Two Mothers in Law and Fact

What is the proper balance between legislative and judicial innovation and between formal and functional family recognition once legislatures have addressed gay men’s and lesbians’ families? In the civil-law jurisdiction of Quebec, legislative reforms allow two women to register as a child’s mothers. But judges have recognized a second mother ‘in fact’ by orders sharing custody where the parties had not used the new legislative channels. Such judicial creativity is reconcilable with the civil law and comparative scholars should flag it as a valuable resource. But it risks undermining legislative choices about family recognition. Perhaps the option to give a child a second mother includes the choice for a lesbian birth mother not to do so. Once two women become thinkable as spouses and mothers, judges risk inappropriately pressing a rich range of queer kinship possibilities into standard models.     

Cohabitation and Comparative Method

The paper intervenes in current policy debates on unmarried cohabitation and comparative law debates on methodology. It adopts a culturally alert, discursive methodology of comparison to study regulation of unmarried cohabitation under the common law and civil law as well as the effect of an entrenched right to equality protecting against marital status discrimination. It identifies not different legislative solutions to a common problem, but distinct discourses of family law regulation. Yet the approaches are less radically opposed than is often thought. Discursive comparison tends to highlight dominant voices at the expense of minority ones, wrongly characterising minority views as foreign to a tradition. Discursive comparison should not confine itself to a synchronic view of present legal debates; a richer diachronic approach will also attend to views within a legal tradition's past.     

Cohabitation,female sacrifice,and judge-made law

This paper shares results of a study of judgments applying the common law as adapted to the cohabitation context. Specifically, the Supreme Court of Canada has held that couples who formed a ‘joint family venture’ may need to share the wealth gained during cohabitation. The study compares the couples leading to positive and negative findings of a joint family venture. Positive findings correlate with traditional markers of family and economic integration, such as joint bank accounts and the presence of children. Despite the discourse of family diversity, gendered patterns run across all the couples, with women assuming primary care of children, shouldering domestic labour, and making career sacrifices for the family. In a sign of the limits of judge-made reforms, the doctrine may be harder for some claimants to access than for others, in ways not necessarily tracking commitment and economic integration.     

'Where the Parents are of the Same Sex': Quebec's Reforms to Filiation

To advance debates on legal responses to parenting by gay andlesbian couples, this article introduces reforms enacted bythe legislature of Quebec, a civil law jurisdiction with a codifiedprivate law, in 2002. Quebec's pioneering regime permits twopersons of the same sex to register as a child's parents frombirth, not only by adoption. They may do so if they conceivedthe child as part of a ‘parental project’. Moreover,a person alone may have a child via a parental project. Thearticle identifies the policy choices reflected in the amendmentsand highlights weaknesses in the drafting, instructive to policymakers in civil law or common law jurisdictions. It emphasizesthe structural difficulty of amending the civil law's fundamentalinstitution of filiation to recognize two parents of the samesex. Comparing with ad hoc judicial developments from a Canadiancommon law province, it underscores the potential in systematiclegislative reform. Conservative scholars have resisted thenew regime as an inappropriate departure from the pursuit offiliation's biological vocation. The study reveals how selectivelyjurists may remember the past and how swiftly they may characterizeinnovations relating to parentage – such as the earlierabolition of illegitimacy – as natural. The mingling ofbiological fact and fiction in the new regime underscores thesimilar blending in more traditional forms of filiation.     

Judging in Marriage’s Shadow

This paper contributes to feminist debates on cohabitation by studying judicial discourse after legal reform. It examines how Canadian judges speak about cohabitation and decide whether cohabitants qualify as “spouses” for the purposes of property sharing. Judges assess cohabitants against an ideal of companionate marriage with gendered and class overtones. A contrasting tendency is to disavow moral judgments by declaring openness to a diversity of relationships. It seems difficult to operationalize cohabitation as a relationship form distinct from marriage. Indeed, the cases undermine assertions that reform makes married couples and cohabitants equal. Efforts to “modernize” family law appear to give new life to traditional ideals of the good marriage.