DE FACTO UNION IN QUEBEC

December 8, 2009

1 THE LEGAL SITUATION OF DE FACTO SPOUSES
The legal situation of de facto spouses is not the same in civil law and in social law. Quebec's civil law grants almost no value to de facto union, whereas social law treats married spouses, de facto spouses and civil-union spouses in the same way. As parents, the individuals' status has little rele-vance: all parents, whether married, part of a de facto union or joined by civil union, have the same duties towards their children.
Strangers under civil law
The Civil Code of Lower Canada of 1866 did not imagine a shared life out-side marriage. Cohabitation was then considered immoral. Although the freedom to make wills allowed de facto spouses to provide benefits to each other in a will, cohabitation contracts were themselves deemed illegal. Moreover, section 768 of the Civil Code of Lower Canada specifically for-bade gifts inter vivos between de facto spouses.
In the 1970s, the Civil Code Revision Office, an organisation responsible for reviewing private law, recommended that de facto spouses be subject to some of the obligations to which married spouses are subject.8 How-ever, many social groups, especially those devoted to recognising women's rights, demanded that the government respect the choice made by those who wished to avoid the legal constraints of marriage and the legal procedures of dissolution.9 In 1980, the National Assembly there-fore proceeded with its reform of family law without creating any specific rules for de facto spouses.
Since a de facto union is not a legally recognised union in Quebec's civil law, cohabitants have no specific legal obligations towards each other; their relationship is only governed by the contracts they might have had drawn up to deal with the effects of their shared life. Therefore, only a cohabitation contract can lead to support payments for one of the spouses in case of a breakup or provide for some sharing of each person's assets.
This choice, made in 1980, not to establish a particular system for de facto spouses could have been questioned afterwards. However, every time the question of a legal framework for de facto union has been raised since then –for example, in 1991 when the new Civil Code was adopted10 and in 2002 during a review of the draft bill that led to the institution of civil
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unions11 – the government restated that it did not intend to impose legal constraints on de facto unions.12 On specific points, however, it did ensure that the Civil Code would treat de facto spouses, civil-union spouses, and married spouses the same way.13 Thus, it recently recognised the right for de facto spouses to consent to care for a partner who is unfit.14 The gov-ernment had also intervened a little earlier in adoption and housing is-sues.15
Although this method for addressing the de facto union issue has received support from the Barreau du Québec and the Chambre des notaires du Québec, among others,16 it also has its critics. Saying that the economi-cally weaker partner – who otherwise is not guaranteed property division or the right to support payments, unlike a married spouse – should be protected in case of a breakup, certain authors propose that de facto union should be considered as equivalent to marriage in terms of financial and property consequences. They also cite the interest of the children, who are subject to the financial consequences of the separation even though they did not participate in their parents' choices regarding the personal effects of the union. Another argument used is the respect of equal rights through non-discrimination based on civil status or marital status.17
Obviously we cannot know if these arguments will one day lead the gov-ernment to change its position. But one thing for certain is that the high-est court in the country has recently confirmed in part the legal validity of such an approach. The Supreme Court of Canada stated in the Walsh case that legislative provisions that do not subject de facto spouses in Nova Scotia to the same rules for property division as spouses did not consti-tute discrimination based on civil status, precisely because the provisions respected the parties' right to not marry.18 With this decision, the Su-preme Court has slowed the trend in provincial courts to treat de facto partners as spouses, except in Quebec. The importance of this decision favouring the principles of Quebec's approach deserves to be noted. It must also be noted that the situation of de facto spouses in Quebec differs from that in other Canadian provinces, where, for example, they have mutual support obligations.19 In the end, all signs seem to indicate that the political and legal debate on the legal effects of de facto unions, and in particular on the question of mutual support obligations, is far from over.
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Parents regardless of status
The Civil Code of Lower Canada of 1866 divided children into two catego-ries: legitimate children, that is, those conceived or born inside a mar-riage, and illegitimate children, those conceived or born out of wedlock (natural, adulterine or incestuous children). Children of cohabitants fell in the category of illegitimate children and, as a result, were subjected to the moral and legal consequences of their condition. For example, they could not inherit from their parents even when the parents recognised them, and the parents were not required to see to their education or to support them.20
During the family law reform in 1980, the Quebec government wanted to institute the equality of all children regardless of the marital status of their parents. It adopted provisions that specifically stated: "All children whose filiation is established have the same rights and obligations, re-gardless of their circumstances of birth."21 Children of de facto spouses therefore have the same rights as children of married spouses, and de facto spouses have exactly the same rights and obligations regarding their chil-dren as married spouses. Therefore, all parents, regardless of their mari-tal status, have parental authority, which means they have duties towards their children, including the obligation of support.22
As for establishing filiation, the situation for de facto spouses is different than for married and civil-union spouses. While the husband of a married woman is assumed to be the father of the child to whom she gives birth, the de facto spouse does not have this presumption of paternity, contrary to the rule that prevails in all the other Canadian provinces.23 Although the de facto spouse does not benefit from this method of establishing filia-tion, he can still voluntarily recognise the child or have the filiation rec-ognised in court if it is contested.24 Moreover, to compensate for this lack of assumed paternity, the government has provided that the de facto spouse who agrees to his spouse's medically assisted conception but then refuses to recognise the child is responsible to the mother and the child.25
The other distinction regarding filiation has to do with adoption. Before 1991, parents could not give special consent for their child to be adopted by their de facto spouses, while it was possible for married spouses to do so. This could only be done through more complicated procedures.26 This distinction disappeared with the adoption of the Civil Code of Québec 4
in 1991. Henceforth, parents could give special consent for their child to be adopted by their de facto spouse. However, unlike married spouses, who are not subject to any other conditions, de facto spouses must cohabi-tate as such for at least three years.27
Couples recognised by social law
In 1965, when adopting the Act respecting the Québec Pension Plan,28 the Quebec legislature considered for the first time the situation of de facto spouses by allowing "non-married widows" to receive life annuities.29 The movement in favour of recognising de facto unions in social legislation grew after this, especially after the 1975 adoption of the Charter of Hu-man Rights and Freedoms, which banned discrimination based on civil status.30 Today, all social legislation in Quebec that involves couples treats married spouses, civil-union spouses and de facto spouses equally.31 This legislation includes, among other things, social assistance laws such as the Act respecting financial assistance for education expenses,32 economic laws such as the Act respecting the Québec Pension Plan33 and tax laws such as the Taxation Act.34
This legislative movement in favour of recognising all couples regardless of the legal form of their union took another direction in the 1990s. In the name of equal rights regardless of sexual orientation, the recognition of homosexual de facto spouses was now being claimed.
At that time, most legislation had a strictly heterosexual definition for de facto union, and the courts were starting to examine the validity of these definitions in light of the Charter of Rights.35 Also, in 1999, the legisla-ture adopted an act amending 28 acts and 11 regulations so that their definitions of de facto union included both homosexual and heterosexual couples.36
All these acts that place de facto spouses on equal ground with married spouses on the basis that the state must respect diversity in types of unions do not, however, give uniform definitions of a de facto union. The requirements of a shared life, marital behaviour and the lack of matrimo-nial ties generally constitute the common denominators. The duration of the shared life required for recognition of a de facto union varies from one act to another. When there are children, the required duration of cohabi-tation is usually reduced.37 For a long time, a uniform definition has been
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requested,38 especially to avoid differences in the economic effects of the legislation.39 Although one has often been promised, the fact is that this standardisation still has not come. In the meantime, the legislature adopted a complementary definition of de facto union in its Interpretation Act40 and committed itself to assessing its impact by 30 June 2005.41
2 CONSEQUENCES OF THE END OF A DE FACTO UNION
While the dissolution of a marriage leads to the courts' intervention, there are no formalities for de facto spouses when they separate, since co-habitation is not recognised by civil law.
Cohabitants with children must, nonetheless, settle issues of custody and support payments. De facto spouses who are parents are subject to the same rules as married parents in this regard.
While the dissolution of a marriage automatically produces a number of personal and property effects, the end of a de facto union does not, in it-self, create any. As a result, resolving the economic and material issues of the breakup is dependent on the cohabitation contract, when the cohabi-tants have one. Otherwise, the de facto spouse who feels wronged can sometimes turn to the ordinary law remedies of the action pro socio and the action de in rem verso.
Preserving parental obligations
As parents, de facto spouses who separate are in the same situation as mar-ried couples. They must agree on the time the child will spend with each of them. If there is no agreement, the courts will make a decision on the issue based on the child's best interest.42
To help provide for the child's needs, one of the parents might have the right to support payments. In Quebec, deciding the amount of these payments is governed by a scale.43 If there is disagreement on the amount of the payments, the court will be the one to decide.
Although parental obligations are the same for all parents regardless of their marital status, it must be pointed out that children of married cou-ples sometimes have greater protection.44 For example, the Civil Code's rules for protection of the family residence only apply to married 6
spouses. They state that when there is physical separation or divorce, the spouse who is granted custody of the child may also be awarded use of the family residence, for example until the child reaches the age of majo-rity.45 Since these rules are considered effects of marriage, the courts first refused to grant the right to use the family residence to the parent with custody who lived in a de facto relationship and did not have this right stated in a cohabitation contract. But case law has since evolved. In the name of the child's better interest, the courts sometimes agree to grant such housing rights on a temporary basis.46
Resolving property rights
De facto spouses have the contractual freedom to enter into any contract that does not go against public order. They can therefore create a cohabi-tation contract in which, for example, they include rules regarding prop-erty acquired by each before and during their life together,47 shared fi-nancial and household responsibilities, the right of one or the other to "support payments"48 and the way they are to be established, the right of one or the other to exclusive use of the family residence,49 or the option of buying back their spouse's undivided share of the residence. Aside from the cohabitation contract, de facto spouses can also protect them-selves by drawing up specific contracts, by signing a proxy, by writing a will, or by buying important property as co-owners.50 It is therefore in light of the cohabitation contract that property is settled when de facto spouses separate, either amicably or before the courts.
De facto spouses with no cohabitation contract or other contract that could lead to the resolution of the financial aspects of their union can sometimes benefit from recourse in ordinary law, namely the action pro socio and the action de in rem verso, based on unjust enrichment.
Through the action pro socio, de facto spouses can seek the liquidation of a partnership created with their spouse and claim their share. This is an ordinary-law recourse available to all people who have tacitly agreed to create a partnership. This recourse exists because Quebec civil law rec-ognises that a partnership can be created by an express agreement, whether written, verbal or tacit.51 Living together and contributing to expenses is not enough to prove that a tacit partnership exists. As the country's highest court decided in a 1984 case where cohabitants to-gether operated a farm owned solely by the man, three elements must be 7
proved. Each spouse must have contributed to the common fund, in goods, money or services; there has to have been shared losses and bene-fits; and the spouses' behaviour must have shown the intent to create a partnership.52
Since the majority of de facto spouses do not enter into such relationships with the intent to create a partnership, few cohabitants have succeeded in receiving the economic compensation sought when they claimed a tacit partnership was created.53
For the de facto spouses who, over the course of their shared life, contrib-uted to their spouse's company or to the acquisition, maintenance or im-provement of property belonging to the spouse, or who feel aggrieved by the economic role they played during their life together, the action de in rem verso is the best recourse.
This action originated from case law and is now established in the Civil Code, which states: "A person who is enriched at the expense of another shall, to the extent of his enrichment, indemnify the other for his correla-tive impoverishment, if there is no justification for the enrichment or the impoverishment."54
To be successful, de facto spouses who claim unjust enrichment must therefore show their spouse's enrichment, their own impoverishment and the lack of justification for this enrichment. Although in the early 1980s the courts tended to feel that love or the hope of marriage could be con-sidered justification for the spouse's enrichment, this is no longer the case. In 1993, the Supreme Court of Canada recognised that domestic duties and child care could lead to compensation because they allowed the spouse who was free of these tasks to become richer. It also stated that a long-term de facto union could lead to the presumption of a link between one spouse's enrichment and the impoverishment of the other.55 Since then, Quebec's courts have been allowing more claims made by de facto spouses.56