December 1, 2009

Supreme Court Delcares Bill 104 Unconstitutional... But by Ian M. Solloway

In a unanimous 7-0 decision handed down on October 22, 2009, the Supreme Court of Canada struck down Bill 104 adopted by the Quebec government in 2002 to close a loophole in Quebec’s Charter of the French Language that had enabled some students, who were not otherwise eligible, to gain access to English school.

The Charter of the French Language enshrines the principle that French is the official language of instruction in elementary and secondary schools in Quebec. Section 73 (2) of the Charter however provides that “a child whose father or mother is a Canadian citizen and who has received or is receiving elementary or secondary instruction in English in Canada, and the brothers and sisters of that child” may receive instruction in English in Quebec “provided that the instruction constitutes the major part of the elementary or secondary education received by the child in Canada”.

English non-subsidized private schools are not subject to the Charter of the French language insofar as eligibility of students for English language instruction in Quebec are concerned. Prior to 2002, allophone and francophone parents were therefore able to circumvent the obligatory French school provisions for their children by sending their children to a non-subsidized English private school (the so-called “bridging schools”) for one year. These parents were thereby able to invoke S. 73 (2) (“a major part”) and obtain a certificate of eligibility for their child allowing that child to continue his education in English in an English language public or subsidized private school in Quebec.In 2002, the Quebec government amended S. 73 (2) of the language law to close this loophole and prevent parents from invoking time spent in a “bridging school” for the purpose of quantifying the “major part” of their child’s primary or secondary education.

Bill 104 established the same exclusionary rule with respect to English language instruction received pursuant to a special authorization granted by the Quebec Minister of Education in cases involving a serious learning disability, temporary residence in Quebec or a serious family or humanitarian situation. Time spent in an English school in such cases would have to be disregarded for the purpose of qualifying the child’s siblings for instruction in the publically funded English language school system.

In the Nguyen case, a number of parents who were Canadian citizens had enrolled their children in a non-subsidized English private school (“bridging schools”) for very short periods of time. The parents then requested that their children be declared eligible for instruction in English in the English public or subsidized English private school system. The Quebec Minister of Education denied their request based on the Bill 104 amendments.

In the Bindra case, Mr. Bindra had previously obtained special authorization from the Minister of Education to allow one of his two children to attend English school. He then applied for a certificate of eligibility on behalf of the second child based on the authorized English language instruction being received by his first child. His request was similarly denied by the Minister of Education, pursuant to the Bill 104 amendments. The decisions of the Minister were challenged by the parents on constitutional grounds. After seven years of litigation and judgments rendered by the Administrative Tribunal of Quebec, the Quebec Superior Court and the Quebec Court of Appeal, the Nguyen and Bindra cases reached the Supreme Court of Canada.

In its unanimous ruling, Mr. Justice LeBel, writing for the Supreme Court, upheld the constitutional challenge of the parents and declared Bill 104 unconstitutional as drafted, in that it violated S. 23 (2) of the Canadian Charter of Rights and Freedoms. Mr. Justice LeBel recognized that while the so-called “bridging schools” have been used by some parents to bypass the obligatory provisions of Quebec’s language law restricting access to public English education, the response of the Quebec government in enacting Bill 104 was “excessive in relation to the seriousness of the identified problem” and that “the absolute prohibition on considering an educational pathway (of the student) in an “unsubsidized private school” was overly drastic.” Essentially, what the Court said was that the Quebec government’s response to the problem posed by the so-called “bridging schools” was disproportionate to the problem itself. Although the Court acknowledged, as it has done in past decisions, that Quebec could validly limit freedom of choice in the language of instruction in the province, translating the primacy of the French language into a complete ban of the use of unsubsidized private English schools as a way of obtaining access into English public schools or subsidized English private schools, went too far and surpassed the acceptable “minimal impairment of constitutional rights.”

The Supreme Court reiterated that in its prior 2005 ruling in the Solski case, it had decided that the “major part” of a child’s education is no longer a “quantitative measurement”, but rather a “global qualitative assessment” to be viewed on an individual case by case basis. The Quebec Minister of Education could not therefore simply disregard English education received by a child in a non-subsidized English private school in its analysis. The Court did allow, however, by way of an obiter, that if the intent in attending the “bridging school” is simply to circumvent the law and to create an “artificial educational pathway” to allow access to a public English school, the “qualitative analysis test” in Solski may not be met. The door has therefore been left open for the Quebec Minister of Education to continue to reject requests for eligibility even though time spent in a “bridging school” cannot now be legally disregarded.

Finally, to the chagrin of many, because of the difficulties that its declaration of invalidity of Bill 104 might entail, the Supreme Court suspended the effects of its judgments for one year to enable the Quebec National Assembly to enact remedial legislation.

The victory of the claimants before the Supreme Court therefore would appear to be a partial one. Only one child, Satbir Bindra, was declared by the Court to be eligible immediately for English language instruction. However, the Supreme Court did not make a similar order of immediate eligibility with respect to the children of the Nguyen claimants, whose files were rather ordered by the Court to be returned to the Quebec Minister of Education to be reviewed again in light of its judgment and the principles established in Solski.

Therefore, the ball has now been squarely placed back in the hands of the Quebec government to come up with a legislative solution which would maintain the relative linguistic peace which has existed in the province for most of the last decade. The Quebec government is once again being challenged to recognize its obligation to protect the primacy of the French language in Quebec while, at the same time, to respect the principles enunciated by the Supreme Court.

We will know, in short order, whether the government has the political will to meet this challenge.

July 1, 2009

Consequences Not Misconduct Still The Focus by Ian M. Solloway

Leskun vs. Leskun Re-Visited

On June 21, 2006, the Supreme Court of Canada handed down a decision, which, at the time, raised certain eyebrows and provoked some concern in family law circles.

Sherry Leskun and Garry Leskun were married in 1978. During their 20-year marriage, Ms. Leskun financially contributed to Mr. Leskun’s continuing education by cashing in her R.R.S.P.’s and supporting her husband while he pursued an M.B.A. and became a Certified General Accountant. The couple had a daughter together.

During the 1990’s, Sherry Leskun suffered a significant back injury and the elimination of her job. Shortly thereafter, Mr. Leskun announced that he was leaving her and wanted a divorce in order to marry another woman and move to Chicago. The parties divorced in 1999.

At trial, Sherry Leskun was awarded one-half of the family assets as well as spousal support of $2,500.00 per month to be paid “until (she) returned to full employment, when both entitlement and quantum would be reviewed.”

In 2003, Mr. Leskun asked the Court to review his ex-wife’s support payments, claiming that in the four years that had elapsed between the marital break-up and the review application, Ms. Leskun had made no effort to seek employment and therefore attain her own economic self-sufficiency, one of the objectives of a spousal support order under the Divorce Act.

In upholding the spousal support order, the British Columbia trial court found that the adulterous conduct of Mr. Leskun during the marriage had left Ms. Leskun so consumed by bitterness over what she saw as her husband’s betrayal and duplicity, that she was unable to return to work despite her many years of experience in the banking industry. The British Columbia Court of Appeal agreed with the trial judge.

The issue on appeal before the Supreme Court of Canada was whether the lower courts erred in taking into account spousal misconduct in determining entitlement to spousal support. In dismissing Mr. Leskun’s appeal, Mr. Justice Binnie, writing for a unanimous Supreme Court, took pains to distinguish the economic consequences of spousal misconduct from the misconduct itself. The Supreme Court held that while the 1985 Divorce Act specifically eliminated spousal misconduct as a relevant consideration in making spousal support orders, it did not eliminate the consideration of the consequences of such misconduct, here, the emotional trauma suffered by the jilted spouse rendering her unable to return to work. Mr. Justice Binnie seemed to foreshadow the debate which the Leskun decision provoked when he admonished: “Misconduct should not creep back into the Court’s deliberation as a relevant “condition” or other circumstance which the Court is to consider in making or varying a spousal support order; misconduct, as such, is off the table as a relevant consideration.”

However, is spousal misconduct still really “off the table” or did the Supreme Court open the flood-gates in Leskun to new spousal support applications based on the pre-1985 days when the Court was specifically directed by the former Divorce Act to consider “spousal fault” in making support awards?

Although the Leskun decision may have framed the question a little differently than in the past by focusing on the “consequences” of certain behaviours, it has not really altered the legal landscape. The physical, psychological and/or emotional condition of the claimant spouse at the time of the original spousal support application or at the time of the application to vary that support, rendering her/him unemployable and thus unable to become financially autonomous, has always been a relevant factor in the Court’s determination of spousal support, its duration and its amount. If, for instance, spousal abuse during the marriage triggered a depression and/or physical condition so serious as to make a claimant unable to work, the Court would be obliged to take such spousal misconduct into account in its deliberations.

It may be true that following Leskun our courts may now allow more evidence to be led as to the genesis of the claimant’s condition or circumstance. However, it is still the condition or circumstance itself or a change in that condition or circumstance, having regard to such non-exhaustive factors as the length of the marriage, health problems, age, the narrowness of the claimant’s work experience, marketable skills, and the economic advantages or disadvantages to the spouses arising from the marriage or its breakdown, which have remained the focus of the Court in determining entitlement or continued entitlement to spousal support.

It is submitted that the cries of those who viewed the Leskun decision as re-introducing “fault” pure and simple through the back door in spousal support litigation was a misreading of the Supreme Court’s judgment. Moreover, the predictions of a “legal tsunami” of new spousal support review or variation applications in the wake of Leskun have proven to be, at the very least, premature, if not unduly alarmist.


May 1, 2009

The Hartshonre Pre-Nup: Limited Impact in Quebec by Ian M. Solloway

It has now been over 5 years since the widely-reported decision of the Supreme Court of Canada in Hartshorne v. Hartshorne, in which our country’s highest Court upheld the enforceability of a British Columbia pre-nuptial agreement wherein the future wife waived her right to any equal division of the family assets under British Columbia law in the event of marriage dissolution.

The Parties, who were both lawyers, began to cohabit in 1985 and their first child was born in 1987. They married in 1989, a second marriage for both, and a second child was born later that year. Nine years later, they separated. From the time of the birth of their first child, the wife withdrew from the practice of law to remain at home to raise the children. The husband brought assets worth approximately $1.6 million into the marriage, including his law practice, while the wife entered the marriage with no assets and heavily in debt. The husband had made it clear to the wife before the marriage that given the partition of property that occurred after he and his first wife separated, he would never again allow a division of his property.

Prior to their wedding, the husband insisted that the wife sign a pre-nuptial agreement stipulating that they would be separate as to property, but with a provision that the wife would be entitled to a 3% interest in the matrimonial home for each year that the parties were married up to a maximum of 49%. The wife had obtained a legal opinion prior to signing the pre-nuptial agreement that the said agreement was grossly unfair. However, she nonetheless signed the agreement with a few amendments, including a clause confirming her right to spousal support.

Pursuant to the pre-nuptial agreement, Ms. Hartshorne was entitled to property valued at $280,000.00 upon separation while Mr. Hartshorne was entitled to property worth $1.2 million.

In their divorce proceedings, Mr. Hartshorne relied upon the pre-nuptial agreement to avoid the operation of the statutory partition of family assets under British Columbia law, while Ms. Hartshorne argued that the pre-nuptial agreement should be set aside because the agreement was “unfair” under the British Columbia Family Relations Act (“FRA”). The trial Court and the Court of Appeal both concluded that the Hartshorne pre-nuptial agreement was “unfair” and ordered the reapportionment of the family assets. The Supreme Court of Canada disagreed, concluding that the Hartshorne pre-marital agreement was substantively fair under the FRA and therefore valid and enforceable. In its “fairness analysis”, the Supreme Court concluded that private arrangements that spouses make for the division of their property on the breakdown of their marital relationship should be respected particularly where the agreement in question was negotiated with independent legal advice. In this case, the implications of the pre-nuptial agreement were understood by the Parties, Ms. Hartshorne having specifically reviewed its shortcomings with her lawyer. Moreover, the explicit preservation of a right to spousal support was an amendment made to the draft agreement at the insistence of Ms. Hartshorne, supporting an understanding on her part that her future needs could be met through alimony. Furthermore, by signing the pre-nuptial agreement, the Hartshorne’s entered into their marriage with certain expectations on which they were reasonably entitled to rely.

What is the impact of the Hartshorne decision in Quebec? Does Hartshorne mean that spouses marrying in Quebec are able to make similar types of pre-marital agreements?

Since July 1, 1970, under Quebec law, spouses who marry in the Province of Quebec without a Marriage Contract, are deemed to have adopted as their Matrimonial Regime (i.e. the law governing their property relations during the marriage) that of Partnership of Acquests. Simply stated, under the legal regime of Partnership of Acquests, the property owned by each spouse as at the date of marriage is his or her private property as the case may be and the property acquired by each spouse during the marriage is his or her acquest, save and except for gifts and legacies which remain private property. All interest and / or revenues generated from a spouse’s private property or acquests are his or her acquests. At the time of marital dissolution, each spouse has the right to accept or renounce the partition of the other spouse’s acquests.

The Parties can contract out of or alter the legal regime of Partnership of Acquests in Quebec by signing a Marriage Contract wherein they can adopt the matrimonial regime of Separation as to Property. Under a separation regime, any property acquired by either spouse prior to or during the marriage is his or her sole and exclusive property. It is to be noted, however, that in executing a Quebec Marriage Contract electing to be separate as to property, the spouses are not signing a divorce contract under Quebec law. Neither spouse can be considered as having contracted out of his or her rights to any claims, rights or entitlements that each may have against the other spouse as a matter of public order upon marital dissolution.

In 1989, the Quebec legislature introduced the concept of “family patrimony” into Quebec law. As of July 1, 1989, all marriages in Quebec entail the establishment of a family patrimony, which comprises six (6) categories of assets, namely:

  1. the principle and secondary family residence(s)

  2. household furniture used by the family

  3. vehicles used for family travel

  4. private pension plan contributions during the marriage

  5. retirement plan contributions during the marriage (RRSP’s / LIRA’s)

  6. registered earnings of each spouse during the marriage under the Quebec Pension Plan

Quebec law provides that regardless of where the spouses were married, whether in Quebec or elsewhere, irrespective of their matrimonial regime and regardless of which spouse owns the aforementioned assets comprising the family patrimony, spouses who are domiciled in Quebec at the time of the institution of their divorce proceedings are subject to the imperative rules of family patrimony and thus have the right to partition equally the net value of the family patrimony assets. Moreover, and most importantly, inasmuch as the rules relating to family patrimony are of public order in Quebec, the Parties cannot contract out of them prior to or during the marriage, whether by Marriage Contract or otherwise. Any such agreement outside the context of marital dissolution proceedings whereby the spouses express their wish to exclude the operation of the rules of family patrimony is illegal and would be unenforceable by the Courts in Quebec. It is only after separation or divorce proceedings have been taken can the Parties “contract” with regard to their respective family patrimony rights.

Therefore, a Quebec pre-nuptial agreement or marriage contract could not remove the spouse’s right to demand an equal partition of the net value of the family patrimony upon divorce. The Hartshorne decision would thus seem to have changed little if anything insofar as the Quebec marriage contract and the applicability of Quebec’s family patrimony rules are concerned.