• the family residence
• the secondary residences
• the furniture in both the family residence and the secondary residence
• the motor vehicles used by the family
• pension funds
• RRSPs; and
• QPPs.

Family patrimony is a matter of public record, which means that you cannot waive it: it exists and applies whether you want it to or not, whether you were married in Quebec or elsewhere, and regardless of the matrimonial regime that governs your union.

Note that family patrimony applies only to married people, not common-law spouses. For more information on the rights and obligations of common-law spouses, click here.
Generally, property included in the family patrimony will be divided equally (50% to each spouse). Some exceptions or special cases exist (for instance, property purchased before marriage, property purchased with a gift or bequest, etc.) that mean the family patrimony will be divided other than equally. An in-depth analysis of your situation is then required.
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Generally, property included in the family patrimony will be divided equally (50% to each spouse). Some exceptions or special cases exist (for instance, property purchased before marriage, property purchased with a gift or bequest, etc.) that mean the family patrimony will be divided other than equally. An in-depth analysis of your situation is then required.

For example, Maurice and France married in 1992 while living together in a rented apartment. In 1997, Maurice bought a house in Repentigny, and he alone paid the down payment. The house was in his name only. Over the years, Maurice also paid the mortgage, property taxes, insurance, and so forth. In 2016, Maurice and France decided to end their marriage. At that point, the house was paid in full and worth $850,000. When they divorced, Maurice retained ownership of the house, but France received $425,000 in compensation, even though she never paid anything toward the house.

Matrimonial regime

If you’re married, you’re bound to your spouse by a matrimonial property regime, and it is this matrimonial property regime that governs, among other things, how property will be divided at the time of divorce.

If you resided in Quebec at the time of your marriage, your matrimonial regime is one of the following:

1. partnership of acquests; or
2. separation as to property.

The partnership of acquests regime has been the legal regime in the province of Quebec since 1970, which means that if you haven’t agreed on another regime by signing a document before a notary, the regime of partnership of acquests applies to you.

Under this regime, all property acquired during the marriage, including investments, money in the bank, TFSAs, shares in a business, income property and capital gains accumulated during the marriage on property owned before the marriage, must be divided equally between the spouses. Some exceptions or special cases exist (for instance, property purchased before the marriage, property purchased with a gift or bequest, etc.) that mean that the property that makes up the partnership of acquests may be divided unequally. Here again, an in-depth analysis of your situation is required.

However, if you signed a marriage contract with a notary before or during the marriage, you are married under the separation as to property regime. If this is the case, the assets included in the family patrimony will be divided, but not the other assets. Under the separation as to property regime, all other assets will remain the sole property of the spouse to whom they belong: company shares, income property, non-registered investments, money in the bank, and so forth.

Our firm can work with you during your divorce to ensure that your rights are respected and defend your interests. We can also advise you and work with you before or during the marriage to prepare for the future, particularly if you are planning to acquire a business, buy an income property, issue new shares in an existing company or reorganize your corporate structure.

The Divorce Act provides that spousal support may be paid when the spouse requesting it:

• is not financially independent (e.g., is ill or lacks training and earning capacity);
• is financially disadvantaged as a result of the break-up; or
• has the right to maintain the standard of living experienced during the union.

For example, if you left your job since the children were born to look after them and the household, and your spouse is paying for your needs, you will probably be entitled to spousal support if the marriage breaks down.

Maintenance payments can take several forms: periodic payments (indefinite or for a given period); a lump sum (net of tax); payment of certain expenses by the other party (e.g., mortgage payments); provision for costs (to pay legal or expert fees).

To calculate the amount of spousal support, the courts take into account:

• the needs of the person claiming spousal support;
• the paying party’s ability to pay; and
• whether or not the spousal support is compensatory.

To determine whether and how much spousal support should be established, all sources of income of the parties will be considered: salary, dividends, interest on investments, capital gains, taxable profits, personal expenses (car, mobile phone, travel, etc.) paid by a business, unremitted business profits (UBP), trust income, and so on.

Our lawyers frequently deal with issues of spousal support in negotiations and in court, and they will defend you vigorously.

To learn more about your rights and obligations regarding spousal support, contact us.

For example, Julie and Simon were married under the separation as to property regime. During the marriage, Simon started an advertising business, which became very successful. Simon has a very busy work schedule, while Julie, a chartered accountant, stopped working to look after the children and help Simon with his business. During the marriage, when the children were at school, Julie looked after the household on her own, but she also helped Simon with his business, including bookkeeping, hiring employees, organizing Christmas parties and so on. She was not paid for this work, which kept her busy for an average of 20 hours a week for several years. Julie’s work also allowed Simon to concentrate more on his work and on developing his customer base, as he no longer had to perform unprofitable administrative work. What’s more, at home, Simon paid for all the family’s expenses on his own, as he’s the only one generating an income. At the time of the divorce, Simon’s business was worth $5 million. Julie had a net worth of $100,000, which was invested in RRSPs that Simon bought for her. Since they were married and separate as to property, Julie was not entitled to half of the value of Simon’s business. Julie could, however, claim a compensatory allowance to be compensated for her extraordinary contribution to Simon’s business.

Our firm can assist you with your claim for compensatory allowance, both as plaintiff and defendant. Contact us for more information.

What would be best in your case: sole custody to one parent, access rights one weekend out of two, extended access rights? Should these access rights be supervised? Is shared custody preferable? On what type of schedule? What about public holidays such as Christmas or Easter? And what about summer holidays? Would nesting be best for the children until the final judgement? Our professionals can help you untangle all these questions so that you can make the best possible decisions for your children at every stage of the separation process.

In certain exceptional circumstances, you may want to leave the family home with your children without first obtaining permission from the other parent. If this is the case, consult us quickly and before you leave.

Other situations could also lead you to leave the family home and leave the children with the other parent for a short or longer period. Again, this could have serious, even irreversible, consequences. If this is the case, consult us quickly before you leave.

You should also avoid allowing a custody situation that you feel is contrary to the best interests of your children to continue. When the court must make a decision that affects your children, their stability will be a factor. When it comes to custody, acting sooner rather than later is always best.

Making decisions about children

In Quebec, unlike anywhere else in the world, having physical custody of a child does not give you the right to make all the decisions concerning that child on your own. Barring exceptional situations in which one parent has been stripped of their rights by a court, both parents jointly exercise parental authority and must make important decisions about their children together, including the choice of school, health care, religious practices, food (e.g., vegetarianism), specific activities, etc.

You must therefore consult and obtain the permission of the other parent before taking any action. If you and the other parent disagree about any of these important decisions concerning your children, you can go to court to have the matter decided, whether or not you have physical custody of the child. If it’s impossible for you to wait for the court’s permission, consult us before taking any action.

Child support

The law stipulates that both parents must support their children. Since this legal obligation survives the break-up of the couple, parents must continue to contribute financially to meet their children’s needs after their separation. This is known as child support (not to be confused with spousal support).

Child support is determined primarily by the parents’ income, and then adjusted to take account of the amount of time each parent spends looking after their children. So, the higher your salary and the less time you spend with your children, the more child support you will have to pay. Similarly, if you and the other parent each generate a gross annual income of $65,000 and you share custody of your child equally (each 50% of the time), no child support will be payable. On the other hand, if in this same scenario you generate a gross annual income of $100,000, you will have to pay child support to the other parent, even if shared custody is in place.

The child support payable is determined based on scales established by law. We can help you make the necessary calculations.

Since support is based on the parents’ gross income, there are certain situations (business income, companies controlled by the payer, unremitted (business) profits, personal expenses paid out of the business, investment income, undeclared income, refusal by the payer to work, etc.) where it will be useful to ask the court to impute (i.e. add) income to the other parent, so that support can be set appropriately and fairly.

It is important to note that child maintenance payments were de-taxed several years ago, which means that the amounts paid in this respect are net of tax (i.e. non-deductible for the payer and non-taxable for the recipient).

Contrary to popular belief, child support does not stop when the child reaches the age of 18. In fact, child support will be payable for as long as your child is considered to be “financially dependent” on their parents. As a general rule, even if your child is over 18, if they are a full-time student, child support will continue to be payable. There are several special considerations when it comes to child support for children over the age of majority, and your specific circumstances will need to be taken into account. One of our professionals can advise you in these matters.

Special costs

In addition to basic child support, parents may have to pay other expenses, in proportion to their respective incomes. These are known as special expenses. These costs include:

• childcare costs (daycare, school daycare, etc.)
• private school,
• post-secondary education,
• orthodontics,
• medicines not covered by insurance,
• competitive sporting activities, such as gymnastics, horse riding, hockey, soccer, and so forth,
• etc.

As far as specific expenses are concerned, bear in mind that before you incur any such expenses, you must obtain the other parent’s authorization if you wish to be able to claim reimbursement from them. If the other parent refuses to incur such an expense, or even if they refuse to reimburse you for such an expense, you can go to court to have these issues settled. We can assist you in this process.

For example, Karen and Martin are the parents of Thomas, an 11-year-old boy who is starting grade 6 this year. Despite their separation 2 years ago, Karen and Martin have always managed to agree on decisions concerning their son. Now the time has come for them to enrol Thomas in high school. A problem arose because they didn’t agree on where to enrol him. Karen wanted to enrol Thomas in private school. She believed the close supervision at this private school would help Thomas with his behavioural problems, and she also felt that the sports concentration offered would be beneficial for him. Karen wanted to give Thomas the best and said that the parents’ combined financial situation was more than enough to afford him this luxury. Martin, on the other hand, strongly disagreed. First, since he generated the most income, he knew that he alone would have to pay a large part of the costs of this private school. What’s more, he didn’t think Thomas had any behavioural problems that required him to attend private school and maintained that the local public school – the same one Karen and Martin attended – offered just as many services. In any event, Martin believed that private school wasn’t “real life” and wanted to offer his son a public education, which was closer to his parental values. In short, Karen and Martin were at an impasse. In such a situation, Karen could go to court to ask to be allowed to enrol Thomas in private school and force Martin to pay his share of the costs. Of course, Martin would defend himself and explain his position. After hearing the evidence, the court would make the decision it considered best for Thomas.

IMPORTANT NOTE: Where children are concerned, custody, parental authority, child support and special expenses rules are the same whether you are married or not.