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Law and Economics in Europe and the U.S. pp 135–154Cite as

Two Treatments of Pluralism: Canada and the United States

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Part of the book series: The European Heritage in Economics and the Social Sciences ((EHES,volume 18))

Abstract

Canada and the United States, while similar in many ways, diverge substantially when it comes to family law. Canada’s marriage and divorce law is national, while the U.S. family law is largely governed by state law. This makes rules in the United States heterogeneous compared to those in Canada, and thus easier to tailor to the preferences of people living in the various states. A more important difference between the two treatments is that Canada supports a diversity of relationships positively (through providing for financial assistance and legal recognition) and through its public policy. The United States, while tolerating most family forms, formally recognizes only marriage and adoption, leaving adults in heterodox relationships to private support or contract. In both these North American jurisdictions, people live in a variety of family forms. While most heterosexual couples marry, some do not. This paper considers the effects of the differing policies on young people in two minority groups, the Québécois in Canada and African Americans in the United States, both of which groups de facto eschew formal marriage. Both are relatively impoverished groups, and both historically have suffered discrimination and been underrepresented among the national power elites. Yet despite these surface differences, the two groups diverge in terms of the mental health of their youth, and quite notably in terms of the rate at which they commit suicide. This chapter will attempt to portray these similarities and differences as well as propose several reasons for the differing results. Most of my interactions with Jüergen Backhaus over the past 20 years stemmed from his editorship of the European Journal of Law and Economics. Some of these involved articles that were for some reason too controversial to find ready acceptance elsewhere.

Fritz Duda Family Professor Of Law, University of Notre Dame. Thanks are due to Hazel Thompson-Ahye and the Caribbean Regional Meeting of the International Society for Family Law as well as attendees of my keynote address at the Canadian Law and Economics Association meeting in 2010.

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Notes

  1. 1.

    Margaret F. Brinig and Michael V. Alexeev, Fraud in Courtship: Annulment and Divorce, 2 European Journal of Law and Economics 45–63 (1995).

  2. 2.

    Douglas W. Allen and Margaret F. Brinig, Sex, Property Rights and Divorce, 5 European Journal of Law and Economics 211 (1998).

  3. 3.

    Margaret F. Brinig, Equality and Sharing: Views of Households Across the Iron Curtain, 7 European Journal of Law and Economics 55 (1998).

  4. 4.

    Margaret F. Brinig, Family Law, Chap. 4 of the Elgar Companion to Law and Economics (Jüergen Backhaus, ed., 2003).

  5. 5.

    Modernization of Benefits and Obligations Act (S.C. 2000, c. 12). However, the 2013 case of Quebec (Attorney General) v. A., 2013 SCC 5 (2013), in a 5-4 decision, allowed Quebec to maintain its own separate status for what it calls “de facto” couples. While they are allowed some relief under restitutionary principles in egregious situations, and while child custody and support are treated the same way as for dissolving marriages, most property and support regimes are not. They do have access to the substantial federal benefits provided all couples by C-23, and of course may contract between themselves. The majority grounded its reasoning on the decision to recognize the partners’ autonomy and, in part, upon Quebec’s formal legal equality between the sexes.

  6. 6.

    C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes, 38th Parliament - 1st Session (2005). The United States has been recognizing such marriages piecemeal, especially following the Supreme Court case of United States v. Windsor, 670 US—, 133 S.Ct. 2675 (2013).

  7. 7.

    Id. at xxiii.

  8. 8.

    The closest exception that takes into account heterosexual relationships is Washington’s “meretricious relationships” law. A summary of the law treating unmarried couples in the United States can be found in the American Law Institute, Principles of Family Dissolution, Reporter’s Notes to Chap. 6: Analysis and Recommendations (2002), at 914–16, and Comments to § 6.03, id. at 918–19; as well as in Ira Ellman, Paul Kurtz & Elizabeth Scott, Family Law: Cases, Text, Problems 919–82 (5th ed. 2009).

  9. 9.

    The Defense of Marriage Act, Pub.L. 104–199, 110 Stat. 2419, enacted September 21, 1996, 1 U.S.C. § 7 and 28 U.S.C. § 1738C. The Act was overruled by Obergefell v. Hodges, 576 U.S. -- (2015). At least in the United States, recognizing same-sex marriages does not necessarily reflect an adoption of the policy that marriage does not matter. See, e.g., Baskin v. Bogan, 766 F.3d 648, 658–59, 663 (7th Cir. 2014)(stressing advantages of marriage recognition for adopted children).

  10. 10.

    (New York: Broadway, 2001). As the title implies, Waite presented studies showing that married couples, holding other sociodemographic factors constant, perform better than do their single counterparts.

  11. 11.

    The Audacity of Hope: Thoughts on Reclaiming the American Dream (Crown Pub. New York, 2006).

  12. 12.

    Id. at 334.

  13. 13.

    Lawrence v. Texas, 539 U.S. 558 (2003), disallowed criminalization of sexual activities between consenting adults that do not harm others. The Court wrote this would not include bigamous, polygamous, or incestuous relationships, nor would its analysis require same-sex marriage. Obergefell v. Hodges, 576 U.S. -- (2015) held that same-sex couples had a constitutional right to marry.

  14. 14.

    As with all such statistical and demographic studies, there are of course exceptions. Some Québécois and African-Americans do marry; some are wealthy; some have reached the apex of power in their countries (such as Pierre Trudeau and Jean Chrétien in Canada and of course Barack Obama in the United States), and the vast majority of their youth do not commit suicide. On the other side of the coin, some wealthy, married, and privileged Americans and Canadians produce youth with problems, including suicide.

  15. 15.

    That is, about 23 % according to the 2014 Canadian Census. See Statistics Canada Summary Tables, Population by marital status and sex, by province and territory (Quebec, Ontario, Manitoba, Saskatchewan), available at http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/famil01b-eng.htm (March 24, 2015). This shows the population of Canada as 35,540,419, with Quebec’s as 8,214,672.

  16. 16.

    This group is defined for purposes of this paper as those who live in Quebec, speak French, and are white. It therefore does not include Caribbean immigrants to Montreal, who may also speak French, nor French Canadians living in Newfoundland or British Columbia (Arcadians), nor the small Anglophone population (about 10 %) who live in the province. The linguistic breakdown is available at http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo11b-eng.htm (March 24, 2015).

  17. 17.

    See generally Zheng Wu, Economic Circumstances and the Stability of Nonmarital Cohabitation, Cat. 9870, available at http://www.statcan.gc.ca/pub/75f0002m/75f0002m1998010-eng.pdf., at 20. For the relative numbers, see http://www.imfcanada.org/issues/canadian-families-global-context (last visited March 24, 2015). The percentage living in common law couples in Quebec is 31.5 %, and unmarried 16.6 %. For Canada not including Quebec, the percentage living in common law couples is 9.2 %, and unmarried 3.3 %.

  18. 18.

    47.3 %, adding together the two categories of unmarried in footnote 18 found in ZHeng Wu.

  19. 19.

    59.3 %, according to Statistics Canada, Table 102-4506, 2009.

  20. 20.

    http://www12.statcan.gc.ca/census-recensement/2011/as-sa/98-312-x/2011001/tbl/tbl2-eng.cfm (computations are mine, March 24, 2015).

  21. 21.

    France-Pascale Menard, What Makes It Fall Apart? The Determinants of the Dissolution of Marriages and Common Law Unions in Canada, 2 McGill Soc. Rev. 59, 68 & Fig. 1 (2011).

  22. 22.

    Dana Hamplová, Céline Le Bourdais and Évelyne Lapierre-Adamcyk, Is the Cohabitation-Marriage Gap in Mondey Pooling Universal? At 27 and Table 2, available at http://iussp.org/sites/default/files/event_call_for_papers/Money%20management%20(Hamplova%20et%20al).pdf. The assertion about the world is made id at page 3, attributed to Statistics Canada, 2012.

  23. 23.

    Vanier Family Institute, Oct. 26, 2011, Fascinating Families, Four in Ten Marriages End in Divorce.

  24. 24.

    Diana B. Elliott, Kristy Krivakas, Matthew W. Brault and Rose M. Kreider, Historical Marriage Trends from 1890–2010: A Focus on Race Differences, SEHSD Working Paper Number 2012-12 and Fig. 5, available at http://www.census.gov/hhes/socdemo/marriage/data/acs/ElliottetalPAA2012paper.pdf (March 23, 2015)

  25. 25.

    6.5 million couples of all races cohabited in the United States in 2007. America’s Families and Living Arrangements: 2007. The last figures for births appeared in the 2012 Statistical Abstract, Tables 80 and 85. http://www.census.gov/compendia/statab/cats/births_deaths_marriages_divorces.html (March 23, 2015).

  26. 26.

    Marriage and Cohabitation in the United States, Fig. 15, based on the National Survey of Family Growth, Cycle 6 (2002)(including childless couples), Table 18. See comparable numbers from the relatively poor, urban families in the Fragile Families Study, at Robert A. Hummer and Erin R. Hamilton Race and Ethnicity in Fragile Families, 20 Future of Children 113, 119 and Fig. 4 (2010) (showing higher rates of breaking up and lower rates of staying married for African-American couples at 3 and 5 years after the birth of a child, when parents cohabited at the child’s birth). The Fragile Family disruptions are less likely than for childless couples, for “Cohabiting unions in which children are born tend to last longer than those that are childless, but they still remain significantly more unstable than marriages.” Valerie Martin, Céline Le Bourdais & Évelyne Lapierre-Adamcyk, Stepfamily instability in Canada—The impact of family composition and union type, 23 Journal of Family Research 196, 197 (2011).

  27. 27.

    See, e.g., Sara McLanahan and Audrey Berk, Parental Relationships in Fragile Families, 20 The Future of Children 17 (2010).

  28. 28.

    Wendy D. Manning, Pamela Smock and Deborun Majumdar, The Relative Stability of Cohabiting and Marital Unions for Children, 23 Population Research and Policy Review 135, 146 (2004). Note that the terms Black and African-American are used interchangeably in this piece, as they are in the literature and on government websites.

  29. 29.

    Id. at 148 and Table 2.

  30. 30.

    Margaret F. Brinig and Steven L. Nock, The One Size Fits All Family, 49 Santa Clara Law Review 137 (2009).

  31. 31.

    These results are based on regressions from the Panel Survey of Income Dynamics (PSID), Child Development Supplement CDS), 2002–03. Some are reported Id. at 146–47 (text) and 163, Figs. 2 and 3. Others appear in Margaret F. Brinig and Steven L. Nock, Legal Status and Effects on Children, 5 University of St. Thomas Law Journal 548, 579 and Table 10 (2007); or Margaret F. Brinig and Steven L. Nock, How Much Does Legal Status Matter? Adoptions by Kin Caregivers, 36 Family Law Quarterly 449, 473–74 and Tables 2 and 3 (2002–03).

  32. 32.

    Andrea Shaver, Teen Suicide, Statistics Canada BP-236E, available at http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/bp236-e.htm (last visited April 21, 2011). An update does not include a graph but shows that the comparable figures for Canada as a whole in 2011 were, for males 15–24, 8.42 per 100,000 and 42.63 per 100,000 for males 15–24 in Quebec. The population figures for the province were calculated from Population of Quebec, 1971–2014, http://www.stat.gouv.qc.ca/statistiques/population-demographie/structure/index_an.html (March 24, 2015). The suicide rates come from suicideprevention.ca/…/2014/…/Suicide-Rate-Across-Canada-and Provinces 10-14-14.xlsx.

  33. 33.

    Amy H. Cheung and Carolyn Dewa, Canadian Community Health Survey: Major Depressive Disorder and Suicidality in Adolescents, 2 Healthy Policy 76, 82 and Table 1 (2006).

  34. 34.

    See, e.g., Mark Zoccolillo, Frank Vitaro and Richard E. Tremblay, Problem Drug and Alcohol Use in a Community Sample of Adolescents, 38 Journal of the American Academy of Child and Adolescent Psychiatry 900 (1999), showing in a survey of adolescents in Quebec, 62.2 % had drunk alcohol more than given times in their lifetime, and 50 % of both boys and girls drank at least once a week. Id. at 902 and Table 2, while one-third of the boys and a quarter of the girls drank alcohol in the morning.

    In 2008, in a survey of 7–12 graders, the proportion of those reported drinking at least once a month in the previous year was highest in Quebec at 28.5 %, followed by BC at 26.0 %, Atlantic at 18.5 %, Ontario at 16.6 % and lowest in the Prairies at 15.7 %. Quebec also had the highest reported use of tobacco at 42.0 % while Ontario had the lowest at 16.4 %. David Hammond et al., Illicit Drug Use Among Canadian Youth Revue Canadienne de Santé Publique Vol. 102, No. 1, at 10 and Table 4, available at http://davidhammond.ca/wp-content/uploads/2014/12/2011-CJPH-Youth-Substance-Use-Hammond1.pdf.

  35. 35.

    Id. at 83 and Table 2 (2006).

  36. 36.

    Although some statistics data is available for each province, the age breakdown varies and some do not collect it each year. The statistics in Excel form compiled by the Centre for Suicide Prevention can be downloaded from https://suicideinfo.ca/Library/AboutSuicide/Statistics.aspx. Population data for the relevant ages was downloaded from http://www5.statcan.gc.ca/cansim/a26 to calculate the rates.

  37. 37.

    Mounir Samy, Montreal General Hospital, in Teen Suicide (BP-236E) http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/bp236-e.htm 4 of 9.

  38. 38.

    Margaret F. Brinig: Family, Law and Community: Supporting the Covenant (University of Chicago Press, 2010).

  39. 39.

    See Margaret F. Brinig and Nicole Garnett, Catholic Schools and Broken Windows, 9 Journal of Empirical Legal Studies 347 (2012).

  40. 40.

    Amy Cheung, footnote 33 and Table 1 (2002 data).

  41. 41.

    Canadian Tobacco Use Monitoring Survey, http://www.hc-sc.gc.ca/hc-ps/tobac-tabac/research-recherche/stat/_ctums-esutc_prevalence/prevalence-eng.php (1999).

  42. 42.

    Ohio State University, Center for Human Resource Research, National Longitudinal Survey of Youth, 1997 (NLSY97), for which data is available at the Institute for Social Policy Research. http://www.icpsr.umich.edu/icpsrweb/ICPSR/studies/3959/detail. N = 1984. Unfortunately, the comparable data is not available for later years. The (US) General Social Survey in 2006 asked “I am always optimistic about my future.”

  43. 43.

    National Longitudinal Survey of Children and Youth. URL: http://www.statcan.ca/cgi-bin/imdb/p2SV.pl?Function=getSurvey&SDDS=4450&lang=en&db=imdb&dbg=f&adm=8&dis=2. The National Longitudinal Survey of Children and Youth (NLSCY) is a long-term study of Canadian children that follows their development and well-being from birth to early adulthood. The NLSCY began in 1994 and is jointly conducted by Statistics Canada and Human Resources Development Canada. Please note that the publicly available data used here is a synthetic dataset only. (N = 538). More recently, there has been a single question “How do you feel about your life as a whole right now?” asked in 2008, 2009, and 2010 that immediately precedes the Community Health Survey. This is available at select centers in Canada.

  44. 44.

    The precise question in the NLSY97 is R0624200 (NLSY97). “I’m always optimistic about my future.” (AGREE/DISAGREE). Answers ranged from 1 (Strongly Disagree) to 4 (Strongly Agree). The precise question in the NLSCY is EAMCcQ03 (NLSCY): “The next five years look good to me.” Answers again ranged from 1 (Strongly Disagree) to 4 (Strongly Agree). The question is available at Questionnaire 10–19 Year Olds, Cycle 5, at 25 available at www.utoronto.ca/datapub/codebooks/cstdli/nlsc/synthetic/cycle5/nlysclc5-cbk-10-19-mas.pdf.

  45. 45.

    See, e.g., Hope Yen and Jennifer Agresta, African Americans & Hispanics More Optimistic About Their Economic Future Than Whites, Poll Says, Huffington Post, March 27, 2015, available at http://www.huffingtonpost.com/2013/08/01/african-americans-hispanics-optimistic-economic-future-_n_3690867.html; Breanna Edwards, Survey: African Americans Still Optimistic Despite Racism, The Root, April 4, 2014, available at http://www.theroot.com/articles/culture/2014/04/survey_african_americans_still_optimistic_despite_racism.html.

  46. 46.

    Rheeda L. Walker and Kelci C. Flowers, Effects of Race and Precipitating Event on Suicide versus Nonsuicide Death Classification in a College Sample, 41 Suicide and Life-Threatening Behavior 12 (2011).

  47. 47.

    C-23, RSC 4 (2d Supp.), SC 2000, c. 12.

  48. 48.

    Section 101 of Pub. L. 104–193, 1996. The fruits of the legislation can be found at Office of Family Assistance, http://www.acf.hhs.gov/programs/ofa/programs/healthy-marriage.

  49. 49.

    The Defense of Marriage Act (DOMA), Public Law No. 104–199, 110 Stat. 2419, 1996. This was invalidated I part United States v. Windsor, 570 US—, 133 S. Ct. 2675 (2013). The remainder is under challenge as Oberfell v. Hodges, 135 S. Ct. 1034 (2015).

  50. 50.

    Alain Bélanger and Pierre Turcotte-Milan, “L’influence des caractéristiques sociodémographiques sur le début de la vie conjugale des Québécoises,” 28 Cahiers québécois de démographie, 173 (1999). See also Lawrence Anderson, Federalism and Secessionalism: Institutional Influences on Nationalist Politics in Québec, Nationalism and Ethnic Politics, 13: 187–211 (2007).

  51. 51.

    Comité sur les affaires religieuses, Secular Schools in Québec: A Necessary Change in Institutional Culture (October 2006), available online at http://www.mels.gouv.qc.ca/sections/publications/publications/BSM/Aff_religieuses/Avis_LaiciteScolaire_a.pdf (last visited April 22, 2011). See also Nugent, Demography, National Myths, and Political Origins: Perceiving Official Multiculturalism in Quebec, 38 Canadian Ethnic Studies 21 (2006).

  52. 52.

    It is difficult to prove this negative, but see, for example, the Ontario Catholic School Board, which governs its system of (publicly funded) parochial elementary schools. http://www.tcdsb.org/ (last visited April 22, 2011). The only Catholic schools listed on the Archdiocese of Quebec’s website are secondary schools. The website of the archdiocese of Quebec lists its various functions at beta.ecdq.org, and contains no references to schools in either its youth or formation subpages. The change came through the Education Act of 1988, Bill 107, 188 c 84 § 36. For a critical Roman Catholic perspective, see Rory Leishman, The School War in Quebec, Catholic Insight http://catholicinsight.com/online/church/education/article_1033.shtml (last visited April 22, 2011) (originally published in the Catholic Pro-Life publication The Interim, August 2010. Quebec was able to accomplish secularization by receiving an exemption from the Canadian Constitution that protected the two systems (religious and secular) in the other provinces. See Comité, supra note 60. For a discussion of the exemption, see David Cameron and Jacqueline D. Krikorian, Recognizing Quebec in the Constitution of Canada: Using the Bilateral Constitutional Amendment Process, 58 University of Toronto Law Journal 389 (2008).

  53. 53.

    Warren Clark, Pockets of Belief: Religious Attendance Patterns in Canada, Canadian Social Trends 2, 3 (Spring,2003), Statics Canada Catalogue No. 11-008, http://www.statcan.gc.ca/pub/11-008-x/2002004/article/6493-eng.pdf.

  54. 54.

    David Seljak, Why the Quiet Revolution was “Quiet”: The Catholic Church’s Reaction to the Secularization of Nationalism in Quebec after 1960, CCHA, 62 Historical Studies 109 (1996).

  55. 55.

    Michael W. Higgins, The Bishop-maker: Who is Canadian Cardinal Marc Oullet? Commonweal Magazine July 22, 2010, www.Commonwealmagazine.org/bishop-maker (last visited April 22, 2011)(provides an accessible and brief story of the Quebec transformation and a discussion of current attitudes toward abortion in Canada).

  56. 56.

    Benoît Laplante, The Rise of Cohabitation in Quebec: Power of Religion and Power over Religion, 31 Canadian Journal of Sociology 1 (Winter, 2006).

  57. 57.

    Pew Research Center, Canada’s Changing Religious Landscape, at 11, available at http://www.pewforum.org/2013/06/27/canadas-changing-religious-landscape/.

  58. 58.

    Alain Bélanger and Pierre Turcotte-Milan. 1999. “L’influence des caractéristiques sociodémographiques sur le début de la vie conjugale des Québécoises,” Cahiers québécois de démographie, 28: 173. In English, see Claude Bélanger, http://faculty.marianopolis.edu/c.belanger/quebechistory/events/quiet.htm (last visited April 22, 2011).

  59. 59.

    While this may seem obvious, support for this point may be found at Dennis Raphael and Toba Bryant, The Welfare State as a Determinant of Women’s Health: Support for Women’s Quality of Life in Canada and Four Comparison Nations, 68 Health Policy 64, 64, 68 & Table 9 (labor market public spending) (2004).

  60. 60.

    One list of what these are appears in the Vermont case that eventually resulted in the enactment of civil union legislation, Baker v. State, 744 A.2d 864, 884–84 (Vt. 1999).

  61. 61.

    See, e.g., Patricia A. Cain, Imagine There’s No Marriage, 16 QLR (Quinnipiac) 27 (1996).

  62. 62.

    Andrew Billingsley and Barbara Morrison-Rodriguez, “The Black Family in the 21stCentury and the Church as an Action System: A Macro Perspective.” 1 Journal of Human Behavior in the Social Environment 1:2-3, 31–47 (1998).

  63. 63.

    Susan Crawford Sullivan “The Work-Faith Connection for Low-Income Mothers: A Research Note.” 67(1): Sociology of Religion 99, 106 (2006).

  64. 64.

    Susan C Sullivan, “Unaccompanied Children in Churches: Low-Income Urban Single Mothers, Religion, and Parenting.” 50(2) Review of Religious Research 157, 170 (2008).

  65. 65.

    See, e.g., Rheeda L. Walker, David Alabi, Jessica Roberts, and Ezemenari M Obasi, Ethnic Group Differences in Reasons for Living and the Moderating Role of Cultural Worldview, 16 Cultural Diversity and Ethnic Minority Psychology 372, 373 (2010).

  66. 66.

    The need for support, or social capital, is one of the pervasive themes of Margaret Brinig, Family, Law and Community, supra note 38, especially Chapters 1 and 2. For a book explaining its role in social mobility, see Robert Putnam, Our Kids: The American Dream in Crisis (Simon and Schuster 2015).

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    Margaret F. Brinig

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    Alain Marciano

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Brinig, M.F. (2016). Two Treatments of Pluralism: Canada and the United States. In: Marciano, A., Ramello, G. (eds) Law and Economics in Europe and the U.S.. The European Heritage in Economics and the Social Sciences, vol 18. Springer, Cham. https://doi.org/10.1007/978-3-319-47471-7_8

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