Bill 91, An Act establishing the Unified Family Tribunal within the Court of Québec, also contentiously introduces mandatory mediation for parents in civil or parental unions, judicial conciliation if mediation fails, and summary hearings to be held on the same day if conciliation efforts are unsuccessful.
But family law pundits are from impressed by the proposed legislation as it is weighed down by far too many glaring gaps that have yet to be addressed.
Marie Annik Walsh, Dunton Rainville
The proposed legislation follows on the heels of significant family law reforms introduced by Quebec Justice Minister Simon Jolin-Barrette in recent years. A new legal framework, entitled parental unions, was enacted last year for common-law couples who become parents after June 2025, entrusting them with new rights and obligations while granting them some protections accorded to married couples. In 2023 Quebec passed Bill 12 that reformed the law on filiation, recognized and regulated surrogacy, and introduced provisions aimed at protecting children born as a result of sexual assault.
The centrepiece of Bill 91, widely expected to be the final chapter of Quebec’s family law reforms, is the Unified Family Tribunal which will be created within the Court of Quebec, a provincial court. The new tribunal would have, “to the exclusion of the Superior Court,” jurisdiction to hear applications regarding parental union, civil union and the filiation of a child born of a parental project involving surrogacy. It would also have exclusive jurisdiction to hear and determine applications relating to civil union or parental union concerning child custody, child or spousal support, the division of the family or parental union patrimony and the protection of the family residence.
By Jolin-Barrette’s admission, the new integrated structure is but a “first step” towards increasing its “autonomy over family law, which is private law, civil law, and which must come under Quebec’s jurisdiction.”
But even with the creation of the Unified Family Tribunal, Quebec families will still have to navigate between the Court of Quebec and Superior Court, point out family law experts. Superior Court still has exclusive jurisdiction over divorce, including related claims such as child support, access and custody, and division of property. And the Court of Quebec will still handle cases involving youth protection, adoption and criminal matters involving family, domestic or sexual violence.
“It's not a unified court as we know it in other Canadian provinces because the Unified Family Tribunal will be able to deal with issues that concern everyone except married or divorced people,” noted Tétrault. “So we're going to end up with courts for married people, children whose parents are married, and on the other side, courts for common-law spouses and spouses in a parental union. So it's not really a unified court. There should have been constitutional negotiations, but there weren't any.”
Unified Family Courts have existed in Canada since the 1970s. These specialized courts take a comprehensive approach to resolve family disputes by bringing all family law issues under one roof with specialized expertise and support services, explained Costanzo, a family law professor at the Université du Québec à Montréal. It is a model that is more accessible, more efficient, and better equipped to respond to the needs of families, added Costanzo. As of 2024, there were 57 Unified Family Courts across the country. But as points out a 2024 report by The Advocates’ Society, British Columbia, Alberta and Quebec do not have such courts while “entire regions” of Saskatchewan, Manitoba, Ontario and Newfoundland have yet to be served by these Unified Family Courts.
This model calls for a collaborative approach, notes Costanzo. Usually under this framework, provincial governments establish the court structure and are responsible for the administrative costs associated with Unified Family Courts while the federal government appoints and pays the judges. But there is flexibility under this structure. The Quebec government could negotiate an administrative agreement with Ottawa to appoint judges on the joint recommendation of the provincial and federal governments, said Costanzo. “If governments agreed to pool their resources, to appoint judges in a collaborative manner, to create an institution that moves away strictly from constitutional rule, from an administrative perspective of collaboration, this is something that could perhaps be done again,” as was done in Ontario, said Costanzo.
Université de Montréal constitutional law professor Stéphane Beaulac concurs. He points out that Quebec has already reached accords with Ottawa in immigration, amongst other matters. The Canada-Quebec Accord relating to Immigration and Temporary Admission of Aliens gives Quebec substantial control over immigration selection. “Immigration is a shared jurisdiction, and Quebec, unlike the other provinces, is very interested in controlling as many aspects of immigration as possible,” said Beaulac. An administrative agreement over family law matters is a “viable option” Quebec could explore, added Beaulac.
There is another avenue Quebec could use but its chances of success are limited. The Quebec government could try to unilaterally amend the Canadian Constitution to enshrine the primacy of Quebec law in family law matters. In 2022 when Quebec enacted an Act respecting French, the Official and Common Language of Quebec, it used the s. 45 Amending Procedure, which allows provincial legislatures to amend the constitution of the province, to enshrine in the Constitution Act, 1867 that Quebecers “form a nation” and that “French is the only official language of Quebec and the common language of the Quebec nation.”
But Beaulac points out that the unilateral amendment has limited impact. “The fact that there is now a constitutional affirmation of the French language as an official language has no impact on the interpretation, for example, that will be given to the language rights protected by the Canadian Charter,” noted Beaulac. The same would hold true if Quebec decides to use s. 45 to unilaterally amend the Constitution to affirm that Quebec has primacy in family law matters. “Unifying family law is very commendable, but the one hundred dollar question is can Quebec use s. 45 to do so — and the short answer is no because it has nothing to do with the structure of governance, which is exclusively a provincial responsibility,” said Beaulac.
But that doesn’t mean that Quebec will not forge ahead, added Beaulac, and try to do it nonetheless as they have with the controversial Bill 21 (which bans the use of religious symbols by civil service employees) and Bill 96, and place the “burden on the courts” to resolve the matter.
The Quebec government appears for now to have settled on an “audacious” approach, said Costanzo. It fully intends to create the institution of the Unified Family Tribunal first, and then negotiate with the federal government, said Costanzo. “If negotiations succeed, so much the better, but to create the Unified Family Tribunal within the Court of Quebec, to eventually have full jurisdiction, I find it hard to see how that can happen if there is no constitutional negotiation,” added Costanzo.
The Unified Family Tribunal as outlined by Bill 91 has other serious, practical shortcomings. The Quebec justice system, already under financial strain, will need to come up with more monies in order for the specialized tribunal to adhere to best practices, noted Costanzo. “It’s important to invest, to offer support, to offer guidance, to offer information, to make these services available,” said Costanzo. But under Bill 91, “we don't see it, and this conforms to one of the best practices deployed elsewhere in Canada.”
Even though the creation of the Unified Family Tribunal will undoubtedly increase the volume of cases which in turn will spur the need for new judges and personnel, Quebec is certainly not going to invest new monies, categorically said Tétrault. The telltale signs are evident. Provincial court judges go without assistants “for months and months and months because there is no money, because we’re not looking to replace people,” said Tétrault, who will be co-hosting a training workshop this June for provincial court judges on the new tribunal as well as on parental unions. More recently still, the Quebec government put an end to a program that offered specialized legal representation for victims of intimate partner violence, even though it was highly regarded.
Another failing with Bill 91 is that it imposes mediation, said Walsh. Parents with dependent children will be entitled to five hours of free mediation while those without dependent children three hours. Not all cases need to go court, said Jolin-Barrette recently at a press conference about the proposed legislation. More than 85 per cent of parents who start the mediation process, a cornerstone of the Quebec government’s efforts to disgorge the courts, reach an agreement, he added. The bill does stipulate that there are exemptions to this obligation, notably in cases involving family, spousal or sexual violence. But that still puts victims of violence in a tight spot, said Walsh. “You can’t force people who have experienced violence to have to say why they don’t want to go to mediation,” said Walsh. Besides, just the notion of obligatory mediation runs counter to the nature of alternative dispute resolution. “It’s a bit like therapy; there has to be a minimum of good faith,” said Walsh, who believes this stipulation may even be the subject of a legal challenge.
While the government is promoting mediation as a way to curtail delays plaguing the justice system, there are not nearly enough accredited family mediators to meet the demand. The key reason behind the disinterest of legal professionals is the paltry remuneration offered by the Quebec government, which went up two years ago to $130 an hour from $110. In fiscal 2023-2024, there were only 637 accredited in family mediation, barely 80 more than the preceding year. “When you look at the volume of cases in family law, that’s very few mediators,” and fewer still in outlying regions, remarked Tétrault. The same holds true for Quebec’s big cities. “Mediators who still take on subsidized cases are a dime a dozen, there are fewer and fewer of them,” said Walsh.
Under Bill 91, if parents are unable to reach an agreement in mediation, they may at any time before the trial seek conciliation before a judge. If the parties reach an agreement, the judge can make the agreement official. If they do not, a summary hearing will be held on the same day by the same judge who held the conciliatory efforts, and a judgment will be rendered no later than 30 days after the hearing. “It's part of the trend for judges to become managing judges,” said Costanzo “And it's also part of a tendency to want to cut as much as possible from proceedings, from the time it might take.”
This whole process makes little sense to family law experts. In settlement cases, if conciliation before a judge fails to draw an accord, the matter is referred to another judge, said Walsh. “Conciliation is supposed to take place in a completely confidential bubble to allow the parties to express their true positions, with the certainty that all this won't end up in court afterwards,” explained Walsh. “This process under Bill 91 doesn't work. It can't be the same judge. It's like he becomes a mediator, and then in the afternoon, he becomes an arbitrator.”
Just as disconcerting for family lawyers is the standing the Youth Division of the Court of Quebec will have within the new Unified Family Tribunal. Under Bill 91, it is “proposed” that the judges assigned to the Civil Division and Youth Division sit on the Unified Family Tribunal, said Cathy Chenard, a spokesperson with the Quebec Ministry of Justice. “Youth protection cases will be heard by the Unified Family Tribunal, regardless of the parents' marital status,” added Chenard. The Youth Division will continue to hear youth criminal justice cases and proceedings under the Code of Penal Procedure.
Tétrault, however, believes that the Youth Division should be “distinct,” and not be a part of the Unified Family Court because the “criteria for applying the law” are “completely different” in the Youth Division compared to other divisions of the Court of Quebec. “Lawyers are concerned because they don't want Youth Court judges making decisions about child custody, because the criteria are completely different,” said Tétrault. “When you go before the Youth Court, the child's safety and development must be compromised. This is not a criterion for awarding custody to one parent or another.”
On top of that, the rules of evidence and procedure that govern the Youth Division of the Court of Quebec are “very different” from other divisions of the Court of Quebec, pointed out Walsh. “This is very important because it affects people's rights,” added Walsh. “At the moment, the Court of Quebec, the Youth Division, is completely overwhelmed. I don't see how they're going to incorporate other, additional cases without appointing lots of judges.”
But Bill 91 does not change the rules of evidence applicable to matters that will be heard by the Unified Family Tribunal, said Chenard. The confidentiality rules applicable to youth protection cases will continue to apply, added Chenard.
The Court of Quebec as well as the Quebec Human Rights Commission declined to comment.
Three days of public hearings over Bill 91 are scheduled to held at the National Assembly, beginning on March 20.