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Flashcards in QC Ethics and Professional Practice Deck (118)
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1

Partnerships

A partnership is not a legal person.

General partnership: A group or persons, referred to as "partners," who have come together to operate a commercial undertaking and earn a profit from it which they will share.

2

Marriage

The legal union of two persons.

A marriage is dissolved by :
- The death of on of the spouses;
- Divorce

3

Civil union

Union of two persons (enjoy the same rights and obligation under civil law as married spouses).

A civil union is dissolved when
- One of the spouses dies
- A court orders the dissolution
- The spouses make a joint declaration before a notary stating that their will to live together has been irretrievably undermined.

4

Common law spouses (de facto spouses)

Does not exist in the CCQ, therefore they cannot assert rights under the rules for the partition of the family patrimony of the dissolution and liquidation of a matrimonial regime, do not have the right to obtain spousal support (alimony), nor do they have the right to inherit from their de facto spouse if he dies without a will.

Same rights for tax purposes.

* Irrelevant whether the spouses are married or not when it relates to children. *

5

Community of property

Applied to spouses married in Québec before July 1, 1970 without a marriage contract.

The sole administrator, the husband, manages the common patrimony.

Upon dissolution of the marriage, the property acquired by the spouses during the marriage is partitioned equally.

6

Separation as to property

Very popular - couples must enter into a notarized marriage contract for this to be an option.

Each spouse is responsible for the administration, enjoyment and free disposition of all his property. There is no partition of property when the marriage ends or in the event of separation from bed and board.

7

Partnership of acquests

The current legal regime for coupled married after June 30, 1970 without a marriage contract and for couples joined in a civil union since June 24, 2002 without a civil union contract.

Property acquired during the marriage from the proceeds of work and other sources of income are acquests and thus may be partitioned upon the dissolution of the marriage or civil union.

All property owned by a spouse prior to the marriage or civil union & property inherited or received as a gift during the marriage is considered private property.

8

Family Patrimony Act (July 1, 1989)

Since this regime is of public order, married or civil union spouses cannot renounce their rights in the family patrimony, whether by a marriage contract or otherwise.

The rules of family patrimony take precedence over the rules of matrimonial regimes.

List of property included under family patrimony:
- Principal and secondary residences of the family;
- Movable property located therein and which serves for the use of the household;
- Motor vehicles used for family travel;
- Benefits accrued during the marriage or civil union under a govt pension plan (ie. QPP);
- Benefits accrued during the marriage or civil union under pension plans offered by employers;
- Benefits accrued during the marriage or civil union under a registered retirement savings plan (ie RRSP, RRIF, LIRA, LIF, VRSP);
- Benefits accrued during the marriage or civil union under any other retirement savings instruments (ie. annuity contract)

NOT included:
- Cash and money kept in back accounts;
- Insurance contracts (including cash surrender value)
- Investments, shares, bonds and annuity contracts not included in an RRSP, RRIP, LIRA, LIF or a pension plan
- Deferred profit-sharing plans, retirement superannuation plans DPSP, TFSA and businesses.
- Earnings registered in the name of each party during the marriage, if the dissolution results from death
- Benefits accrued under a retirement plan which grants a right to death benefits to the surviving spouse, if the dissolution results from death
- Property received by one of the spouses as an inheritance or gift, before or during the marriage or civil union.

9

Valuation date of the family patrimony

The property is valued at one of the following dates:
- Date of death
- Date of the institution of the action seeking separation from bed and board, divorce or nullity
- Date on which the spouses ceased living together, if it is prior

10

Rules for partitioning the family patrimony

Steps:
- Determine the market value of all the property in the family patrimony;
- Determine total amount of the debts existing on the partition date that were incurred for the acquisition, improvement, maintenance and preservation of property included in the family patrimony;
- Deduct the debts from the market value, which allows the net value of the family patrimony to be determined;
- Apply the other deductions prescribed by the CCQ;
- Calculate the net value resulting from these steps and partition the family patrimony equally.

11

Divorce and Separation from bed and board

Divorce dissolves a marriage. Federal.

Separation from bed and board does not dissolve a marriage, but it releases the spouses from the obligation to live together and results in the partition of the family patrimony and the dissolution and liquidation of the matrimonial regime. Provincial.

A legally separated spouse does not qualify as a "surviving spouse" (as it relates to the QPP) & unless they are the beneficiary, the separated spouse is not entitled to death benefits under other retirements plans (ie SPP).

12

Divorce and Separation from bed and board

Divorce dissolves a marriage. Federal.

Separation from bed and board does not dissolve a marriage, but it releases the spouses from the obligation to live together and results in the partition of the family patrimony and the dissolution and liquidation of the matrimonial regime. Provincial.

A legally separated spouse does not qualify as a "surviving spouse" (as it relates to the QPP) & unless they are the beneficiary, the separated spouse is not entitled to death benefits under other retirements plans (ie SPP).

13

Legal succession

Without a will.

The persons who inherit from the deceased are the spouse to whom the deceased was married/civil union and the persons related to the deceased by blood or adoption.

All children whose filiation is established (by blood or by adoption) have the same rights in the context of a succession without a will.

De facto spouses and in-laws excluded.

14

Testamentary successions

Deceased prepared a will and names their heirs and legatees.

15

Declaration of heredity

Sets out the deceased person's heirs and their share of the succession, and the liquidator. Prepared by a notary or lawyer.

16

Liquidator of the succession

Person appointed to liquidate the succession, whether it be legal or testamentary.

Must settle the succession as quickly as possible (although no exact time limit exists).

If the liquidator is not an heir, they are entitled to remuneration.

17

Conventional appointment / Surviving spouse clause

Gift "mortis causa" (gift in the event of death) set out in a marriage contract or civil union contract which provides for the transfer of property to the surviving spouse.

Divorce entails the lapse (nullity) of gifts mortis causa. In the event of separation from bed and board, they remain valid, unless the Superior Court decides that they have lapsed.

18

Trusts

Just like a legal person or partnership, a trust can be the holder of an insurance contract or annuity contract. It acts through the trustee, who acts for the good of the benefit of the trust. A trustee is an administrator of the property of others with full powers of administration.

19

Contract

Most common source of obligations of natural persons and legal persons.

Agreement of will by which one or several persons obligate themselves to one or several other persons to perform an obligation. Formed by the sole exchange of consents (verbal or written) between persons having the capacity to contract obligations.

20

Types of contracts

1. Contracts of adhesion vs. Contracts by mutual agreement
2. Synallagmatic (bilateral) vs. Unilateral
3. Onerous vs. Gratuitous
4. Commutative vs. Aleatory
5. Instantaneous performance vs. Successive performance
6. Consumer contracts

21

Nominate vs. Innominate contracts

Nominate contracts (governed by CCQ, separate chapters for each):
- Sale
- Gifts
- Lease contracts
- Lease agreements
- Affreightment
- Carriage
- Employment
- Enterprise or service
- Mandate
- Association or partnership
- Deposit
- Loan
- Suretyship
- Annuity
- Insurance
- Gaming and wagering
- Transaction
- Arbitration

Innominate (governed by the CCQ's general contract rules):
- Consignment
- Franchise
- Distribution
- Joint venture

22

Simple administration vs. full administration

Simple administration: Must perform all the acts necessary for the preservation of the property or useful for the maintenance of the use for which the property is ordinarily destined.

Full administration: Preserve the property & make it productive or increased the patrimony. Right to dispose of or alienate the property.

23

Mandate (POA)

Contract by which a person, the mandator, empowers another person, the mandatary, to represent him in the performance of a juridical act.

This power and the document itself are also referred to as a "power of attorney".

If the mandatary notices that his mandator has become incapable, he must cease to act, because his actions may be challenged on the basis of nullity.

24

Mandate in case of incapacity

Mandate given by a person of full age in anticipation of his incapacity to take care of himself or to administer his property must be made by a notarial act on in the presence of witnesses.

25

Annuity contract

A person, the debtor, undertakes, gratuitously or in exchange for the alienation of capital for his benefit, to make periodical payments to another person, the annuitant, for a certain times.

26

Civil liability

A person is responsible for the consequences of his actions in his dealings with others. Civil liability is the obligation to repair the injury caused when certain conditions are met.

27

Extinctive prescription

A means of being released from an obligation by the lapse of time.

Only the filing of a judicial application may interrupt prescriptions.

The day on which the right of action arises fixes the beginning of the period of extinctive prescription. An action to enforce a personal right is prescribed by three years, if the prescriptive period is not otherwise established. Where the right of action arises from moral, corporal or material damage appearing progressively or tardily, the period runs from the day the damage appears for the first time.

28

Public insurance and pension (or retirement) plans

Contrary to private plans which are contractual, public plans are legislative and regulatory.

Federal public plans
- Employment insurance (EI)
- Old Age Security (OAS)
- Guaranteed Income Supplement (GIS)
- Allowance and Allowance for the Survivor
- Canada Pension Plan (CPP) *does not apply in QC*
- Canada Health Act

QC provincial plans
- SAAQ
- CNESST
- RAMQ
- Quebec Prescription Drug Insurance Plan
- Quebec Pension Plan (QPP)
- Crime Victims Compensation Plan (IVAC)
- Last-resort Financial Assistance (BS)

29

Coordination of benefits: Public and Private Plans

Meant to avoid the duplication of benefits & to determine which plan will be the first payer.

Private insurance plans cannot deduct amounts received by an insured under BS from any disability insurance benefits to be paid under the private insurance plan.

*There is no legislative rule of priority between public and private plan or among the various private plans. However, insurers normally include co-ordination clauses in their insurance contrats to avoid the duplication of benefits and the reduce the cost of premiums.*

30

Type of coordination: Integration clause

By applying this type of clause, the insurer can reduce the benefits it pays.