A person domiciled in Québec is considered absent if he or she has ceased to appear there without anyone hearing from him or her and if no one knows whether the person is still alive. An absentee is presumed to be alive for seven years following the disappearance, unless the person’s death is proved before then.
Tutorship to the absenteeIf the absentee did not designate an administrator to his or her property or if the administrator is unknown, refuses, neglects or is prevented from acting during his or her absence, any person who proves that he or she is concerned by the disappearance may apply to the court for the institution of a tutorship to an absentee. The tutor is appointed by the court.
The role of the tutor to the absentee is to exercise the rights and administer the property of the person who has disappeared, following the same rules as a tutor to a minor. The tutor must, in particular, preserve the absentee’s property and, if required to make investments, select sound investments.
At the request of the tutor or any other interested person, the court may fix the amounts that the tutor to the absentee must allocate to expenses of a married or civil union couple, the maintenance of the family and the payment of the absentee’s support obligations.
The married or civil union spouse of or the tutor to the absentee may, after one year of absence, ask the court for authorization to liquidate the family patrimony and the marriage or civil union regime.
However, the tutor must obtain the authorization of the court:
- to accept or renounce the partition of the acquests of the spouse of the absentee;
- to decide on the other rights of the absentee.
Declaratory judgment of death Seven years after the person’s disappearance, the Superior Court may pronounce a declaratory judgment of death at the request of any interested person.
A judgment may also be pronounced before that time if the person’s death may be held to be certain although it is impossible to draw up an attestation of death. In the absence of other proof, the court may fix the place of death as the place where that person was last seen.
A declaratory judgment of death produces the same effects as death. Once the judgement is effective, the succession is opened and insurance benefits are normally payable.
After the judgment is pronounced, a copy is forwarded to the Directeur de l’état civil, who draws up the act of death. This act is in recorded in the register of civil status.
The Directeur de l'état civil can draw up the act of death of an absentee when a court finds a person guilty of acts resulting in the death of the absentee or the disappearance of that absentee's body.
Return of a person declared deadWhere a person declared dead by a declaratory judgment of death returns, the effects of the judgment cease but the marriage or civil union, if any, remains dissolved. A person who has returned must apply to the court for annulment of the declaratory judgment of death and rectification of the register of civil status.
Any person concerned by the disappearance of another person.
Tutorship to the absentee begins when ordered by the court.
It ends when:
- a declaratory judgment of death is pronounced;
- the absentee’s death is proved; or
- the absentee returns.
