Divorce Family Law
In a society where cross-border opportunities are increasing, the field of International Family Law is widening its scope every year. The growing number of countries implementing the principles of the Hague Convention on The Civil Aspects of International Child Abduction is a good example of this trend.
In international divorces and family law disputes, each party favours the jurisdiction of a country or the applicability of a law that may be advantageous to them, whether it is concerning the rules establishing child and spousal support, the rules applicable to the partition of marital and non-marital assets or the location of witnesses, for example in a legal dispute involving custody.
The number of cases where declinatory exceptions for lack of jurisdiction or forum non conveniens are presented have increased over the years. The international movement of modern families is causing the applicability of foreign laws at the breakdown of a relationship, civil union or marriage. This new reality is prompting lawyers practising in the field of Divorce and Family Law to consider the application of a foreign law in a dispute where spouses live in different countries or where they were married in a foreign jurisdiction. In this type of case, it is very important to keep in mind the rules of International Private Law contained in the Civil Code of Quebec, whether it is related to conflict of laws or the international jurisdiction of Quebec authorities.
The present text is intended to provide the reader with an overview of the most important principles in Quebec Law, bearing in mind that the principles of International Private Law may be applicable if more than one (1) state is concerned. In those cases, foreign law may be applicable in addition to Quebec law, including but not limited to matters involving marriage, separation, divorce, alimony, child support, child custody, division of assets, matrimonial regime or any other matters pertaining to a divorce and family law case.
One of our Divorce and Family Law lawyers in Montreal can assist you, amongst other matters, with the following:
Divorce vs. Separation From Bed and Board
Divorce and Separation from Bed and Board, commonly and hereinafter referred to as «legal separation», have very different consequences.
You may contact one of our Divorce and Family Law lawyers in Montreal to assist you and guide through the proper recourse for your specific needs.
The main difference between divorce and legal separation is that after a divorce, the marriage is dissolved, while legal separation only releases the spouses from the obligation to live together. Legal separation does not break the bond of marriage and consequently a legally separated spouse cannot remarry while a divorced spouse can remarry.
Spouses owe each other succour and assistance and said obligations continue to exist despite the judgment of separation in view of the fact that the matrimonial bond still exist. Similarly, married spouses owe each other support. Consequently, in the context of legal separation proceedings, a spouse cannot renounce for the future to claim spousal support/alimony, whereas in the context of divorce proceedings, a spouse may renounce to same.
Divorce entails the lapse of gifts mortis causa(in the event of death) made by one spouse to the other in consideration of marriage, but said donations remain valid in the event of a legal separation. Moreover, divorce causes any designation of the spouse as beneficiary or subrogated policyholder to lapse, whereas legal separation does not affect the rights of the spouse, whether a beneficiary or subrogated policyholder.
Also, the divorced spouse loses the right according to which he may receive benefits payable in some cases to the surviving spouse by the SAAQ or the CNESST.
With respect to partition of assets, legal separation entails almost the same effects of a divorce, in particular with respect to family patrimony and matrimonial regimes.
Legal separation has the same effects with regard to the children as divorce.
Jurisdiction Requirement for Filing for Divorce in the Province of Quebec
According to article 3 of the Divorce Act, «a court in the province [of Canada] has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.
Therefore, in order to file for divorce proceedings in the province of Quebec, either spouse must have resided in the province of Quebec continuously for at least one year before instituting the divorce proceedings in said province. If said requirement is not met, then the divorce proceedings may be dismissed due to lack of jurisdiction.
Ordinary residence of either spouse is the sole basis for jurisdiction for divorce, under the Divorce Act and it is a question of facts. One is «ordinary resident» in the place where in the settled routine of his life he regularly, normally or customarily lives. Said expression is held to mean the residence in the course of the customary mode of life of the person concerned. The test is to determine where a spouse is «ordinarily residing» is to answer the question «Where is the real home of said spouse?».
Grounds to Obtain a Judgment of Divorce
A divorce may be granted only on the ground that there has been a breakdown of the marriage.
According to article 8(2) of the Divorce Act , the breakdown of the marriage is established only if at least one of the following situations is proven: 1) one year separation, 2) adultery and 3) physical or mental cruelty.
1) One Year Separation
To invoke this ground, the spouses must have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceedings.
It is important to note that it is possible for spouses to live separate and apart under the same roof. Also, a spouse or spouses may file for divorce and begin the process although they have not been living separate and apart from each other for at least one year. However, the judgment of divorce will not be rendered until the one year separation has elapsed.
To invoke this ground, the spouse against whom the divorce proceedings is brought must have, since the celebration of the marriage, committed adultery. The spouse who has committed adultery cannot invoke this fact as a ground for obtaining a divorce, only the spouse victim of the adultery can invoke it. Adultery is interpreted as being having had sexual intercourse with a person other than your spouse. In the absence of sexual intercourse or if it cannot be proven, then the Court may grant the divorce on the basis of mental cruelty.
3) Physical and Mental Cruelty
To invoke this ground, the spouse against whom the divorce proceedings is brought, must have, since the celebration of the marriage, teadted the other spouse with physical or mental cruelty of such kind as to render intolerable the continued cohabitation of the spouses. Only the spouse victim of physical or mental cruelty can invoke this to obtain the divorce.
It is to be noted that when the grounds of adultery or physical/mental cruelty are invoked, spouses do not need to wait one year after the separation to obtain the judgment of divorce.
Also, according to section 3135 of the Civil Code of Quebec, « [e]ven though a Québec authority has jurisdiction to hear a dispute, it may, exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another State are in a better position to decide the dispute».
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As of the date of the present text (October 2012), Quebec law does not recognize the obligation of financial support between individuals who are not married or without the status of civil union spouses. Only married or civil union spouses have the right to claim spousal support in proceedings pertaining to separation as to bed and board, divorce or dissolution of civil union.
In the province of Quebec, the determination of support for married spouses who are undergoing seperation proceedings or for civil union spouses is governed by Section 587 of our Civil code, which provides that:
Art. 587: In awarding support, account is taken of the needs and means of the parties, their circumstances and, as the case may be, the time needed by the creditor of support to acquire sufficient autonomy.
The Civil Code of Quebec is only applicable to cases outside the scope of the Divorce Act. Indeed, within the context of divorce proceedings, the determination of spousal support is governed by the Divorce Act, a Federal law applicable throughout the Canadian provinces. Despite the existence of advisory guidelines, there is no objective mandatory method for the determination of spousal support. Judges sitting in Family Law division have a large discretionary power in this respect and they have to base their decisions on several factors and objectives which can be found in Sections 15.2 (4) and 15.2 (6) of the Divorce Act:
“Art. 15.2 (4) [Factors] In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Art. 15.2 (6) [Objectives of spousal support order] An order made under subsection (1) or an interim order under subsection (2) that provides for the support of spouse should
a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.”
It is important to note that none of the factors and objectives listed above has priority over the other and the degree of importance attached to each factor and objective will vary from one case to another, depending on the particular facts.
When spouses are living in different states, we must keep in mind the rules pertaining to conflict of laws contained in Sections 3094 to 3096 of the Civil Code of Quebec with respect to the obligation of support and more precisely:
“Art. 3094. The obligation of support is governed by the law of the domicile of the creditor. However, where the creditor cannot obtain support from the debtor under the law, the applicable law is that of the domicile of the debtor.
Art. 3095. No claim of support of a collateral relation or a person connected by marriage or a civil union is admissible if, under the law of his domicile, there is no obligation for the debtor to provide support to the plaintiff.
Art. 3096. The obligation of support between spouses who are divorced or separated from bed and board, between spouses whose civil union is dissolved or spouses whose marriage or union has been declared null is governed by the law applicable to the divorce, separation from bed and board, dissolution of the civil union or annulment of the marriage or civil union.”
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In Quebec, child support is determined in virtue of mandatory guidelines based on the income of the parties. Two (2) different guidelines are applicable in the province of Quebec: the Regulation Respecting the Determination of Child Support Payments when the parents are not married or when both parents (married or not) are living in the province of Quebec. According to these provincial guidelines, the income of both parents is considered. The second set of guidelines, the Federal Child Support Guidelines, is applicable in cases where spouses are married, living in different Canadian provinces or where one spouse lives in Canada and the other in a foreign country.
According to these federal guidelines, only the income of the payer spouse is taken into account for the determination of the basic amount of child support.
The provincial and federal child support guidelines can be qualified as generous compared to other jurisdictions and this aspect is likely to lead to conflict of laws and/or jurisdictions in those cases where applicable.
When the spouses live in different states, the rules pertaining to the conflict of laws and/or jurisdiction must also be taken into account in order to determine the applicable law.
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Dispute over Child Custody
In virtue of Quebec law, there is no presumption in favour of the mother or the father when it comes to the determination of custody, access rights and/or relocation issues. The same is true with regard to the type of custody (sole custody/shared custody). Every case is different and each decision will be determined in conformity with the best interests and the rights of the child.
Section 514 of the Civil code of Quebec, provides that:
Art. 514. The court, in granting separation from bed and board or subsequently, decides as to the custody, maintenance and education of children, in their interest and in respect of their rights, taking into account the agreements made between the spouses, where such is the case.
The Divorce Act provides for certain factors and principles applicable for the determination of custody or visiting rights. Articles 16 (8) (9) and (10) provide as follows:
“16(8) [Factors] In making an order under this section, the court shall not take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
16(9) [Past conduct] In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
16(10) [Maximum contact] In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”
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Alimentary Support for An Adult Child
In the present section, general information with respect to the alimentary support for an adult child will be presented. Said information does not represent a legal opinion or advice given by one of our family lawyers in Montreal, but is to be used for information purposes only.
An adult child who is still under the charge of one of his parents may benefit from alimentary support. This obligation of support in respect of the adult child is not within the general education and maintenance duty incumbent on parents exercising their parental authority with respect to their minor child, but rather resides within the obligation related to the basic subsistence obligation contained in section 585 of the Civil Code of Quebec.
In divorce matters, according to section 2 of the Divorce Act, in order for an adult child to benefit from alimentary support, he must meet the following requirements:
a) He must be under the charge of his parents; AND
b) He must be unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;
In cases of Separation as to bed and Board or when the parents are de facto spouses, in order for the adult child to benefit from alimentary support, the latter must be unable to support himself, the whole in conformity with section 586 (2) of the Civil Code of Quebec.
The Institution of the Support Proceedings by a parent
According to section 15.1 of the Divorce Act, one of the parents of the adult child may institute proceedings for alimentary support against the other parent on behalf of the adult child. In cases of Separation as to bed and Board or when the parents are de facto spouses, one must apply section 586 of the Civil Code of Quebec. According to said section of the law, it is also possible for one parent who is providing in part for the needs of an adult child unable to support himself, to institute support proceedings on said child’s behalf, unless the child objects to same. Consequently, under both the Divorce Act and Civil Law, the parent of an adult child may represent the interests of said child in support proceedings, but the latter may object.
Despite popular belief, child support payments do not automatically end when a child reaches the age of majority. Only the court can modify the support order after being petitioned by the parent paying for alimentary support. When asking for a modification of the support order, the parent must include the adult child as an impleaded party in the proceedings. Also, when a minor child who was benefiting from support payments reaches the age of majority, said payments do not automatically become payable directly to the latter. The modalities of the support order may only be varied by the court at the request of one of the parents or of the adult child. In general, if an adult child resides with the caregiver parent?, then the support payments are paid to that parent and not to the adult child. In a case where an adult child does not live with either parent, the support payments may be paid directly to said adult child.
The adult child may always intervene in the divorce file involving his parents with respect to the support payments.
The institution by the adult child of the legal request to receive support payments
It is also possible for the adult child to petition the Court directly for the request of support payments. In divorce cases, the adult child must act within the divorce file already opened by his parents and not in a separate file. In cases of Separation as to bed and Board or when the parents are de facto spouses, the adult child has a separate recourse as to legal proceedings in relation to that of his parents, and consequently, he may introduce a demand for alimentary support under a separate court file number.
Conditions for the Award of Support Payments and Determination of its amount
When the request for alimentary support is made by one of the parents on behalf of the adult child who is under their charge, generally the amount of the support payments is determined according to the applicable guidelines, namely the Regulation Respecting the Determination of Child Support Payments or the Federal Child Support Guidelines, depending on the situation.
However, in conformity with section 3 (2) of the Federal Child Support Guidelines, the Court may determine a different amount than that provided under said guidelines should the court consider that said approach to be inappropriate. The court may then render an alimentary order of an amount that it considers appropriate in consideration of the following:
a) the condition of the adult child;
b) the means and needs of the other child;
c) the other circumstances of the adult child;
d) the financial ability of each parent to contribute to the support of the adult child;
Similarly, in conformity with section 2 of the Regulation Respecting the Determination of Child Support Payments, the court may fix the support payable for an adult child at a level that departs from the level of support which would be provided under the said regulation, if it deems it appropriate, taking into account all the circumstances in which the adult child find himself, in particular the following factors:
a) his age;
b) his health condition;
c) his level of education or the nature of his studies;
d) his civil status;
e) his place of residence;
f) his level of autonomy and where applicable, the time needed by the adult child to acquire sufficient autonomy;
Generally speaking, the Federal Child Support Guidelines as well as the Regulation Respecting the Determination of Child Support Payments may not be applicable in cases where the request for alimentary support is made directly by the adult child. However, the Court may certainly draw inspiration from them to establish the level of needs of the adult child.
The principles applicable in the award of the alimentary support for an adult child outside of the above-mentioned federal and provincial guidelines may be summarized as follows:
a) the adult child does not have the resources to support himself; AND
b) the adult child has used all the recourses available to him to support himself; OR
c) the adult child is physically or mentally unable to support himself; AND
d) the adult child does not receive, directly or indirectly, any other contributions whatsoever or the support provided is clearly insufficient to cover his needs;
Generally and subject to the above-mentioned principles, the adult child who finds himself in one of the following situations may be granted alimentary support, but not automatically and each case is different:
a) The adult child suffers from health problems;
b) The adult child who is cohabiting with someone;
c) The adult child who is attending full-time studies;
One of our divorce lawyers in Montreal can help parents figure out how the principles hereinabove indicated apply in their situation.
The specific case of the adult child in full-time studies
Hereinbelow, an overview of the applicable principles when it comes to maintenance for an adult child attending full-time studies will be presented.
The court may force an adult child to work on a part-time basis in order to financially support a portion of his studies should the nature of his studies allow it. However, the court generally considers that a full-time job is inconsistent with full-time studies. Moreover, the court may require that the adult child make the appropriate requests to obtain loans and bursaries.
The bursaries will be considered as revenues which will need to be taken into account in the determination of the adult child’s resources. As for the loans, jurisprudence is divided and it is not clear whether said loans should be taken into account when establishing the resources of the adult child, and this due to the obligation to reimburse said loans.
Depending on the financial situation of the parents, the court may deduct from the amount of child support payable, the amount of the bursaries, as well as one third of the revenues gained by the adult child.
The studies pursued must be assiduous with a view to achieve a given objective, and this in order to avoid that they constitute a pretext for maintaining an unjustified support order. In addition, the court may order the adult child to transmit to the payor parent all information relating to said studies, including school results.
The adult child who is pursuing studies at Cegep on a full-time basis is usually considered as being dependent on its parents. With respect to University studies, in general, the courts are of the opinion that the first cycle of an undergraduate program constitutes a basic need normally covered by the parental obligation.
The offer of the parent to take the adult child into his home
According to section 592 of the Civil Code of Quebec, if the parent offers to take the adult child into his home, he may, if circumstances permit, be dispensed from paying all or part of the support.
If you are the parent of an adult child or an adult child seeking support payments, you can always communicate with our Family Law Lawyer in Montreal or our Child Support Lawyer in Montreal for assistance in this regard.
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Under Quebec Law, the dispositions with respect to the family patrimony have been in effect since July 1st, 1989 and are of public order. Therefore, marriage and civil union entails the establishment of a family patrimony consisting of certain property of the spouses regardless of which of them holds a right of ownership in that property.
Except for spouses married before July 1st, 1989, one cannot evade the provisions concerning family patrimony. Consequently, the spouses may not renounce in advance, by way of a marriage contract or otherwise, their rights in the family patrimony and that in the event of a separation, the property included in the family patrimony would not be shared. Spouses married before July 1st, 1989, had until December 30, 1990 to be excluded from the dispositions of the family patrimony by way of contract. However, said exclusion does not apply to the registered earnings according to the Quebec Pension Plan.
Article 423 of the Civil Code of Quebec provides that although spouses may not, by way of their marriage contract or otherwise, renounce their rights in the family patrimony, one spouse may, however, from the death of the other spouse or from the judgment of divorce, separation from bed and board or nullity of marriage, renounce such rights, in whole or in part, by notarial act en minute; that spouse may also renounce them by a judicial declaration which is recorded, in the course of divorce proceedings, separation from bed and board or nullity of marriage.
According to article 415 of the Civil Code of Quebec, the family patrimony is composed of the following property owned by one or the other of the spouses:
a) The residences of the family or the rights which confer use of them;
b) The moveable property with which they are furnished or decorated and which serves for the use of the household;
c) The motor vehicles used for family travel;
d) The benefits accrued during the marriage under a retirement plan including RRSP;
e) The registered earnings, during the marriage, of each spouse pursuant to the Act Respecting the Quebec Pension Plan or to similar plans;
In general and without being exhaustive, the property excluded from the family patrimony includes:
a) Property devolved to one of the spouse by succession or gift before or during the marriage It is important to note that sums of money received by one of the spouses by way of succession or gift before or during the marriage are not excluded from the family patrimony, but may be subject to deductions with respect to the net partitionable value of the family patrimony, the whole as stipulated in article 418 of the Civil Code of Quebec.
b) When the dissolution of the marriage results from the death of one of the spouses, the registered earnings during the marriage in the name of each spouse pursuant to the Act Respecting the Quebec Pension Plan or similar plans.
c) All other property not included in the family patrimony such as income properties, investments (except for RRSP), etc.
According to article 416 of the Civil Code of Quebec, in the event of separation from bed and board, or the dissolution or nullity of a marriage, as well as in the event of the dissolution of the civil union, the net value of the family patrimony of the spouses is equally divided between the spouses or between the surviving spouse and the heirs, as the case may be. It is the net value of the property included in the family patrimony that is equally divided and not the property themselves. The net value of the family patrimony is determined by subtracting to their market value:
1) The debts contracted for the acquisition, improvement, maintenance or preservation of the property;
2) The net value, at the time of the marriage, of the property then owned by one of the spouses and included in the family patrimony. A further deduction is then made of the increase in value acquired by the property during the marriage, proportionately to the ratio existing at the time of the marriage between the net value and the gross value of the property;
3) A contribution made by one of the spouses during the marriage for the acquisition or improvement of property included in the family patrimony, where the contribution was made out of property devolved by succession or gift, or its reinvestment. A further deduction is made of the increase in value acquired since the contribution, proportionately to the ratio existing at the time of the contribution between the value of the contribution and the gross value of the property.
The net value of the family patrimony is determined on the date of the death of the spouse or on the date of the institution of the action in separation from bed and board, divorce or nullity of marriage. The court may, however, upon the application of one or the other of the spouses or their successors, decide that the net value of the family patrimony be established according to the value of such property and such debts on the date when the spouses ceased living together.
The court may, on an application, make an exception to the rule of partition into equal shares where it would result in an injustice considering, in particular, the brevity of the marriage, the waste of certain property by one of the spouses, or the bad faith of one of them. According to Jurisprudence, the age of the spouses, the disproportionate of the patrimony, the exceptional contribution made by one of the spouses to the family patrimony, the unequal share of responsibilities within the couple, etc. are also motives to invoke the unequal partition of the family patrimony.
In cases involving International Private Law, one must refer to article 3089 of the Civil Code of Quebec in order to determine if the Quebec rules pertaining to the Family Patrimony apply to a particular situation. Quebec Law with respect to Family Patrimony applies when Quebec is the place of domicile of the spouses. Where the spouses are domiciled in different countries, the applicable law is the law of their common residence or, failing that, the law of their last common residence or, failing that, the law of the place of solemnization of the marriage.
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Under Quebec Law, there are three matrimonial regimes that govern the property of married or civil union spouses, with the exception of the property included in the family patrimony: 1) Partnership of Acquests, 2) Separation as to Property, 3) and the Community Regime.
1. Partnership of Acquests
Since July 1st, 1970, the regime of Partnership of Acquests is the legal regime applicable to all newlyweds without a marriage contract and, since June 24, 2002 same applies to all civil union spouses who do not have a civil union contract. Furthermore, married and civil union spouses can conventionally choose to abide by the Partnership of Acquests regime by marriage contract or civil union agreements established by a notarial act en minute and this, both before and during their union. A notice of every marriage contract shall be entered in the register of personal and movable real rights at the requisition of the receiving notary.
For spouses who have not entered into a marriage contract or civil union agreements, the regime of Partnership of Acquests will be the applicable regime and this, if they were domiciled in Quebec at the time of their union or failing that, if their common residence was located in Quebec, or failing that if both spouses are Quebecers, or, failing that, if their marriage or civil union was solemnized in Quebec.
Although this regime is created at the time of marriage or civil union, it will not produce its effects until an application for divorce, separation from bed and board or separation as to property or the nullity of marriage is filed. In any case, the court may decide that the effects of the dissolution are retroactive to the date when the spouses ceased to live together. In the event of death of either spouse, the effects of dissolution of the partnership of acquests regime are produced immediately. At the time of separation or death of one of the spouses, we proceed first to the partition of the family patrimony and then to the partition of any other property that may fall into the matrimonial regime or civil union.
Under the regime of Partnership of Acquests, a spouse retains ownership on property included in said regime, but shall share half of its net value with the other spouse.
The net value of the property included in the Partnership of Acquests will be equally divided between the spouses depending on the qualification of the property, namely “private” property of each spouse, which will be excluded from the partition, and “acquests” property of each party acquired during marriage or civil union, which property will be partitioned equally between the spouses.
In general, property owned or possessed by one spouse when the regime comes into effect and the property which devolves to that spouse during the regime by succession or gift, as well as the fruits and income derived from it, if the testator or donor has so provided, do not form part of the partition. The proceeds of that spouse’s work during the regime, the fruits and income due or collected from all that spouse’s private property or acquests during the regime are considered to be acquests.
For an exhaustive list of the composition of the Partnership of Acquests, one must refer to articles 449 to 460 of the Civil Code of Quebec. It is to be noted that any property that a spouse is unable to prove to be an exclusively private property or acquest is presumed to be held by both spouses in undivided co-ownership, one-half by each. Moreover, all property is presumed to constitute an acquest between the spouses unless it is established that it is private property.
Property acquired with private property and acquests is also private property, subject to compensation, if the value of the private property used is greater than half of the total cost of acquisition of the property. Otherwise, it is an acquest subject to compensation. The compensation is equal to the enrichment enjoyed by one mass to the detriment of the other.
Each spouse retains his or her private property after the regime is dissolved. One spouse may accept or renounce the partition of the other spouse’s acquests, notwithstanding any agreement to the contrary. It is to be noted that the renunciation shall be made by notarial act en minute or by a judicial declaration which is recorded. It shall be entered in the register of personal and movable real rights within one year from the date of the dissolution.
2. Separation as to Property
The regime of conventional separation as to property is established by a simple declaration to this effect in the marriage contract or civil union agreements. Under this regime the spouses, individually, have the administration, enjoyment and free disposal of all their property. Therefore, in case of divorce, separation from bed and board or dissolution of civil union, each party retains ownership of their property without owing any sums to the other spouse, except for property included in the family patrimony.
3. Community Regimes
This regime is similar to the Partnership of Acquests, and applies mostly to spouses married without marriage contract before July 1st, 1970.
It is to be noted that articles 3122 to 3124 of the Civil Code of Quebec refer to the principles of Private International Law pertaining to matrimonial regimes. The matrimonial or civil union regime of spouses who have not entered into matrimonial or civil union agreements is governed by the law of their country of domicile at the time of their marriage or civil union. If the spouses are at that time domiciled in different countries, the applicable law is the law of their first common residence or, failing that, the law of their common nationality or, failing that, the law of the place of solemnization of their mariage or civil union.
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De Facto Spouses in the Province of Quebec
On January 25th, 2013, the Supreme Court of Canada, in its judgment Quebec (Attorney General) vs. A.,, better known as the Eric vs. Lola case, ruled on the situation of de facto spouses in Quebec and whether it was constitutional. More precisely, the Supreme Court of Canada had to determine whether the provisions of the Civil Code of Quebec pertaining to the family residence, family patrimony, compensatory allowance, partnership of acquests and obligation of spousal support infringed the right to equality guaranteed by the Canadian Charter of Rights and Freedoms considering that their application is limited to private legal relationship between married spouses and civil union spouses, and if so, whether such infringement was justified. In this ruling, five (5) of the nine(9) Supreme Court judges came to the conclusion that the existing Quebec family law regime is constitutional and remains valid. Should a modification to the current regime be required, it will not be decided through the judicial system but through the Quebec Parliament and its legislation system.
Therefore, the status quo remains in regards to the legal situation of de facto spouses in Quebec and this, until the legislator proceeds with a legislative change in this respect by submitting a bill. The present text will serve to provide general information on the rights and obligations of de facto spouses under the current state of law in the province of Quebec.
Rights and obligations of de facto spouses at the time of the separation
1. Right to Alimony Between de facto spouses
Under the law of other Canadian provinces, de facto spouses may owe each other support, after a certain number of years of cohabitation, generally after two(2) years. Some de facto spouses living in Quebec mistakenly believe that said obligation of support also exists in Quebec. However, the ruling of Eric vs. Lola confirms that section 585 of the Civil Code of Quebec remains unchanged. Said article reads as follow:
Section 585 C.c.Q.: Married or civil union spouses, and relatives in the direct line in the first degree, owe each other support.
By reading this article, it is evident that according to Quebec Law, de facto spouses are not affected by the above-mentioned obligation of support. Therefore, de facto spouses are not entitled to support unless stipulated otherwise in a Cohabitation and Separation Contract, prior to their separation. Such contract predetermines the consequences of the separation and may or may not include the obligation of payment of support. (More on the Cohabitation and Separation Contract further below).
It is to be noted that de facto spouses are not completely excluded from Quebec Law. At the time of separation, de facto spouses may partition the earnings registered in their respective name according to the Quebec Pension Plan and this, if the de facto spouses meet the following conditions:
a) They have lived in a conjugal relationship for at least three (3) years, or at least one (1) year if a child was born or is to be born of their union, or if they have adopted a child;
b) They have been separated for at least (twelve)12 months;
c) Neither of them were married to or in a civil union with another person during the separation;
Also, in the case of a surviving spouse, he or she may receive the Surviving Spouse’s pension upon the death of the latter. On the other hand, if the deceased has not signed a Last Will and Testament, the surviving spouse is not considered an heir according to the Civil Code of Quebec. Therefore, the surviving spouse has no right in the Estate, no matter how long the spouses were in a relationship.
2. Family Residence Owned in Undivided Co-Ownership and its Garnishing Moveable Property
Another common belief is that the family residence used by de facto spouses would be partitioned between them as is the case with married or civil union spouses. However, the rules pertaining to Family Patrimony and Family Residence are only applicable to married and civil union spouses. De facto spouses cannot use the provisions of the Civil Code of Quebec in order to palliate certain inequalities that have risen throughout the separation, such as the provision in virtue of which the custodial parent is granted the right of use of the former family residence. Therefore, what happens to the Family Residence co-owned by de facto at the time of the separation? The answer to said question is provided, at section 1030 of the Civil Code of Quebec, pertaining to the rules of undivided co-ownership and read as follows:
Section 1030 C.c.Q.: No one is bound to remain in indivision; partition may be demanded at any time unless it has been postponed by agreement, a testamentary disposition, a judgment, or operation of law, or unless it has become impossible because the property has been appropriated to a durable purpose.
Usually, at the time of separation, de facto spouses would decide between themselves who should keep the family residence or decide to sell same to a third party and divide between themselves the net proceeds of the sale of said residence. They could also agree on a set price and one party could then purchase the share of the other. When a couple cannot agree on the selling price or who should keep the residence, the Court may be asked to determine who keeps the house or at what price it should be sold at.
The right of use of the family residence owned in undivided co-ownership during Court proceedings is a recurrent theme in jurisprudence. Should one partner obtain by judgment the exclusive right of use of the family residence during the proceedings, the other partner may obtain compensation for the loss of enjoyment of the said property. Section 1016 of the Civil Code of Quebec reads as follows:
Section 1016 C.c.Q.: Each undivided co-owner may make use of the undivided property provided he does not affect its destination or the rights of the other co-owners. If one of the co-owners has exclusive use and enjoyment of the property, he is liable for compensation.
As for the moveable property that garnishes said residence, the rule is simple. Whomever purchased the item with their personal funds is considered to be the owner of said moveable property and contrary to the rules of Family Patrimony, is not liable to the other party for compensation. When items have been purchased by both parties, there are two (2) possibilities: one party keeps the item and the other reimburses the value of their share or, or the parties sell the item and share the proceeds thereof. When there are several items co-owned, the parties can agree to determine that each will keep some of the property and declare that the totality of the items each have kept are of the same value. The fact that the moveable property is used for the purpose of the family has no impact whatsoever in the determination of the ownership title and does not give the right to a compensation. In the event of dispute or disagreement between the de facto spouses, they may have to call upon the Court to render a decision in this regards. Considering that the net value of the property does not have to be partitioned, the Court will need to determine who is the true owner of the said property.
3. Family Residence Owned Solely by One of the de facto spouses
At the time of the separation, the de facto spouses who solely owns the residence used by the family can evict, without any notice or delay, the other partner, and the latter has no legal recourse to contest same, except in the event of custody being granted to the said other partner. There is no protection, right of use or any creation of quasi-ownership after a certain period of cohabitation attributed to the partner in the immoveable property belonging to the other. To avoid such a situation, de facto spouses could add a specific clause in the Cohabitation and Separation Agreement in which both parties agree to a specific timeframe where the owner of the property must give a written notice to the other partner prior to eviction. They could also include an option to purchase clause according to which the de facto partner can purchase a share in the said residence in order to co-own it. Considering that the owner of the property is not liable to the other partner to a compensation, it will be important to determine which partner is the true owner of the property. For further information with respect to the partition of the Family Patrimony, kindly consult the Family Patrimony section contained in this website.
4. The Use of the Family Residence when Children are Issue of the Relationship
It is possible for a de facto spouse, whether he or she is co-owner or not of the family residence, to petition the Court in order to obtain a right of use of the family residence if he or she obtains custody of the children of the parties. Although there are no specific provisions in the Quebec Law authorizing them to do so, the Court, through jurisprudence, often grants the custodial parent a right of use of the family residence, and this, in the best interests of the children.
5. Unjust Enrichment Recourse
Through cohabitation, it is not unusual for de facto spouses to combine their resources together in order to improve their financial situation for the benefit of both partners but what would happen to this common mass at the time of separation and especially, what happens should this separation create a situation where one partner has seen his or her assets diminished while the other has been enriched without cause. The Civil Code of Quebec has codified in its sections 1493 and following the theory of Unjust Enrichment. Section 1493 of the Civil Code of Quebec defines what Unjust Enrichment consists and reads as follows:
Section 1493 C.c.Q.:A person who is enriched at the expense of another shall, to the extent of his enrichment, indemnify the other for his correlative impoverishment, if there is no justification for the enrichment or the impoverishment.
The theory of unjust enrichment may equilibrate unfair effects on the economical aspect caused by the separation and take into consideration each role played by the partners in the relationship and their legitimate expectation during the relationship. In order to demonstrate to the Court Unjust Enrichment, there are six (6) elements that need to be proven:
a) An enrichment;
b) An impoverishment;
c) A correlation between the enrichment and the impoverishment;
d) Absence of justification;
e) Absence of fraud;
f) Absence of other recourse.
Enrichment and Impoverishment
It is to be noted that an enrichment may exist under many facets, whether it consists of services rendered by the impoverished to the enriched or in an increase of assets by the latter; it may arise from a positive enrichment, i.e. a direct gain which increased the patrimony of the enriched, or from a negative enrichment, i.e. a loss or expense avoided that the enriched should have normally incurred would the impovered not been there to support it in his place.
The impoverishment may consist of a diminution of the assets (positive impoverishment) or a shortfall (negative impoverishment). It is important to mention that the impoverishment does not correspond to the increase of assets of the patrimony of the partner from the start of the cohabitation to its end. Both the enrichment and the impoverishment are assessed on the day of the demand. However, where the circumstances indicate the bad faith of the person enriched, the enrichment may be assessed at the time the person was enriched.
Correlation between the enrichment and the impoverishment
In order to demonstrate if a de facto spouse has been unjustly enriched, it will be necessary to demonstrate a correlation between the enrichment and the impoverishment of said spouse, i.e. to prove that the enrichment of one of the said spouse is directly caused, and would not have existed otherwise, due to the impoverishment of the other. Moreover, when the relationship can be qualified as quasi-marital, ie in long term relationship with cohabitation, certain presumptions may be applicable, depending on the circumstances. In Kerr vs. Baranow, the Supreme Court of Canada indicated the following regarding Unjust Enrichment:
[...] the common law of unjust enrichment should recognize and respond to the reality that there are unmarried domestic arrangements that are partnerships; the remedy in such cases should address the disproportionate retention of assets acquired through joint efforts with another person. This sort of sharing, of course, should not be presumed, nor will it be presumed that wealth acquired by mutual effort will be shared equally. Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other’s property or any other relief. However, where wealth is accumulated as a result of joint effort, as evidenced by the nature of the parties’ relationship and their dealings with each other, the law of unjust enrichment should reflect that reality.
This decision remains relevant in Quebec Law despite the fact that is was rendered further to an Appeal of a decision rendered by the Court of Appeal of British-Columbia and even though the notion of “Common Law Spouses” does not exist in the province of Quebec.
Absence of Justification
The Civil Code of Quebec, in its section 1494, provides the parameters according to which there would be a justification to the enrichment or impoverishment. Said section reads as follows:
Section 1494: Enrichment or impoverishment is justified where it results from the performance of an obligation, from the failure of the person impoverished to exercise a right of which he may avail himself or could have availed himself against the person enriched, or from an act performed by the person impoverished for his personal and exclusive interest or at his own risk and peril, or with a constant liberal intention.
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Foreign decisions granting maintenance orders or alimentary support
The procedure in recognition and enforcement of foreign decision granting alimentary support, whether it is child support or spousal support is useful as it allows a foreign decision to be enforced in the province of Quebec. To be declared enforceable, depending on the location or domicile of the debtor, a foreign decision granting alimentary support may be recognized and executed according to the following:
1) According to the Act respecting reciprocal enforcement of maintenance orders, the Divorce Act or any other specific law which ratifies an agreement between the province of Quebec and a Foreign State, such as An Act to Secure the Carrying out of the Entente Between France and Québec Respecting Mutual aid in Judicial Matters;
2) In the absence of a specific law, according to sections 3155 and following of the Civil Code of Quebec, pertaining to the Recognition and Enforcement of Foreign Decisions;
A decision is considered as a foreign judgment when it is rendered outside the province of Quebec.
1. According to the Act respecting reciprocal enforcement of maintenance orders
Some States in the United States of America as well as the Canadian provinces have agreed with the province of Quebec to facilitate the recognition and enforcement of decisions granting maintenance orders. Therefore, a judgment rendered in the provinces of Ontario, New Brunswick, Nova Scotia, Prince-Edward Island, Newfoundland, British Colombia, Manitoba, Alberta, Saskatchewan, Yukon and the Northwest Territories on the basis of another law than the Divorce Act can be recognized and enforced in the province of Quebec. A judgment rendered under the Divorce Act may be enforceable throughout Canada without any other formalities.
According to the Order respecting the application of the Act respecting reciprocal enforcement of maintenance orders, certain states have ratified an agreement with the province of Quebec in order to enforce a decision granting alimentary support if rendered from and after a particular date:
I. New York (September 1st 1996)
II. California (March 9th 1994)
III. Florida (March 9th 1994)
IV. Massachusetts (March 9th 1994)
V. New Jersey (March 9th 1994)
VI. Pennsylvania (March 9th 1994)
VII. Maine (June 23rd 1999)
VIII.Vermont (June 8th 2005)
IX. New Hampshire (July 12th 2006)
X. Oregon (July 12th, 2006)
For these states, the procedure as well as the conditions provided in the Civil Code of Quebec pertaining to the recognition and enforcement is not necessary. The Plaintiff needs to file a certified true copy of the original decision or order to the Superior Court of Quebec where the defendant is domiciled. The procedure pertaining to the filing and of the inscription of the decision can be found in the Act respecting reciprocal enforcement of maintenance orders. Once the foreign decision has been inscribed, the decision shall then produce the same effects, particularly as to its execution, as if it had been rendered by a court sitting in the province of Quebec, such as the seizure of garnishment of salaries and wages. Moreover, any foreign decision granting alimentary support in foreign currency shall be converted to Canadian currency at the rate of exchange in force on the date of the judgment.
2. According to sections 3155 and following of the Civil Code of Quebec, pertaining to the Recognition and Enforcement of Foreign Decision
It may happen that a decision granting alimentary support in a foreign state or country has to be recognized and enforced in the province of Quebec in order to execute it when there is no specific law pertaining to the recognition and execution of a foreign judgment.
Therefore, the Quebec authority recognizes and, where applicable, declares enforceable any decision rendered outside Quebec except in the following cases, the whole in accordance to section 3155 of the Civil Code of Quebec:
1) The authority of the country where the decision was rendered had no jurisdiction under the provision of this Title;
2) The decision is subject to ordinary remedy or is not final or enforceable at the place where it was rendered;
3) The decision was rendered in contravention of the fundamental principles of procedure;
4) A dispute between the same parties, based on the same facts and having the same object has given rise to a decision rendered in Quebec, whether it has acquired the authority of a final judgment (res judicata) or not, or is pending before a Quebec authority, in first instance, or has been decided in a third country and the decision meets the necessary conditions for recognition in Quebec;
5) The outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations;
6) The decision enforces obligations arising from the taxation laws of a foreign country.
As opposed to a decision emanating from a province or territories of Canada or of the abovementioned States mentioned in the Act respecting reciprocal enforcement of maintenance orders, a person who wishes to have a decision recognized and enforced in the province of Quebec has to demonstrate to the Court that said decision meets the conditions of recognition in Quebec provided in the Civil Code of Quebec. Moreover, a foreign decision awarding periodic payments of support may be recognized and declared enforceable in respect of both payments due and payments to become due. Once the Court is satisfied that the decision has met said conditions, it recognize the decision and allows the Plaintiff to execute the foreign decision as if the decision was rendered in the province of Quebec.
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Recognition and Enforcement of Foreign Divorces
Nowadays, due to the mobility of families around the globe, more family situations present cross-border elements which may require the application of the principles of International Private Law, whether it be pertaining to the recognition in the place of residence of the spouses, of their marriage celebrated in a foreign country, to a foreign divorce, or to child custody, child support, alimony, partition of assets, etc., when the parents/spouses are residing in different countries, provinces or states.
Under this context, the question of the recognition and enforcement of foreign divorce judgments by the Quebec authorities becomes relevant in Family Law. Does a foreign judgment of divorce produce all its effects in the province of Quebec? You may contact one of our Divorce and Family Law lawyer in Montreal, to assist you with the recognition and enforcement of your judgment of divorce granted in another country than Canada, or with the contestation of the recognition and enforcement of said judgment.
According to article 13 of the Divorce Act, a divorce rendered in Canada under said act has legal effect throughout Canada.
Also, according to article 20 of the Divorce Act, a child support order, a spousal support/alimony order, a custody order, an access rights/visitation order, an order for variation/modification of said orders, or a provisional variation order in respect of a support order which needs to be confirmed in another Canadian province, is generally effective throughout Canada.
Moreover, for all purposes of determining the marital status of a person in Canada (married or divorced), a judgment of divorce rendered in a country other than Canada is generally recognized as of right in the province of Quebec, without any process of exemplification, but only in the absence of any contestation on its validity. Indeed, according to article 2822 of the Civil Code of Quebec, an act purporting to be issued by a competent foreign public officer makes proof of its content against all persons and neither the quality nor the signature of the officer needs to be proven.
On the other hand, in the event of any contestation pertaining to the judgment of divorce rendered in a foreign country or in the event of a judgment of divorce which may include conclusions pertaining to the accessory measures to a divorce (such as child custody, child support, alimony/spousal support, division of assets, matrimonial regimes, gifts made in consideration of marriage, etc.), its recognition by the Quebec authorities will be determined according to article 22 of the Divorce Act, as well as according to articles 3155 to 3163 of the Civil Code of Quebec.
Generally, for all purposes of determining the marital status in Canada of any person, a divorce granted by the relevant authority of a country other than Canada shall be recognized, if either former spouse was ordinarily resident in that country for at least one year immediately preceding the commencement of proceedings for the divorce, the whole in accordance with article 22 of the Divorce Act.
Articles 3155 ss of the Civil Code of Quebec
Moreover, in the absence of a specific law, according to article 3155 of the Civil Code of Quebec, a foreign judgment of divorce rendered outside the province of Quebec and which contains conclusions on accessory measures, may be recognized and, where applicable, declared enforceable by the Quebec authority, subject to certain conditions listed at article 3155 of the Civil Code of Quebec.
The applicable procedure pertaining to the Recognition and enforcement of foreign decisions and foreign public documents is explained at articles 507 and 508 of the Code of Civil Procedure.
An Act to Secure the Carrying out of the Entente Between France and Québec Respecting Mutual Aid in Judicial Matters
If the judgment of divorce was rendered in France or in a territory included therein, the applicable law pertaining to the recognition or execution of said judgment in the Province of Quebec is named An Act to Secure the Carrying out of the Entente Between France and Québec Respecting Mutual Aid in Judicial Matters. According to said law, decisions regarding the status and capacity of persons and particularly the custody of children, child support and spousal support/alimony, handed down by jurisdictions sitting in France and in Québec, respectively, have, by operation of the law, the authority of a final judgment (res judicata) in France and in Québec, if they meet specific conditions. The recognition of the French judgment in the Province of Quebec, and vice versa, shall be made according to the modalities provided for in the above-mentioned Law.
Act respecting reciprocal enforcement of maintenance orders
Under an Act respecting reciprocal enforcement of maintenance orders, all the Canadian provinces, and certain American states, have concluded an agreement with the Province of Quebec to facilitate the recognition and enforcement of judgments awarding support (child support or spousal support/alimony). For more information, kindly refer to the section Foreign decisions granting maintenance orders or alimentary support in a subsequent section of the present website.