What You Need to Know – Two Little Known Consequences of Divorce

It is well known that the rate of divorce usually spikes up after the Christmas holidays. Therefore, this may be a good time to discuss two recent Judgments of the Quebec Superior Court which highlight two lesser-known consequences of divorce.

The first case, Droit de la famille – 201586,[i] dealt with the liability of a stepparent to pay child support to the child’s biological parent.

In this case, the husband applied for divorce from his wife.[ii] Both the husband and wife had children from previous marriages. The husband’s were 23 and 25 years of age while the wife’s were 14, 16 and 19 years of age.[iii]

Although the divorce had not been finalized, there was a rich history of court appearances, particularly by the wife who was applying for spousal and child support for her children.[iv]

At first blush, it may appear incongruous that the wife was asking her second husband for child support for children from her first marriage. However, sub-section 2 of the Divorce Act[v] defines a “child of the marriage” as “… a child of the two spouses or former spouses who…:

a) is under the age of majority and has not withdrawn from their charge, or

b) is of the age of majority and over and is under their charge…”.

Sub-section 2 (2) of the Divorce Act then expands the definition of “child of the marriage” to include:

"a) Any child for whom they both stand in the place of parents; and

b) Any child for whom one is the parent and for whom the other stands in the  place of a parent.”

In Chartier vs. Chartier,[vi] the Supreme Court explained the purpose of Sub-section 2 (2) of the Divorce Act:

“… one of the fundamental objectives of the Divorce Act as it relates to children…[is] to ensure that a divorce will affect children as little as possible. Spouses are entitled to divorce each other, but not the children who are part of the marriage. The interpretation that will best serve children is one that recognizes that when people act as parents towards them, the children can count on that relationship continuing and that these persons will continue to act as parents towards them.”

Notwithstanding the Supreme Court’s Judgment in Chartier, Quebec Courts have held that it is exceptional that a spouse of a child’s biological parent,  that is, a stepparent, will be held to “stand in the place of a parent”. Quebec Courts require unequivocal and unambiguous evidence of a parent-child relationship.[vii]

To understand the Court’s conclusion, some context is required. When the husband and wife started dating, the husband lived in Quebec and the wife lived overseas with her children.[viii] While they were dating, the husband would travel two times a year to the country of the wife’s residence and, on occasion, they would meet in a third country.[ix] They married in 2013. The wife and her 3 children immigrated to Canada, sponsored by the husband, in December 2016.[x]

Although the parties separated in March, 2019, they lived under the same roof until May, 2019.[xi]

The courts must, of course, consider each case on its merits. In this case, the husband denied that he stood in the place of a parent while the wife affirmed it. Ultimately, the Court agreed with the wife,[xii] in part, because it found the husband to have little credibility[xiii] but also for the following specific reasons invoked by the wife:

·      In 2010, before they got married, the husband told “… the children that he will ‘be like their father’ and that their mother would no longer be alone. He asked the children to call him ‘father’. The wife noted however that only [one of] her daughters called him that.”[xiv] Between the marriage in 2013 and their arrival in 2016, the husband and the children spoke by telephone 2 or 3 times a week;[xv]

·      Even before the marriage, the husband paid the rent for the apartment and the houses where the wife and the children had lived;[xvi]

·      He sponsored the immigration of his wife and children to Canada, although he said it was only because he and his wife were married and not because he wanted to stand in the place of their father;[xvii]

·      When the husband visited the wife overseas, the children participated in family activities and ate meals with the husband and the wife;[xviii]

·      After the marriage, the husband insisted that the children ceased having any contact with their biological father. Indeed, for a number of years, the wife lost any track of the children’s biological father;[xix]

·      In the 3 years prior to the wife and children’s immigration to Canada, the husband looked for a house big enough for all of them;[xx]

·      The wife stayed at home and took care of the children while the husband supported the children. Even before the marriage, he chose the school they would go to and, in fact, had them working for his business;[xxi] and

·      The Court found that the wife’s description of the husband’s relationship with the children was more realistic.[xxii]

The Court concluded that the husband stood in the place of a parent, had an obligation to pay child support to the wife with respect to her children and ordered him to pay to the wife $1,675.00 per month for support, subject to indexation.[xxiii]

The second case, Succession de Charpentier,[xxiv] involved the revocation, by law, of bequests made before their divorce by one former spouse to the other. The issue arose because Article 764 of the Civil Code of Quebec (“CCQ”) provides that:

“A [bequest] made to the spouse before a divorce or the dissolution of a civil union is revoked unless the testator manifested, by means of testamentary provisions, the intention of benefitting the spouse despite that possibility.

Revocation of the [bequest] entails revocation of the designation of the spouse as liquidator of the succession.

The same rules apply if the marriage or civil union is declared null during the lifetime of the spouses.”

The facts are relatively simple. Mr. Paul Marcotte and Ms. Madeline Charpentier married in 1964.[xxv] In 1974, she drafted a will leaving everything she owned to her husband. The will also stipulated:

“Article Fifth

In the event that my husband Paul Marcotte should die before me, at the same time as me, or within thirty (30) days of my death, I give and bequeath all monies in my bank accounts, etc., that I shall have at the time of my death, in equal parts to my brother-in-law, Raymond Marcotte and to Ms. Huguette Gagné, both currently living at No. […], Montreal.

As for the residue of my property, movable and immovable, I give and bequeath it to Ms. Huguette Gagné, and I name her my residual beneficiary, and my testamentary executor.”[xxvi]

 Mr. Paul Marcotte and Ms. Charpentier did not have any children and divorced in 1991. He died on March 27, 2018, thus predeceasing Ms. Charpentier who died on July 10, 2018.

 Ms. Charpentier’s brother, Mr. Gilles Charpentier, sued arguing that Ms. Charpentier’s bequests to Mr. Raymond Marcotte and Ms. Huguette Gagné were revoked because of the divorce and, as a consequence, her will is without effect. Mr. Charpentier asked that his sister’s estate be distributed, as provided for by law, where the deceased left no valid will.[xxvii]

 The first matter which the Court had to decide was whether or not Article 764 CCQ applied, given that Mr. Marcotte and Ms. Charpentier divorced in 1991 and Article 764 CCQ came into force on January 1, 1994.[xxviii] The Court concluded that it did apply because the revocation of the bequest to Mr. Marcotte became effective on January 1, 1994, but was only recognized, on June 10, 2018, when Ms. Charpentier passed away. As there was no testamentary provision, that is to say a will or a codicil, indicating that, notwithstanding the divorce, Ms. Charpentier wanted to leave her property to her ex-husband, the bequest to him was deemed to have been revoked on January 1, 1994.[xxix]

 Article Fifth of the will provided that:

 “In the event that my husband (…) dies before me (…) I give and bequeath (…), to my brother-in-law, Raymond Marcotte, and to Ms. Huguette Gagné, both living at (…)”. (the Court’s underlining)[xxx]

Had Mr. Paul Marcotte and Ms. Charpentier remained married, the liquidation of her estate would have been without controversy. But, upon the divorce, Mr. Paul Marcotte became Ms. Charpentier’s ex-husband and Mr. Raymond Marcotte her ex-brother-in-law.[xxxi] This change in circumstances created an ambiguity because it raised the question whether Ms. Charpentier, after her divorce, still intended for her ex-brother-in-law, Mr. Raymond Marcotte, and for Ms. Gagné to inherit in the event that her ex-husband pre-deceased her.

In order to solve this dilemma, the Court looked to evidence beyond the wording of the will. However, it found that the evidence provided by the parties, which consisted of Ms. Gagné’s affidavit and an admission made by the litigants during trial, insufficient to determine Ms. Charpentier’s intentions.[xxxii] Therefore, based on the use of the words “my husband”, “my brother-in-law” and “Ms. Huguette GAGNé  both living”, the Court concluded that the reason for the bequests to Mr. Paul Marcotte, his brother Raymond and Ms. Gagné were the family ties created by Mr. Paul Marcotte’s and Ms. Charpentier’s marriage.[xxxiii]

The Court rejected the argument that the divorce had occurred in 1991 and Ms. Charpentier had plenty of time to change her will if she did not want to benefit Mr. Raymond Marcotte or Ms. Gagné. The Court held that there was no evidence to indicate that Ms. Charpentier wished the bequests to remain standing, notwithstanding the divorce.[xxxiv]

What was clear to the Court was that, after the divorce or after 1994, when Article 764 CCQ came into force, Ms. Charpentier showed no desire to give her ex-husband a benefit notwithstanding the divorce.[xxxv] The Court held that under the terms of Ms. Charpentier’s will Mr. Raymond Marcotte and Ms. Gagné could inherit only if the two following conditions were met:

1.    Mr. Paul Marcotte had to be Ms. Charpentier’s spouse; and

2.    He had to have predeceased her.[xxxvi]

As these conditions were not met, the Court concluded that the subsidiary bequest to Mr. Raymond Marcotte and Ms. Gagné had lapsed and that the Estate had to be settled as if Ms. Charpentier had not left a will. Consequently, Ms. Charpentier’s estate was divided, as required by law, among her brother, Mr. Gilles Charpentier, and the Estate of her late brother Mr. Jean Charpentier and the surviving children of her late sister Ms. Suzanne Charpentier.[xxxvii]

WHAT YOU NEED TO KNOW

·      The provisions of the Divorce Act discussed above apply only where a married couple are seeking or have obtained a divorce. They, therefore, do not apply to couples who are or were in a civil union or are simply living together, unmarried;

·      An individual who is living in a civil union or unmarried with a partner will have no responsibility to pay child support for his or her civil union spouse or unmarried partner’s child. This is true even if such individual acted as the child’s parent throughout the course of the union;

·      The deemed revocation of bequests provided for in Article 764 CCQ applies only to couples who have been married and divorced or to couples living in a civil union which has been dissolved. Therefore, it does not apply to married couples or couples in a civil union who have separated but not divorced or had their civil union dissolved. Also, Article 764 CCQ does not apply to unmarried couples who are living together;

·      Before entering into a marriage with someone who has a child from a previous relationship, it is advisable to consider the potential that the putative stepparent can find himself/herself obliged to pay child support for the other spouse’s child. If this is an issue for the putative stepparent, consideration should be given to either not marrying or entering into a civil union which is not governed by the Divorce Act;

·      Any individuals who have been divorced, and have not revised their wills since their divorce, should consider revising their wills even if it is only to say that the provisions of their wills will remain in full force and effect notwithstanding the divorce or as if the divorce had never occurred. Such revision can be done simply by writing out the revision by hand, dating and signing it. No witnesses are required. Alternatively, lawyers or notaries can draft a codicil to a will which can be signed in the form required by law.

It goes without saying that the preceding comments are general in nature and are not intended to offer any legal advice regarding any specific situation.

[i] 2020 QCCS 3480. In conformity with Quebec law, the names of parties are not revealed in the public versions of Judgments involving family law matters (Articles 15 & 16 Code of Civil Procedure).

[ii] Paragraph 10 of the Judgment. (All reference to paragraph numbers refer to paragraph numbers of the Judgment).

[iii] Para. 6.

[iv] Paras. 10-19.

[v] R.S.C. 1985, (c.3, 2nd Supp.)

[vi] [1999] 1. S.C.R. 241

[vii] Para. 61, internal citations and footnotes omitted.

[viii] Para. 7.

[ix] Para. 26.

[x] Para. 7.

[xi] Para. 5.

[xii] Para. 92.

[xiii] Para. 78.

[xiv] Para. 66 (translated from the French original).

[xv] Para. 67.

[xvi] Para. 77.

[xvii] Para. 73 & 90.

[xviii] Para. 31.

[xix] Paras. 32 & 33.

[xx] Para. 68.

[xxi] Para. 82.

[xxii] Para. 84.

[xxiii] Paras. 91 & 140.

[xxiv] 2020 QCCS 3790.

[xxv] Para. 5 of the Judgment. (All reference to paragraph numbers refer to paragraph numbers of the Judgment).

[xxvi] Paras. 1 & 7 (Translated from the French original).

[xxvii] Para. 8.

[xxviii] Para. 36.

[xxix] Para. 38.

[xxx] Para. 58.

[xxxi] Paras. 59 & 60.

[xxxii] Paras. 63 & 64.

[xxxiii] Para. 67.

[xxxiv] Paras. 68 & 69.

[xxxv] Para. 71.

[xxxvi] Para. 72.

[xxxvii] Paras. 72-74 & 80.