protections to attenuate the economic impacts of separation for common law mothers, to the detriment of their rights and those of their children,” the commission says in a statement.

Moms and kids at risk

“Common law mothers are significantly more at risk of impoverishment following a separation and this has an impact on the respect of the rights of children,” said Myrlande Pierre, the commission’s vice-president for Quebec Charter of Human Rights and Freedoms issues.

“It is necessary to ensure that that the separations of common law parents do not amplify inequalities between men and women, while harming the capacity of mothers to give their children the protection, security and attention to which they have a right,” she added.

A major sticking point

According to the commission, one of the problems they take issue with in Bill 56 is the fact the proposed family law reform will only take into account couples whose children were born or adopted after June 29, 2025.

“An important portion of the mothers and children in Quebec would never benefit from the new regime,” the commission continues in its statement, while adding that for more than 20 or so years, the majority of births in Quebec have involved mothers in common law relationships. In 2021, they maintain, 59 per cent of babies were born in common law, 34 per cent to married mothers, and 7 per cent to mothers without a partner.

Children first, they say

Again, according to the commission, new elements brought into Bill 56 should apply to all common law couples who have at least one child. “The well-being of children should be the primary consideration in all decisions that concern them, including the elaboration of the legislation,” added Suzanne Arpin, vice-president at the commission for youth issues.

The commission points out that the Quebec Charter of Human Rights and Freedoms states clearly that all children have a right to “protection, security and the attention that their parents or persons acting on their behalf may give them.” Hence, according to the commission, the exercise of this right should not be affected by the conjugal status of parents.

Parental status sought

The commission is therefore recommending that parental union status should be granted equivalence to the status provided for married persons as well as those in civil union. They are also recommending that a provision for payment of nutritional support between former parental partners be included in Bill 56 for common law status, just as it is currently for civil unions and marriages.

The memorandum on Bill 56 tabled by the Commission des droits de la personne et des droits de la jeunesse with the Quebec National Assembly’s Commission on Institutions, pertaining to reform of family law and parental responsibilities, is available online at: cdpdj.qc.ca/fr/publications/PL56-droit-famille

A multi-faceted mission

The Commission des droits de la personne et des droits de la jeunesse is independent from the Quebec governement. According to a statement on the commission’s website, it fulfills its mission “for the sole benefit of citizens and in the public interest.” The Commission’s mission also includes the following responsibilities:

• Inform the public about rights recognized by the Charter, the Youth Protection Act and Youth Criminal Justice Act;
• Carry out investigations in cases of discrimination and exploitation (under the Charter) and in cases of violations of children and youth rights (under the YPA or the YCJA);
• Make recommendations to the Quebec government regarding conformity of laws with the Charter and regarding any issue related to rights and freedoms and youth protection;
• Undertake and promote research and publications on fundamental rights and freedoms and on children right;
• Offer an advisory service on reasonable accommodation to employers and decision-makers;
• Monitors the application of equal access to employment programs;
• Cooperate with any organization, dedicated to the promotion of human rights and freedoms, in or outside Québec.