Quebec bill grants protections and establishes new obligations to de facto unions

The long-awaited proposal, part of the provincial government’s ongoing effort to revamp family law, will amend the Civil Code of Quebec to establish the notion of “parental union,” a status that would automatically apply to new parents who are neither married or in a formal civil union. The new parental union regime would in turn trigger the establishment of a family patrimony consisting of certain assets owned by either spouse.

Bill 56, scheduled to be examined by National Assembly parliamentary commission at the beginning of next month, also proposes protective measures in the event of separation, such as allowing a de facto spouse to claim a compensatory allowance in compensation for their contribution to the enrichment of the other spouse’s patrimony. De facto spouses will also have to evenly split the value of the family residence, furniture and motor vehicles acquired after the birth of the child and used by the family if the relationship breaks down.

At present in Quebec, a haven for common-law couples, representing 42 per cent of live-in relationships in 2021 compared to 23 per cent in the rest of Canada, de facto unions do not confer rights or financial benefits, with each spouse owning assets in their name. Nor can spouses have a recourse against these assets, even if used for the family.

“Even if it’s not perfect, it’s a start,” remarked Marie Annik Walsh, a Montreal family lawyer with Dunton Rainville and past president of the Quebec Association of Family Lawyers. “I hope it will make people think, or at least have discussions, before jumping into a de facto relationship because at present there’s a lot of confusion out there because of current tax rules and because some government regimes will recognize that if you with someone else they are viewed as your spouse. But with the new bill, the fact that you live together, have a child, and form a parental union, there will be legal consequences. That helps because as it stands there is no definition of de facto spouse in the Civil Code.”

Quebec City family law expert Dominique Goubau does not believe that the proposed reforms go far enough, but he is nevertheless pleased that Bill 56 has adopted a “rather innovative principle” that ordains legal protections be based “much more by the presence of children than by the legal and conjugal status” of the parents. “That’s a big step forward,” said Goubau, Ad.E., a retired Université Laval law professor now acting as counsel with Verdon Armanda Gauthier LLP.

Equally significant, added Goubau, are provisions under Bill 56 that “protect” the principal family residence, conferring them the same protection that now exists for married couples. Under the proposed legislative reform, if one of the spouses is the sole owner or tenant of the family residence, they cannot sell or terminate the lease without the express authorization of the other spouse. That means that in the case of separation, a spouse who does not own or rent the property can be granted a right to live in the family home when it is in the best interests of the children, explained Goubau. “This protection only existed for marriage and civil unions in Quebec, but not for unmarried couples,” said Goubau. “For many years, the majority of children did not have access to this protection mechanism because the majority were born to unmarried parents. In my opinion, this protection is the most positive aspect of the reform.” In 2021, 65 per cent of children were born outside of marriage, according to government figures.

At first glance the family law reform responds to the new reality of Quebec families by providing stronger legal protection for the rights of de facto spouses who have had children, said Kevin Houle, president of the Professional Association of Quebec Notaries (APNQ). “We’re in the process of examining from a purely legal point of view whether all the elements of the bill are properly linked together with current provisions but it appears that it is bringing our family law up to date,” said Houle, who practices with the Montreal South Shore notary firm Novalier LLP.

Bill 56, according to family law pundits, is a belated response to the Supreme Court of Canada decision in Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61, otherwise known as Éric v. Lola. In a 5-4 decision, the top court found that provisions of the Civil Code that denies spousal support and property division rights to de facto spouses was constitutional, even though the majority found it to be discriminatory. The decision prompted the Quebec government at the time to launch a blue-ribbon panel, which included Goubau, to examine the issue. In 2015, a comprehensive report by the Advisory Committee on Family Law recommended that Quebec “establish a legal relationship between the parents of a joint dependent child with reciprocal right and obligations.”

FALLS SHORT

But Bill 56, aimed at providing a better safety net for children by rewriting the legal framework of conjugal life, falls short on several levels, according to family law authorities. Under the planned reform, common-law spouses will automatically be covered by the new plan, but will have the option of opting out through a notarial act en minute. It is problematic that no time limits have been set for opting out of the parental union regime, said Walsh. “There are going to be a lot of people who are going to opt out of this,” which will expose “more vulnerable spouses who are financially dependent, even if they’re working,” said Walsh. She would have set a one-year deadline, that is, one could opt out within the first year of the relationship, and “after that, you can’t.”

But Michel Tétrault, a family law expert who has written several books on Quebec’s family law regime, views the opting-out option to be far more advantageous than the opting-in formula proposed by the 2015 Advisory Committee on Family Law. “It’s a great step forward, because people will have the right from the moment they have a child, and if they don’t want to be a part of the new parental union regime, they have to go to the notary,” said Tétrault. “This, I think, will make people think more carefully before giving up their rights. It’s safer to opt-out than to opt-in.”

But Tétrault warns that there are likely to be messy legal situations arising from opting-out, just as was the case when the Quebec government created the family patrimony (also known as family property or family assets) regime for all married couples in 1989. The Act to Amend the Civil Code of Québec and Other Legislation in Order to Favour Economic Equality Between Spouses introduced major changes to the financial relationship between spouses but couples married before July 1989 had the option of opting-out.

“We’re not immune to the kind of sideslips that occurred when family patrimony came into force, meaning that people could exclude themselves from the family patrimony,” noted Tétrault. “It wasn’t always done elegantly. Even today, there are still disputes before the courts dealing with the non-transferability of family assets.”

But the one glaring omission from Bill 56 that stands out is that it does not provide for spousal support between unmarried couple as it does for married couples, assert family law experts. The Supreme Court in Éric v. Lola demonstrated that the “big problem” with Quebec’s matrimonial law was that there was no possibility of support between de facto spouses in the event of separation, when one of them was in a “state of need,” noted Goubau. Since a spouse who needs alimony at the time of separation is at the same time the spouse who has custody of children, spousal support has a direct impact on a child’s material and financial situation, said Goubau.

Bill 56 “should logically” have considered that support obligations, “which are not automatic, which are not a distribution of property, and which therefore do not constitute a major infringement” of the contractual freedom of spouses who decide not to marry, represent an equitable and often temporary mechanism to help one of the spouses, generally the custodial parent, and generally women, who need temporary assistance, at least at the time of separation, said Goubau.

“I find it paradoxical that the bill does not recognize (the need of spousal support) despite the its affirmation of the principle that the economic effects of a separation are the same, regardless of legal status, whether married or not”, said Goubau. “Logic would have dictated that we move in that direction, as indeed has been done in every other province and territory in Canada.”

But Walsh, while not agreeing with the government’s stance, understands its position to exclude spousal support provisions in Bill 56. It’s not fair, she added, that de facto spouses in a financially vulnerable position will find themselves with very little to fall back on, with children bearing the consequences as well. “If the government had taken such a step, it would have really been marrying everyone without their will, and the Justice Minister (Simon Jolin-Barrette) didn’t want to go there,” said Walsh.

In its place, the justice minister argues that Bill 56 will make it easier for spouses to seek compensatory allowance, a remedy available for married spouses, from the court for parents who believe they experienced losses after having contributed to the enrichment of the other spouse’s assets. But family law experts assert that will be far from the case. At the moment, in case law, this is not the best way to obtain compensation because it’s difficult to prove and make the case, said Tétrault, who is writing another book on Quebec family law that is expected to be completed by this fall.

Provisions dealing with compensatory allowance in Bill 56 represent a step backwards, said Goubau. De facto spouses can bring a claim in unjust enrichment under general private law even though they are excluded from matrimonial law. But the proposed legislative reform provides a method for calculating compensation and stipulates that compensation will be calculated on the basis of the value of the goods or services provided. “This runs counter to the jurisprudence of the Supreme Court of Canada, which since the early 2010s, has established that when there are remedies for unjust enrichment between unmarried people, then there can be, in certain cases, a method of calculating compensation that is not based on the value of the contributions, but rather on an idea of sharing accumulated wealth,” said Goubau.

CATEGORIES OF CHILDREN

The proposed law has also been harshly criticized because it does not protect all children in the same way. The coming into force of the law will not be retroactive. As a result, only de facto spouses who are the parents of the same child born or adopted after June 2025 will be subject to it. That risks creating four categories of children: children born out of married parents who are subject to a division of the family patrimony on separation; children born to common-law spouses before the coming into force of the law who will not be covered by Bill 56; children born after the law comes into force; and children from so-called blended families. “Normally, the form of conjugal union should have no influence on rights,” said Tétrault.

Goubau believes that it is “completely discriminatory” and runs counter to article 522 of the Civil Code which stipulates that all children whose filiation is established have the same rights and obligations, regardless of their circumstances of birth.

Bill 56 also proposes that in matters of succession amending the rules on legal devolution to allow a spouse who was in a parental union to inherit from their deceased spouse where the spouses had been sharing a community of life for more than one year at the time of death – a provision that Houle is concerned about. “Will these amendments have a practical impact on the way notaries handle successions?” asked rhetorically Houle. “We’re worried that this could have an effect on successions, an effect that is not what was expected.”

Bill 56, widely expected to dramatically change the family law legal landscape, will likely face legal challenges, according to family law experts.\

“I’m convinced that if the bill goes through as it is, we’re going to see another Éric v. Lola,” said Goubau. “The Supreme Court rendered a decision based on the Civil Code as it stood in 2013. The bill intends to import and confirm a completely new principle, which is the recognition by law that the presence of children has a material and financial impact on the parties. This is a completely new principle. And it’s within the framework of this new principle that we’ll have to analyze whether the distinction between children taken into care within a married or unmarried union is discriminatory or not. The legal framework for the analysis will be very different, given the philosophy of Bill 56.”