by: Mtre Angela Di Virgilio & Marie-Pier Rioux
Modifications to the Quebec laws regarding de facto unions, also referred to as common law partners, came about after the highly publicized case of Eric v. Lola, prompting the Parti Québecois government to mandate the Advisory Committee on Family Law to examine the question of common law partners. The final draft report included, among other topics, the main issues of Bill 56, which was finalized on March 2024.
Passed unanimously on June 4, 2024, the Family Law Reform and Parental Union Act (the “Act”) will come into force on June 30, 2025. As its name suggests, it establishes a new regime for common law partners who have children together, offering them certain protections previously reserved for married couples. As the Act is not retroactive, only partners with or adopting a child after June 30, 2025, will be subject to it.
The parental union regime’s goal is to institute a common patrimony for common law partners, as long as they have a child together. This heritage includes family residences, the furniture they contain, and the cars used for the family’s travel. In the event of the separation of the partners, the assets will be divided equally between them. The Act provides for the possibility that the court may grant a short-term right to use the family home to the parent who obtains custody of the child, whether or not the parent owns the house. This provision is accompanied by other restrictions against the parent who owns it, such as the prohibition on selling the family residence, mortgaging it or renting it out without the consent of the other parent. These measures are taken, inter alia, to protect the interests of the child. Unlike married couples, the Registered Retirement Savings Plan and the pension fund are not part of the patrimony of partners in a parental union.
Other provisions are intended to protect the vulnerable partner in the event of death or separation. Thus, if one of the partners dies without a will, the parental union regime provides that the other partner will be entitled to one-third of the inheritance, providing they have cohabited for at least one year previously. Unlike the regime for married couples, the parental union does not offer the possibility for the vulnerable partner to request alimony for themselves upon separation.
Also, in the event of separation, a partner who considers that they have become poorer during the parental union, perhaps by having contributed to the enrichment of the other, may request a compensatory allowance. The process has been made more accessible, compared to the appeal for unjust enrichment that was in place prior.
Finally, the parental union regime provides for the duty of the courts to award damages in cases of judicial violence. This occurs when a partner abuses the justice system against their ex-partner to maintain some control over that person, often to the detriment of the children. The court will also have the obligation to consider the history of legal proceedings between the partners, including domestic violence.
In closing, it should be noted that common-law partners who have or adopt a child after June 30, 2025, will automatically be enrolled in the parental union plan. However, it is possible to arrange the family patrimony as couples see fit or to withdraw from the plan, all by notarial deed. If the withdrawal takes place within 90 days of the beginning of the parental union, the joint property is deemed to have never existed.
Common-law partners who had children in common before the Act came into force are not included in its provisions. However, they may join voluntarily by an express request. This can be done before a notary or by private deed in the presence of two witnesses.
