Robert+Leckey,+“Cohabitation+and+Comparative+Method”

Leckey, Robert. “Cohabitation and Comparative Method”, p.52-61

Basically: CML Provinces have a functional approach; CVL QC has a strong autonomy approach. Although different, both approaches involve morality.

CVL and CML: Distinct Discourses on unmarried couples

//Walsh// speaks to CML provincial legislatures, not to QC (“invisible other”). Treating cohabitation as triggering matrimonial property regime would promote marriage as the single model of intimate relationships. Thus, the majority in Walsh embraced a “weak” or “relative” concern for the autonomy of unmarried partners, referring to autonomy and choice in their decision. Marital status as an analogous ground does not require total assimilation of unmarried cohabitants into marriage regime. Majority preserved cohabitation as an option distinct from marriage. Quebec literature exemplifies a “strong” or “absolute” autonomy argument – respecting choice is fundamental (even though deference to autonomy is not fully consistent – concubines). CML observers might see this as a “veiled defence of patriarchal exploitation”. CML critique of //Walsh// : commitment to functionalism as family law’s dominant regulatory mode. Functionalists see family units “as providing emotional and material support to their members”. Contrast with formalism, “which assigns rights and duties on the sole basis of formal family status”. Another version of functionalism in literature: if functionally equivalent, differences in legal treatment are suspect (L’Heureux-Dube) – thus //M v. H// is inconsistent with //Walsh (M v. H// extends spousal support to same-sex couples). “Viewed functionally, //Walsh// backslides to bad old formalism” – and is at odds with decades of SCC’s functional approach to family law. Legal regulation usually combines formalism and functionalism. Quebec’s strong autonomy approach likely undervalues “tacit commitments and implied undertakings” as indicative of intention. By the same token, functionalism “discounts too heavily the way in which explicit intentions may, in a legally noticeable way, alter the appropriate consequences of conduct”. Functionalism and formalism are both reductive. CVL and CML legal discourses don’t communicate enough.

The common absence of morality: neither CML nor CVL provinces acknowledge the regulation of unmarried couples as a moral issue. Until recently, the perceived immorality of unmarried cohabitation underlay the state’s regulation. Functionalist refuge from morality is in sociological empiricism. Strong autonomy argument distances itself from morality using “liberal neutrality”. CVL no longer penalizes concubines, but also resists advantaging them. Looking at the rules, it seems moral judgments underlie them – legally regulating families remains a moral enterprise.