Practical guide to family proceedings

Some of these procedures may need to be initiated even if the parties reach an agreement, while others might not be necessary. The summary provided here is not exhaustive, and it's important to acknowledge that this guide does not constitute legal advice or substitute for the guidance of a specialized attorney.

Wills and Succession

a. MARRIED COUPLES

Separation or Divorce?

Married couples can initiate separation or divorce procedures, which will encompass "ancillary" measures. Separation proceedings can be initiated in Quebec, provided that at least one of the parties resides in the province. However, for divorce, one of the parties must have been a habitual resident of Quebec for at least one year before initiating proceedings. The requests that can be made during separation procedures are substantially the same as those during divorce procedures, including requests for alimony, child custody, division of the family patrimony, and dissolution of the matrimonial regime. Moreover, one party's decision to initiate separation proceedings does not prevent the other party from pursuing divorce proceedings. A separation judgment does not permanently dissolve the bonds of marriage; the parties remain legally married even after the separation judgment is issued. Once the judgment is rendered, the parties are considered "legally separated." However, a divorce judgment terminates the marriage, and divorce is only pronounced if divorce proceedings are initiated. Therefore, a married couple that never initiates divorce or separation procedures remains married, regardless of how many years they have lived separately. Being separated in fact is not the same as being legally separated or divorced.

b. Common-Law Partners

Matrimonial Regime and Family Patrimony:

Unless the parties have signed a contract outlining the effects of separation, common-law partners are not subject to any matrimonial regime and do not have rights to the division of family patrimony, unlike married couples. The case of "Éric and Lola," highly publicized, was brought before the Supreme Court of Canada, confirming this status.

Alimony:

In the case of separation, unmarried parties cannot claim alimony for themselves.

Children:

However, whether married or not, parties have equal rights concerning child custody and child support, and the same rules apply.

Procedures:

Regarding court proceedings, these will differ somewhat for unmarried parties. For instance, unmarried parties will not file for separation or divorce; instead, they will request child custody and child support.

Proceedings in Court (Note: Family court hearings are held in private and not public, except for exceptions)

c. Protective Orders or "Urgent" Measures:

Upon separation, it is often necessary for certain decisions to be swiftly made by the court. Decisions concerning child custody, access rights, child support, spousal support, and the use of the family residence may be subject to protective orders by the court, pending the determination of a date for interim measures or the "substantive" hearing. These requests are presented to the court and can be made within ten (10) days of the service of the proceedings to the other party or even sooner, by requesting a reduction in the service timeline. Obtaining protective orders for specific measures is equally possible for married and unmarried parties. In the absence of an agreement between the parties, the court will decide on such protective orders or emergency measures. The evidence presented for protective orders will be documentary, often via sworn statements. The parties will not need to testify before the court at this stage, and their respective attorneys will present the necessary arguments. However, unless exceptional circumstances apply, the parties must be present during the hearing for protective orders. As the court will not have had the benefit of hearing the parties' testimony or that of their witnesses, the protective order issued by the court is only valid for a certain period, usually quite short, such as thirty (30) days, potentially renewable. In other cases, the judgment may remain in effect until the judgment on "ancillary measures," the next stage of the case.

d. Interim Measures or Temporary Measures:

Upon submission of all required documents, forms, and tax declarations, a hearing date for "temporary measures" can be scheduled. While the timelines may vary among different districts, a hearing date for temporary measures is typically attainable within a period ranging from one to four (4) months, contingent upon the anticipated duration of the hearing. Consequently, the timelines to secure a hearing date for a brief session, such as one (1) or two (2) hours, will be shorter compared to scheduling a hearing date intended to span one or more days. During the hearing for temporary measures, the parties and relevant witnesses will provide testimony with the aim of presenting their perspectives and claims. The court will make decisions, including matters pertaining to child custody, the modalities of custody, access rights, spousal and child support, use of the family residence, and the allocation of expenses associated with said residence. The judgment rendered on temporary measures will generally remain effective until the hearing for "ancillary measures" related to separation or divorce (the "substantive" hearing). However, additional procedures and documents must be submitted subsequently to secure a hearing date for this final stage. Once again, the timelines can vary depending on the judicial district, but a hearing date for the separation or divorce hearing is unlikely to be available within a year if certain requests from either party are contested. If the parties have reached a comprehensive agreement, the timelines are usually shorter, contingent upon the date of the parties' separation. It is infrequent for the grounds for the divorce itself to be disputed; however, the financial aspects of the divorce, child custody, division of family patrimony, and alimony payments are often contested.

e. The Hearing for Separation or Divorce and Ancillary Measures

 

This hearing is more comprehensive than the one for temporary measures and serves the purpose of addressing all issues stemming from the marriage and its long-term dissolution. Consequently, not only will a judgment of divorce or separation be pronounced, but matters such as child custody, access rights, alimony (for children or a spouse), division of family patrimony, division of the matrimonial regime, as well as the allocation of specific sums or additional amounts (allocated to one party or another) and the distribution of the parties' assets must be determined. Hence, the parties and their witnesses will be heard by the Court, and various documents concerning the assessment of the parties' assets and debts will be examined. Regarding the parties' assets, given that this constitutes the final stage of the process leading to the ultimate judgment, the rendered decision will oversee the division of their value among the parties and/or determine the amount of claim that one party may hold against the other, along with the manner in which this claim must be settled.

f. Family Patrimony

What is Family Patrimony?

As of July 1, 1989, the Quebec government introduced the concept of "Family Patrimony." The purpose behind enacting such legislation was, among other goals, to ensure that certain assets owned by spouses would be subject to equal sharing in the event of separation or death, regardless of their matrimonial regime. This approach aimed to achieve a certain equity between the parties. The legislation pertaining to the family patrimony included retroactive application of its provisions and thus applied to all married couples prior to its enactment. However, spouses had until December 31, 1990, to sign a notarized agreement specifying their desire to be excluded from the law. In some circumstances, such a non-subjection agreement can be annulled, although this remains an exception. Married couples who were already separated by May 15, 1989, may also, in certain cases, not be subject to this law. Starting from January 1, 1991, parties can no longer renounce their rights in the family patrimony except at the time of a judgment of separation, divorce, or dissolution of a civil union, through a statement by the parties, which will be duly recorded. Following the death of one of the spouses or civil partners, the surviving partner can, however, renounce such sharing through a notarized document. The rules of family patrimony apply regardless of the matrimonial regime adopted by the married or civilly united parties (community of property, partnership of acquests, separation of property). We emphasize once again that family patrimony does not apply to common-law partners.

Assets Included in the Family Patrimony:

(Whether the asset is in one spouse's name or both)

• Family residences or rights conferring their use
• Furniture that furnishes or adorns them and serves household purposes
• Automobiles used for family transportation
• Gains accrued during the marriage, registered in the name of each spouse according to the Quebec Pension Plan Act or equivalent programs (Canada Pension Plan)
• Accumulated rights during the marriage under a pension plan and a retirement savings plan (RRSP)

Excluded from the Family Patrimony:

Excluded are assets not expressly designated as part of the family patrimony, such as money, savings bonds, shares, and other investments not integral to pension plans, income properties (unless partly used by the family), and commercial enterprises. Also excluded are assets inherited by one spouse or a civil partner through succession or donation, before or during the marriage.

Division of Family Patrimony Value:
The division of family patrimony value will take place as mentioned above, within proceedings for divorce, legal separation, marriage annulment, dissolution of a civil union, or after the death of one of the spouses or civil partners.

Certain rules must be followed to proceed with such division. The value of debts contracted for the acquisition, improvement, maintenance, or preservation of the assets that constitute it must be subtracted, and certain deductions may also be made if applicable (assets inherited through succession or donation, contribution by a partner from a gift or inheritance).

An unequal division of family patrimony value can also be ordered by the Court in certain circumstances, but equal division is the general rule.

Possible Deductions:

The law allows for certain deductions from the net value of a family patrimony asset in favor of either party. These deductions can be applied if either party owned assets that were part of the family patrimony before marriage or if either party made a contribution during the marriage towards the acquisition or improvement of a family patrimony asset, using assets inherited through succession or donation, or the reinvestment of such assets. These exceptions to the rule, of course, need to be substantiated.

g. Procedures for Unmarried Parties:

As previously mentioned, parties who are not married will proceed through requests related to custody or child support. For instance, if they have children, one party will submit a request that includes, among other things, custody of the children and child support. Protective orders can be requested in the same manner as if the parties were married. Subsequently, a hearing date will be set for the substantive hearing, regarding the parties' requests, and a final decision on the various subjects to be addressed will be rendered.

h. MEDIATION

In 1997, the Quebec government enacted the Family Mediation Act, allowing involved parties with minor children in family law proceedings to resolve their disputes through means other than litigation, namely through mediation. Except for specific cases, parties are now required to attend an information session on co-parenting and mediation and can proceed with the mediation process if they wish. A list of accredited mediators is available in each courthouse and on the Quebec Ministry of Justice website.

i. Amendment of the Code of Civil Procedure:

The new Code of Civil Procedure, in effect since January 1, 2016, places significant emphasis on various conflict resolution methods to encourage parties to attempt amicable negotiations and find common ground, even before initiating judicial proceedings.

j. Modification Requests:

Given that family law pertains to deeply personal aspects of the parties' lives, it frequently occurs that changes arise in the course of proceedings or after a final decision has been rendered. For example, a party might wish to modify the terms of child custody or access rights; a party who was employed when determining child support might no longer be working or might now be receiving employment insurance benefits. In short, parties can, under specific conditions, request the court to modify judgments previously issued due to significant changes in the circumstances of one or both parties and/or the children. Such requests are naturally subject to the court's discretion, similar to other requests.

k. Civil Union (Not to be Confused with Civil Marriage)

In June 2002, the bill establishing civil unions was adopted. Initially, during the bill's draft stages, civil unions were aimed solely at same-sex couples wishing to unite legally. However, in the final version that was adopted, civil unions are open to both same-sex and heterosexual couples. Few individuals would be civilly united. However, it is crucial to distinguish this civil union from a civil marriage. A civil union is defined as "the commitment of two individuals aged 18 years or older, expressing their free and informed consent to cohabit and respect the rights and obligations associated with this state." A civil union is formalized through a ceremony performed by a competent celebrant such as a minister, notary, court clerk, etc. Individuals joined in a civil union are subject to the same effects as married spouses, meaning they have equivalent rights and obligations. Notably, the family patrimony, matrimonial regimes, spousal support, and compensatory payments apply to them. Civil partners (similarly to married partners) can choose the equivalent of a matrimonial regime, and just like for married spouses, this agreement must be notarized. Those who do not do so will be subject to the regime of "society of acquests" (similarly to married individuals who do not sign a marriage contract). Civilly united partners without children and who agree on all separation matters can dissolve their union through a joint declaration before a notary based on a mutual agreement. If these conditions are not met, dissolution will have to be pronounced by the court. Similar to separation of bodies or divorce proceedings, the court can grant certain provisional measures or protective orders during the proceedings. Thus, the court can order one partner to provide support to the other, determine child custody, etc. In conclusion, we wish to emphasize that a couple united civilly can subsequently decide to marry. However, the opposite is not possible: individuals who are married cannot decide to unite civilly.

l. Wills and Estates

Wills

It is of great importance to ensure that you create a will if you wish your final wishes to be executed as you desire. Three types of wills exist: the holographic will, the will made before witnesses, and the notarial will. Regardless of the form of your will, it can be amended or modified by a "codicil," which is a separate document that does not need to be created in the same form as the original.

To prepare or have a will prepared that will be considered valid, you must:

• Have the capacity to make a will, meaning you must be "of sound mind" when creating your will and fully capable of understanding what you are doing.
• Be over 18 years old (except in cases involving very low-value assets).
• Your will must have been made freely and voluntarily.

Holograph Will
This is the simplest form of will to create. It must be entirely handwritten and signed by yourself. The date and your signature must appear at the end. No witnesses are required. However, the court must go through "will verification" procedures for your holographic will to ensure that all required conditions are present for it to be declared valid before your wishes can be implemented.

Will Before Witnesses

This form of will requires the presence of two adult witnesses. While a will in this form can be handwritten, it can also be typed or completed on a pre-prepared form. Additionally, another person other than you can draft such a will based on your instructions.

In the presence of the two adult witnesses, the testator must declare that the document presented is their will. It must be signed at the end, or if it was signed previously, the testator must acknowledge their signature. The testator can also have it signed by a third party on their behalf, in their presence and following their instructions. The witnesses must sign the will in the presence of the testator. These two witnesses cannot be beneficiaries.

When the will before witnesses is written by a third party or through a technical means, the testator and witnesses must initial or sign each page of the document that does not contain their signature. Like the holograph will, this form of will must undergo verification procedures by the court to be declared "valid."

In Quebec, will verification procedures involve submitting a copy of the will as part of an introductory application for will verification, along with a sworn declaration, notice to known heirs and successors, the death certificate, and other relevant documents if necessary. The will is then subject to the court's approval regarding the various necessary conditions for it to be declared valid. The court also issues certified copies of its decision, declaring that the will has been properly executed. These certified copies of the decision will be used in settling the estate.

Notarial Will

The notarial will is drafted by a notary based on the testator's instructions. The notarial will is signed in the presence of the notary and a witness. The original will is kept with the notary and does not need to undergo judicial verification, as the copies issued by the notary are authentic and can be used to settle your estate in Quebec.

Amendments to Make to a Will

The Codicil

A codicil is a document created separately and subsequently to a will. It allows for the addition, modification, completion, or partial revocation of a previous will. The codicil must adhere to one of the three forms of wills: holographic, witnessed, or notarial. However, it is not necessary for the codicil to follow the same form as the original will.

Absence of a Will

In the event of your passing without a will, the provisions of the Civil Code regarding "intestate" successions will apply. The assets comprising your estate will thus be distributed among the heirs according to rules stipulated by the law.

It is therefore once again highly important to create a will, especially for common-law partners, as the law provides nothing for them if they are not mentioned in your will. The term "spouse" used in this text always refers to a legally married spouse or a civil union partner.

Here are the rules that most commonly apply in the absence of a will:

• If there is a surviving spouse and descendants, one-third (1/3) of the estate will be allotted to the surviving spouse and two-thirds (2/3) to the children. If there is no surviving spouse, the entire estate will be allotted to the children. Note: Once again, the term "spouse" does not include a common-law partner, regardless of the duration of cohabitation. It must be a marriage or a civil union as recognized by the law.
• If there are no descendants, two-thirds (2/3) of the estate is allotted to the surviving spouse, and one-third (1/3) to the deceased person's parents (privileged ascendants).
• If there are neither descendants nor surviving spouses, half (1/2) of the estate is allotted to the parents, and half (1/2) to the deceased person's brothers and sisters.
• If there are no children, spouses, or parents, two-thirds (2/3) of the estate is allotted to the surviving spouse, and one-third (1/3) to the brothers and sisters.
• If there are no children, spouses, parents, or descendants, the estate is allotted to the deceased person's brothers and sisters..