Common-law partners

If there is no will at the time of death, the rules of the Civil Code of Québec will apply to determine how your assets will be distributed and who will be responsible for administering your estate. A will allows you to choose your heirs and legatees and ensures that your final wishes are respected.

A common-law spouse receives no share of the estate unless designated as a legatee by the testator in a will. However, if you have children, your home will be divided among them. They will therefore be co-owners, each owning a half.

A bequest made to a former spouse prior to the divorce is automatically revoked, unless the testator has, through testamentary provisions, expressed the intention to favor the former spouse despite the divorce.

After a divorce, it is important to review your will; otherwise, you risk putting yourself and your loved ones in a difficult situation.
You must draft a separate will for each person. For example, you cannot have a joint will with your spouse.

There are three ways to make a will:

• Holographic: This is the simplest type of will. The testator simply writes their wishes by hand and signs the document. Great care must be taken, as it can lead to difficulties in interpretation and may be incomplete.
• Witnessed: It must be signed by the testator and two other people. If it is not handwritten, they must initial each page. For example, a will drafted by a lawyer is a witnessed will.
• Notarized: This type of will is drafted with the assistance of a notary, who guides you to ensure your wishes are respected. The notary can also advise you on the decisions you need to make, such as designating a beneficiary. The notary will also register your will, ensuring its preservation.

We strongly recommend that you have your will drawn up by a notary. Holographic wills and wills made before witnesses are easier to contest, do not prove that you were competent to make a will, and may be lost or destroyed. They must also be verified after your death, which can result in costs and delays.

A will drawn up before a notary, on the other hand, demonstrates that you were competent to make a will. Furthermore, the notary keeps a copy on file and can handle the process with strict confidentiality. The notary will also certify that the will was not drafted under pressure, coercion, or threat, which would invalidate it.

By consulting a notary, you avoid misunderstandings and disputes and can be assured that your will will be interpreted according to your final wishes. Their advice and expertise will help you ensure nothing is overlooked and make the task easier for the executor of your estate.

In the event of an accident or serious illness that renders you unable to exercise your mental faculties, the law provides for the establishment of a protective arrangement involving guardianship, conservatorship, or an adult advisor, depending on the degree of incapacity. This arrangement designates the person authorized to represent you or provide you with assistance.

A power of attorney in anticipation of incapacity allows you to avoid public guardianship in the event of temporary or permanent incapacity. Public guardianship entails additional costs and an administrative process that involves lengthy delays. Furthermore, a stranger is entrusted with the mandate to represent you. The power of attorney for incapacity allows you to avoid these inconveniences and to personally designate the person who will look after your well-being and your assets.

With a power of attorney for incapacity, the agent will be able to consent to medical treatments or decide which facility you will be placed in. This person will also manage your assets, although it is possible to choose a different agent for each of these two aspects.

There are two ways to draft a power of attorney in anticipation of incapacity:

1) Private document: This type of power of attorney is drafted by the principal or by a third party. To be valid, however, it must be signed in the presence of two witnesses who:

• Confirm your capacity in writing;
• Are not your agents;
• Have no interest in the power of attorney;
• Are of legal age and of sound mind.

You must be vigilant, as these elements could be challenged, which could affect the validity of your power of attorney.

2) Before a notary: A power of attorney executed before a notary is authentic, making it very difficult to challenge. The notary verifies your capacity and helps you clearly articulate your wishes. In addition, the notary retains the original power of attorney and registers it in the Chamber of Notaries’ Register of Powers of Attorney, ensuring its protection.

A power of attorney in anticipation of incapacity drawn up before a notary ensures that it is complete and tailored to your specific situation. It also provides you with a high degree of security, as it is difficult to challenge.

Your change in marital status will affect the amount of benefits you receive from the CCTB and the GST/HST credit. You must notify the Canada Revenue Agency (CRA) of your new status and the effective date by the end of the month in which the change occurs so that the amounts can be adjusted to reflect your situation. Otherwise, you may face penalties if you received excess benefits.

Generally, the same rules apply to the CCTB application as to the GST/HST credit application.

If you are now married or in a common-law relationship:
The CRA will recalculate your benefit based on the number of children in your care and their ages, your province or territory of residence, and your net family income.

If, after your change, there are children living with you, the CRA will list all the children on the mother’s account since she is presumed to be the responsible parent. If you are married or in a same-sex common-law relationship, one of you will receive the CCTB for all the children.

As a general rule, for any given child, only one parent is eligible to receive the benefits.

To report your change, you must contact the CRA directly or send a letter to your tax center indicating the date of the change, your name and Social Insurance Number, and those of your spouse or common-law partner, or complete Form RC 65 Marital Status Change, available online at the following address: https://www.canada.ca/en/revenue-agency/services/forms-publications/forms/rc65.html

If you are now separated, divorced, or widowed:
The CRA will recalculate your benefit in the same manner described above.

If you are going through a separation, you must wait until you have been physically separated for a period of 90 consecutive days before notifying the CRA. To do so, you must follow the same procedure as in the previous section.

Regarding your claim for the GST/HST credit, if you did not claim it on your tax return, you can file the claim by contacting your tax centre directly or by sending them a letter.

If you have shared custody:
It is possible for two parents to share custody of a child more or less equally. Examples include situations where the child lives with one parent for one week and the other for the next, or where the child lives with one parent for 3 days and the other for 4 days. Each parent is therefore responsible for the child’s care and upbringing during the time the child lives with them.

Since July 2011, if parents share custody, they are considered eligible to receive the CCTB. Thus, they will receive the benefit in equal shares on a monthly basis.

Keep in mind that it is entirely possible that one or both parents may not receive any benefits due to a family income that is too high.

If you are starting or ending a shared custody arrangement, you must notify the CRA by contacting them directly or by completing Form RC66, Canada Child Benefit Application, available online at: https://www.canada.ca/en/revenue-agency/services/forms-publications/forms/rc66.html

If you are already receiving the CCTB, you can contact the CRA directly or send a letter explaining the shared custody arrangements to your local tax centre. You can find the tax centre nearest you at the following address: https://www.canada.ca/en/revenue-agency/services/child-family-benefits/address-tax-centre-mail-your-forms.html

**To get an idea of the amount of benefits you are entitled to, a child and family benefits calculator is available at the following address: https://www.canada.ca/en/revenue-agency/services/child-family-benefits/child-family-benefits-calculator.html

If you have any questions, you can contact the Canada Revenue Agency at 1-800-387-1194.