Marriage and Civil Union

Separation, divorce, or the annulment of a marriage can affect your life insurance policies. This is an important issue to discuss during mediation. In particular, it will affect the designation of the beneficiary—that is, the person who will receive a sum of money in the event of the insured’s death.

It is the timing of the designation that matters. Generally speaking, if:

• the former spouse is designated as the beneficiary of a life insurance policy before the marriage: The designation remains valid despite the divorce since the beneficiary was not designated in their capacity as a spouse. The divorce will therefore have no effect on this designation.
• the former spouse is designated as the beneficiary of a life insurance policy during the marriage: The designation will no longer be valid since the beneficiary was designated in their capacity as a spouse.

An agreement providing for a complete and final settlement of the family property and the matrimonial regime does not automatically revoke the designation of the former spouse as beneficiary.

During mediation, the issue of your life insurance policies must be addressed. Be sure to take the necessary steps with your insurer to comply with the agreements reached on this matter.

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 make 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 Will: This is the simplest type of will. The person simply writes their wishes by hand and signs it. 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 appointed 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 contested, 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 contest. The notary verifies your capacity and helps you clearly articulate your wishes. Additionally, the notary retains the original document 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.

“I got married twenty years ago, and we’ve been living apart for nineteen years. I have my own home, my own property, and even a new partner in my life with whom I’ve had children.”

Although this reflects reality, this lifestyle has simply no legal implications. Consequently, the spouses are still married and therefore still have obligations toward each other. They can continue living this way or choose between divorce or legal separation. The option chosen will affect their obligations.

To help clarify matters, we offer a general overview of the implications of each situation. The following information may not apply to your specific situation.

If you have any questions regarding this text, we invite you to contact us for clarification regarding your situation.

LEGAL SEPARATION
Contrary to popular belief, legal separation is not simply a matter of living apart.

It must therefore be requested from the court and granted by a judgment. Once the judgment is issued, you remain married; however, the spouses are released from certain obligations arising from the marriage, including the obligation to live together. However, the obligations of fidelity, mutual support, and spousal support remain in effect.

The purpose of the spousal support obligation is to ensure a decent standard of living for the spouse with fewer resources by helping them meet their needs. Therefore, spousal support may be requested and granted after legal separation. Thus, if one spouse becomes unable to meet their obligations due to job loss or illness, the other spouse may be required to provide assistance, particularly through the payment of spousal support, even if they have been living apart for several years.

When a legal separation is granted, the community property regime is replaced by the separate property regime. With regard to children, legal separation does not prevent them from enjoying the benefits arising from the marriage, and parental obligations remain unchanged.

When legal separation is granted, issues of child custody and child support are also addressed. It is important to note that decisions regarding the children may be reviewed by the court at any time.

Legal separation ends with the dissolution of the marriage, whether due to the death of one of the spouses or divorce. The voluntary resumption of cohabitation also automatically ends the legal separation without further formalities, provided the spouses have a continuous and close relationship.

DIVORCE
Divorce dissolves the bonds of marriage. The law recognizes three grounds for divorce: separation, adultery, and physical or mental cruelty. One of these grounds must be cited when filing for divorce.

With regard to separation, which is the most commonly cited ground for divorce, it must have lasted for more than one year prior to the court’s decision on the divorce petition. Additionally, the spouses must be living apart as of the date the petition is filed. For adultery and physical or mental cruelty, the Divorce Act does not specify a required duration for granting the divorce or for filing the petition.

It is important to understand that the law no longer distinguishes between separation and abandonment, regardless of whether only one spouse decided to end the marriage. The grounds or fault are not factors considered in this process. Moreover, these will have no bearing on the amount of spousal support or on child custody, which will be awarded solely in the children’s best interests. Furthermore, even if one spouse chooses to leave the family home, this will not affect their rights.

Divorce has the effect of dissolving the property that forms part of the family patrimony and the property under the matrimonial regime. As a general rule, between the spouses, this effect of dissolution is retroactive to the date of the petition for divorce. However, the court may make the effects of this dissolution retroactive to an earlier date, namely the date on which the spouses ceased to live together.

To understand this principle, consider a couple who married on January 2, 2010, stopped living together on January 2, 2013, and filed for divorce on July 4, 2013.

During their marriage, the couple accumulated assets that form part of the family patrimony, such as automobiles and residences. Although the divorce is not finalized until 2014, they will have to divide the family patrimony assets accumulated up to July 4, 2014—namely, the automobiles and residences—since the date taken into account is that of the filing of the divorce petition. If the court decides that the effects will date back to the end of cohabitation, the assets to be divided will be those accumulated up to January 2, 2013. The same principle applies regarding the division of the matrimonial regime.

Le divorce emporte la dissolution du mariage une fois le délai d’appel expiré, c’est-à-dire 30 jours suivant le jugement prononçant le divorce. Par exemple, un couple dont le jugement de divorce serait prononcé le 31 décembre 2013 aurait jusqu’au 30 janvier 2014 pour en appeler. S’il n’y a aucun appel de cette décision, le divorce serait alors effectif en date du 31 janvier 2014. Il est donc possible pour les époux de se remarier. Lors du prononcé du jugement de divorce, celui-ci entrainera la liquidation du régime matrimonial, le partage du patrimoine familial, et, le cas échéant, la détermination d’une pension alimentaire pour conjoint et pour enfants ainsi que les modalités de garde. Vous obtiendrez également un certificat de divorce qui atteste votre nouvel état civil.

Il est important de comprendre que le divorce ne libère pas les époux de leurs obligations envers leurs enfants puisque le divorce ne modifie pas leur qualité de parent et n’altère pas les droits des enfants découlant de la loi ou du contrat de mariage. Les décisions concernant la garde des enfants et la pension alimentaire pourront être revues en tout temps par le tribunal.

Spousal Support
In the event of a divorce or separation, one spouse may pay the other spousal support for a limited or indefinite period, solely to help the other spouse meet their needs.

Generally, for spousal support to be paid, the spouses must be living separately as a result of the breakdown of the marriage at the time of payment, and the terms of the support must be specified in a written agreement or by a court order. Payments must be made at regular intervals and be intended to support the recipient. The use of the spousal support must be left entirely to the recipient’s discretion.

In some cases, other forms of payment are considered spousal support payments:

• When payments were made or received before the date of the written agreement or court order establishing spousal support.
• When payments were made to the spouse or a third party for specific expenses, such as child care, rent, or insurance.
• Certain lump-sum payments, meaning a payment made in a single installment, such as a payment for overdue spousal support.

The person receiving spousal support
The person receiving spousal support must include it in their income. They will therefore be taxed on it even if the person paying it does not claim the deduction.

The person paying spousal support
The person paying spousal support may deduct it from their income. This deduction will allow them to benefit from a tax savings on their income. If they pay support for both a spouse and children, they may claim the deduction for spousal support only if all child support payments for the year, as well as any arrears from previous years, have been paid in full.

At the provincial level

If you receive income subject to withholding tax, you can ask the person paying you (your employer or payer) to take into account the deductions and tax credits to which you are entitled when calculating your withholding tax.

Two different forms can be completed to make this request:

• Declaration for Withholding Tax (TP-1015.3)
• Request for Reduction of Withholding Tax (TP-1016)

In fact, Revenu Québec allows you to ask your employer to automatically deduct the amount of tax payable on spousal support payments from each paycheck. This will allow you to budget based on the net cost of the support.

TP 1015.3: The employer does not need authorization from Revenu Québec to take into account the information provided on this form. It must therefore be submitted directly to the employer. This form addresses specific situations, including spousal support.

TP 1016: In this case, the employer must have authorization from Revenu Québec to take into account the information provided on this form. This form must therefore be submitted to Revenu Québec.

If you have any questions, you can contact Revenu Québec at 514 864-6299.

At the federal level

Form TD1 – Personal Tax Credit Return must be completed to ask the person who pays your wages (employer or payer) to take into account the deductions and tax credits to which you are entitled when calculating your withholding tax.

The TD-WS worksheet – Worksheet for Reporting Personal Tax Credits must be completed if you want to claim a partial amount from Form TD1 based on age, for caregivers, or for dependents aged 18 or older with a disability. Do not give this worksheet to your employer.

For non-refundable deductions or tax credits not listed on Form TD1, use Form T1213-14 – Application to Reduce Pay-As-You-Earn Withholdings for the year(s) at the following address: https://www.canada.ca/en/revenue-agency/services/forms-publications/forms/t1213.html

You must complete Form T1158 – Registration of Family Support Payments if your court order or written agreement specifies an amount of support payable to your spouse or common-law partner.

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