Divorce, Separation, and Child Custody

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Some Definitions

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Before we begin, it is important to define some terms to assist you in your reading and understanding of the legal process in the case of divorce or the dissolution of a civil union.

Marriage:
A religious wedding ceremony. The two parties are referred to as spouses.

Civile Union:
A marriage ceremony performed by a competent officer in Quebec. The parties are referred to as civil partners.

Safeguard Order:
A court order obtained during proceedings (before the trial) to help parties resolve urgent issues, such as child custody and child support. The judgment is valid for a maximum of 6 months.

Family Patrimony:
A set of property owned by both spouses/partners independently of who purchased it.

Child Support:
A sum of money paid by the debtor to the creditor to support a person (dependent children or an ex-spouse/partner).

Compensatory Payment:
Compensation payable to a spouse who invested in the other spouse's business without remuneration.

Provision for Costs: A sum of money allocated to one of the spouses to help cover the expenses related to a trial.

Matrimonial Regime:
The legal regime under which you are united, and which determines the rules that apply in case of separation.

Family Residence:
The residence in which family members engage in their main activities. This type of residence benefits from certain additional protections.

Status quo:
A term often used by judges in family law to refer to the maintenance of the existing situation between the parties.

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Separation

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1. Legal Separation (Separation of Bodies)

A request for legal separation is governed by Articles 493 and following of the Civil Code of Quebec. If granted, it allows the parties to no longer have the obligation to live together without terminating the marriage. The matrimonial regime automatically changes to separation of property. Such a request can be granted when the intention to live together is seriously affected, including in cases mentioned in Article 494 of the Civil Code of Quebec, namely: “(1) Where proof of an accumulation of facts making the continuation of community of life hardly tolerable is adduced by the spouses or either of them; (2) where, at the time of the application, the spouses are living apart; (3) where either spouse has seriously failed to perform an obligation resulting from the marriage; however, the spouse may not invoke his or her own failure.” It should be noted that it is possible to end the legal separation if the parties resume living together. This resumption of cohabitation must be voluntary. However, the separation of property remains unless a new marriage contract is concluded between the parties.

2. Divorce

To end a marriage, a divorce application must be filed. This can be done by one of the two spouses or jointly by both spouses. If the spouses agree on the divorce settlement, a joint divorce application can be made, which significantly reduces the time, costs, and stress involved. While it can be difficult to reach an agreement sometimes, using a mediator can help you reach a compromise, and our firm will be happy to advise and guide you to the appropriate resources. We are also able to represent you in drafting your joint divorce application. Regardless of whether it is through a joint application or a unilateral application, there must be a marital breakdown for such a request to be granted.

According to Article 8 of the Divorce Act, there are three (3) situations where marital breakdown can be concluded: “(a) the spouses 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 proceeding; or (b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage, (1) committed adultery, or (ii) treated the other spouse with physical or mental cruelty of such kind as to render intolerable the continued cohabitation of the spouses”. In the absence of being in one of the situations mentioned above, divorce cannot be granted.

3. Dissolution of Civil Union

When civil partners wish to end their union, they must proceed with the dissolution of their civil union. There are two possibilities for this: making a notarized joint declaration or proceeding through the judicial route. In all cases, for such a dissolution to take place, the intention to live together must be irreparably affected, as mentioned in Article 521.12 of the Civil Code of Quebec. In this regard, we refer you to the following link: Link to Article 521.12 of the Civil Code of Quebec

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Property Division

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It is fine to talk about divorce and the dissolution of a civil union, but we are very aware that you primarily want to know what will happen to your assets in such a situation. How will they be divided?

Whether you are in a civil union or married, initially, you will need to proceed with the division of property that is part of the family patrimony according to the rules set out in Articles 414 to 430 of the Civil Code of Quebec. Once this is done, you will need to dissolve the matrimonial regime and divide the remaining assets according to the specific rules of the regime chosen by the parties before or during their union.

1. Family Patrimony

As mentioned earlier, Articles 414 to 430 of the Civil Code of Quebec govern the division of the family patrimony. Therefore, you should refer to it to understand which assets are included in the family patrimony and the rules regarding the calculations to be made. Firstly, Article 415 of the Civil Code of Quebec lists the assets that are part of the family patrimony. These include:

a. Family residences;
b. Furniture that adorns or decorates family residences and is used for household purposes;
c. Automobiles used for family transportation;
d. Retirement plans for which rights were accumulated during the marriage;
e. Rights accumulated during the marriage as RRSPs (Registered Retirement Savings Plans).

For more information about the assets included and excluded from the family patrimony, we refer you to the annotations of Article 415 of the Civil Code of Quebec, which can be found at the following link: https://elois.caij.qc.ca/CCQ-1991/article415

Although, in theory, these assets belong to both spouses/partners regardless of who acquired them, and each should be entitled to 50% of the net value of the family patrimony, there are several exceptions allowing one of the spouses to reduce the amount of money to be shared.

For example, in the case of a house acquired before the marriage, the net value of the residence at the time of marriage, as well as a portion of its appreciation, can be deducted from the net value of the family patrimony.

It should be noted that spouses/partners cannot waive in advance the division of the family patrimony. It is only during the divorce judgment, separation of bodies, or dissolution of the civil union that it will be possible to waive it in whole or in part by notarial act. The waiver must also be registered in the RDPRM (Registre des droits personnels et réels mobiliers). However, just because one of the spouses/partners waives it does not mean that the other must also waive it. It is possible for one of the two spouses to renounce, and the other can still obtain their share in the division of the family patrimony.

Considering that each case is unique, we invite you to contact us so that we can assess your situation and provide you with appropriate advice.

2. Matrimonial Regime

Once the division of the family patrimony has been completed, it is now necessary to dissolve the matrimonial regime according to the rules applicable to the one chosen by contract of marriage or the general regime (the default one). Therefore, it is appropriate to provide a brief overview of the different matrimonial regimes existing in Quebec.

Different Matrimonial Regimes

In Quebec, there are two main matrimonial regimes: the partnership of acquests (society of acquests) and the separation of property. A third regime exists but is much less common than the other two, known as the community of property.

Before July 1, 1970, the general regime (the default regime) was the community of property. Starting from July 1, 1970, the general regime became the partnership of acquests.

Therefore, unless a marriage or civil union contract has been concluded between the spouses/partners, it will be the partnership of acquests that applies if the marriage was celebrated after July 1, 1970. In the case of a civil union, in the absence of a contract, the partnership of acquests will also be the regime for those united since June 24, 2002.

While it is still possible to choose a community regime, we will limit this article to the two main regimes, the partnership of acquests and the separation of property.

The Partnership of Acquests

The partnership of acquests consists of two types of property: separate property (propres) and acquests. Separate property, as the name suggests, are assets held exclusively by one of the spouses/partners and, therefore, do not belong to the other spouse/partner. For a property to be classified as separate property, it must meet certain criteria as specified in the Civil Code of Quebec (Articles 450 to 458). In the absence of the ability to prove that the property belongs exclusively to one of the spouses/partners, it is presumed to be an acquest.

Despite whether a property is classified as separate or an acquest, there are several situations where a reward must be paid into the acquests when calculating the net mass of separate property and the net mass of acquests. For example, if a property was acquired with both separate and acquests, and if the value of the separate property is higher than half of the acquisition value of the property, it will be considered separate property subject to a reward to the acquests. As a result, when calculating the mass of separate property and the mass of acquests, a certain sum of money must be paid into the acquests.

This may seem quite complex, and that is why we are here to assist you in your divorce or civil union dissolution proceedings. We can perform all the necessary calculations to determine what belongs to each party. In any event, feel free to contact us.

Separation of Property

The separation of property allows the parties to have the use and free disposal of all their property. However, if it is not possible to prove that one of the spouses/partners is the exclusive owner of the property, there will be a presumption that the property belongs to both.

Therefore, during divorce or dissolution of the civil union, it will suffice to determine the ownership of each property. However, it should be remembered that the rules of the family patrimony also apply to the separation of property regime. Therefore, we will look at property ownership only for assets not included in the family patrimony.

It is worth noting that it is possible to change the matrimonial regime during the marriage. To do so, a new marriage or civil union contract must be concluded, and the old matrimonial regime must be dissolved according to its rules. The rules of the new regime will only apply thereafter.