"This bill creates an institution, the civil union, for couples of the opposite or the same sex who wish to make a public commitment to live together as a couple and to uphold the rights and obligations stemming from such status."
From the Introductory notes to Bill 84.

Bill 84 states that the Quebec Marriage Law, Article 365 of the Civil Code, which now says marriage is "between a man and a woman", will be modified to read that marriage is "between two persons".

While it does grant all those rights and responsibilities of marriage in Quebec provincial law to civil unioned same sex couples, it can not offer "marriage". Thus, the legal basis for a Charter challenge based on discrimination in marriage for same sex couples remains valid.

Bill 84 is a step forward, but it is not the answer to the federal marriage challenges.

An introduction to Civil Union legislation, Bill 84
presented to the National Assembly by the Government of Quebec
April 25, 2021

Bill 84, "An Act instituting civil unions and establishing new rules of filiation", presently being considered by the National Assembly of Quebec, represents the most comprehensive Canadian attempt to legislate a separate conjugal regime for same sex couples to date. Unlike the only other legislated regime of this type, partner registration in Nova Scotia, the proposed Civil Union attempts to include all of the "effects of marriage" that are within provincial jurisdiction. Since marriage and divorce are controlled by the federal government this bill does not address these issues.
(NB: "Filiation" is the technical term in civil law for the legally recognized relationship between parent and child.

In the introductory notes to the English version of Bill 84, we find the following description:

"This bill creates an institution, the civil union, for couples of the opposite or the same sex who wish to make a public commitment to live together as a couple and to uphold the rights and obligations stemming from such status."

The introduction goes on to describe the changes made to the existing articles of the Civil Code of Quebec, the body of law which governs private relations and property rights in Quebec's civil law system. In addition:

"the bill amends the Civil Code to add new assisted procreation rules and clarify adoption rules as regards same-sex parents".

To be absolutely clear, the introduction states:

"The bill also amends the Civil Code and other legislation to formalize recognition of the new status of civil union spouses, who will have the same rights and obligations as married couples."

A description of Bill 84

The English version of Bill 84 is 36 pages long, with 17,500 words; it legislates changes and additions to 54 different laws and, principally, the Civil Code composed of thousands of articles. The bill is in "omnibus" form, ie. it lists detailed changes or additions to the texts of existing laws. For example, Bill 84 states that the Québec Marriage Law, Article 365 of the Civil Code, which now says marriage is "between a man and a woman", will be modified to read that marriage is "between two persons".

Particularly important in the writing of Bill 84, and in response to the suggestions of the President of La Table de concertation de gais et lesbiennes du Québec, Me Pierre Valois, is the terminology used to describe the various forms of recognized conjugal relations in Quebec. In the English version, the word "spouse" is used (a long time demand of equal marriage activists). Henceforth, there are three kinds of spouses in Quebec: married spouses, civil union spouses and "de facto" spouses (something like "common law spouses" but not quite the same). In the French version, the term "conjoint-e", a more modern version of the terms "époux" or "épouse", is used. This guarantees equal footing for all couples in common language.

Contents of Bill 84

Bill 84 attempts to create parallel rights and obligations for committed conjugal relationships, either married or civil unioned. The Minister of Justice of Quebec, Me Paul Bégin, took very seriously the recommendations of the member groups of La Coalition pour la reconnaissance des conjointes et conjoints du même sexe and, in the final version of the bill presented to the National Assembly, we find the following inclusions:

• Civil union will be accessible to both heterosexual and homosexual couples
  
  

• The right to "filiation" is granted to same sex couples
  
  

• In situations of assisted procreation, the spouse of a lesbian mother is entitled to be entered on the birth certificate of the child
  
  

• The rules for adoption are modified to be clear that same sex couples may adopt as a couple
  
  

• The right to consent to medical care for a spouse who is not capable of making his/her own medical decisions is now offered to all spouses, no matter what the regime (previously, the order of priority was married spouse, family, others, ie. unmarried spouses)
  
  

• Since the divorce law is federal and does not recognize civil union couples, Bill 84 offers an alternative means of dissolving the legal relationship via mediation by a "notaire" (a special kind of lawyer in civil law); however, for civil union couples who have children, or where there is a serious difference of opinion, recourse to the courts is obligatory.

Grey areas in the civil union legislation

The complete reading of the new bill is not over and, because of the level of detail, thorough verification will be necessary. At present, La Coalition is doing that work. Moreover, only once the law has been passed, will the community be able to measure the impact it has on Canadian immigration laws and on the special immigration powers granted by the federal government to Quebec.

In addition, the vast collection of social legislation in Quebec must be verified to see that it conforms to the legal philosophy contained in Bill 84.

Political/judical perspectives

Bill 84 does not address marriage itself which, under the Canadian Constitution, is federal. While it does grant all those rights and responsibilities of marriage in Quebec provincial law to civil unioned same sex couples, it can not offer "marriage". Thus, the legal basis for a Charter challenge based on discrimination in marriage for same sex couples remains valid. It does, however, eliminate a multitude of legal discriminations in everyday life for same sex couples who have formed a civil union. And, unlike other partner registration schemes, it offers the right to a public ceremony of the union, a first for homosexual couples (outside of marriage which exists [in Ontario via the publication of banns and] in Holland which has both civil and religious marriage). This means that any officer of the court licensed to marry couples may also, if so desired, union couples. (In Quebec, the clergy of established churches can be licensed to marry couples.)

However, the fact that both heterosexual and homosexual couples may avail themselves of civil union does not change the discriminatory nature of the federal marriage law. Same sex couples are still denied the choice of marriage and this must be resolved at the federal, not the provincial, level. Thus, the Quebec lawsuit, now awaiting the decision of the court, will continue.

One aspect of that court case will be eliminated when Bill 84 is passed. Presently, the plaintiffs request that the judge rule on the discriminatory nature of Article 365 of the Civil Code. Bill 84 revises Article 365 to use gender neutral language.

It should also be noted that, in describing the new law, the influential Montreal newspaper, Le Devoir, described it as the preferred "model" for the Canadian government to resolve the discrimination inherent in the federal marriage law and all that is connected to it. In fact, the Attorney General of Canada used this argument in the Hendricks-LeBoeuf case, saying that, should Quebec adopt such a law, the major elements of real discrimination in conjugal regimes would be resolved. This assertion will probably not be addressed in the first decision in the Hendricks-LeBoeuf case because Civil Union will not yet be the law when the decision comes down. So, it appears that the legal grounds are being prepared for the appeal.

What effect this legislation will have nationally remains to be seen. If the federal government's policy will be to use this "model" as a "national solution" that would probably mean a province-by-province legal and political battle to create similar (but never quite the same) legislation in each province. A daunting task. And, should such a campaign be successful, same sex couples would still have no Canadian standard conjugal regime; inter-provincial movement would bring up complicated questions of rights and responsibilities, particularly in families with children. And, of course, the long sought after equality of treatment under the law across Canada would not be achieved.

April 30, 2021
Montéal, Quebec