In accordance with the Roberge v. Bolduc  ruling, a title examination is an obligation of means. However, the legal professional responsible for researching property titles must perform its task prudently and diligently, which means that if elements lead it to believe that a more rigorous search is necessary, it must delve deeper into its analysis.
In this decision, Judge L’Heureux-Dubé specified in paragraph 437 that: “The fact that a professional has followed the practice of its peers may constitute strong evidence of reasonable and diligent conduct, but it is not determinative.” [Our translation] It is therefore crucial to be meticulous and attentive to various details depending on the legal context.
One of the challenges that may arise during a title examination concerns the application of the correct legal rules at the time of the alienation of the property. During an analysis extending beyond the effective date of the Civil Code of Québec (CQLR, c. C.C.Q.-1991) (hereinafter the “Code”), namely January 1, 1994, the rules governing certain areas of law differ from the currently applicable legislation, namely the laws regarding matrimonial regimes during marriage and at the time of its dissolution.
The examination of the section regarding matrimonial status in property transfer deeds allows for the identification of the matrimonial regime applicable to the parties at the time of the deed.
THE ACT RESPECTING THE IMPLEMENTATION OF THE REFORM OF THE CIVIL CODE
Article 2 of the Act respecting the implementation of the reform of the Civil Code states the following:
“The new legislation has no retroactive effect; it applies only to the future.
It does not, therefore, change the conditions for creation of a previously created legal situation, nor the conditions for extinction of a previously extinguished legal situation, and it does not alter the effects already produced by a legal situation.”
Despite various modifications concerning matrimonial regimes over the years, save for particular exceptions, it is important to analyze property titles according to the legislation in force at the time of the transaction.
MATRIMONIAL REGIMES PROVIDED FOR IN THE CIVIL CODE OF QUEBEC AND IN THE CIVIL CODE OF LOWER CANADA
The three main matrimonial regimes are community as to property, separation as to property and partnership of acquests. The Civil Code of Lower Canada (S Prov C 1865 (29 Vict), c. 41) (hereinafter the “Code of Lower Canada”) mentions these three regimes, while the Code contains only provisions relating to separation as to property and partnership of acquests. However, Article 492 of the Code specifies, among other things, that for the former regime of legal community, the dissolution and liquidation rules of the partnership of acquests can be invoked if they are not incompatible with the current regime.
SEPARATION AS TO PROPERTY
Under the current regime of separation as to property, save for exceptions such as the presence of a duly published declaration of family residence (Article 405 of the Code), each spouse manages its own real estate without the need for spousal consent.
If we consider the case of a couple married under the regime of separation as to property as of today, in which the wife purchases a house alone, upon resale of the house, she would in principle not need the consent of her spouse to sell her property since she has unlimited powers over it.
If the same couple had been married under the regime of separation as to property in 1960 and the sale of the property (personal property) took place the same year, the authorization of the spouse or of the court would have been required for any alienation or donation of the property (Articles 763 and 178 of the Code of Lower Canada).
COMMUNITY AS TO PROPERTY
Under the regime of community as to property, there existed common property, husband’s separate property, wife’s separate property and wife’s reserved property. Under this regime, there is a presumption of common property (Article 1402 of the Code of Lower Canada). Reserved property refers to property acquired by the wife through her own work and which she declared as being reserved property.
Although community as to property does not appear anywhere in the Code, except for Article 492, this regime should still be considered during title examinations. Knowledge of the rules stipulated in the Code of Lower Canada and the legislation that may have modified same is therefore necessary. In fact, several modifications to the regime have been made in order, among other things, to give women greater latitude and autonomy.
PARTNERSHIP OF ACQUESTS
Under the regime of partnership of acquests, there are separate property and acquests for each spouse. Each has free disposal of separate property and acquests. As under the regime of separation as to property, the presence of a declaration of family residence may impact the alienation of the real property. Spousal consent is required for the donation of an acquest (Article 462 of the Code).
Currently, the division of acquests gives rise to a claim, but before July 1, 1989, the division of acquests resulted in joint ownership. Therefore, the dissolution of the regime has different effects depending on the time period.
If we consider the case of a couple divorcing prior to July 1, 1989, even if the property belonged to the husband’s acquests category, the property would become jointly owned by both spouses, each becoming owner of half. If the same couple were to divorce today, the spouse would have the right to a claim, but no ownership rights over the property.
IMPORTANT LAWS CONCERNING MATRIMONIAL REGIMES
In addition to having a good basic knowledge of the different matrimonial regimes, it is also crucial to be aware of certain laws that have modified or clarified the rights of the parties.
As such, in the course of an examination preceding the period of entry into force of the Code, certain relevant laws must also be taken into account, such as the 1969 Act respecting matrimonial regimes, S.Q. 1969, c. 77 (Bill 10) and the 1964 Act respecting the legal capacity of married women, S.Q. 1963-64, C.66 (Bill 16).
These laws provided clarifications regarding the rights of the parties in a marriage. One of the objectives of Bill 10 was to remove from the law the notion of “Head of the family” which conferred upon the spouse a certain authority and absolute control over the family. The “supremacy” granted to the husband allowed him to administer his wife’s own property without her having a say.
On its part, Bill 16 was intended, namely, to grant full legal capacity to women by, for instance, eliminating articles stipulating that she must obey her husband, and to confirm that henceforward, she assumes the direction of the family in collaboration with her husband.
THE WIDOWHOOD CLAUSE
It is possible to see that over time, the legislator also repealed certain legal provisions limiting the freedom of women and giving husbands a position of superiority. Case in point: the widowhood clause, which is now deemed unwritten under the Code.
“757. A condition that is impossible or that is contrary to public order is deemed unwritten.
Thus, a clause limiting the rights of a surviving spouse in the event of a remarriage or new civil union is deemed unwritten.“
As such, in the decision Laroche v. Lamothe 2018 QCCA 1726, the Court concluded that the very existence of this clause demonstrates discrimination based on civil status, therefore contravening Article 10 of the Charter of Human Rights and Freedoms CQLR, c. C-12 and constituting an infringement on privacy contrary to Article 5 of the said Charter.
Article 5 of the Act respecting the implementation of the reform of the Civil Code states the following:
“The stipulations of a juridical act made prior to the new legislation which are contrary to its imperative provisions are without effect for the future.“
The authors Gagnon, Galarneau, and Duchaine in the 5th edition of their work, “L’examen des titres immobiliers“, citing the decisions Myrand v. Simard, REJB 1997-03151 (SC) and Gosselin v. Gosselin, EYB 2009-164578 (S.C.) clarified that widowhood clauses existing before the entry into force of the Code no longer have any effect.
Considering all of the foregoing, it is very important, when performing a title examination, to take into consideration the period during which the deed of property transfer was signed. Moreover, it is also necessary to remember that before the entry into force of the Code, women regularly transacted under their spouse’s family name.
Following various legislative modifications, it is now mandatory to use the maiden name in accordance with Articles 5 and 393 of the Code. We can also observe, over time, a positive evolution of women’s rights in the law, as they now benefit from a greater legal protection and equal status with their spouses.
By Rebecca Simon