Private international law

Private international law applies to private relationships and disputes when these involve legal relationships containing a foreign element — that is, when more than one legal system is concerned. Its role is to create a legal framework that makes it possible to determine the applicable law, the competent jurisdiction, and the conditions for recognizing and enforcing foreign decisions in Quebec, or decisions rendered in Quebec in foreign territories.

One particularity of private international law that should not be overlooked is that a court seized of an international dispute will not necessarily apply its own law. For example, a Quebec court may very well be led to apply French, Spanish or American law in a dispute connected to those jurisdictions.

The main areas concerned are: marriage and the marriage contract; separation and divorce; liquidation of the matrimonial regime; adoption; the terms governing the exercise of parental authority; the organization of the children's lives; child and/or spousal support; and the wrongful removal of a child or international abduction.

A court has jurisdiction to examine and decide a divorce if one of the two spouses has been ordinarily resident in the province for at least one year before the divorce proceedings are instituted.

A couple who immigrated to Quebec can obtain a divorce in Quebec if they meet the province's requirements. To divorce in the province, one of the spouses must have resided in Quebec for at least one year and the spouses must be in one of the situations recognized by law for divorce.

That said, even where the spouses agree to divorce in Quebec, other laws may still be applicable.

In order to divorce in Quebec, one of the spouses must have resided in Quebec for at least one year and the spouses must be in one of the situations recognized by law for divorce. A couple married abroad can therefore obtain a divorce in Quebec if they meet the province's requirements.

The Superior Court has jurisdiction to hear and decide an application for divorce only if one or the other of the parties has been ordinarily resident in Quebec for at least the 12 months preceding the filing of the application.

The effects of marriage generally encompass the relationships, both personal and financial, between the spouses.

Marriage gives spouses certain legal protections during the marriage, but also at its end: protection of the family residence and its furnishings; the irrevocability of the designation of a spouse as an insurance beneficiary where the designation is not made in a will; the partition of property at the end of the marriage; the possibility of claiming support for oneself from the other spouse; and the possibility of inheriting on the death of the spouse where there was no will.

Where the spouses have not signed a matrimonial agreement or marriage contract to that effect, the applicable matrimonial regime is that of the spouses' domicile at the time of the union. Should the spouses live in two different States at the time of their marriage, the applicable matrimonial regime is that of the place of their first common residence or, failing a common residence, that of the place of the spouses' common nationality. Lastly, if the spouses have no common nationality, the applicable matrimonial regime would be that of the place where the marriage was celebrated.

The law has therefore put in place a clear mechanism, depending on the spouses' situation, for determining the matrimonial regime applicable to a marriage celebrated abroad.

A marriage celebrated abroad cannot set aside the rules of the family patrimony. The provisions of the Civil Code of Québec relating to the family patrimony are of public order and apply to all marriages. These rules therefore apply at the time of separation.

The family patrimony is a protective measure intended to protect the vulnerable spouse in the event of separation, and includes certain property of the spouses that should be partitionable: the family residence; a secondary residence used by the family; the furnishings of those residences; motor vehicles used for family travel; and retirement benefits accumulated during the marriage, such as pension plans, RRSPs and earnings registered with the Régie des rentes du Québec.

Exceptionally, depending on the couple's situation, the family patrimony may not apply; this is, however, very rare.

A Quebec court may apply a foreign law where the content of the foreign law has been established to the satisfaction of the Quebec court; if so, it renders judgment in accordance with that law. Otherwise, it applies the law in force in Quebec.

The law of the other provinces and territories of Canada, like the law of foreign States, must be pleaded — therefore invoked — for the court to take notice of it. A foreign law may be proved by producing a copy issued by a competent foreign public officer, or a copy certified by a foreign public officer who is its depositary. In the first case, the document proves its content without it being necessary to prove the signature or the capacity of the competent officer. In the second, the document proves its conformity with the original.

In some cases, however, merely producing the foreign law is not enough. Its content may require more elaborate evidence, which may be made by expert testimony, by producing a certificate drawn up by a jurisconsult, or by one of the modes of proof provided for in article 2811 C.C.Q.

Under article 2807 C.C.Q., the court must take judicial notice of the law in force in Quebec.

However, article 2809 C.C.Q. provides that the law of a province or territory of Canada and the law of a foreign State must be pleaded for the court to take notice of it, in which case the court could apply it. There are nevertheless certain exceptions to the obligation to plead foreign law.

First, the recognition and enforcement of a judgment rendered abroad are necessary to give effect, within the jurisdiction of Quebec, to a judgment rendered by a foreign court.

The Quebec authority will limit itself to verifying whether the foreign decision to be recognized meets the necessary conditions, without examining the merits of the case. A foreign divorce will not necessarily be recognized in Quebec, and it is advisable to consult a legal professional to verify whether the divorce judgment can be recognized.

The term lis pendens refers to the state of a dispute brought simultaneously before two courts of the same level that are equally competent.

If each spouse takes steps in a different country, each court will have to decide whether it accepts to hear the divorce and render judgment accordingly, or whether, on the contrary, it declines in favour of the court of the other country — the latter then deciding which laws it will use to judge the case.

In Quebec, however, article 3137 of the Civil Code of Québec gives the court the power to stay the Quebec proceedings if another action between the same parties, based on the same facts and having the same object, is already pending before a foreign authority, and if the foreign proceedings were filed first.

The Superior Court has jurisdiction to hear and decide an application for divorce only if one of the parties has been ordinarily resident in Quebec for at least the 12 months preceding the filing of the divorce application.

In a divorce, the courts will take a foreign matrimonial regime into account if it is invoked and proved. It is up to the parties to prove the foreign law to the judge. Should they be unable to establish or prove their foreign matrimonial regime, the divorce may be pronounced according to the law in force in Quebec, namely the partnership of acquests, which has been the default matrimonial regime in Quebec since 1 July 1970.

The partnership of acquests is a regime that favours sharing the value of property accumulated during the marriage and allows spouses to exclude certain property that is their own.

Although Canada sets rules that must be followed by the provinces, Quebec provides for rules specific to the province, found in Book X of the Civil Code of Québec.

The other parent must give their authorization, and this is the case for separated parents even where the parent travelling with the child has sole custody.

A letter of consent has the advantage of clarifying the situation for everyone concerned. Although a letter of consent is not mandatory, it is therefore recommended to draft one indicating to customs officers, transport companies or any other person that your child is travelling with the authorization of both parents.

The procedure for the return of a child wrongfully removed to another country can be particularly complex and requires acting quickly, to prevent the chances of recovering your child or children from becoming more difficult. It is therefore important to entrust the procedure to a professional who can assist you with these steps, which are a priority and urgent.

A wrongful removal or international abduction occurs when a parent takes a child abroad without the other parent's authorization, or where that removal is committed in breach of the exercise of parental authority or of the conditions governing custody granted to the other parent by the law of the State in which the child resided before the removal.

It is very important to act quickly and to request the child's return immediately, through a central authority — that of the country to which the child was removed, or that of the country where the child was ordinarily resident before the removal. The longer you wait, the more the child settles in abroad and the more the court seized risks refusing the return on the ground that the child will have acquired a new habitual residence.

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction governs such a situation and facilitates the return of children.

You must immediately entrust that decision to your lawyer so that they can implement the procedure for claiming the effective return of the children.