Domestic Contracts and Family Law Exceptionalism: An Historical Perspective.

• Author: Taylor, Luke
• Position: Canada, United Kingdom

Introduction I. The Exceptional Legal Family II. Exceptionalism in English Law III. Transplanting Exceptionalism into Canadian Law IV. From Pelech to Rick, or Contract to Exceptionalism A. Separation Agreements as Ordinary Contracts B. Seeds of Exceptionalism C. Exceptionalism Recognized D. A Tentative Extension E. Exceptionalism Confirmed (and Extended) Conclusion Introduction

Since at least the late 1980s, the enforceability of domestic contracts in Canadian common law has tended to be analyzed in terms of a formal equality/substantive fairness dichotomy. On the one side stand judges and scholars who view domestic contracts, in particular separation agreements, as tantamount to ordinary commercial contracts. Those on this side of the dichotomy hold that the goal of equality for women is best served by upholding private ordering and treating domestic contracts in a strict, formalistic manner. On the other side, one finds judges and scholars who view domestic contracts as inherently distinct from ordinary contracts owing to their nexus with the family and its distinctive personal relations. From this perspective, judicial intervention into the substance of domestic contracts may advance the goal of fairness in family law dispute resolution by ensuring that parties, particularly women, are not disadvantaged by bargaining practices falling short of ordinary common law unconscionability.

This article takes seriously this narrative of competing interests and ideologies, but it suggests that our understanding of the common law of domestic contracts in Canada can be enriched by adding an historical lens to existing analyses. (1) Specifically, this article argues that the Supreme Court of Canada's decision in the Pelech v. Pelech trilogy (2)--usually read as the high-water mark of the formal equality approach--was in fact a continuation of long-standing approaches to separation agreements in English and Canadian law. This historical treatment of separation agreements, and the result in Pelech, cuts against broader trends in judicial and scholarly approaches to agreements touching upon the family. As this article shows, judges and scholars in England in the nineteenth and twentieth centuries created the field of family law partly by emphasizing its difference from the consolidating body of principles we now know as the law of contract. In particular, marriage came to be seen as a form of status, not contract, and most agreements touching upon the family were accordingly treated as exceptional species of contract owing to their familial nature. The exception to this emerging family law exceptionalism (3) was separation agreements, which judges and scholars continued to treat as akin to ordinary contracts, with a standard for variation premised on common law unconscionability. This English conceptualization of family law, marriage, and domestic contracts carried over into Canadian common law. I argue here that Pelech was as much the culmination of this long-standing historical difference between the (exceptional) approach to most family agreements and the (contractual) approach to separation agreements as it was an effort by the Court to instantiate a model of formal equality by injecting the ideology of contract into family law. (4) From this perspective, the retreat from Pelech in the subsequent Supreme Court of Canada cases of Miglin v. Miglin, (5) Hartshorne v. Hartshorne, (6) * and Rick v. Brandsema1 was, therefore, also a move away from the historically distinctive approach to separation agreements, and the continuation of much older processes of exceptionalism within family law. Put differently, the move away from deference to private ordering and toward a model premised on substantive fairness and greater scope for judicial intervention was also an extension of broader trends within judicial and scholarly thought concerning the legal treatment of the family stretching back to the nineteenth century.

By historicizing Pelech and subsequent cases, this article deepens our understanding of the broader context of the law of separation agreements and family law in Canada. In so doing, the article contributes to the genealogical dimension of the family law exceptionalism project outlined by Janet Halley and Kerry Rittich. Part I provides a brief discussion of family law exceptionalism and its genealogical project. To that end, Part I considers the emergence in the nineteenth and early twentieth centuries of legal visions of the family as an exceptional domain of regulation standing in opposition to the law of contract. In particular, it emphasizes how marriage came to be recharacterized in terms of status owing to its perceived public importance and attendant suite of state-imposed non-modifiable rights and obligations. Part II then proceeds to show how this distinctive approach to family relations played out in the sphere of domestic contracts within English law. It shows that while pre- and post-nuptial agreements (marriage contracts) were treated as void against public policy, separation agreements were treated as not only valid but tantamount to ordinary commercial agreements. (8) Thus, separation agreements were an outlier when considered against much of the rest of what was becoming family law. Part III addresses the transplantation of this English approach to separation agreements and marriage contracts into Canadian common law, (9) culminating in the influential Ontario Court of Appeal case of Farquar v. Farquar, (10) which played an important role in the formulation of the approach taken in Pelech. Part IV then situates Pelech within this longer historical narrative, showing that the decision was both a contemporary effort to achieve formal equality for women by upholding private agreements, and the continuation of a long-standing and distinctive approach to separation agreements within English and Canadian law. The article then considers the move toward a more interventionist approach in subsequent cases, most notably Miglin and Rick, and suggests that the substantive fairness model in these more recent cases brought the law of separation agreements into conformity with the more general and much older exceptionalism of agreements touching upon the family. The discussion of these cases also considers prominent commentary, establishes the terms upon which these cases have generally been considered, and distinguishes the historical analysis here from the formal equality/substantive fairness binary.

1. The Exceptional Legal Family

   The family law exceptionalism project as defined by Halley and Rittich comprises both a genealogical dimension and a distributive project focused on the economic family. (11) I am concerned here with the former, genealogical aspect: the emergence of family law exceptionalism through the process of inventing family law via the disaggregation of the household and the bifurcation of work and family life. In Halley and Rittich's words, "the legal relations governing employment, even where they retained vestiges of the master servant relationship, were transmuted and reframed within the law of contract. Only the husband and wife and the parent and child remained in the newly private, intimate, and affective space of the home." (12) Hence, the term "economic" shed its etymological basis in the household "and became proper to the market," (13) while "family" ceased to refer to "lineage and the household and became a term for the nuclear, affective family." (14) In other words, family law and the law of contract came to be viewed as oppositional; the former housed relations defined by or giving rise to forms of status, while the latter came to be defined as "the domain of will." (15)

   As I have argued elsewhere, the idea of the family as an exceptional domain of regulation, and the corresponding invention of English family law, hinged on two interrelated shifts in legal thought. (16) One movement involved the staged extrusion of productive work relations (in the narrow sense of work for pay) from the household. This process involved recharacterizing most forms of work as market-based (and hence public) activities exterior to the (private) family, and locating those relations within an increasingly free-standing law of master and servant. In turn, that body of law became the general legal template for the regulation of wage labour in the eighteenth and nineteenth centuries through an interplay of legislation, case law, and scholarly texts. (17) Certain household-based forms of work, notably domestic service and apprenticeship, remained nested within the legal household--or the law of domestic relations, as it became known--until the twentieth century when they too were shifted into the domain of work. (18) The final step in this process was the recharacterization of the law of master and servant as the law of employment--a move that responded to the late nineteenth century removal of criminal penalties for workers' breach of contract. (19) This evolution also resulted in some scholars making a further (questionable) (20) move toward characterizing employment law as a specialized branch of the law of contract. (21)

   Running in parallel with these shifts in the legal conceptualization and placement of work relations was a newfound emphasis on the public importance of, and state involvement in, marriage. (22) There was also a corresponding elevation of the husband-wife relation to the forefront of domestic relations, and eventually family law. This movement occurred in part through a structural repositioning of the husband-wife relation at the front of the various domestic relations. It also involved a more complex effort by scholars to distinguish the emerging law of contract (which was only consolidated into an abstract form modeled on commercial relations and an ideological commitment to the market-based realization of individual wills in the second half of the nineteenth century)...