Family law

It is possible for two married spouses, whatever their matrimonial regime, to decide to live separately without divorcing. Two types of separation apply: de facto separation, and legal separation under the Civil Code of Québec.

De facto separation is not governed by law, unlike legal separation. Although in both cases the spouses no longer wish to live together, de facto separation is not the equivalent of a legal separation.

De facto separation can occur without the spouses going to court: they simply live apart. In that case, the court remains able to rule on child custody and support should a conflict arise between the spouses, without ruling on their separation. The spouses therefore remain married and keep the same rights and obligations.

Legal separation, for its part, is pronounced by the court following an application by one of the spouses, based on the wish to no longer live together. It releases the spouses from the obligation to live together without breaking the bonds of marriage, while allowing the consequences of their separation to be settled and a judgment explaining it all to be obtained.

Spouses who apply for legal separation remain married but live separately, following a judgment pronounced by a judge of the Superior Court. The application may be filed by one or both spouses before a judge of the Superior Court of the judicial district where they reside.

Following that judgment, the spouses may reside separately. This separation also entails the separation of property (the partition of the family patrimony). A separation judgment may settle several aspects, such as child custody, access rights, child and spousal support, the division of property or any other type of claim between spouses.

Spouses who consider de facto separation remain married but agree to live separately without a prior court decision. As for property, de facto separation does not entail the separation of property, unlike legal separation.

De facto separated spouses are therefore still considered married and, as a result: they may not remarry; they automatically inherit from one another if there is no will; they owe each other fidelity, succour and assistance; and they may be required to pay certain debts of their spouse.

If you and your spouse plan to separate, you will have several decisions to make together. Some of these will concern: who will occupy the family residence, child custody, spousal and/or child support, and the division of property and of the family patrimony.

To help you make informed decisions, you may retain the services of a mediator. If you cannot agree, you may ask the court to intervene.

The family patrimony was created to ensure the economic equality of married or civil union spouses, by guaranteeing a fair share of property in the event of separation or death. Whatever the matrimonial regime, and whether or not the couple has children, married or civil union spouses must comply with the rules set out in the Civil Code of Québec.

Couples married or in a civil union since 1 July 1989 are automatically subject to the family patrimony. In the event of a breakdown, the value of the property forming part of this regime will be shared between the spouses, regardless of which of the two owns it. The value of that property is therefore divided equally between both spouses.

However, it is sometimes possible for one spouse to be entitled to a deduction against the value of one of these assets — for example where an amount from an inheritance or a gift was used to acquire the asset in question.

The assets included in the family patrimony are: the family residence and any secondary residences of the family (cottage, trailer, etc.); the furniture in those residences; the vehicles used for family travel, except a leased car (since it belongs to a third party and not to the spouses); the rights accrued during the marriage under a pension or retirement plan; and the amounts accumulated during the marriage with the Régie des rentes du Québec — Retraite Québec since 2016 — as well as RRSPs.

Excluded are: assets received by inheritance; income properties (except the portion used by the family); savings bonds, treasury bills, shares and investments; bank accounts; and cash.

Partition of the family patrimony takes place when a judgment of legal separation, an annulment of marriage or a divorce is pronounced, or when a spouse dies. It is the net value of the patrimony that is then assessed and shared, not the assets themselves.

The family patrimony rules also apply to couples married before 1 July 1989, provided the spouses did not sign, before 1 January 1991, a notarial document indicating their wish to be excluded from the family patrimony regime.

When parents separate, they must decide where their children will live and how much time the children will spend with each parent.

Parents must also decide who will make the key decisions about how their children will be cared for and raised. Such decisions relate to custody.

Where parents separate and cannot agree, the child's habitual residence is determined by a judge of the Superior Court. Either the children will be in shared custody with both parents, or custody will be granted to one parent while the other has access rights in order to maintain a relationship with the children, according to the terms set by the court.

If you have a court judgment, it must be respected. If you are having difficulty enforcing the judgment, you may first consider family mediation. If mediation is not possible, you may apply to the court.

If there is no judgment, you must apply to the court.

Spouses may have a responsibility to support one another financially. Support may be paid by the spouse with the higher income to the spouse with the lower income.

The amount of support and how long it is paid depend on various factors, including the length of the marriage or relationship, and whether one spouse remained at home to care for the children.

All parents are responsible for financially providing for their children's needs for as long as the children are dependants. A child is usually a dependant until the age of 18; in some situations, however, that period may extend beyond that date.

In most cases, support is paid by the parent who spends less time with the children to the parent who cares for them most of the time. Support contributes to paying the expenses of caring for and maintaining the children. The amount usually depends on the paying parent's income and the number of children the parent must help support.

The parents' separation or divorce does not end this obligation, of which the child is the creditor. The obligation owed by the parents is owed to their child, not to an agreement between the parents. Support must be paid where the child does not live with both parents, by the parent who does not have care of the child to the other. It is calculated in accordance with the legislation on the determination of child support.

You cannot stop paying support on your own initiative; you must undertake certain steps to have it varied. You may, among other things, go to mediation or contact your former spouse to reach an agreement if possible. As a last resort, you may apply to the court.

A review of support may be requested either by the parent who receives support on behalf of the child, or by the parent who pays it.

The application may seek an increase, a reduction, a suspension or the cancellation of support. The amount is not fixed in time: it can be revised upwards or downwards if a new fact arises compared with the previous situation, such as the loss of a job or a salary increase.

Payment of support does not necessarily end when the child reaches the age of majority, since the obligation does not cease as of right at that point. The support obligation continues throughout the adult child's higher education and lasts until the child has achieved financial independence.

To help you make informed decisions, you may retain the services of a mediator. If you cannot agree, you may ask the court to intervene.

A common-law union exists between two unmarried people who live together for a certain time, or who live together for a period and have a child together. These people may be considered common-law partners under the law.

Common-law partners do not benefit from certain protections reserved for married couples, particularly in the event of separation. A common-law partner does not benefit from the protection of the family residence where only one of the partners owns it, nor from the right to a division of property on separation.

Unlike married spouses, the law imposes no obligation on common-law partners towards one another. From the point of view of the law, they are considered single persons. The rules on the partition of the family patrimony apply only between married spouses.

In other words, a common-law partner: does not benefit from the protection of the family residence where only one partner owns or rents it; has no right to a division of property on separation; has no right to a compensatory allowance for work performed during the union for the benefit of their partner; has no right to claim support for themselves on separation; and does not inherit on the death of their partner if the latter left no will or did not name them as an heir.

On the other hand, certain social legislation grants common-law partners the same rights as married persons after a certain period of cohabitation, or if they have a child together, for example.

Usually, if common-law partners separate, each keeps the money and property that belongs to them. Common-law partners divide only the assets they own jointly.

A common-law partner may be able to claim a portion of the other partner's property or money in certain situations, such as where there has been unjust enrichment, or where the partners have signed a cohabitation agreement.

Couples living common-law can indeed enter into a cohabitation agreement and provide for certain aspects in the event of separation — for example what will happen to property and children. Since common-law partners do not have the same rights as married or civil union couples, a cohabitation agreement allows them to define their own arrangements, provided these do not contravene the law.

A cohabitation agreement allows partners to agree on various aspects of their union: the sharing of responsibilities and each person's contributions; the assets and debts each holds at the start of the union; how joint property will be divided on a breakup; and the payment of a sum of money, such as support for one of the partners on separation.

The agreement may cover only certain points, and some clauses are not valid. It is therefore recommended to consult a notary or a lawyer for the preparation and drafting of this document, which is often a complex task.

This agreement allows common-law partners to organize their life together — such as contributions to day-to-day expenses — to take an inventory of assets, and to provide for the consequences of a possible separation. It may also establish arrangements concerning children, the terms for dividing property, and support between partners.

Before signing a cohabitation agreement, it is important to fully understand its provisions, to review the agreement with a lawyer, and to draw up a detailed and complete statement of your personal financial situation.

You are not required to use a lawyer to draft a cohabitation agreement. That said, we strongly advise obtaining individual legal advice, from different lawyers, before signing such an agreement.

Parental authority is a set of rights and duties intended to protect the child's safety, health and morals, as well as to ensure their education and allow their development. These rights and duties must be exercised by the parents in the child's interest and with the respect owed to the child, until majority or emancipation. It is through parental authority that parents make the decisions likely to affect their children's well-being.

Parental authority means that parents have both the duty and the right to have custody of their children, to supervise them, to protect them physically and psychologically, to see to their safety as well as their health, to educate them, to feed them and to maintain them.

Only serious grounds can justify its withdrawal, whether total or partial. Safeguarding the child's interest takes precedence in this kind of decision. It is an exceptional measure, not taken lightly.

This is known as deprivation of parental authority: to deprive a parent of the exercise of parental authority, an "application for deprivation of parental authority" is presented to a judge. The application must demonstrate that there is a serious ground capable of justifying the partial or total removal of the parent's parental authority, and that such removal is in the children's interest.

Withdrawal of parental authority may be applied for by a family member, the child's tutor, or the Director of Youth Protection.

The withdrawal may be total, but it may also be only partial, in which case it bears on part of parental authority only. Certain attributes, such as the rights and duties of custody, supervision and education, may thus be maintained.

No. Even if you do not have custody of your child, you still retain parental authority. This means that the parent who has custody must still consult you: parental authority can only be withdrawn on serious grounds.

A parent who has been deprived of parental authority may apply for its restoration by establishing new circumstances, in the child's interest. The application may be made to the Superior Court or to the Court of Québec (Youth Division), depending on which of those courts rendered the judgment.