Restricted access to the most recent articles in subscription journals was reinstated on January 12, 2021. These articles can be consulted through the digital resources portal of one of Érudit's 1,200 partner institutions or subscribers. More informations
The family law reform is based upon several principles among which the legislation seeks to create a certain balance. The new legislation approaches the question of that balance under four themes :
1. The equality between man and woman - an equality sometimes intruded upon in order to protect one of the spouses or to strengthen his or her self-determination ;
2. the spouses' freedom to arrange their family relations as they see fit, but a freedom limited by several mandatory rules in order to ensure a greater measure of equality for each ;
3. the equality between children regardless of the circumstances of their birth or their form of filiation - an equality strengthened by rules devised to protect their interests ;
4. the increased intervention of the judiciary authaurised mostly for promotive self-reconciliation by the parties.
The following comments try to illustrate how these four principles are embodied in book two of the Civil Code of Quebec, book which must be construed according to the Legislator's expressed view for overriding equality, simplicity and flexibility.
Bill 69, which came intoforce on April the 2nd 1981 ; brought about important changes in the field of matrimonial regimes. The main ones, hereinafter examined, concern the withdrawal of community of moveables and acquests from the Civil code, the limits improved upon liberty of marriage convenants, the decline of matrimonial regimes as an institution due to the Judge's increased discretionary power, the procedure pertaining to a change of matrimonial regime and, finally, the modifications to the legal regime of partnership of acquests.
The author points out, in the introduction, that the reform introduced by Bill 89 is limited to one of the nine Books that the new Civil Code of Québec will have, and that even in this Second Book only 151 articles are in force.
He then studies the contribution of the spouses to the needs of the family as regulated by the new provisions: the mutual obligation to contribute is now imposed by law. The autor regrets that the new Code restricts the concept of contribution in the form of work to household work. He underlines that the solidarité aimed at by the new provisions may be jeopardized by the continued application of rules from the present Civil Code of Lower Canada.
As for the protection of the family residence, the author indicates how this protection is in some cases very limited and questions the efficiency of the formalities required. He also regrets that the new provisions concerning the fate of the family residence at the end of the cohabitation have not been put in force yet.
Finally, he criticizes the provisions concerning judicial intervention in family matters.
In adopting Bill 89, the National Assembly, while retaining most of the wording of the rules proposed by the Civil Code Revision Office, has changed their order and arrangement. This may entail substantive alterations.
The first part of this paper shows that, on a first reading at least, the new provisions display some consistency.
The terms « legitimacy » and « legitimate » are no longer used; children are treated alike, especially as regards the manner of proof whether they be born from wedlock or not.
Maternity and paternity may now be proved by similar means. The various modes of proof are now hierarchically listed : first come acts of birth, followed in sequence of subsidiarity by possession of status, presumption as to the husband's paternity, and recognition. The traditional presumption is therefore significantly downgraded.
In litigated cases, the action to disavow paternity is now open not only to the mother's husband, but also to the mother herself. Status may be challenged and a different one may be sought whenever the act of birth and possession of status are not congruent. Biological truth is given precedence over the protection of legitimacy
In the second part of the paper, however, some inconsistencies in the new provisions are brought out. They relate mainly to two issues.
The new provisions purportedly make no distinction between the proof of maternity and that of paternity. Yet, while maternity may be proved directly, the proof of paternity must remain somewhat uncertain, hence the use of presumptions. Most useful among these is the presumption as to the husband's paternity : yet the new provisions confine it to a very subsidiary role. According to the new scheme of rules, it is questionable whether anyone other than the mother's husband may rely on them to disavow paternity when his name appears on the act of birth.
The new provisions also purport to abandon the concept of legitimacy. This, it might be claimed, entails the abandonment of marriage itself. Yet, not only does the new Code preserve marriage, but it also denies recognition to the union de fait. Neither have the presumption as to the husband's paternity, or the disavowal of children, been eradicated from the new provisions.
The paper concludes by foreseeing many difficulties in the application of the new rules as to the proof of paternal filiation.
The law respecting nuclear energy has to date been the subject of relatively few studies in Canada. Considering, however, the growing importance of nuclear energy as a new or additional form of energy, besides oil, gas, coal and hydroelectric power, and on the other hand, the increase in public concern about the possible consequences of the nuclear option, especially on health and the environment, this area of law is undoubtedly bound to experience a major development.
The purpose of the present article is to study existing federal legislation on the matter, as well as its effects on certain provincial jurisdictions, more particularly in Quebec.
The author, after recalling certain technical data concerning components and functions of nuclear reactors, proceeds to analyse the main intervenors in the nuclear field, as contemplated by the Atomic Energy Control Act. One cannot help but acknowledge that the Atomic Energy Control Board, by means of its important supervisory and regulatory powers, intervenes at all stages of the nuclear cycle.
The author also studies the constitutional basis for the federal intervention in this field of activity. After eliminating the national defence power, the national dimension theory and the emergency power as possible alternatives, he concludes that while Parliament may perhaps invoke its residuary power, its declaratory power appears as the surest constitutional basis for asserting its legislative authority over that particular matter.
In the last part of the article, the author attempts to emphasize the effects of federal intervention on provincial property rights over uranium mines, and on provincial jurisdictions over labour relations, health and safety at the workplace and environmental protection. This analysis points out that provincial legislative authority over the management and development of their natural resources is not only inapplicable in respect of uranium, but that their property rights over uranium mines are rather precarious. It seems clear, further, that jurisdiction over labour relations within nuclear undertakings lies exclusively with the federal authority. One could argue that such is also the case with those aspects of nuclear undertakings which are connected with workers' health and safety as well as environmental protection, since those matters are intimately linked with the control of atomic energy.
Two main conclusions can be drawn from this study. Firstly, it appears certain that Parliament, in legislating as it did, intended to regulate the whole nuclear energy cycle, from the extraction of uranium ore to the ultimate disposal of nuclear waste. Secondly, that authority could hardly be challenged by provinces or any other interested party, at least on constitutional grounds.
This article is a comparison of the use of extrinsic materials by the courts of Canada and of the United States in the interpretation of statutes. The author points out that in the United States the courts have reached the point where just about everything is admissible — particularly legislative debates, committee hearings and reports — but that in Canada the use of extrinsic materials is limited to the determination of the constitutionality of a law or statute.
Although the courts of Canada are becoming more and more liberal in the use of extrinsic materials, the use of legislative debates is still not generally permitted even though they were used by one Justice of the Supreme Court of Canada in the Anti-Inflation Act Reference. The author wonders how long it will be before the Supreme Court of Canada will abandon the little that is left of the English tradition and permit the use of extrinsic materials not only in the determination of the constitutionality of a statute, but also in its interpretation.
Collaboration between different business enterprises has become a must in our days of financial, technical and commercial complexity. It is highly encouraged by governments and businessmen. The traditional legal techniques known and frequently used in Canada appear however to be inadequate in some cases.
The French legislator has innovated in the field by creating, in 1967, the legal framework of the Groupement d'intérêt économique (G.I.E.) The G.I.E. is an institution that has the separate legal entity of the corporation while maintaining the joint, several and illimited liability of the partners. The G.I.E. is all the way neutral. It is not aimed to generate direct profits for itself or the partners but allows the involved partners to have a better overall performance.
Since 1967, over 9000 G.I.E. have been created in France to cover fields as different as the Airbus joint venture, communal maintenance services, research publicity or marketing department, buying or export offices, etc.
This article, written by a leading academic, discusses the different legal aspect of the G.I.E. and explains the pros and cons of the institution.
The office of special prothonotary was created in 1975 by an amendment to the Code of Civil Procedure. The main purpose of the change was to ease the administration of justice before the courts. For this reason, the special prothonotary received many assignments which were reserved until then to a judge sitting in chambers and even to the court itself.
Such transfer of duties and powers may conflict with section 96 of the BNA Act, which acts as a bar to prevent the withdrawal of judicial functions from a superior, county or district court.
This paper deals with the interferences between various sections of the Code of Civil Procedure and section 96 of the BNA Act.
The first part of the paper deals with the approach adopted by the courts. The true test, according to the case-law, is to determine the nature of the function involved. Since only judicial functions are protected by section 96, it is intravires the Legislature of Quebec to confer on a board or tribunal administrative or ministerial powers.
If the transfer involves judicial functions, the courts will use the test adopted by the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works and by Sir Lyman Duff in In re Adoption Act, and examine whether the transferee is analogous to a superior, district or county court.
The courts will also have to apply the « 1867 statute books test » : was the particular function conferred to the prothonotary before 1867 ?
If the results of each of the two tests are affirmative, then the function is one protected by section 96 of the BNA Act and its transfer is ultra vires the provincial Legislature.
If the results are negative, the courts will examine if the provisions involved have the effect of vesting in the special prothonotary the powers of a superior court judge. If the courts conclude that it is so, then, the assignment is ultra vires the powers of the provincial Legislature.
The second part deals with each of the assignments transferred to the special prothonotary. These are threefold in nature:
1. Actions by default to appear or by default to plead under article 195 C.C.P. ;
2. Jurisdiction under article 44.1(1) C.C.P. ;
3. Interlocutory or incidental proceedings, contested or not, but, if so, with the consent of the parties.
The paper concludes that most of the provisions dealing with the duties and powers of the special prothonotary are unconstitutional
The principles that an Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick would incorporate in the laws would be better put in the preamble to a constitution, because of their symbolic and educational value. They comprise two possible fundamental protections : the first is protection against discrimination (or the entrenchment of formal equality) ; the second is protection against assimilation (or resultant equality). It is this second objective which stresses the need for the recognition of collective rights in New Brunswick, such as the right to distinct social, educational and cultural institutions and, by implication, the need for the most advanced form of autonomy possible for each distinct linguistic community.
One may wonder whether the Act gives the courts of New Brunswick a clear enough indication of the objectives of the Legislature to allow them to put aside the restrictive concept of equality developed in the interpretation of human rights legislation in Canada ?
It would seem that the preamble to the Act limits its purpose to a declaration of principle. This legislative intent is best demonstrated by the fact that no section giving a right of action to citizens is included. The Act also has some very important limitations that result from various difficulties of interpretation. These difficulties are enhanced by the fact that the Act itself is not constitutional in nature.
Section 1 borrows its language from Section 2 of the Official Languages Act of Canada, this section having been interpreted in a positive but uncertain way in Air Canada v. Joyal. Given the fact that the purpose of the Act, as set out in the preamble, is to create a set of political principles for the government of New Brunswick, it is difficult to see where it could be given a wider interpretation than the Canadian Bill of Rights with regard to the term « equality ». Whatever success was obtained in the courts has depended on the fact that the rights set out were in each instance very clear.
Section 2 is the most difficult to understand because it gives no indication as to the means through which the government of New Brunswick is to ensure equality between the linguistic communities. The reference to distinct institutions is extremely uncertain and could only be given some legal force if the courts were to recognize that they have the duty to determine the true meaning of the section in a discretionary manner. But here the Act does not provide for any sanction and reflects the intention of creating declaratory legislation only.
Section 3 is more or less a declaration of intent.
The problem raised by the adoption of Acts of a declaratory nature was raised last year in the Forest case. The difficulty is that the declaratory judgment does not generally constitute an order given to the government or the Legislature to act in a specific way. In the United States, the Courts of Equity found that they could take into consideration the common interest in deciding whether there were obstacles to a mandatory order resulting from the application of declaratory legislation. In Canada, the courts have been very timid.
One might ask whether the Act is likely to bring about a better understanding between the two linguistic communities of New Brunswick. Politically, it is obvious that the Act will not provide a true framework for political change. Legally, it can be said without doubt that the Act will not create any rights or bring about an era of judicial interventionism. However, even an implicit adoption of the concept of collective rights could mark a turning point in the relationship between the two linguistic communities in New Brunswick.
Cet article porte sur la vie et l'autobiographie du juge William O. Douglas de la Cour suprême des États-Unis.
Le juge Douglas fut successivement, pendant sa longue carrière, professeur de droit, membre, puis président de la Securities and Exchange Commission et juge de la Cour suprême où il siégea plus longtemps qu'aucune autre personne. Il exerça une influence considérable sur le développement du droit constitutionnel américain.
Botaniste amateur, coureur des bois, écrivain et voyageur dans le monde entier, ses intérêts dépassaient de loin le droit. Les deux volumes de son autobiographie racontent les événements de sa vie pendant laquelle il connut aussi bien la pire des pauvretés que le plus fantastique des succès.