In Quebec, family patrimony is a direct consequence of marriage and applies to all persons legally married in the province, regardless of the matrimonial regime spouses may have opted for. Spouses cannot renounce in advance to their right to the equal partition of the property comprising the family patrimony.
Property that does not form part of the family patrimony is governed by the matrimonial regime chosen by the couple. Under Quebec matrimonial laws, the default matrimonial regime that applies to couples is known as partnership of acquests. Under this regime, each spouse’s property is classified as either private property or acquests. Private property will remain each spouse’s property upon separation or divorce. Acquests consist of property or money accumulated by either spouse during the marriage, the value of which is partitioned equally between the spouses.
Couples who wish to organize their affairs differently, can chose to opt out of the default matrimonial regime and by way of a notarized marriage contract, select the matrimonial regime of separation as to property. Under this matrimonial regime, property owned by a spouse prior to marriage remains that spouse’s property and any property acquired, including for example any property and value generated from a business venture during the marriage, also remains that spouse’s property. In other words, “what’s mine is mine and what’s yours is yours”.
However, separation of the value of spouses’ property isn’t as clear cut as the expression above. More specifically since, regardless of which matrimonial regime is chosen by the spouses, a spouse who makes contributions during the marriage, whether in property or in services can request a compensatory allowance and the court may order that the other spouse pay for their contribution during the marriage which has caused the enrichment of the other spouse’s patrimony.
The superior court in the recent decision Droit de la famille – 211804 illustrates how matrimonial regimes must not be taken for face value. In this decision, Justice Nathalie Pelletier, J.S.C., ordered the ex-husband to pay a compensatory allowance to his ex-wife for her contribution throughout the marriage to her husband’s companies all the while taking care of the whole family and household responsibilities. The wife’s contribution allowed her husband to grow his successful businesses which substantially enriched the value of his patrimony while her patrimony was impoverished.
Upon hearing all the evidence, Justice Pelletier concluded that without the wife’s extensive contributions during the marriage, the husband’s businesses would not have been nearly as successful. Therefore, the court deemed that the ex-wife was a ‘de facto’ business partner in her husband’s business ventures despite her ex-husband’s attempts to diminish her contributions towards the growth of his companies. In fact, when the ex-wife stopped working for him, he hired three employees to take over the work that she did alone during their marriage.
At the time of the couple’s separation in 2017, the wife’s patrimony was valued at approximately $200,000, while her husband’s patrimony was valued at approximately $4,500,000. In light of the wife’s contributions during the marriage, the superior court ordered the husband to pay a compensatory allowance in the amount of $1,985,086. The proportion of the award to the net worth of the payor, which is approximately 45%, is substantially more than previous decisions of compensatory allowance in Quebec.
This decision illustrates that spouses cannot simply rely on the terms of their marriage contract to assess their potential economic exposure. Quebec courts will look beyond the terms of the marriage contract to assess a spouses’ contribution during the union to determine the award of a compensatory allowance and its scope.
