Questions

"Common law" spouses

QUESTION

My girlfriend recently found out she is pregnant and we have decided to keep the child. I am concerned about my assets should our relationship end in the future. Can you guide me on how to shield them in the event of a breakup?


ANSWER

Assuming that your plan is not to marry, you need to do a cohabitation agreement, the purpose of which is to provide for how any assets, the ownership of which cannot be proven, are to be divided at the time of break-up.

When you are not married, or in a civil union, each of you retains ownership of the assets that you can prove belong to you. The assets that are acquired jointly are divided.


QUESTION

When does "common law" begin after a separation and subsequent divorce?

My boyfriend separated from his wife and moved in with me in March 2008.

His separation papers are dated May 2008 and his divorce is dated June 2009.

At which point do we become common law spouses?
-1 year after living together even though they were not officially divorced?
-On the actual day of the divorce since we had been living together?
-1 year after the day of the divorce?


ANSWER

This matter is now before the Supreme Court of Canada (Lola v. Eric). If "common law" relationships are to be recognized in Quebec, then the National Assembly will have to amend the Civil Code to define what a common law relationship is, when it begins, etc.

For the time being and until the Civil Code is amended there is no recognition of common law relationships in Quebec.


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"Common law" spouses in Quebec - division of property

QUESTION

My common law spouse and I have a condo that we bought together. The mortgage and all the paperwork is under both our names. We have both been paying equally into the mortgage for 2 years. He put the down-payment down. Now we are separating and have decided that he will buy me out. We had the condo evaluated and it has gained approximately $23,000 in value. In the buy-out, what are my rights? He plans to take the value of the property, minus the existing outstanding balance owned on the mortgage, minus his original down payment, minus estimated realtor percentage and then divide the rest. Do I have the right to half of the entire sum without subtracting the realtor fees and down-payment? If I were to take him to court, could I potentially get more?


ANSWER

You purchased the condominium in co-ownership with your partner. This means that you each own an undivided one half interest. The fact that your partner made the down payment but at the same time agreed to put the property in both names means that he made a gift to you of that amount.

If the matter went to court because the two of you are unable to agree on how much your partner has to pay to buy you out, I can tell you that the amount will be one half of the fair market value less the balance on the mortgage. You should not accept anything less. Your partner does not have any right to claim what he is claiming.


QUESTION

My common law spouse and I have separated these past few months and my question is that I have bought a cottage and a duplex in Quebec under my name solely and was living common law with him for 9 years and he's name is nowhere on the bank nor the notary papers. He has only paid for not more than 30% of the monthly bills, because he couldn't afford it, so I had to pay for the remaining 70% of all the expenses and now that we are separated, he wants me to sell the properties and give him 50%. What are my options ? Can you advise.... Are the properties solely mine or do I have to divide with him ?


ANSWER

The properties are 100% yours and he has no right to share in them whatsoever.

So called "common law" spouses in Quebec do not have any rights in property registered in the name of the other spouse unless it it can be proven that there was a contribution to the acquisition or improvement of the property that has resulted in the impoverishment of the party that contributed and the enrichment of the party that benefited. That does not appear at all to be your case.


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"Do it yourself" separation agreements

QUESTION

How much do you charge for a 1/2hr preliminary session regarding options for legal separation? Agreement has already been made with respect to the division of family patrimony. Pension and monetary earnings will be waived. There are no children. Separation occurred after 6 months of marriage. Would like consultations on options available (i.e. filing jointly with a court without a lawyer, if not advisable, what is the best route, etc.)


ANSWER

Without a consultation - I can tell that the best option is to confirm the agreement in writing, file a joint motion with a lawyer (to make sure that it is done properly), and ask in the motion that the agreement be ratified by the Court. I can do all of that for you. The cost is $2,000 inclusive of all taxes and disbursements ($1,000 when we start and $1,000 when I give you the judgment which I should get in 3 months approximately.


QUESTION

My wife and I are in the process of separating. My wife immigrated to Canada and I have sponsored her. I am responsible for her until December 2001. She does have a full time permanent job with a good income. I have drafted an agreement myself dealing with the division of our property and confirming that my wife will never ask me to support her. I am doing this to cover myself in the event that my wife files for divorce. The agreement reads as follows:
"I, the undersigned, am moving away from my husband out of my own free will. I acknowledge that he has not given me any reason such as adultery or violence. I am simply fed up and I do not want to share my life with him anymore.
Attached is the list of things we have both agreed I take with me. I understand that in the case of a divorce, I will not pretend to acquire any further material goods my husband possesses, whether he acquired them before or after we were together. Furthermore, I will not demand any financial support from him of any kind and I will not pretend to have a share in his present or future income, regardless of its form and source.
I declare signing this document in a sound state of mind, I fully understand its content and I am under no physical or psychological pressure from anyone to sign it."
Do I need a witness for this document? Should I have it legalized in some way to make it more official?


ANSWER

The document that you want your wife to sign will not suffice for a number of reasons, including the fact that she cannot validly renounce to her rights unless she obtains or waives her right to obtain proper and independent legal counsel regarding the document - otherwise the renunciation has no legal value.
The best course of action is to have an attorney, like myself, draft a proper separation agreement, and have your wife sign only after she reviews it with her own lawyer. If you do not do this you are wasting your time.


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"Taking the law into your own hands" - refusal to provide access

QUESTION

I have been divorced for 8 years now, still having problems with my ex. Right now he says he does not want to see his son anymore on weekends, just once a week (and usually that once a week he is with the grandmother). The judgment says that he takes him every second week end. Do I not send him at all?

My ex mother in law says that it is his girlfriend who does not want my son. Do I have to go back to court again?

My new husband says not to give him the child anymore, my lawyer the same. But it seems dangerous if I end up in front of a judge again he might think I was in the wrong. What do you think?


ANSWER

Your instincts are correct. Doing what you have been told is commonly referred to as "taking the law into your own hands". I advise against such a strategy.

You should ask for a modification of the existing court order to change the access schedule based on the new circumstances.

If you proceed this way you can put your conscience at ease, as there will be no danger at all of being charged with contempt of court.


QUESTION

My Ex stops me from seeing my daughter every time something doesn’t seem to go her way. We’ve gone to see a mediator which did not seem to get things settled. The only thing that was settled is that I have my daughter 2 days a week but as usual when something doesn’t go her way she stops me from seeing my daughter. This time it’s been 2 months!! She doesn’t return my calls, etc., I miss my Daughter. What can I do?


ANSWER

What your ex is doing is completely wrong. Custody is determined based on what is in the best interest of your child. It is an established legal principle that it is in the best interest of children to have as much contact as possible with both parents.

Denying you contact with your child constitutes conduct that is counter indicative to parental capacity. In court such conduct will be viewed negatively.

You do not have to put up with your wife's behavior. The child needs both of you. The way to deal with your situation is to start legal proceedings in order to obtain a proper custody and access order. There is no other option. Unless you present a risk to your child, everything being equal, you will get reasonable access by way of a court order that will be enforceable.


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abusive proceedings - remedy

QUESTION

My ex keeps taking me back to Court approximately every year to year and a half. How do I make a petition to show that this is harassment both mental and financial and make him stop?


ANSWER

will assume that your ex husband's proceedings every year have no foundation in fact or law and as such are unreasonable, and excessive. If that is indeed the case article 83 of the Rules of Pracice in the Superior Court provides that the Court on application (i.e. on motion by yourself) may make an order forbidding any further proceedings by your ex-husband without its prior authorization.

If you can get the Court to apply this provision it will solve your problem. It may not, however, be an easy thing to do. You will have to convince a judge that your husband's proceedings are in fact unreasonable, and excessive.


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Adultery - ground for divorce

QUESTION


I recently discovered that my husband has been involved with another woman. He moved out at the end of April and there is no chance of reconciliation. I have a 9 year old daughter from a previous relationship. Her biological father has no parental rights nor has be been in her life since she was 1 years old (court ruling took away legal rights from him) My husband is the only father she has ever known although he has not legally adopted her. He plans on continuing contact and being a father to her. I have read that we must be separated for a year before a divorce can be granted is this true? Also, how much is it going to cost to get divorced? We do not own a home, both work full time and I make slightly more money than he does. Do I need to get a lawyer?


ANSWER

You do not have to wait a year to file proceedings. You can do so now on the basis of your husband's adultery, or if you do not want to allege the affair as a ground of divorce, you can allege that you will be separated for one year by the time a divorce judgment is granted.

Your husband can be held to pay child support on the basis that he is the child's psychological father, even though he is not the biological father.

I would strongly suggest that you engage a lawyer. It will cost less if the two of you can agree


QUESTION

I married here in Quebec in June 2006. My husband and I still reside in Quebec. We still reside in the same residence. We have not been separated for one year. We have no children. After reviewing the grounds for divorce I believe we fall under the category of adultery. My husband is addicted to online sex. This has been ongoing for approximately one year. I do not believe he has had intercourse with anyone (he states he has not), however has had many sexual encounters/chatting with anonymous women on the computer and with webcam. (I have extensive documentation supporting this claim) My questions: After looking in detail, I cannot find a definition of adultery in the divorce act. Does online sex constitute adultery ?
Also, as we have been married less than 3 years, does this mean we would have the option of annulment vs divorce? and if so, can you explain the difference.
My husband is unaware thus far that I am contemplating divorce, however I expect that he will not contest my request.


ANSWER

I would say that online sex does not fall within the definition of adultery (as it requires actual sex).

However I would argue that your husband’s conduct constitutes mental cruelty which would entitle you to ask for a divorce on that basis alone without having to live separate and apart for one year.

Finally your husband’s actions constitute marital misconduct which constitutes grounds for divorce. To request an annulment you would have to show that a “marriage” never really existed – for example that you erred in some way as to the “persona” of your husband – don’t laugh but you thought that you married a man and it turned out to be a woman. Or the marriage was never consummated.

There has to be a reason to say that there was never a contract of marriage. Your case involves a marriage that existed but has gone bad.


QUESTION

I was married in Montreal, Quebec in 2002. I have 2 children aged 2 and 4. I decided to ask for a legal separation in January 2007 due to the fact that neither of us was ready to apply for divorce.

I recently found out that he has been having an affair since February 2007 with another woman (whom is married herself and has 2 children same age as mine) and my husband has expressed his desire to move on with his life with her.

I already have a legal separation judgment but I would really like to apply for divorce asap. Can I use the grounds of adultery in order to obtain it asap??


ANSWER

Yes you can ask for a divorce on the grounds of adultery.

Having an affair while still married (before divorce) is still adultery.


QUESTION

My husband and I are looking to get a divorce. We have no children and we are amicably deciding this. We have not had marital relations since our wedding night. One of us has had an extramarital affair. The question is in a divorce will there be any information on who had this affair and with whom?
We are looking for a quick clean divorce. One of us is now in a serious relationship and may wish to be married soon.
Do you recommend the do it yourself kit?


ANSWER

Adultery has no impact on the settlement of the issues that arise from divorce. It is only relevant if you want a divorce immediately and can prove it or the other side admits it, in which case you bring a divorce motion against the other side and allege adultery as the ground for divorce.

In your case it would be best if you just left the issue of adultery alone, and did a joint divorce application which would be based on separation for one year prior to the date of the rendering of the divorce judgment. You would sign an agreement releasing each other from any claims, and the agreement would be the basis for the divorce judgment. I would recommend doing a joint divorce application with a lawyer.


QUESTION

What is the effect of asking for divorce based on adultery, and can my wife's adultery if proven result in her losing her right to claim support from me?


ANSWER

I am reproducing for you s. 8 of the Divorce Act 1985 which deals with the grounds on which a divorce may be granted.

Adultery is dealt with at s. 8 (2) (a) (i). When it is invoked you can apply for a divorce right away and do not need to be separated for one year before a judgment of divorce can be granted. In other words a judgment of divorce can be granted at any time in the year following the institution of divorce proceedings.

8. (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

Breakdown of marriage
(2) Breakdown of a marriage is established only if

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Calculation of period of separation
(3) For the purposes of paragraph (2)(a),

(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and

(b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated

(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse's own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or

(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.


What you should also know is that the fact that one of the spouses has committed adultery does not and cannot have any impact on the Court's decision on the accessory issues - custody, support, and division of property. In this regard see s. 15.2 (5) in relation to support and 16 (8) in relation to custody which both read as follows:

Spousal misconduct
In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Your wife's adultery will not have any effect on her right to claim spousal support from you


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Alimony - where parties living together - not married

QUESTION

I've been in a relationship with a man for twelve years, and have decided to leave him. We technically live together, but I have my own apartment where my mail goes to.

He has been verbally abusive and has slowly destroyed my self-confidence.

I'm planning to seek alimony from him.

Under the law do I have the same rights as a common-law wife?


ANSWER

Unless you were married to the man in question you have no right to claim alimony from him.

There is no obligation of support between partners in Quebec that arises from a non-marital relationship.


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Annulment of marriage

QUESTION


I was reading through the questions section on your website and I read that before 3 years, you are able to file for an annulment.

I got married in June 2007 in Cornwall ON, while living in Quebec, and continue to live here.

I left my husband 2 years ago, in November 2009. Does the separation put an end to the "legal" length of time married? That I may get an annulment at this point now that it has been 4 years since we signed our papers, but 2 years since we separated? Or do I have no choice but to file for divorce?


ANSWER

The delay to request an annulment runs from the date of the marriage, not the date of separation.


QUESTION

Hi, I would like to know about divorce in Quebec. My girlfriend and I lived together when we were 17 years old. Her parents’ did not accept our relationship and promised that if she was to move back in with them, they would accept our relationship. Thinking this was our best chance, she moved back in with her parents. Once she had done so however, her parents took her to Bangladesh and once she turned 18, they married her off in an arranged marriage. She returned to Canada after four months of marriage and without her new husband. She came back because the man she married mistreated her. Now, he won’t stop calling and threatening her: if she doesn’t sponsor him, he will come to Canada on his own, find her and do bad things to her. Please tell us what we should do?


ANSWER

Your girlfriend should make a motion here to annul her marriage in Bangledesh to which it appears that she never consented. If successful it will mean that the marriage never legally existed. You will need an address of the husband in Bangledesh to serve him with a copy of the motion.

She can also proceed by divorce motion. The difference is that in a divorce you are acknowledging that the marriage was legal, but are asking that it be dissolved by judgment of divorce.


QUESTION

I am writing on behalf of my friend who lives in Israel. He got married in Quebec and then moved back to Israel with his wife. Now they agree to divorce but it appears that his wife was married before and did not get divorced before marrying my friend. The Israeli authorities can't divorce them because their marriage was not legal. Is this going to be a divorce or just a marriage cancellation?


ANSWER

I do not believe that the Quebec courts have jurisdiction to deal with your friend's case because neither of the parties lives or has lived in Quebec - they just married here.

What I believe they should do is apply in Israel to have the marriage annulled. Get an opinion from an israeli lawyer on this.

If for some reason your friend is given an opinion that because the parties were married in Quebec nothing can be done in Israel (which I doubt would be the case) I would try then to get the marriage annulled here in Quebec.


QUESTION

I got married to a woman on April 1st 2009 in Montreal. She lives in Miami Florida and was suppose to move here shortly after the marriage to be with me. I found out after that she had changed her mind and decided not to move to Montreal to be with me and that she was also seeing someone else. We have kept in touch and are on good terms but we both wish to annul the marriage. What is the fastest way to have this process completed?


ANSWER

You need to make a motion before the court here requesting an annulment.
Since your wife will not contest you can obtain judgment by default


QUESTION

I have some reason to believe that my husband of one year was still married when we got married.I live in the US and he is Canadian.We got married in July 2006 in the US. We agreed that I would move to Montreal after the religious ceremony which was scheduled in December 2006. In October 2006, he canceled the ceremony for no reason. We both agreed to put an end to the marriage in July 2007. I would like to file for annulment of marriage in the US.

My first question is this: is there a way to verify if he was divorced at the time of our marriage? I found some documents that lawyers of both parties have exchanged, in January 2006, in Montreal, concerning a previous marriage.

He is telling me that he can file for annulment in Montreal since we have never lived together. Is that reason a ground for annulment in Quebec?


ANSWER

I can verify whether your ex was divorced in Quebec. Just give me his name or send me the documents that you found.

I do not believe that not living together alone is a cause for annulment. However if it extends to non-consummation of the marriage the latter is cause.

The best way to understand annulment of marriage is to think of marriage as a contract and what the grounds would be to set aside or annul a contract such as error, fraud, coercion etc. Such grounds apply equally to marriage - the best is example is error as to the person. You marry an individual thinking that he is a man and he turns out to be a woman - don't laugh - it has happened!


QUESTION

I visited your website and others and found fraud or error as a basis for annulment. Can you give me some examples of what can constitute fraud or error in a marriage?


ANSWER

Error - you marry a woman and after the marriage you find out that she is really a man - believe me this has happened!

Fraud - your spouse lies to you about a critical fact that induced you to consent to the marriage.


QUESTION

I was married in Quebec and I am looking for information about applying for an annulment. I have lived separately from my husband whom I married on June 22, 2008, since October 7, 2009.

Do you have any additional information or can you point me in the right direction? The official sites of Quebec, and the people at their call centres, could not help me.


ANSWER

Asking for the annulment of the marriage is similar to asking for the annulment of any contract. You need to have similar grounds - such as error or fraud, or more specific grounds such as non-consummation of the marriage. The fact that you have lived separately from your husband since October 7, 2009, and that the marriage was just slightly over one year old, do not constitute grounds for annulment. You would however have grounds for divorce once you have lived separate and apart in excess of one year.

In order for you give you any specific information I would need to know why you believe that your marriage should be annulled as opposed to asking for a divorce. One thing is certain. What you said in your e-mail regarding your separation and the short duration of your marriage does not give you cause to ask for annulment.


QUESTION

I was wondering if it is possible to get a legal annulment in Quebec for a civil marriage performed in Ontario. And if it is on what ground goes the law grant it and what is the procedure in filing for one?


ANSWER

The first thing that you should know is that you cannot annul a marriage in Quebec after 3 years.

If you can still ask for the annulment the action can be taken here if you husband resides in Quebec.

You proceed by ordinary action (declaration), and the grounds may be:

a) that the required formalites for the celebration of the marriage have not been complied with

or

b) like any contract that your consent to the marriage has been obtained by error, fraud, under duress etc.


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Art. 827.5 Form

QUESTION

My ex-husband's lawyer has asked me to produce a form according to article 827.5 C.p.c. I am representing myself. what is this? Is she obligated to send me a blank form so that I can fill it out?


ANSWER

The 827.5 form is required by the Minister of Revenue whenever support is in issue. It provides the information needed by the Minister to fulfill its role as collector and payor of support. The other attorney should provide you with a copy of the form. If not you can pick up a copy of the form at the Court House.


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Bigamy

QUESTION

My boyfriend has been separated from his wife for 4yrs and he wants us to get married. He has not filed for divorce yet because he is afraid of losing half of his company to his ex-wife. He wants us to get married the customary way for now. What are the legal implications of such a marriage?


ANSWER

I'm not sure what you mean by the "customary way", but if you mean he wants to marry you before divorcing his wife your marriage will not be legal and your boyfriend will be committing the criminal offence known as bigamy - you cannot legally be married to more than one person at the same time in Canada.


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Cancellation / reduction of spousal support payments

QUESTION

I've been divorced for 15 months. I'm presently paying child support & alimony.

I can no longer afford to pay alimony.

What information is required, to legally remove my alimony payments? What chance do I have in getting this removed. She is presently working part time & is capable of working full time.

What is the cost involved?


ANSWER

In order to cancel your spousal support obligation you must show that your ex has either acquired or should have acquired her financial autonomy by now.

If your ex is working part-time and there is nothing that prevents her from working on a full-time basis and providing for her own support then I would say that your chances are good of getting your support obligation annulled or at the very least having the court fix a term for the continuation of your payments.

The decline in your income or increase in your expenses will also be a factor, although secondary.

You will have to pay based on an hourly rate as it is impossible to fix a falt fee in such cases, not knowing at this point the extent of the contestation that you are likely to face and thus the time required to get the judgment that you want.


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Changing divorce attorneys

QUESTION

I am involved in ongoing divorce litigation. My wife's lawyer is stalling and I do not believe that my lawyer has been aggressive enough. My lawyer is holding a sizeable retainer from me. How do I go about changing attorneys, would it cause more delays, and what will it cost me to make the change?


ANSWER

It is very simple to change attorneys, and does not have to involve any more time than for your new attorney to become acquainted with the file.

Just tell your current lawyer that you have decided to change. Ask for your entire file as well as a refund of the unused portion of the retainer that should be on deposit in your lawyer's trust account. She will of course bill you for any unbilled time and disbursements that she has and should refund the difference. There is no additional cost in changing lawyers other than the fee for the time spent by your new lawyer to read through the file.

The procedure for changing lawyers is to have your new lawyer prepare and send what is called a "Consent to Substitution of Attorneys" to your old lawyer for signature and then to the attorney for the other party for signature. This usually does not cause any delay. If there is a lack of cooperation all that your new lawyer has to do is ask the court for permission to substitute as your new lawyer


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Changing locks to family residence after separation

QUESTION

I'm writing on my sister's behalf who lives in Quebec. She just received a phone call from her husband saying he had met someone else and had cheated, and wished to get divorced. He is supposed to come back at the end of this month to settle the custody issues regarding their only child. He mentioned to my sister that she could keep the house and would pay for the mortgage for an entire year. The problem is that he also demanded she pick him up at the airport and let him stay at their house during the negotiations. Needless to say, my sister is devastated and told me she would not have the strength to have him around the house for an entire week. She does not know what to do and is unsure if she is allowed to deny him room and board. She does not have any problems with letting him come to the house to pick up his belongi! ngs. I looked all over the internet for answers and was unsuccessful. Thank you so much for your assistance in this matter.


ANSWER

Your sister is fully within her rights not to allow her cheating husband back into the house. She should immediately change the locks, pack his belongings, and arrange a time for him to pick them up when she should leave them outside of the house.

Furthermore your sister should institute divorce proceedings and not allow her husband to dictate how the issues that must be resolved (custody, division of property, support) are to be settled.

Tell your sister that she is living in Canada, not Iran.


QUESTION

My husband has decided to end the marriage and just moved out of the house. We have three children who remain with me. Can I change the locks to the house without asking him or telling him or giving him a key, and if I do so will it have any negative legal consequences for me?


ANSWER

Yes, you can change the locks to the house.

No, it will not affect your legal position in the event of divorce proceedings because it is the appropriate thing to do.

If, however, your husband is under the wrong impression that he has still has the right to enter the house, and gives you a problem in this regard, the best way to resolve the issue is to institute divorce proceedings and make an immediate provisional request to the Court for exclusive possession of the family residence.

An order to this effect will be granted very quickly in your favour if the children are living with you in the house and your husband has moved out.


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Child support

QUESTION

I am a resident of Quebec. I have been divorced from my ex-husband for 8 years. Now is the time for our daughter to go to high school and we both agree that she would be best at a private school which will cost $8000 a year for her to attend. I am a teacher and he is an entrepreneur. He has considerable assets - a large home, a BMW SUV, a resort property. The resort property is currently listed on the MLS for $545,000. I live in a small condo and I have custody of our daughter. He sees her every second weekend. He insists that his T4 will show that his salary is no larger than mine - but I know from having been married to him that he earns more than what his T4 shows. Up until now he has said that he would pay for her to go to this private school, but he is now claiming that I will need to pay half. This seems lop-sided and unfair. Before I hire a lawyer to fight him, where would I stand on this?


ANSWER

The good thing is that there is an agreement that your daughter go to private school. That is half the battle. I would make sure to get that agreement in writing.

Your husband should pay his proportionate share of the cost of private school based on his real income, which may not necessarily be reflected on his T4.

His T4 probably reflects what he chooses to draw from his business (having control over his income) and is also probably further reduced by personal expenses that he charges to the business. His real notional income (income from all sources both direct and indirect grossed up to its pre tax value) is probably much higher as you suspect based on his lifestyle. I deal with the same issues all the time.


QUESTION

I am acting on my own without a lawyer to ask for child support in the context of a post-divorce request for a change of custody. I have to fill out a child support determination form. My husband refuses to cooperate and provide me with his annual revenue which I need in order to complete the form. I have a court date set. How do I go about getting the necessary information concerning my husband's salary from his employer myself?


ANSWER

You have to serve your husband's employer with a duces tecum subpoena (a subpoena to bring documents).

You must get the subpoena by going to the Courthouse and asking a clerk for the required form, and for help filling it out.


QUESTION

I have a judgment that grants me custody of my two children who are three (3) and four (4) years old. The decision also says that my ex common law spouse must pay me child support, but she refuses to pay. What steps can I take to force her to pay child support to me?


ANSWER

The Minister of Revenue for Quebec is charged with the collection of support payments.

You can apply to have the judgment in your favour executed both with respect to the arrears and for the future by contacting Revenue Quebec - Perception des Pensions Alimentaires at 1-800-488-2323. Give the agent the details of your case, and have the Court number handy.


QUESTION

I have been served with a Motion for Provisional Measures by my wife, who is representing herself. I am required to complete a Child Support Determination Form and Statement of Revenues and Expenses. Do I have to engage a lawyer to fill out these forms or can I get the forms and complete them myself? Also my wife's motion was not accompanied with these forms. Is she required to send me these forms herself. She just started a new business and I have no knowledge of her earnings.


ANSWER

You do not have to have a lawyer to prepare these forms, though I would recommend highly that you have a lawyer do so. There is special software called Aliform (which most family lawyers have) that is required to obtain an accurate statement of what is required.

If you do the forms yourself you must have them certified by a clerk at the Courthouse in order to be able to file them with the Court. They will not be certified if they have not been filled out properly.

There are some links on my website which provide information regarding the support tables which may help you fill out the forms.

Your wife is required to send you the same forms. If she does not do so her request for support cannot and will not be heard.


QUESTION

I have questions related to my custody/child support payments of my daughter. Her father and I have been divorced for 6 years. I suspect that he may not be paying as much child support as he should. I believe two years ago he may have had a leap in his income because of a company buy-out. Also, he feels the child support he pays should cover all expenses - school uniforms, school trips, piano lessons etc. My understanding is that child support is meant to equalize the living standards in both houses (which the current child support does not) but other expenses should also be paid for by her father. My daughter lives with me most of the time, sees her father every second weekend, Christmas and summer vacation. He is supposed to see her for dinner one weeknight a week, but unilaterally decided to stop that. We also, in our custody agreement, have a clause stating that he is supposed to contribute to her RESP yearly, but since our separation has contributed only $20.00 He feels that he contributed to the fund while we were married and that he shouldn't be obligated to contribute anymore. (The clause states that he would contribute yearly in an amount to be determined by him). He has not contributed yearly. Money is a concern for me. The last thing I want to do is engage in a legal battle with him this year which will cost me more than it would be worth to do. He is very financially secure. What can I do? I would like to review the basic child support, establish his contribution to expenses above and beyond the day-to-day expenses and ensure that he contributes to her RESP.


ANSWER

In order to get anywhere or make progress you need to establish your ex-husband's income. If he is not forthcoming and refuses to give you an honest, open, and complete disclosure, you will have no choice but to go to court and litigate this issue. Once the proceedings start your ex-husband will be obliged to divulge all of the information necessary in order to determine his real income. I understand that this process can be expensive, and it is not something that you want to do, but it may be your only choice given what appears to be your ex’s refusal to cooperate.

Furthermore there are special expenses that are to be added to the base amount of support. These include child care, medical dental and orthodontic expenses, school related expenses, and activities. School uniforms, school trips, and piano lessons should be considered add-ons over and above the base amount of support.

Finally the divorce judgment that ratifies your agreement is not being respected by your husband, which appears to put him in contempt of court. There are recourses that are available in that regard.


QUESTION

I have split custody of my 8 year old son from a previous marriage, and I am paying child support for him to my ex-wife. I remarried in October 2000 after living with my new spouse for 4 years. In December my new wife told me that she had made a huge mistake by getting married, and now is seeking a divorce.

My second wife supported, nurtured and accepted my son during the four year period of our co-habitation, even though she is not his biological mother. Can I ask her to pay child support to me for him?

Also my emotional state and self-esteem have suffered as a result of what my new wife has put me through. Can I seek damages from her for emotional distress and mental cruelty, on my own behalf and that of my son who she refuses to speak to since she decided to leave?


ANSWER

On my website I deal with the issue of requesting support from a non-biological parent - the answer to your question on this issue would be that if your second wife assumed the role of a mother to the child, in principle you would be able to claim support from her.

On my website I also deal with suing one's spouse in damages. One spouse can sue another in damages but the claim cannot relate to marital misconduct - such as mental cruelty. What you wish to claim is therefore NOT the proper object of a claim in damages.


QUESTION

I signed a divorce agreement in 1990 in which I agree to make child support payments to my ex-wife until our two children (who are now 14 and 15 years of age) are 24 years old. Since the divorce in 1992 my wife moved to New Zealand. After the move I saw the children briefly at Christmas in 1993, but have not seen them since. Can I ask that the judgment be modified so that my obligation to pay child support terminates when the children reach 18 years of age?


ANSWER

The first thing that you should know is that you can apply to modify the child support portion of your divorce judgment on the basis of the coming into force on May 1, 1997 of the Quebec Guidelines, which in and of itself constitutes a change of circumstances entitling you to revision of the amount that you must pay.

Secondly, your wife's move to new Zealand, which makes it prohibitively expensive for you to exercise access, is another important change of circumstances which the Court will take into account in fixing the amount of child support which you would have to pay based on the Guidelines. In fact this can be raised to reduce the Guidelines amount. You can plead that there should be a derogation from the Guidelines on the basis of "excessive difficulty" - the difficulty being the extraordinary travel expense created for you to see your children based on your wife's unilateral move to New Zealand.


QUESTION

I was married in 1978, separated in 1987, and divorced in 1989. I have joint custody of our two children who are 18 and 20 years old and live with their mother. I have a good relationship with the children, see them regularly, and have paid child support to their mother for the past 13 years as well as various other expenses for them. The 20 year old just finished CEGEP in December 2000, is not showing any interest in attending university, and will most likely get a job shortly while attending courses at the same time. The 18 year old is enrolled in a 12 month technical course which will terminate in August 2001 and will most likely find a job shortly afterwards. I am aware that the laws have changed. What is my best course of action to discontinue my child support payments and what are my options?


ANSWER

Children over 18 are considered to remain dependent and merit support as long as their studies are serious, or there is some other reason which prevents them from being self-supportive (such as a medical infirmity).

Students are under an obligation, generally speaking, to apply for any available loans or bursaries, or to work on a part-time basis during the school year and full-time during the summer, to contribute to their own support. Usually the parents' obligation is reduced by 1/3 of the amount of the student's revenues from employment.

Regarding the 20 year old, a good case can be made that she no longer be considered dependent as she has stopped her studies. You should therefore apply now to have your support payments for her cancelled.

You will probably have to wait until August of this year to cancel your support obligation for the 18 year old. However it would be important to determine if there any available loans or bursaries which he can apply, or should have applied, for. Also the 18 year old should be working to contribute to his own support, and thereby reduce the amount that you currently have to pay.


QUESTION

My ex husband and I were together for 9 years but only married a couple of months (7/03 ad 10/03) We have 2 girls now 10 and 13 which have been in shared custody since then - and thankfully we agree on this most important issue - our children. We also agreed not to touch each others pension plans. We owned a duplex together then, which I gave him a sum for and kept it in my name. And even though we are now 7+ years post separation I get harassed on a weekly basis that he plans to come back to get the duplex. Also he insists that we get divorced this year - as he claims he waited for me to get promoted and earn substantially more than he. So my question to you is the following - whats his "recours" for the duplex and which line on T4's are used to determine what amount I will have to give my ex.


ANSWER

I am assuming that you paid your husband for the duplex without a final separation agreement. If so this might have been a mistake. I need to know more. What I can tell you is that the duplex is an asset that is divisible at divorce, and you cannot have a final agreement on the divisibility of such assets by "anticipation" that will hold at the time of divorce unless both parties continue to agree on it. This may or may not be the case based on the circumstances.

As far as the child support is concerned - it is calculated using the Child Support Guidelines - there is software for this that the Court uses - the amount varies based on the time of custody and your respective incomes. I can do the calculation for you if I have the info needed.


QUESTION

My wife agrees to have my child support payments stopped because she now agrees that our children are independent. The Minister of Revenue is collecting the child support that I am now paying, and a lien (legal hypothec) has been registered against a property which I own to secure my child support obligation. How do I go about having the support payments cancelled and the lien removed by agreement with my wife?


ANSWER

The only way to get what you want is have a consent to judgment prepared in which both you and your ex recognize that the two boys are no longer students, but are working and self-supportive, and thus no longer financially dependent "children of the marriage". In the consent your wife will agree to release you from the payment of any further child support retroactive to whatever date you want.

You will have to appear in Court only to deposit the consent and obtain judgment ratifying it. In the request to be presented to the Court to ratify the consent you can also ask the Court to order the radiation of the legal hypothec registered against your property. You will then have to register the judgment.

As an alternative you can have a deed of radiation prepared and signed by your wife that would then be registered against your property.

All of this would be done in a spirit of cooperation and on a non-contentious basis.

I can help you if you wish. Your wife would not necessarily have to retain her own counsel, as long as she fully understands what she is doing


QUESTION

When child support is deducted automatically from a person's paycheque is it tax deductible for the payor?


ANSWER

Child support is paid in net after-tax dollars. It is not tax deductible for you. Your wife does not have to include the child support payments that you are making in her income that she declares for tax purposes.

Your child support payments are deducted automatically from your paycheque because the Minister of Revenue (MRQ) is charged with the collection of all support payments, and your employer is under a legal obligation to withhold the amount that you have been ordered to pay and remit it directly to the MRQ.


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Child support - "deadbeat father"

QUESTION

I stumbled upon your website and I was wondering if you could help me. My mother and father divorced when I was very young and she has a judgment which allowed her the right to ask for alimentary support. My mother, due to various medical and addiction problems, never took my father to court. My father always had a very good job and makes a substantial amount of money. I have suffered many financial hardships through my teenage years and adult years and I am trying to decide if I can should take a judgment against him.

In my whole life - he has never given me anything except for maybe two years of birthday gifts. We recently met after not seeing each other for almost 14 years and he promised me that he would assist me with the costs of my schooling.

I was attending university but had to leave because of the cost of education was too high. The loans that the government offered barely covered my living expenses and debt load. I have a very good job right now and make a decent salary. I have had to previously declare bankruptcy and struggle from additional debt that I am still paying off. I am 30 years old now and I do not think I have a chance to win- but it just kills me that he offered to help, and then he went and changed his phone number. I am wondering if I could get past child support payment or have him pay part of my schooling.

I really feel like he should help with something- is there anyway I could actually win something like this? Please advise.


ANSWER

Quite an unusual claim. You are now 30 years old, working on a full time basis, and you want to ask for your father's assistance now because he never adequately provided for you when you were a child and to make up for those lost years of support.

Article 585 of the Civil Code says that relatives in the direct line in the first degree owe each other support.

Article 595 says that support may be claimed for needs existing up to one year before the application.

It seems to me that you have a theoretical right to ask for support from your father, but only in relation to needs that have arisen in the past year. You will have to prove those specific needs and your father's capacity to pay. The fact that you are working and are presumably self-sufficient is the principal factor that works against you regarding such an application.


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Child support - basic underlying principles

QUESTION

My ex-wife and I have been divorced for a couple of years now. We have shared custody of our 2 children. The custody time is 50% for each of us; the children spend one week with me followed by one week with her. I receive roughly $300 per month from my ex. Her salary is roughly double mine. My lawyer tells me that the child support payments I receive from my ex is so that we can now both pay for roughly half of the child expenses. My ex insists that her $300 per month that she pays me is the only money she will spend on the children; she claims that I have to pay for all the expenses like daycare, transportation, orthodondic, traveling for school, all school activities, summer activities, summer camps, etc. My lawyer also says that items like orthodondic surgery and school trips do not fall under the "normal" everyday expenses. These expenses are above and beyond normal monies set aside for the children. We should contribute to these extra expenses by our ability to pay; therefore, if my ex makes double my salary, she should pay 66% of the expense and I pay the remainder.

My 3 questions are:

1) Though my ex pays me child support of roughly $300/month, should we both be paying half of the normal expenses (ie. we should be splitting the expenses 50-50 for daycare, activities, etc.)? At the moment, I write all cheques for daycare, activities, camps, etc..

2) Are items like orthodontic services and school trips (ex. Toronto for a week, Europe for 5 weeks, etc.) above and beyond normal everyday expenses where we parents need to contribute extra money? That is to say, these types of expenses are not covered by the normal child support regime; that the money needs to be contributed by both parents and the level of contribution depends on salary.

3) If my ex-wife should have been paying for half the expenses, after contributing child support to me, is there a government agency I can contact or a legal procedure to correct the situation and to help me recover my overpayments and to make sure she pays her fair share in the future? I cannot afford to go back to court to fight this point; my ex-wife knows this and takes advantage of my situation.

I have just lost my job recently and am therefore very concerned about my ex-wife not paying her fair share.


ANSWER

In a split custody situation each party is supposed to pay and assume the everyday expenses that each incurs while the children are with him or her.

It appears that the $300 per month that you wife pays you represents the "base amount". It is meant to equalize the living standard in both homes for the children by having your wife subsidize your home thereby compensating you for your wife's greater earning power.

Over and above the "base amount" there are what are called "special expenses" - these are child care, school expenses including tuition, books, uniform, school trips etc. and, other expenses including extra curricular activities, medical, dental, orthodontic etc. - expenses that are necessitated by the child's particular situation.

The special expenses are calculated, added on in the appropriate place on the Support Determination Form, and factored in to determine the amount of child support payable. The addition of the special expenses to the base amount thereby increases the amount that the debtor parent pays and the Minister of Revenue collects.

Special expenses should not be treated separately and divided on a proportionate basis by the parties as they are incurred as they are in your case. Your doing so, your wife's apparent refusal to assume her share, and her misrepresntation that the sum of $300 is all that she has to pay, has led you to wrongly believe that you must assume and pay all of the special expenses.

Your wife is not paying her her fair share, and you are thus being taken advantage of.

Unfortunately, unless you qualify for legal aid, you must either institute the proceedings necessary to remedy your situation yourself or hire a lawyer to do so.

You can go back one year to claim your wife's share of what has already been expended.


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Child support - father working "under the table"

QUESTION

I'm looking for information on getting child support from my spouse. We recently separated and he has paid me $100.00 a week, we have 1 child (1 1/2years old). I have made a date to see a lawyer in one month. The thing I am worried about is he owes $66.000 in child support for 2 other children, never made a payment to the government. We live on an Indian reserve and he has no assets in his name and he works under the table. I feel he is just giving me money so I won't take him to court because he feels he will get arrested for the outstanding amount he already owes. What should I do?


ANSWER

The amount of child support is based on your income, the father's income and the amount of time that the children spend with each parent. These are the factors that the Guidelines depend on to determine the amount that must be paid.

You are dealing with someone who has no declared income and appears to be paying voluntarily. To get a judgment applying the Guidelines you will have to prove what the father earns. If you do go to court you risk angering the father which in turn risks causing him to stop his voluntary payments. Unless you can prove that the father is working and can give the court a fair idea of what his under the table income is, I would leave the status quo alone and let sleeping dogs lie. You risk coming away with nothing and then getting nothing after that.

I know that the above sounds unfair - but sometimes you just have to be practical. $100 per week or $430 per month net is about what you would get if you could prove that the father was earning about $40,000 gross.


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Child support - impact of non exercise of visitation rights

QUESTION

My new wife has custody of her two children from her prior marriage and court orders
that provide for child support and access rights in favour of her ex-husband. Her ex is not obeying the orders to see her children.

What can she do?


ANSWER

I would ask for an increase in increase in the child support that your wife is receiving on the grounds that her ex does not see the children and that this causes her financial hardship (the legal term is "excessive difficulty"). This is one of the grounds for asking that the Court increase the amount of child support payable over and above the Guidelines amount.


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Child Support - modification of order

QUESTION


I have a daughter born in 1986.

I have been paying child support continuously since about 1988. I have no contact whatsoever with my daughter.

I need to understand how long I am obligated to pay child support and what my options to discontinue support are.


ANSWER

You are obligated to pay child support for a child over 18 as long as the child remains dependent. Dependency arises from either one of two causes in that case - either the child cannot support herself because of a medical infirmity or because she is a full-time student.

In your case because you have no information about your daughter I will assume that there are no medical issues and you do not know whether she is registered as a full-time student or not, and if she is whether she is in a serious course of study and getting reasonable grades. Also if she is a student she has an obligation to apply for all available bursaries and to work at least part time to pay a portion of her expenses. Your ex-wife also has an obligation to make a contribution based on her income. Since 1997 the amount of child support is based on the application of Guidelines which take into account both incomes.

Because you are not getting any cooperation or information, I would suggest making a motion to cancel your child support obligation. The proceedings will flush out all of the information that you need.


QUESTION

I have questions related to my custody/child support payments of my daughter. Her father and I have been divorced for 6 years. I suspect that he may not be paying as much child support as he should. I believe two years ago he may have had a leap in his income because of a company buy-out. Also, he feels the child support he pays should cover all expenses - school uniforms, school trips, piano lessons etc. My understanding is that child support is meant to equalize the living standards in both houses (which the current child support does not) but other expenses should also be paid for by her father. My daughter lives with me most of the time, sees her father every second weekend, Christmas and summer vacation. He is supposed to see her for dinner one weeknight a week, but unilaterally decided to stop that. We also, in our custody agreement, have a clause stating that he is supposed to contribute to her RESP yearly, but since our separation has contributed only $20.00 He feels that he contributed to the fund while we were married and that he shouldn't be obligated to contribute anymore. (The clause states that he would contribute yearly in an amount to be determined by him). He has not contributed yearly. Money is a concern for me. The last thing I want to do is engage in a legal battle with him this year which will cost me more than it would be worth to do. He is very financially secure. What can I do? I would like to review the basic child support, establish his contribution to expenses above and beyond the day-to-day expenses and ensure that he contributes to her RESP.


ANSWER

In order to get anywhere or make progress you need to establish your ex-husband's income. If he is not forthcoming and refuses to give you an honest, open, and complete disclosure, you will have no choice but to go to court and litigate this issue. Once the proceedings start your ex-husband will be obliged to divulge all of the information necessary in order to determine his real income. I understand that this process can be expensive, and it is not something that you want to do, but it may be your only choice given what appears to be your ex’s refusal to cooperate.

Furthermore there are special expenses that are to be added to the base amount of support. These include child care, medical dental and orthodontic expenses, school related expenses, and activities. School uniforms, school trips, and piano lessons should be considered add-ons over and above the base amount of support.

Finally the divorce judgment that ratifies your agreement is not being respected by your husband, which appears to put him in contempt of court. There are recourses that are available in that regard.


QUESTION

I just moved back from Toronto. I was paying child support on the federal guidelines (about $200.00 more than when I lived in Quebec) with the same visitation and the same salary. I was wondering how I go about getting the amount changed back to what it would be under the Quebec Guidelines, and how much it will cost to do so. My divorce was finalized in January 2003. I don't know how to re-open my case and get my child support obligation revised.


ANSWER

To apply the Quebec Guidelines you must make a "motion to modify accessory measures" before the Court here asking that you child support obligation be re-determined based on your move back to the province of Quebec and thus that the Federal Guidelines no longer apply.

A family lawyer should do this for you. You will be charged for the time spent on your file at the laweyr's hourly rate. Don't cut corners. Do it with a competent and effeicient attorney and it should be done properly at less potential cost.


QUESTION

My ex wife lives in Montreal with my one and only daughter, I live in Georgia in the U.S. When I add both our salaries and compute the child support it is quite different to what I was bound to when we first got divorced in the U.S. If I file for an adjustment with you, am I subject to the U.S. child support agreement handed by the Florida courts, or since she lives in Montreal with my child, the Quebec laws would govern our child support responsibilities? I believe her lawyer stated to me that I would be bound to the decisions made in the Florida courts for ever, but I have a hard time believing they could justify power over us since she lives in Montreal and I live in Georgia. Logically I would think that the laws of child support would be applicable depending on where the child resided. But then again I am not a lawyer and laws can be strange at times.

If we can file and go thru the Quebec system I would like to do so.


ANSWER

You can make a motion to modify your child support obligation before the Superior Court of the province of Quebec where your ex-wife and child now live, and ask that the Court determine the amount payable based on the application of the Quebec child support guidelines – where the factors that are used are your respective incomes and the amount of time that the child spends with each parent expressed on a percentage basis.


QUESTION

Where a child is over 18 years of age and is a student

Must I return to court to request that the child support payments that I am receiving continue once the children reach the age of 18 years, and if so, how long before my children reach 18? They are presently 14 and 15 and are expressing an interest in college.


ANSWER

If after 18 your children continue their studies, they will still be considered to be dependent, and the existing support order will continue without your having to do anything. It will continue until it is set aside by an order of the court as a result of an application by your ex which is granted, or an agreement that you make with your husband - because in either case the children are no longer students and are self-supportive


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Child support - proof of "under the table" income

QUESTION

The father of my child says that he does not work and has no money, when he does for a fact work but is paid cash. What can I do to prove his cash income?


ANSWER

If the father has no reported income you will need to obtain proof of his under the table earnings. A good way to do this is to get him to admit that he is working under the table, and the amount that he is earning if possible, on tape - either during a phone conversation (he does not have to know that he is being taped), or in person by getting him to talk.

Buy a small tape recorder that plays micro-cassettes. They are sold at Bureau en Gros. Hide the tape recorder on you and just get him to talk. Tape him until you he says the things that you want him to say. Record all of your phone conversations with him.

Such evidence, if obtained is admissible, because child support is a matter of public order and we are dealing with an issue that involves the best interest of a child.

I was involved in a case where the father refused to disclose his real income. The mother hid a tape recorder on herself and got the father to talk over dinner in a restaurant. During the conversation he admitted his real income. The mother transcribed the conversation and file the tape and transcription into the court record. The judge ruled that the tape was admissible even if the father did not know and consent to his being taped because the tape was proven to be authentic and the issue involved the father's obligation to pay child support.


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Co-ownership of family home where parties not married

QUESTION

I purchased a home 3 years ago with my girlfriend. We put down a deposit together, and purchased the home for 175 000$.
She left in June of 2004 to go live with another man. We put the home in her name, at the notary, to protect our investement because I own a company and have creditors to whom I am personally liable. The mortgage loan on the property is in both of our names. The balance owing on the mortgage is 125 000$. I had the property evaluated in October 2005, and it is now worth 230 000$. I have made the majority of the mortgage payments .

She is claiming the house that the house is hers and says that she will give me 50% of the profits once the house is sold. She wants me to contimue to make the mortgage payments until it is sold.

Do I have any rights???


ANSWER

Sounds to me that putting the house in your girlfriend's name was a simulated transaction, with the real agreement being one of co-ownership (or sui generis partnership). If that is the case between you and your girlfriend the solution to the problem lies in applying the co-ownership rules. This means that you would have the right to claim back from her one half of the monies that you will have paid to preserve capital (i.e. the mortgage payments) until the property is sold. If she is occupying the propertyare entitled to claim compensation (the rental value) during the period of her possession as well. These amounts would paid to you off the top before there is any division of the net sales proceeds - which would of course be divided equally.

You would have to prove that you bought the property in partnership notwithstanding what appears in the title deed. It will be a question of credibility. You will be more credible if you can corroborate your testimony with other proof tending to show that your real intent was to co-own the property and that it was put in her name alone to protect it from your creditors.


QUESTION

My girlfriend and I have been together for two years , and would like to live together. Prior to our meeting she lived with a guy for a little over three years in a common law relationship.

During this time she bought a home, made all payments on her own with no financial help from him. He did do some repairs on the home costing him approxmently $3000.

They have been separated now for four years. He has his own apartment and someone else in his life.

Now that he found out that we want to get married and live together in her home, he is saying that he will take half of the property from her and leave her on the street. She has three kids, none of them his.

Can he do this after such a long period of seperation? What rights does he have?


ANSWER

The answer to your question depends on whether your girlfriend's ex boyfriend is registered as a co-owner of the home.

If not the threats are empty ones.

If so, then there may very well be a problem. The answer lies in the application of the rules in the Civil Code on undivided co-ownership. These rules provide for compnesation where one of the co-owners makes a payment on behalf of the other to preserve capital - such as the capital portion of a mortgage. They also provide for compensation to the non-possessing party where the other co-owner occupies the property.

To apply the above rules in your favour and to avoid a 50 / 50 split of the net value, you would have to determine how much your girlfriend has paid on account of capital on her ex's behalf - this amount would result in her being entitled to compensation from his share for an equivalent amount, but this would be LESS the amount corresponding to one-half of the rental value of the property (he is entitled to compensation for her exclusive occupation of the property).


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Compensatory allowance

QUESTION

I have just spent the previous week with my children and discussed with them the possibility of living with me. My oldest son, who is 11, informed me that their mother rarely spends time with them and she told him that I had mental problems. My question, what chances do I have in obtaining custody since I am the father?? How long would the process take and would it be necessary to ask for a reduction in child support payments if I were to seek custody??

Should I hire a private investigator to document the amount of time that my ex wife spends away from home?? What can I do to increase my chances of obtaining custody??


ANSWER

If you can prove that your ex rarely spends time with the children, and in that respect can be considered uninvolved (except for the collection of child support from you) and that your wife has denigrated you to the children and thereby interfered with and impeded their relationship with you, you should succeed. It would also be good to be able to prove that the children themselves wish to come to live with you - this can be done by having an attorney appointed to the children whose role would be to advise the Court what the children want.

You must prove in essence that the children are better off and will be in a more stable and nurturing environment should they come to live with you. In the end, assuming that we can prove your wife's lack of involvement and interference in your relationship with the children, which are both factors that are counter-indicative to custody, and which would be considered changes of circumstances justifying a revsision of the custody order, it is what is in the best interest of the children that will determine whether there will be a change of custody.

Anything that you can afford that will help bring out the truth is good.


QUESTION

I helped build my husband's business. My husband says that I am not entitled to any share when we divorce.

The company and its success has been entirely generated during our marriage together. How can I enforce my right to a share of the business?


ANSWER

Based on the information you are now providing it would seem to me that you would have a better case if you made a claim for what is called a compensatory allowance.

This is applicable if it can be shown that you made a contribution in money and/or services that has had the effect of enriching your spouse and impoverishing you correspondingly.

This is often the case where there is a family business which belongs to one of the spouses and the other helps to make the business successful by doing work without being paid a salary.

If you can claim a compensatory allowance you will able to claim what you would otherwise not be entitled to by way of division of the value of the business.


QUESTION

My question is that my ex and I are going for divorce but I don't know if we are legally married.

We went to a priest for a marriage certificate but we didn't send it to the city.

That was about two years ago.


ANSWER

To be married for purposes of the civil law you must have an act of marriage that has been registered with the Directeur de l'état civil. If you were married in a church the priest, or officiant, draws up a declaration of marriage and is supposed to send it without delay for registration to the Directeur de l'état civil.

If I were you I would check with the Directeur de l'état civil to see if your marriage has been registered. This will determine whether you are married for legal purposes.

To reach the Directeur de l'état civil you can call:

Quebec region 418-643-2545
Montreal region 514-864-3900
Elsewhere in Quebec 800-567-3900


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Custody

QUESTION

How do the Courts determine who gets custody of minor children? What factors are taken into consideration?


ANSWER

There are a number of factors used in determining who gets custody. The overriding
criterion is the best interest of the child, not what is in the interest of either
parent.

The factors looked at to determine what is in the child's best interest are:



  • the parental capacities of both parties (including all positive and negative
    factors which will impact the ability to provide the care that the children
    require)

  • who has been the primary caregiver and who is better able to provide primary
    care

  • the availability of the parties to provide care

  • the involvement of the parties with the children - in their education, activities,
    medical appointments etc.

  • the availability of a safe and secure home environment

  • who is more willing to facilitate and maximize contact with the other party

  • the non-involvement of the children in the marital conflict provoking conflicts
    of loyalty

  • ensuring that the children maintain respect for the other parent

  • not denigrating the other party and alienating the children

  • non-interference when the children are in the physical custody of the other
    party


The above list is not exhaustive, but it provides a good indication of what
to focus on.


QUESTION

I would like to know if I need to file for custody of my children before I file for divorce.
My problem is that my husbands won't take responsability for the kids now but when we seperate he will make it his mission to take the kids from me...So before I file for divorce I want to make sure not to lose my children.


ANSWER

If you are a good mother you will not "lose" your children - no matter what your husband threatens.

You gain no advantage by asking for custody before filing divorce proceedings. The same criteria for determining custody apply whether the request is made in a divorce motion or in the context of a motion for legal separation.


QUESTION

If my ex-husband and I have shared custody of our 7 year old boy, could that be over-turned if emotional abuse is involved? My son started speaking to someone at his school about everything that's going on at his dad's place, and how his father's girlfriend yells at him constantly and everyone puts me down in front of my son. I'll be seeking more help for my son, but is there something that can be done?


ANSWER

Yes you should ask that the shared custody arrangement be stopped, and that you be granted sole custody of the child.

You would do this by motion to the court to modify the existing court order.


QUESTION

My wife and I are getting divorced.

We have been married for 5 years. We have one child, aged nearly 2, of whom I am the primary care giver and have been for the past 6 months. For the past 9 months, I am the one who has taken the child to playgroups twice a week, every week except for holidays. I can provide proof of this. My wife has done nothing of this type for the child. My wife has a job and I own a small internet company that I run at night or during the evenings.
Twice she has attempted to remove the child without my permission.

What I would like to know is: If I ask for sole custody with visitation, am I likely to get it?


ANSWER

It sounds to me that you are a good candidate for sole custody. You have been the primary caregiver, you are involved, and you are available. Moreover, your wife as evidenced by her conduct seems to prioritize her interests over those of the child which would counter-indicate custody for her.


QUESTION

My wife has custody of our 13 year old daughter. She has been telling me that she wants to come and live with me. I cannot afford to hire a lawyer at this point. Can my daughter hire her own lawyer based on a legal aid mandate to ask for a change of custody if her mother does not agree?


ANSWER

If I understand your question correctly, you are wondering whether your 13 year old daughter can hire her own lawyer and ask herself for a change of custody, or more particularly ask that the court authorize her to come to live with you.

Firstly, assuming that your daughter expresses the desire to come to live with you, you must be the one to apply for the change of custody.

A lawyer can be appointed to represent your daughter, but only to ensure that her views are properly presented to the Court.

A lawyer for a child is only necessary where the child's interests may not necessarily coincide with those of the parents, and only then to ensure that the child's competing interest is accurately represented and properly conveyed to the Court.

In your case, if your daughter is able to properly express herself, and she is clear and unequivocal in her desire to come to live with you, it is highly probable that, if your wife does not agree, a judge will listen to her and order a change of custody.

Your daughter is of an age where she can choose where she wants to live. Unless it is clear that she is, for some reason, not acting in her own interest, the change of custody requested should not require the kind of expensive litigation which you seem to envision.


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Custody - child's wishes

QUESTION

I was born in Bogotá, Colombia and have Canadian citizenship. I have been married for eight years to a Lebanese citizen, who is also Canadian and we have a baby girl that was born in Montreal and is currently 20 months. I came to spend my vacation in Colombia on December 12th and I am supposed to return to Montreal on March 4th. My marriage has not worked for years, and I want to get divorced, but am scared to go back since my husband and his family will not leave me in peace, or have threatened to not let me leave Canada with the child, or to take her to Lebanon for good. I My husband wants to go to Lebanon in April with the child but I do not agree. Since he got her a Lebanese passport without my permission I am really afraid of not seeing her again. Before going back to Canada, I would like to know: 1. Can I leave Canada with my baby at any time or can he can forbid me? 2. Can he take the baby to Lebanon and leave her there without my permission.? 3. My marriage is not registered here in Colombia, could I get divorced in Colombia? 4. I have a letter from him allowing me to take the baby out of the country at any time, can he revoke it? 5. If I stay here can he sue me for not taking the baby back?


ANSWER

I would be very concerned by the fact that the baby has a Lebanese passport. If your husband succeeds in getting the baby to Lebanon you can be assured that you will never see her again.

I do not believe that you can take divorce proceedings in Colombia because if the laws there are like ours here, you would have to reside there for one year in order for the court to have jurisdiction.

If you stay in Colombia you will force your husband to go there to try to get the child out. You should consult a Colombian lawyer as to your options there. You may find a favourable judge in Colombia since you are Colombian.

If you come back to Montreal you can ask for a divorce and custody of the baby. With a custody order theoretically your husband cannot leave the country with the child without your consent. The only risk that you run is that your husband can try to slip out of the country with the child and take her to Lebanon on the basis of the Lebanese passport. You would have to notify the authorities as soon as you get the custody order. You should also ask that the court order your husband to deposit the child's Lebanese passport with the court here because of the threat that he may try to leave the country with the child.

If you do come back to Montreal I would institute the divorce proceedings right away. Do not wait. Get interim custody as soon as you can.


QUESTION

My husband and I are just about to file our completed divorce document. My son approached me this weekend to tell me that he doesn't want to live with his father part time as per our divorce agreement and would rather live with me full time. My son is only 13. Can he make that decision at this age? Should I hold off on filing the divorce papers? Is there some special clause that I should put in the current agreement to cover the possibility of such a change in our child sharing agreement? What happens if the change is requested after the divorce is finalized?


ANSWER

At 13 your son can decide who he wants to live with, and the Court will usually give effect to the wishes of a child of this age. The cutoff age is 12 according to the jurisprudence. The judge must be satisfied that your son has expressed his wishes free of influence and that it reflects what he truly wants.

You should not sign any agreement that does not reflect what your son wants. It can be changed later, but will more difficult and will most likely cause unnecessary expense as your husband will surely contest it. The time to deal with this issue is now.


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Custody - expert's report - when can it be rejected

QUESTION

Does it ever happen that a judge disregards a psycho social expertise when determining custody and visitation or do they more often than not adhere pretty closley to what is recommended?


ANSWER

An expert's report is considered to be persuasive evidence. It is not, however, binding on the Court.

An expert's report will be rejected when the Court has reason to question the expert's objectivity, or when it is shown that the expert's analysis is flawed in some way - he has failed to take into account certain important facts, has misinterpreted the facts, or has erred in his application of the principles on which his report is based.

I have often seen judges set aside expert's reports. This is why it is very important to be careful in the choice of the expert to be engaged.


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Custody - forcing production of expert's report obtained at request of opposit party

QUESTION

My ex husband is seeking a change of custody. I have always had
custody. A psycho-social expertise was done but he hasn't given me a
copy of it. Now he seems to have abandoned the procedures. I want to
have the visitation modified, and I want to obtain a copy of the expert report
obtained by my husband which he has not filed and refuses to provide to me.
What are the procedures I need to do?


ANSWER

You must make a motion for modification of accessory measures asking fo a change of the existing access order.

In the context of your motion you should request that your husband be ordered to file the expert's report that he has in his possession, but refuses to file probably because the recommendations are not in his favour. Such an order can be obtained. In a recent case in 2002 a judgment was rendered ordering the father to produce an expert's report written by his expert which he had refused to file. The decision was rendered by Mr. Justice Gilles Hébert and is reported at REJB 2002-31908.


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Custody - jurisdiction of Quebec Superior Court

QUESTION

I moved from the province of Quebec to Las vegas, Nevada where I married, had a child, and was divorced in 2003. The child has had a history of learning disability, hyperactivity, and aggressive beahviour. At the time of divorce I was granted permission by the Nevada court to move back to Quebec with my child. The father was granted summer access. The Nevada judge stated in the judgment that the Nevada court was retaining jurisdiction on the issue of custody to guarantee the father's access. I moved back to Montreal in April 2003. Soon after my child was diagnosed as autistic. He has been attending a special school and has been receiving therapy ever since.
The father refuses to recognize the child's problem, and wants to exercise access in Nevada as if nothing is wrong. He wants the child to fly alone to him in Las Vegas - which is impossible. I want the father to visit the child here in Quebec. I maintain that the child cannot travel. The father has brought a motion for contempt against me in Nevada. My lawyer there says that unless I comply with the Nevada judgment I risk having the Nevada Court issue a "pick-up order" for the child in Quebec and that I risk losing custody. Is there anything that I can do here in Quebec since I have lived here with the child for over a year?


ANSWER

The Quebec Court of Appeal has determined that as a matter of public order the issues relating to the custody of a child (and by extension access) are within the jurisdiction of the Court of the place of the child's domicile - where the child has his principal residence.

The Court of Appeal has also said that the best interest of a child requires that questions concerning custody and access be determined by the Court of the child's domicile.

Under the Civil Code the Quebec Superior Court can, exceptionally even when a child is domiciled in Quebec, decline jurisdiction to hear a custody case on the basis of the principle of legal "forum conveniens" - if it is determined that the Court of another jurisdiction is better placed to decide the issue of custody because, although now living in Quebec, the child has a more substantial connection to the other jurisdiction.

It is clear that the Quebec Superior Court has jurisdiction to hear your case. It would appear that in the past year the child has established a more substantial connection with the province of Quebec where his autism was diagnosed, where his doctors are, where he is being treated, where he is undergoing therapy, where he is attending school. It is highly unlikely that, given the foregoing particular circumstances, the Quebec Superior Court would decline jurisdiction and refuse to hear a motion to review the access provisions of the Nevada judgment.

Once the Quebec Superior Court accepts jurisdiction to hear your motion, on request it should issue a suspension of any proceedings taken in Quebec to execute the Nevada judgment.


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Custody - residence of children after divorce

QUESTION

I am writing on behalf of my sister who is an anglophone married to a francophone and living in Montreal. They have two children - ages 2 and 4. From conversations with my sister, it appears that the home situation has been deteriorating since the birth of their youngest child. My sister's husband is a lawyer, and my sister is a stay at home mom.

Over the past two years, my sister's husband has effectively imprisoned my sister in the sense that she has no access to funds, is not permitted to travel outside of Quebec with her children (her family lives in Ontario and Manitoba) and has been informed that, according to Quebec law, if she files for divorce she will be required to live within 30 km from the children's father. He has also told her that, since she has no income, Quebec law will side with him in terms of custody agreements.

She is reluctant to obtain any legal advice because she is certain her husband will find out. I'm sure this is paranoia on her part, but he seems to have convinced her that he will be made aware of any such correspondence, as he is also a lawyer.

I would much appreciate your clarification on the following:

• with regards to the children, will she be required to remain within a certain distance of their father after a divorce?
• what is the likelihood of her losing custody of the children considering that he is the sole income earner?
Any advice you can offer would be very much appreciated.


ANSWER

Your sister is being manipulated by her husband who is misrepresenting the situation to her. He is the last person who should be advising her as to her rights.

Your sister is not required to remain within any distance of her husband after the divorce in Quebec. If she wants to leave Quebec with the children she has to apply for authorization from the Court to do so, and will most probably obtain it if she has been the primary caregiver, she has a good reason for wanting to leave, and by leaving she is not deliberately seeking to deny the father access to the children. I have pleaded many of those kind of cases.

The incomes of the parties have absolutely no relevance to the issue of custody. She has no chance whatsoever of losing custody because her husband is the sole breadwinner. The issue of custody will be decided on what is best for the children and who is better able to provide for the children’s needs (physical and emotional). The fact that your sister has been the primary caregiver will be a key factor.

It is also clear that your sister’s husband will have to pay both child and spousal support, and will most likely be condemned to pay her legal fees (based on the inequality of financial means to support the litigation) if the case goes to trial.


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Custody - weight to be given to testimony of child as to preference

QUESTION

At what age can a child testify to the judge about where he would prefer to live? Is 10 and a half old enough?


ANSWER

The wishes of children as to where they woull prefer to live are taken into account by the Court as one of the relevant factors in determining custody. The weight to be given to such testimony or expressed preference will depend on:

-age


-maturity


-level of articulation


-whether the opinion expressed is rational (makes sense under circumstances)


-whether it coincides with child's best interest


-whether it is based on impulse (caprice in French)


-whether it is the result of undue influence by a parent


The opinion of a 12 year old child is "largely determinant".

The opinion of a child between 10 and 12 should be considered carefully.


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Custody - wife and children reside in Ontario

QUESTION

Is it within the Quebec Superior Court's
jurisdiction to make a ruling concerning a case where
a father in Quebec filed papers with the court for
visitation rights, but the child and mother have
resided in Ontario for 5 years (mother has sole
custody since birth, child never lived with father)?
Would a judge hear this case, or should the case be
heard in the province where the child resides and not
where the father resides?


ANSWER

In custody matters the Court having jurisdiction is the Court of the place where the child is domiciled.

Article 3142 of the Quebec Civil Code says - A Quebec authority has jurisdiction to rule on the custody of a child provided he is domiciled in Quebec.

Article 75 of the Quebec Civil Code says - The domicile of a person, for the exercise of his civil rights, is at the place of his principal establishment.

In custody matters the domicile of a child is the place of his habitual residence.

It appears that the Quebec Courts do not have jurisdiction to hear the father's request for access. It should be heard by the Court in Ontario where you and the child reside.

If the father has filed a motion here you should have a lawyer request that it be dismissed on the basis of lack of jurisdiction.


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Custody and immigration

QUESTION

I am writing to request your assistance in a very sensitive matter, I am Lebanese married to a dual citizen (Lebanese -Canadian) man since 2002, we have a 4 year old boy, we are living in Beirut, my husband sponsored me in 2004 and I have the permanent resident status in Canada since then. When we first got married I discovered that he has a mental illness that isolated him from the world and made him aggressive, I stayed by his side and never left him during that hard time, we decided to have a child thinking that this would help him gain social and emotional stability. Now he is becoming more nervous and aggressive since he decided not to take his medication anymore, I do not wish to hurt him but I need to get away since I can't take the pressure anymore and I cannot allow my son to live in such environment. I decided to move to Montreal with my son since I am eligible to do so, but he refused and didn't accept, he threatened that if I leave him, he will have me deported back to Lebanon and kill me, or take away my son, which he can do here considering the political connections that he has and the judges that he knows in the country. I don't feel that filing a divorce here will get me the protection that I want and will secure that I will be able to raise my son in peace.

We have not had any sexual relationship for the past 2 years, he never spend time with his son since he is either working or playing video games, he never spent a dime on us, he only pays for the schooling. I will not ask for any financial support as I am educated and capable of supporting myself and my son financially. I am not seeking any material help all I want is peace.

I wish to leave to Montreal and lead a normal and peaceful life knowing that I have a government that protects me, I do not want to be charged with child abduction if I leave the country without his permission.

My permanent resident status will expire in 2014, if I want to keep it I should leave Lebanon the soonest, I am counting on your support in this, and please let me know what should I do, and how much this supposed to cost me.


ANSWER

I recently had a case where the parties were living in Dubai. The father was Muslim from Dubai and the mother was French Canadian. They had two children and were living in Dubai. The mother was abused physically and psychologically and wanted to leave Dubai with the children to return to Montreal to live. She knew that the father would not allow that, and to leave Dubai with the children she needed his consent. She got him to agree to let her take the children for vacation to Disneyworld, on the understanding that she would be coming back with the children to Dubai. She took the children to Montreal to visit her family first. She then cancelled her trip to Disneyworld, and stayed in Montreal. She applied for custody of the children to the Quebec Superior Court.


The Court having jurisdiction in a custody case is the court of the place where the children have their permanent residence and domicile. There is no question that in this case it was Dubai. The mother asked the Court nevertheless to accept jurisdiction to hear her case because she said that she could not get a fair custody hearing in Dubai where Sharia law is applied. The judge here agreed with her, and the custody issue was thus heard by the Quebec Superior Court where the mother won custody.


Your case, while not identical, is similar.


I think that you should leave Lebanon with the child, if you can get out. Come to Montreal and bring proceedings asking the Court here to grant you custody because you cannot get a fair custody hearing in Lebanon for all of the reasons you mentioned, including I believe the application of Sharia law.

I can represent you once you get to Canada.

If the case is contested be prepared to spend $15,000 plus. I cannot tell you exactly how much because I do not know how many hours will have to be put in. The figure I gave you is just a guess. It can be more or less.


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Date of valuation of assets subject to partition

QUESTION

I have been separated from my husband for a short time and I am
considering purchasing a home before actually beginning a divorce. Is it
possible? Are there any risks involved when I actually do begin
divorce proceedings. I got married in 2001 and there was no marriage contract


ANSWER

When you divorce the effective date of partition of your property will be either the date of the proceedings (the general rule) or the date of the separation (by exception if applied for).

You can count on it being the date of separation if since that time you have been financially independent of your spouse.

I think that you can go ahead now and purchase the house. If you want 100% assurance wait until you issue your divorce proceedings.


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date when you can legally remarry after a judgment of divorce

QUESTION

I obtained my divorce judgment on August 13, 2003 and got reamrried in in a foreign country on September 9, 2003. My divorce certificate is dated September 13, 2003 .Is my foreign marriage valid here in Canada?


ANSWER

You cannot remarry legally until you are divorced.

Your divorce becomes final on the 31st day after the date on which the divorce judgment is rendered. If the divorce judgment is dated August 13 then you are only legally divorced 31 days later or as of September 13. Thus your foreign marriage on September 9 will be considered illegal and non-existant in Canada.


QUESTION

Is there any legal liability if I start a family with a man who has been separated from his spouse for 11 yrs, and filed for divorce 4 years ago but still an ongoing process?


ANSWER

Even if you are not divorced, you are free to restart your life as soon as you separate. That includes entering into new relationships. You just cannot remarry until you get a judgment of divorce.


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Declaration of Family Residence

QUESTION

How long is a registered Declaration of Family Residence good for? Does it become automatically nullified once a divorce is final? Can it go on indefinitely?


ANSWER

Once you have registered a declaration of family residence your husband cannot sell, mortgage, or convey any rights in the property (including a right of habitation to his mother) without your consent. Third parties who have legitimate claims (such as a creditor with a judgment) can validly register liens.


QUESTION

My husband and I entered into an agreement in relation to a condominium which we moved into. The agreement states among other things, that we own this property equally, that the fact that title is in his name only is a formality, and that he recognizes that this property is indeed joinly owned by both of us. We have since sold that property and purchased a house and once again, the same agreement was reissued with all of the conditions as outlined in the original agreement.

I have lived in this house for 5 years and now sadly the relationship is ending. While my ex husband has assured me that he will abide by the terms of the foregoing agreement, his actions to date have been secretive and do not reflect those of one who will act honorably. While I was aware of his intent to sell the house, he has had private meetings with a real estate agent who has now posted her sign on our front door and has signed a mandate
with her to sell this property.

What can I do to protect my interest in the house?


ANSWER

If I understand your question properly you are saying that the family residence was purchased in your husband's name, but the two of you have a written side agreement that says that it belongs to both of you jointly.

To protect yourself and prevent the sale of the property by your husband without your consent, you must register what is called a "declaration of family residence". This will prevent your husband from transferring title to the propertywithout your consent.

Since the property in question is the family residence and forms part of the family patrimony, you are entitled to one-half of the net proceeds at the time of divorce.


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Division of assets / debts

QUESTION

am asking for a divorce from my husband due to mental and physical cruelty. I am a landed immigrant in Canada and married my husband on coming here. 5 months after my arrival in Montreal I left my husband with the help of the police. I have now lived in Montreal for one year. I am living alone and working. If I ask for a divorce am I entitled to one-half of everything that my husband has? Can I ask the Court to reimburse my marriage expenses? Can I sue my husband in damages for what he has done to my family and I?


ANSWER

Your right to a division of property will be based on your matrimonial regime.

If, for example, you were married in Quebec without a marriage contract, you will be subject to the legal regime of partnership of acquests, which means that you will be entitled to one-half of the value of everything that you and your husband acquired after the marriage up until the date of the institution of divorce proceedings, or more probably in your case the date of separation since you seem to have been living independently of your husband since you left him. The assets to be divided will be evaluated at either the date of proceedings or the date of separation, whichever applies.

If you married outside of Quebec, the regime applicable will be that of the place where you were "domiciled" (intended to reside) at the time of the marriage. Most countries have regimes similar to Quebec's legal regime of partnership of acquests.

As for your other questions I can tell you that I am involved in a similar case where I represent the husband, and the wife is claiming reimbursement of the marriage expenses and damages. I am defending this kind of proceeding so I am familiar with it from the opposite side.

I can tell you that one spouse cannot claim "damages" from the other as a result of the breach of a marital obligation. The only recourses which exist are those available under the Divorce Act. Under the Divorce Act fault for marriage breakdown is compensated by obtaining a divorce (not monetary compensation).

I should point out, however, that if your husband has seriously abused you physically and mentally it is a different story. You can sue him for the physical and material damages resulting from his abusive acts. These actions are outside of the scope of the obligations arising from the marriage, and are considered actionable as "delicts" or "torts". The damage claim can be joined to your divorce action.

I deal with these issues on my website.


QUESTION

After 22 years my husband has decided to leave me and our two children (14 and 17 years of age). My husband is heavily indebted and is now starting a new business. Am I responsible for my husband's business debts? Am I entitled to half the value of the new business? If so, can I refuse to take my half interest, and ask for a share of the income that the business generates?


ANSWER

You do not have to worry about having to assume direct responsibility for your husband's business debts whether you married 22 years ago without a marriage contract and thus subject to the legal matrimonial regime of partnership of acquests in existence in Quebec at the time of your marriage, or whether you entered into a marriage contract at the time of the marriage in which case you most likely adopted the regime of separation as to property.

In neither case are you and your husband directly liable for each other's debts. In the case of partnership of acquests, however, you have to understand that your husband's acquests (or his property in which you would have the right to share) would be exposed to his creditors, and can be seized to satisfy his debts. In this way you become indirectly liable as your share in the division of your husband's acquests can become less if his creditors intervene and seize his property before any division of the acquests is made.

If you are married separate as to property you would have no right to share your husband's interest in his new business. What you own is yours and what he owns is his.

If however you are subject to the regime of partnership of acquests your husband's interest in the business would be considered an acquest assuming the investment in the business is made prior to the effective date of your separation, and you would be entitled to one half of your husband's equity interest in the company.

You cannot substitute your right to half of the value of the business at the date of separation by demanding a direct share of the income of the business in the future (I presume that this is what you are referring to when you speak of "royalties").


QUESTION

Before our marriage I owned a condo which I sold and made a profit of almost $30 000.00 before marriage. Once married we moved into my parents house and lived there for about 7 months ( we were building a new house ).

The total down payment on the house was $60 000.00. $30,000 was given to me as a gift from my father after marriage (my father gave a personal check to the notary at time of signing) and $30,000 was money I made from my condo.

Most of the furniture was mine from my condo.

The house is now on the market and the asking price is $340,000, the purchase price was $264,000 the mortgage on the house is $195,000.

My husband wants half of the money we get once house is sold. My question is, can I claim my $30,000 plus the $30,000 my father gave me as a gift?

In addition, does the furniture need to be divided?

The house is only under my name and so are all the bills (hydro, phone, cable) I also got a credit card only under my name after marriage and would use it for both of us, now he no longer pays any bills or my credit card but continues to pay the mortgage. Can I ask for half of the bill payments including my credit card even though his name is nowhere?


ANSWER

Under the family patrimony rules you would divide the net value of the house. However you are entitled to a deduction off the top before any division is made for both the $30,000 that you put in from before the marriage plus the $30,000 gift from your father PLUS the amount corresponding to the increase in value of these two amounts proportionate to the increase in value of the house.

You would retain sole ownership of the furnishings that you brought in from prior to the marriage.

Regarding the credit card, if the balance relates to family expenses you can claim that he assume and pay half of the debt even if the card is in your name alone.


QUESTION

I would like to know if money received before the marriage as a result of a damage award due to an accident are subject to division at the time of divorce? . Part was used for the down payment on the house and cost of the marriage. Another portion was used during the marriage to pay down debt.


ANSWER

Whether you were married separate as to property, or subject to the regime of partnership of acquests (i.e. - you were married without a marriage contract in Quebec), you will not have to share the proceeds of your damage award because these monies represent your private personal property.

If you have used such private property to purchase a family patrimony asset after the marriage, like making a down payment on a house, you cannot claim these monies back at the time of divorce.


QUESTION

My ex husband and I were together for 9 years but only married a couple of months (7/03 ad 10/03) We have 2 girls now 10 and 13 which have been in shared custody since then - and thankfully we agree on this most important issue - our children. We also agreed not to touch each others pension plans. We owned a duplex together then, which I gave him a sum for and kept it in my name. And even though we are now 7+ years post separation I get harassed on a weekly basis that he plans to come back to get the duplex. Also he insists that we get divorced this year - as he claims he waited for me to get promoted and earn substantially more than he. So my question to you is the following - whats his "recours" for the duplex and which line on T4's are used to determine what amount I will have to give my ex.


ANSWER

I am assuming that you paid your husband for the duplex without a final separation agreement. If so this might have been a mistake. I need to know more. What I can tell you is that the duplex is an asset that is divisible at divorce, and you cannot have a final agreement on the divisibility of such assets by "anticipation" that will hold at the time of divorce unless both parties continue to agree on it. This may or may not be the case based on the circumstances.

As far as the child support is concerned - it is calculated using the Child Support Guidelines - there is software for this that the Court uses - the amount varies based on the time of custody and your respective incomes. I can do the calculation for you if I have the info needed.


QUESTION

My husband and I are soon to be divorced. As of the date of our separation we had accumulated family debts ( hydro, Bell, cable etc.) of about $2,000. My husband just declared personal bankruptcy. I am left with three young children, and my husband has not left me a penny. Can my husband be ordered to pay one-half of all of our outstanding bills?


ANSWER

You are asking me whether, in a divorce proceeding, after bankruptcy, your husband can be condemned to pay half of the debts which remain from the marriage.

Your husband cannot be condemned to pay the creditors themselves. However you can ask that he reimburse you his share of the debts (whatever that is) by way of lump sum (which is considered alimentary support) or periodic spousal.

Your husband's bankruptcy will not discharge him of his alimentary obligations - i.e. his obligation to support the children and pay spousal support if it can be claimed.

You should definitely institute divorce proceedings and claim support if your husband continues to have revenue.


QUESTION

Two people from Montreal go to England to marry in 1968 and then immediately return to Montreal. No marriage contract was entered into. In 1976 the couple separates and in a separation proceeding (not a divorce action) an agreement providing for child and spousal support only is approved by the Court. In 1980 each spouse buys a home. In 1984 the husband sells his house and keeps all the money. Now in the year 2000 the wife wants to sell her house. Can she do so without obtaining the husband's consent and sharing the net proceeds with him?


ANSWER

Since the parties married prior to 1970 without a marriage contract, and intended to live in Quebec at the time of the marriage they were thus domiciled in Quebec then even if they married in England.

The matrimonial regime that applies is the legal regime of the place of common domicile at the time of the marriage. In Quebec prior to 1970 the legal regime was community of property. The legal regime of Quebec changed in 1970 to partnership of acquests.

A community of property regime exists until it is dissolved. The judgment of divorce to be rendered in 2001 will dissolve the community in this case.

The general rule is that the assets to be partitioned are those that are eligible and which existed at the time of the divorce application. The assets subject to partitioned are valued at this date as well.

In this case, however, a request can and should be made in the divorce proceedings to apply the exception to the general rule and thus to value and partition the assets of the community retroactively to the date of separation in 1976. This can be done if the parties lived financially independent of each other after the separation. The purpose of asking for a partition as of the date of separation is to effectively exclude the house bought by the wife in 1980 from division. Doing this will enable the wife to sell the house and retain the proceeds as her property.

Before the divorce judgment is rendered, and because the community is not technically dissolved until the divorce is pronounced, the notary will most probably ask the husband to intervene in and sign the deed of sale to signify his consent.

There is really no basis for the husband to withhold his consent. If he does a request can be made to the court for an order allowing the wife to act alone which would avail in lieu of the husband's signature.


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Division of equity in family residence

QUESTION

My partner and I are about to go into mediation. I want to sell the house, he wants to keep it for himself. What are the options that a mediator might present. House is worth 135K and there is a 100K mortgage. His mother lives with us and he has signed an agreement with her to give her one third of the profit from the sale. I have never signed such an agreement and intend to take half. Will there be a problem.


ANSWER

Assuming that you are married or that the house is co-owned you are entitled to one-half of the net equity whether it is realized by sale or by your partner buying out your interest.

If your partner does not want to sell and wants to keep the house demand that he pay you one-half of the equity of $35,000 and no less.


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Division of jointly owned property

QUESTION

In a divorce can one party force the sale of the house they
both own? Neither of them lives there now.


ANSWER

What you have to do is proceed by way of "motion for partition" to force the sale.

I do not know where you can find info on this subject on the internet - but the applicable section of the Quebec Civil Code would be articles 1015 to 1037. The specific provision allowing the demand for partition is article 1030.


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Division of property - effect of pre-nuptial agreement on family patrimony and partnership of acquests

QUESTION

I was married in Quebec.

I was previously divorced in the US.

I am a US citizen and was resding in Quebec at the time of the marriage. I have continued to resdie here.

I was domiciled in Quebec at the time of the marriage. I was residing in Quebec at the time of the marriage and intended to reside in Quebec thereafter.

I did not sign a Quebec marriage contract.

I did sign a "pre-nuptial agreement" in the United States.

There has been a breakdown of the marriage.

What is the legal impact of the US pre-nuptial agreement on the division of our marital assets since we are going to divorce in Quebec?


ANSWER


Prenuptial agreements do not exist under Quebec law.

In Quebec you have the option to choose between the matrimonial regimes of separation as to property and partnership of aquests. These two regimes are intended to determine how your marital property will be divided at the time of divorce.

The matrimonial regime will determine how all of the assets belonging to each of you are to be treated except - the family residence, the moveable effects garnishing the family residence, the cars and RRSPs an all forms of pension plans and rights. The latter group of assets are divided subject to the "family patrimony" provisions of the Civil Code of Quebec, which are different from the rules established by the applicable matrimonial regime.

A pre-nuptial agreement cannot supplant either the family patrimony law or the matrimonial regime, both of which sets of rules are of "public order". This means that you cannot by private contract stipulate out of either the family patrimony law or the matrimonial regime.

Thus your pre-nuptial agreement will have no effect on the division of property that must take place.


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Division of property - how to value furniture

QUESTION

My wife and I have been married for 25 years and are in the process of separating. The major stumbling block in the process has been how we divide the possessions we've accumulated over the years. We've resolved most of the issues, i.e. she'll keep the china dinnerware and I'll keep all the tools. The problem is the furniture. She's not interested in it whereas I am. A lot of the 'hard' items (dining room set, china cabinet, bedroom furniture, desks, etc) were purchased 15+ years ago. At the time of purchase they were expensive because of their quality. The majority of the pieces are still in good condition. They're structurally sound but show the wear and tear and scars of years of use. My soon-to-be-ex has no interest in this 'old junk' (as she calls it) and said I can have it. She plans on buying new furniture to replace it. The problem is that she wants me to give her 50% of the money that she'll spend on buying the new pieces (and she has expensive ta! stes). I've told her that I'll give her 50% of what a second-hand store would pay for it. Needless to say we're not in agreement. My question: is there a standard solution to this problem? We can't be the 1st couple to encounter this problem. How have other couples resolved this issue?


ANSWER

If you owe her anything it is one-half of the current (not replacement) value of the items that you are taking - this usually means garage sale value unless the items are antiques.

If the two of you cannot agree on the value, the only alternative is to pay an appraiser - but that will likely eat up whatever value there is.



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Divorce - delay to obtain uncontested divorce judgment

QUESTION

I was married in 2004. I have recently moved out of our apartment due to the fact my husband is mentally and verbally abusive. I would like to know how quickly I can obtain a divorce from my husband. We have no children and I am not seeking any financial support from him. I fear remaining married as my husband is escalating his threats towards myself and my family.


ANSWER

If you institute proceedings requesting a divorce it will take 3 to 4 months to get a judgment - assuming that there is no contestation -that is assuming that you will be asking for no more than a judgment of divorce. You clearly have grounds to obtain a divorce.

As far as the threats go you should immediately make a complaint to the police and obtain a restraining order.


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Divorce - residency requirement

QUESTION

I married in Quebec in 1995. My husband and I are both Canadians (I am naturalized) and we have joint property in Quebec. We have two children. Currently we live outside of Canada, in Africa. We came to Africa due to my work but it was a family decision and we both left our respective jobs in Canada for this experience. At the moment I know that my contract will be valid until April 2013. My husband however works as a consultant but momentarily is without work. For last 7 years our relationship has gone from bad to worse. My husband is harassing me on many levels (mainly psychologically) and was on a few occasions violent (I have a medical proof for that). He is constantly living in a world of yelling and screaming. Nothing I do is good enough or up to his standard. In our current scenario I pay all the expenses for our life outside of Canada while he pays our mortgage and running cost for house maintenance in Quebec. We are come to Quebec every summer for vacation. We live under the same roof and take care of children and pretend to have normal life. In reality we just have kids and mortgage together.

My questions: How can I proceed with a divorce while I am outside of Canada? My fear is also that if I file for a divorce while in Canada this summer he would not allow my children to go back with me. This would put me in a position that I will have to quit my work in order to be with my kids, which I would do instantly. I have no problem for him to continue living in same area where we live however I would like him to move out and find his own place. Contract we have for house outside of Canada is under my name. Although I have mentioned on number of occasions that we can’t continue living like this anymore my husband is unaware thus far that I am contemplating divorce.


ANSWER


The very short answer to your question for now would be that you cannot bring a divorce proceeding before the Court of any province of Canada unless you have been a resident of that province for one continuous year prior to issuing the proceeding.

Also you cannot bring a custody motion before the Quebec Superior Court unless the child has his/her permanent residence in Quebec.

I think that you will have to bring whatever proceedings that must be taken where you are, unless you and the child move back here.


QUESTION

I was a resident in Alberta when I married in 2007. From January 2011 to April 2011 I lived in Saskatchewan. My husband and I agreed to separate April 10th 2011. My husband is still in Saskatchewan and I moved to Quebec on May 10th 2011. I would like to use April 10th as our one year separation date, since that is when we decided to separate.

Could you please advise me where I need to file for our divorce? We have settled all matters and I would like to get the paperwork underway so the matter is finalized by the time our one-year has elapsed


ANSWER

To file in Quebec or any province, you need to have lived in that province for one continuous year prior to the filing of the divorce motion. You can file in Quebec after May 10, 2012.


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Divorce - wife won't "sign"

QUESTION

My wife will not sign for divorce. How do I go about obtaining one and what will it entail. I would also like to know the forced delay prior to judgement being rendered.


ANSWER

There is no such thing as "signing for divorce".

You institute a motion asking for a divorce and as well asking that the Court make the orders necessary to resolve all of the accessory issues relating to custody, access, support, and division of property.

If you and your wife can come to an agreement on the issues that need resolution, you can sign a Consent and ask the Court to make the consent part of the divorce judgment. If you proceed in this way you can expect it to take about 4 months to get a judgment of divorce.

If your wife have no agreement your case will proceed as a contested one, in which case you will need to do everything required to complete the Court file to get a hearing date. Assuming that there are no unusual delays, it will take 12 to 18 months to get to a final hearing.


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Divorce at the least cost

QUESTION

I have presently been seperated from my husband for three years and am looking to divorce him. We are on very good terms and share custody of our four year old son. I am looking for answers as to which way would be the less costly to proceed.


ANSWER

The least costly way to proceed would be by way of joint motion for divorce.

This presumes that the two of you agree on everything and are prepared to sign an agreement documenting what is agreed on that will be incorporated in your judgment of divorce.

You will proceed by way of affidavit. Everything that is required will be filed at court at the same time as the joint motion is issued. It will take about 3 months to get the divorce judgment.


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Divorce from abroad

QUESTION

Been married since 1981, 1 daughter almost 19.

Do I have to stay in Canada to divorce or separate from my
husband?

If I leave Canada,and live in the UK,can we still divorce without me having
to come back and sign papers and such?

Couldn't I just leave Canada and file papers or whatever from
Britain?

What would happen if I just left Canada without a word ?....what would
happen then????


ANSWER

In Canada you must have one year of continuous residence in a province in order to file divorce proceedings in that province. If the UK is the same you would be able to file divorce proceedings there after one year.

You could file proceedings in Canada, and if the case is not a contested one you could proceed by way of affidavits and never have to appear in Court.

If you just leave Canada without doing anything you will remain marriaed and not resolve anything.


QUESTION

I would like todivorce my wife. We have lived separately since Oct. 2001. My wife lives in Montreal.
We have a daughter 22 years old who lives with her mother.

I work and live in Moscow now . How can I get a divorce from abroad?

What is the cost?


ANSWER

You can institute proceedings here in Quebec because your wife is a Quebec resident.

Assuming that the two of you can come to an agreement on the financial issues (i.e. you both release each other from any claims that either of you have against the other etc.) and there are no issues to debate you can proceed by joint motion for divorce. You would sign an agreement that I will draft and it would form the basis of your divorce judgment. You would not have to come to Montreal as we would proceed on the basis of affidavits. It will take 3 months approximately from the date of filing to get the judgment. My fee will be $1,650 CDN.


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Documents required for uncontested divorce

QUESTION

My wife and I have been separated for nine months. We have no assets or children. She is a landed immigrant, and has been in Canada since the spring of 2000. I have sponsored her. How do we proceed to obtain a divorce a minimal cost, and how will the divorce affect my wife's immigration status?


ANSWER

The divorce should not affect your wife's status as a landed immigrant, nor will it relieve you of your obligation to sponsor your wife during the remainder of the term of your sponsorship. These are not, however, questions which will be resolved in the context of the divorce.

Assuming that there is nothing to divide and no support to pay, and both of you are willing to release each other from any obligations or liabilities resulting from the marriage, the best way to proceed is first to have a separation agreement drafted and signed containing all of the required release clauses.

Once the agreement is signed you and your wife should proceed by joint application for divorce.

Assuming that everything is done correctly (which is a big assumption if you do not use an experienced family lawyer) you should get your divorce in 3 to 4 months.


QUESTION

Please outline the procedure for completing the court file and obtaining an uncontested divorce after the service of the divorce proceedings.


ANSWER

Assuming that there is no Contestation, and after 20 clear days you must prepare an "Inscription for Judgment by Default".

With the Inscription you must file the following documents into the Court record of your case:

  • an Attestation relative to Births (art. 22 of the Rules of Practice)
  • a draft judgment
  • the exhibits
  • the birth certificates of the parties
  • the birth certificates of the children - but only if their legitimacy is in question (23 Rules of Practice)
  • the marriage contract
  • the deed of renunciation to the family patrimony provisions - if such a renunciation has been signed in 1989 or 1990
  • the sworn declaration under article 827.5 of the Code of Civil Procedure if either child or spousal support is to be paid - as follows:
  • the Child Support Determination Form if child support is to be paid - the information contained in this form must be validated by a Clerk of the Superior Court if you have not used the "Aliform " software.
  • a Statement of Revenues and Expenses if spousal support is to be paid
  • your signed Consent to Judgment on Accessory Measures (i.e. your separation agreement)
  • detailed affidavits signed by both parties detailing and confirming the grounds for divorce, that there has been no collusion or pardon, and that there is no possibility of a reconciliation

Assuming that you properly complete the file, it will take three to four months to get a divorce judgment because of the delays it normally takes at Court to process your file.

Divorce and immigration status, obtaining divorce by agreement at minimum cost.


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Enforcement of support orders

QUESTION

I have been legally seperated from my wife for 2 years but in the last 2 months we have reconciled and are now living together. How do we abolish the legal seperation so that we are recognized as married again. What are the costs?


ANSWER

I take it that when you say that you are "legally separated", you went to Court and obtained a judgment declaring youselves separate as to bed and board. The only effect of that judgment as far as the marriage is concerned is to relieve both of you of the obligation to live together. The judgment does not dissolve the marriage which only a judgment of divorce or the death of either of you would do.

The only thing that you might need to do is to file a proceeding known as a "desistment" in the separation record, signed by both of you, by which you both would declare that you jointly desist from the separation judgment - this will cancel any orders contained in the judgment in relation to any accessory issues (such as support, custody, division of property) that would otherwise remain binding on you.

The cost to prepare such a desistment is minimal.


QUESTION

My ex-husband has not paid child support for over six months now. He is working under the table and the government says that it cannot do anything until he has a regular paycheck. My daughter is 8 years old and living with me. We have joint custody with my ex husband having visitaion every second weekend. Can I limit his visitation as a means to get him to pay?


ANSWER

Unfortunately even in your case you cannot link the exercise of your ex-husband's access to his non-payment of support. These issues must always be dealt with separately.

If you can provide proof that your husband is working under the table and how he is paid there are ways to execute the support order and enforce his child support obligation.

It is not surprising that the Minister of Revenue says that it is stymied because your ex does not have a "regular paycheck".

There is a recent judgment that now allows lawyers to execute support orders in addition to the Minister of Revenue. You may wish to consult a lawyer if you have the specific information on your ex's revenues to see specifically what can be done.


QUESTION

My wife had an amicable divorce about 4 yrs ago with split custody. She and her ex, when married, had borrowed $10,000 from his mother. This debt is not provided for in the divorce agreement and is still owing. NOW, he is refusing to respect his obligation to pay half of the kids' expenses. He owes my wife and I approximately 470$ for his half of certain expenses for the kids. He just decided to deduct 360$ from the amount that he owes for the kids' expenses in order to repay his mother. We told him and have emails stating that she is no longer responsible for the debt to his Mother. He still refuses to pay back the money he owes us for the kids expenses How to we get him to pay with the least possible expense to us. Will he have to pay our legal fees?


ANSWER

As I understand it, you wife signed a divorce agreement with her ex-husband wherein they provide for child support which I presume is being collected and paid to her by the Minister of Revenue and also providing for a splitting of certain "special expenses.

First of all the additional expenses should not have been treated separately, but should have been factored into the child support that is being paid as "special expenses". If this had been done yoou would not be facing the problem you have now as the MRQ would be collecting it.

In your case what your wife must do is to take the necessary proceedings to enforce her ex's obligation to contribute his half of the additional agreed upon expenses. She must make a motion to have her ex found in contempt of the court order that obliges him to pay. The problem is that this can be a costly process and should be done through a lawyer. She can at the same time make a motion for provision for costs and ask that her ex husband pay her legal fees. Such a request should be granted because your wife's ex is clearly acting in bad faith.


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Enforcing a foreign divorce judgment in Quebec

QUESTION

Will a divorce granted in another jurisdiction be recognized in Canada? Should anything extra be done in Canada after the divorce is granted abroad? Will having a child complicate such an arrangement?


ANSWER

What you must do is to petition the Court here for an order recognizing the foreign divorce judgmentand declaring it executory in Quebec. If the judgment was validly obtained abroad in accordance with the laws of the foreign jurisdiction in question, and your spouse was validly served and was aware of the process abroad by which the judgment was obtained, the petition will be granted and you will have an enforceable divorce judgment here in Canada.

Having a child does not complicate the matter.


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Enforcing Canadian support judgment in the U.S.

QUESTION

I live in Quebec, Canada and my ex-husband lives in Mississippi, U.S.A. We are both Canadian but we were divorced in the U.S. He was ordered to pay child support for our minor child but never did. I would like to know if it is possible to go after my ex-husband for child support since he is in the U.S. and I am in Canada.


ANSWER

Yes you can ask to have the divorce judgment executed in the US. It is a US judgment. There is a particular statute in the US that facilitates the enforcement of support judgments from state to state.

Go to the following website to learn more - www.famlawconsult.com . Look for the heading UIFSA.


QUESTION

I wrote to me in you last month for information on trying to receive child support from the father who living in the U.S. You gave me some good advice and provided me with a link to the Child Support Enforcement for the state that he lives in. I contacted the CSE and they told me that there is nothing they could do and that I should contact my local Child Support Agency. I am unaware of such agency in montreal. I would like to know if, with an attorney, I would be able to collect some or most of the child support that is owed to me (over $6500.00 in U.S funds).


ANSWER

You could try to do the same thing through the Minister of Revenue here in Quebec, assuming however that the judgment was rendered in Quebec.

Try this website to contact the collector of support payments: http://www.revenu.gouv.qc.ca/eng/contact/index.asp


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Family patrimony

QUESTION

I bought a house in 2008 a year prior to my marriage for $205,000.00. The $36,000.00 used for the down payment was from an inheritance I received. I am also the sole owner.


The marriage is now falling apart and I would like to put the house up for sale. I did not need his signature to buy the house, but do I now need it to put it on the market. All the bills (utilities) are in my name. I am not working at the moment due to a health problem and the payment of these bills is not being met.
My husband collects a pension (Carra). In the event of a divorce would I be entitled to a portion of his pension? I am not trying to cheat him out anything he is entitled to but would like to know where I stand in this situation.


ANSWER

The house is a family patrimony asset. The entire net value of the house is divisible. But you are entitled to a deduction in your favour of an amount equal to the net value at the time of the marriage of the house so that in reality only the increase in value between the date of the marriage and the date of the separation gets divided. You would be entitled to a further deduction equal to "the increase in value acquired by the property during the marriage proportionately to the ratio existing at the time of the marriage between the net value and the gross value of them property". You would also be entitled to a deduction from the net value of the inheritance as well as "the increase in value acquired since the contribution proportionately to the ratio existing at the time of the contribution between the value of the contribution and the gross value of the property". All that to say that there will be very little left, if anything, after the deductions are made in your favour to divide.

You will be entitled to one half of the value added to your husband's pension between the date of the marriage and the date of the separation based on the family patrimony rules.


QUESTION

I was seperated in 1977 and had a lawyer to establish supportfor my daughter. I now wish to obtain a divorce. Do the family patrimony provisions apply to my case and in particular to the family residence bought in 1959 after the marriage?


ANSWER

If I understand you correctly you are saying that you have lived separate and apart from your wife since 1977 and now you want to get a divorce and to include the value of the family residence bought in 1959 in the family patrimony which you believe should apply to your case.

The family patrimony provisions of the Civil Code apply in the case of a couple separated before May 15, 1989 in the event that there was no agreement entered into prior to May 15, 1989 settling the consequences of the separation (i.e effecting a division of property).

I am assuming that you did not enter into a written agreement with your wife settling all of the financial issues arising out of your separation, and if so the family patrimony will apply to your situation which means that the net value of the house will be divided.

The following appears in Droit de la Famille Québecois:

[¶95-185] Les époux séparés avant le 15 mai 1989

Pour les époux séparés avant le 15 mai 1989, qui avaient déjà réglé les conséquences de leur séparation, il n'était que normal que le législateur ne leur impose pas le partage du patrimoine familial. Il a voulu respecter les situations acquises avant l'entrée en vigueur de la loi.

Donc, pour les époux qui avaient cessé de faire vie commune et avaient réglé, par entente écrite ou autrement, les conséquences de leur séparation et ce, au 15 mai 1989, la loi ne s'applique pas.

Donc, deux conditions sont nécessaires:
— vivre séparé
— une entente.


QUESTION

My wife and I were discussing division of property after a divorce. The residential home we are living in was bought for us by her parents. I asked that her name be on the contract and not mine in case I claim bankruptcy which did happen once. The home was completely furnished by my parents. Ever since, I have renovated the house with my labor and half of my money on many occasions. She said that if we divorce, she will take me to the cleaners. That is, she keeps the house and claims half of my tools I use for work, half the van that again I use for work. Half my musical instrument (drums) etc., etc. Can she really do that?

Isn't the house a 50/50 split and personal property that I make a living with or entertainment not to be touched? I would really appreciate a well detailed answer. My biggest fear is to end up on the streets with very little or next to nothing. I can't start over at this age. Please let me know soon. Thank you.


ANSWER

Nobody gets taken to the cleaners in a divorce.

The house is a family patrimony asset. Your wife would be entitled to deduct what was gifted to her by her parents for the house, unless the gift was made to both of you. The balance of the value would be divided equally.

The instruments required to carry on your occupation are yours and are not divisible (article 450 paragraph 6 of the Civil Code of Quebec)

You should start divorce proceedings and move on with a happier new life.


QUESTION

My wife of 5 years does not have grounds for divorce (we are not separated). She has not worked a day since we were married but feels she is entitled to 50% of our assets which I worked for. We do not have children. Does the fact that I supported her during the marriage make me eligible for more than 50% of our assets?


ANSWER

The answer to your question depends on whether:

1 – you have a marriage contract providing for separation as to property, which I am guessing you do not

2 – if the assets were acquired before or after the marriage

3 – if any of the assets fall within the family patrimony – i.e. Do they include the house, contents of the house, cars, pension plans, and/or RRSPs

The assets in number 3 are subject to equal division. Everything else depends on whether there is a marriage contract, and if not whether the assets were acquired before or after the marriage. If after, with no marriage contract, then they are subject to equal division.


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Family patrimony - deductions from net partitionable value

QUESTION

I have been married for 13 years and am in the midst of a divorce. We
are in mediation at the moment but still reside together due to the fact that our house is on the market at the moment and has yet to be sold.

my question is this...

The house was bought approximately 6 months before we got married because we got a good deal then on the home. His father
gave him $57,000 as a gift which was used to make the downpayment on the house.


I have no issue with him getting the gift back once the house is sold. My problem is that he says that he will be adding 3.26% to that amount for every month that we have been married. He says it is interest on his investment, and that he is due that amount. The house is in his name. He also says that he can claim the furniture too (it was also bought before we got married) ...the bills are all under his name.

I'm a stay at home mom with two children (12 & 8 years old) I haven't been in the work force for over 10 years. Of course this was no problem while we were married, now he thinks I need a job!

Iss he entitled to that "Interest" on the 57K?


ANSWER

Don't listen to the nonsense that your husband is spewing.

The house falls into the family patrimony at its current market values.

Your husband is entitled to deduct the gift of $57,000 from the value of the house. He is NOT entitled to deduct interest on the value of the gift.

Since the house was bought before the marriage, he is also entitled to deduct an amount corresponding to "the increase in value acquired by the property during the marriage proprotionately to the ratio existing at the time of the marriage between the net value and the gross value of the property. The equation is:

increase in value X net value at marriage
gross value at marriage

If your husband can prove that the furniture was purchased by him prior to the marriage he will be entitled to a further deduction equivalent to the value of the furniture.

You should get both spousal and child support.

Considering the disproprotionate and apparently excessive nature of your financial contributions and the fact that you have stayed at home enabling your husband to enahnce his earning capacity, you should claim a compensatory allowance to make up for the value that you are losing as a result of the deductions that your husband can take in calculating the net value of the assets of the family patrimony subject to division.

The beauty of family law is that what you cannot get one way you can get another way.


QUESTION

My wife and I wish to divorce. The biggest asset is our house worth about $300,000. I provided the money for the house when I sold a condo which I had befor our marriage. I am willing to give her half the assets, but I want the house to be sold. She wants to keep the house. What are my chances of getting a judgement which allow me to sell the house and give her half the net proceeds?


ANSWER

It is my understanding that the house was acquired with the proceeds of sale of a condo which you owned prior to the marriage.

What you will get will depend in part on whether the house was acquired in your name or in both names.

If it was acquired only in your name, the value at the time of separation will be subject to division, but you will be entitled to a deduction in your favour of an amount equivalent to the amount that you put in from the condo sales proceeds plus the increase in value of that amount proportionate to the increase in value of the property since its acquisition. In that case you will be able to pay off your wife by giving her one-half of the value at the date of separation, less the amount of your contribution from the condo sales proceeds, less a further amount equal to the proportionate increase of your said contribution.

If the house was acquired in both names (in co-ownership) you are deemed to have renounced to the deduction referred to in the preceding paragraph, and the house will now be subject to partition - i.e. - you can buy her out, she can buy you out, or failing an agreement on a buy-out the house will be sold and the net proceeds divided evenly.


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Family patrimony - enforcement of order to effect RRSP rollover

QUESTION

I recently became divorced and as part of the agreement there was an amount in RRSPs payable to me by my ex husband. He is now saying the RRSPs are all locked in to mortages and bonds and not available until 2005 or 2006 without an fee of about $1000 which he will not pay. Although they can be transferred to my name or another plan with the financial institution where they are, I want them with the institution that I deal with - not his. What are my rights?


ANSWER

If you have a judgment of divorce that incorporates a consent in which your husband must effect a spousal RRSP rollover to you to satisfy his obligation to equalize and divide your RRSPs as part of the partition of the family patrimony, then you can execute the judgment to foce him to comply. In other words you can seize his RRSPs and force the rollover to yourself. You will need a lawyer to do this for you.


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Family patrimony - house acquired before marriage

QUESTION

I am separating from my husband. I will move out from a house to an apartment.

My husband bought the house before the marriage and he is the only owner.

After a 4 year marriage, we have decided to file a joint divorce.

He bought the house in 2001 in $135,000. We got married in 2004. Even though the house is under his name I helped with the mortgage giving $900 every month. I have proof.

Today, the house's value is about $230,000. Do I have rights to any financial part?

Since I am the one leaving the house because it isis impossible to continue leaving in the same house, I wonder if I would be financially punished for leaving my husband.


ANSWER

The house falls into the family patrimony. In general terms you are entitled to a share of the increase in value from the date of the marriage to the date of the institution of divorce proceedings. The formula for calculating your entitlement is as follows:

increase in value X net value at marriage
gross value at marriage

The net value at the time of the marriage = the fair market value at that date less the balance of the mortgage.

The gross value at the time of the marriage = the fair market value at that date without deducting the mortgage balance.

The fact that you are leaving the house will not in any way affect your financial rights.


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Family Patrimony - treatment of family residence

QUESTION

I married a girl 2 months ago. I bought a house 1 month ago (with my money). Now she wants a divorce. Is she really legally entitled to half of the equity on my house? (Patrimoine familiale)...


ANSWER

Your case illustrates an important nuance in the law.

Theoretically the equity in the house is included in the family patrimony which means that the net value is subject to partition.

However, since you paid for the house with money that you acquired prior to the marriage, you are entitled to a deduction from the net partitionable value equivalent to the total amount that you paid for the house.

In that sense you would take the net value of the house at the date of separation, and then subtract the amount that you contributed to arrive at the "net partitionable value". It is only that amount or the remainder that would have to be divided between you and your spouse. Since the house was acquired about one month ago it is highly unlikely that there is any amount to divide as it is quite improbable that the house has increased in value in any material way during the past month.

In the unlikely scenario that there has been a significant increase in value in the last month you could, in any event, ask that there be no partition based on the short duration of the marriage.

On a practical level you have nothing to worry about.


QUESTION

My husband and I were married in Quebec in 1961, and had a marriage contract stipulating separate as to property, as well as specific requirements that he provide for a home, furnishings and $25k in the event of a divorce. We moved to Ontario in 1978, and have resided there since. We separated in 2002, and are now beginning divorce proceedings. I was very surprised to find out that the Family Law Act of Ontario is taking precedence over our marriage contract, and that the Ontario family law act provideds for equal division of net family assets. This has placed me at a disadvantage, as several assets were legally and willingly signed over to me by my husband (such as our house), but these agreements are also apparantly null and void in the face of the Ontario Family Law act. This seems to me to be patently unfair - how can legal and binding contracts, willingly entered into by both parties, be set aside in favor of a provincial law which came into effect long after the marriage contract was in force? Any advice? Also - does the recent Supreme Court of Canada ruling (Hartshorne v Harshorne), wherein it states that prenuptial agreements should be upheld despite provincial family laws, have any applicability in my case?


ANSWER

As a general rule property is divided at the time of divorce based on the applicable civil law rules of the jurisdiction where the proceedings are taken. To institute divorce proceedings in a province one of the parties must be ordinarily resident of that province for one continuous year prior to the filing of the divorce application.

In Quebec the matrimonial regime, which determines generally how property is divided, is that of the place where the spouses were domiciled at the time of the marriage.

However in Quebec the family patrimony law was adopted in 1989 which provides that, irrespective of the matrimonial regime chosen, the net value of the family residence, furniture, cars, RRSPs, and pension plans are subject to equal division. If you were still here in Quebec the house and furnishings would therefore be subject to an equal split despite what your marriage contract says.

The Quebec family patrimony law only applies to the assets listed above. Everything else is divided based on the matrimonial regime applicable - separation as to property or partnership of acquests.

Family law reform in Ontario seems to have gone further than in Quebec. The Family Law Reform Act seems to provide one set of rules to divide everything. Check with your Ontario attorney to confimr that the foregoing is correct.

What you signed in Quebec is not a pre-nuptial agreement but a "marriage contract" as defined in the Quebec civil law. There is a difference. Thus I do not believe that the decision that you have referred to would apply in your case.


QUESTION

My husband left me and our 3 children . We own a home and I am worried he will make me buy the house from him. I need to know, if I decide to buy him out, do I have to pay half of what we've paid together, or half of the current market value? I have the children, can he make me sell or buy him out?


ANSWER

The house is an asset that forms part of the family patrimony. As such, and in general terms, the net market value or the equity (market value less the the balance of the mortgage debt) is subject to division at the time of divorce. The value is taken at the time of the institution of divorce proceedings (general rule) or at the time of separation (exception - if the two do not coincide and the parties have lived financially independent of each other since the separation).

Normally if one party wishes to keep the house, he or she buys the other party out at an amount equal to the one half of the net market value at the date of proceedings or separation.

There are exceptional circumstances where a party having custody can obtain a right of habitation with the children in the home for a defined term, and thereby ask that the buy-out, or that the sale of the house and division of the proceeds be postponed until that term expires. If you cannot afford to buy your husband out now this MAY be option for you to explore.


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Family patrimony - treatment of RRIF and annuity made up partially of pension funds

QUESTION

Mom, a housewife, died at 84 years of age, Dad is still
living(86) now in a home.

Dad has an RRIF, and annuities, some of which are a pension from where
he worked. The Annuities' monthly payments were always direct deposited
into their joint bank account. The family home is in Mom's name. Mom did
not leave any of her assets to Dad in her will. She did not renounce
patrimony.

Question: In calculating the Patrimony, how do I value the annuities
Dad still holds. All proceeds up to Mom's death had been deposited in
their joint bank account. Also, the issuers of the annuities told me
that there is no cash surrender value, even though a portion of the
annuities would have continued to be paid to Mom had Dad pre-deceased
her. So, is there a value for the patrimony for these annuities - and
thus will the heirs in effect get to receive part of Dad's pension?


ANSWER

You are saying that your mother died recently and your father is still alive. Your mother left a will and excluded your father. Your father is now seeking his share of the family patrimony from the estate.

The RRIF would fall into the family patrimony and have to be shared with the estate as it is made up of registered funds and is included in the family patrimony.

The annuity as I understand includes registered funds as the capaital sum invested consists in part of a pension that was rolled over into it.

As I understand an annuity - it has no capital value. You buy it to secure regular periodic payments for life, and the payments end on the death of the annuitant.

The answer to your question probably depends on showing what part of the annuity payment is attributable to the registered pension funds - probably the portion that would have been payable to your mother had your father pre-deceased her. It is my opinion that one-half of that amount is subject to partition with the estate.

To get an accurate calculation you may wish to call an actuary that I deal with. Her name is Caroline Martel and she can be reached at 514-956-1175.


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Family Patrimony - Unequal Division

QUESTION

My wife of 5 years does not have grounds for divorce (we are not separated). She has not worked a day since we were married but feels she is entitled to 50% of our assets which I worked for. We do not have children. Does the fact that I supported her during the marriage make me eligible for more than 50% of our assets?


ANSWER

The answer to your question depends on whether:

1 – you have a marriage contract providing for separation as to property, which I am guessing you do not

2 – if the assets were acquired before or after the marriage

3 – if any of the assets fall within the family patrimony – i.e. Do they include the house, contents of the house, cars, pension plans, and/or RRSPs

The assets in number 3 are subject to equal division. Everything else depends on whether there is a marriage contract, and if not whether the assets were acquired before or after the marriage. If after, with no marriage contract, then they are subject to equal division.


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Family patrimony - unequal partition

QUESTION

My husband left the house (1 month ago), made no child support payments at all, is refusing to pay the mortgage. Also the house and school taxes are not paid. Hydro is threatening to cut the electricity service. My husband also owes back taxes to the government. It is threatening to seize his salary and assets. My husband says that he has no money. For the kids' sake, I want to keep the house but I can't afford the mortgage payments due to the enormous debt that my husband has made on it. My husband is a gambler and has maxed out on our mortgage/home equity line of credit without my knowledge and or consent withdrawing thousands monthly. The majority of debt on the mortgage is money that he has withdrawn to gamble. How can I keep the house? His salary is approximately double mine but he is so deep into debt that he can't seem to be able to pay for anything. My bank account is practically empty as I have been supporting the children alone.

What are my options? I really want to keep the house. I am afraid that the bank will come after the house. Can he be forced to pay?
I need help fast. Thanks


ANSWER

Your situation is as about as bad as it gets. Your husband has dilapidated all of the family assets and has sucked all of the equity out of the house.

The question that I have is how was he able to increase the mortgage to pay his gambling debts without your consent?

If it was done in fact done without your consent then I may be able to help by trying to set aside the mortgage and asking that you be awarded exclusive ownership of the house by way of an unequal partition of the family patrimony.

If you did consent you are the author of your own misfortune, and assuming that you can get exclusive ownership of the house by way of an unequal partition of the family patrimony, the only way to salvage the house would be to accept the existing mortgage and try to make it manageable by renegotiating the terms - perhaps by extending the period of amortization to the maximum thereby lowering your monthly payments to something that is affordable.

As far as child support is concerned you are looking at a real deadbeat.


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Family residence - termination of lease

QUESTION

My son's wife left him and she is now living at her parents house. She is asking for a divorce. Is she responsible in any way if my son breaks the lease for the apartment where they lived together because she has left him?


ANSWER

Who is responsible directly to the landlord in relation to the lease will depend on who signed the lease.

Your son should negotiate the termination of the lease with the landlord, which will most probably require a payment equivalent to three months rent, and then he should claim that amount back from his wife in the divorce proceedings.


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Finality of separation agreement

QUESTION

Does a final divorce judgment and agreement prevent one from coming back later on once everything is finalized, if everything stated turns out to not be fully disclosed? Would the person have to sue under the Family Law Act or under the Civil Law?


ANSWER

The finality of the agreement depends on certain factors, one of which is that both parties have made an honest and complete financial disclosure to each other. If an incomplete disclosure is made and the other party finds out and can prove that there has been misrepresentation the agreement can be set aside on the grounds that the victim's consent has been vitiated by fraud.


QUESTION

My husband and I divorced in May 2006. We were separated since Sept 1, 2004.

We saw a mediator and filed a consent to judgment where we both renounced each others' pensions and RRSPs. I got custody of our two children. He sees them every second weekend.

He pays child support. School daycare and summer camp were also included in the divorce judgement but he has refused to pay since August 2006. I filed (with a lawyer) a consent to accessory measures. (he is in contempt of course is he not? since he isn't paying what the divorce judgement says he should).

He and his lawyer have now filed to annul my motion and have filed a motion to get my company pension and Quebec pension and RRSPs.



My question: Even if he signed off on my pension and RRSPs like I did his, can he NOW re-open the divorce judgement and claim them? He's saying he didn't know what he was signing. But we both had the opportunity to seek legal advice. I sought legal advice from a lawyer before I signed. He did not. It's not my fault he was ignorant.


ANSWER

It is an uphill battle to set aside a separation agreement that has been ratified by a final divorce judgment.

If the request to annul the agreement relates to the division of property provisions (which appears to be the case) the only way for your ex to succeed would be to prove that the negotiation process was contaminated in some way - because there was fraud or misrepresentation, pressure, or because he did not know what he was doing because he was "not all there" or he did not obtain competent independent legal counsel.

In the latter case it is not enough to say simply that he did not have counsel. It often happens that a party is aware that he should consult counsel but voluntarily chooses not to do so - i.e. he is wilfully blind. Wilful blindness or negligence should not justify the re-opening of a separation agreement.

I always advise my clients when the other side is not represented by an attorney to specifically tell the other party to seek out and obtain legal counsel. I also put a clause in the draft saying that both parties have obtained legal counsel or have voluntarily opted not to do so.

Your case looks pretty transparent to me. He defaults, you pursue him, and he comes back with a request to set aside the agreement. My guess is that your husband knew very well when he signed the agreement that he had the right to share in your pension, but that he agreed not to do so for reasons that the two of you had then. I would fight this out.


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Forcing appointment of new attorney by the opposite party

QUESTION

My lawyer that I have now is not very aggressive or maybe there isn't anything that she can do,I am not sure.

Divorce papers have already been served and the proceedings have been postponed and delayed 3 times so far because my spouse's lawyers have dropped him because of his very poor attitude and lack of cooperation. He is obviously stalling and I want to know if proceedings can be continued without his presence as he keeps on doing this?

Is there any type of form or anything that I can do to get these divorce proceedings to not be postponed any longer?
We have been seperated almost 3 years now.


ANSWER

What you need to do is serve your husband personally with what is called a "Notice to Appoint a New Attorney" which reads as follows:



Mise en Demeure de Comparaître Personnellement

ou de se Constituer un Nouveau Procureur

Selon L’article 251 C.P.C.







À :


défenderesse




PRENEZ AVIS que par jugement rendu en date du , vos procureurs, , ont obtenu l’autorisation de cesser de vous représenter dans la présente cause.



Vous êtes donc mis en demeure, par la présente, de vous constituer un nouveau procureur ou de produire un acte de comparution personnelle dans les dix (10) jours de la signification de la présente.



A défaut par vous d’obtempérer à cette mise en demeure dans les dix (10) jours, le demandeur, après avoir inscrit par défaut, pourra procéder contre vous comme dans les causes par défaut et obtenir jugement contre vous selon les conclusions de sa déclaration.


VEUILLEZ AGIR EN CONSÉQUENCE.




MONTRÉAL, 2004







_______________________





If the 10 day delay after service expires and your husband has not appeared personally or apponted a new attorney you can proceed against him by default.


This will get your file moving.



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Foreign Marriages

QUESTION

My husband and I got married in Jamaica in 1998 (Did not register it in Quebec), he had been adopted and had his adopted father's name legally. After his adopted father passed, he took his biological father’s name, but did not change it legally. We were married and he used his biological father’s name. Is our certificate of marriage still a legal document? I really need to know.


ANSWER

As long as the marriage certificate is valid marriage certificate in Jamaica it will be valid in Quebec. To be absolutely certain I would have the marriage certificate declared an official true copy of the original in Jamaica. You should be able to do this through the Jamaican consulate.


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Ghet - as barrier to civil divorce - s. 21 .1 Divorce Act 1985

QUESTION

I am contemplating asking for a divorce. My husband has mentioned in our negotiations to date that unless I agree to certain conditions that he wants to impose he will not grant me a Jewish religious divorce - known as the ghet. I have heard that the law does not allow this. Can you clarify this for me.


ANSWER

S. 21.1 of the Divorce Act deals with "the removal of barriers to religious marriage".

In essence if the spouse setting up the barrier (i.e. the barrier being refusing to grant the ghet) is the Plaintiff, and the procedure set out in s. 21.1 is followed, the Court has the power to dismiss that spouse's divorce application. If the spouse is the Defendant the Court may dismiss any proceedings filed by that spouse.

The intention is to prevent a spouse from threatening to withhold a religious divorce in order to extract concessions, monetary or otherwise, in the civil divorce proceedings against the other spouse.

S. 21.1 reads as follows:

21.1 (1) In this section, "spouse" has the meaning assigned by subsection 2(1) and includes a former spouse.

Affidavit re removal of barriers to religious remarriage
(2) In any proceedings under this Act, a spouse (in this section referred to as the "deponent") may serve on the other spouse and file with the court an affidavit indicating

(a) that the other spouse is the spouse of the deponent;

(b) the date and place of the marriage, and the official character of the person who solemnized the marriage;

(c) the nature of any barriers to the remarriage of the deponent within the deponent's religion the removal of which is within the other spouse's control;

(d) where there are any barriers to the remarriage of the other spouse within the other spouse's religion the removal of which is within the deponent's control, that the deponent

(i) has removed those barriers, and the date and circumstances of that removal, or

(ii) has signified a willingness to remove those barriers, and the date and circumstances of that signification;

(e) that the deponent has, in writing, requested the other spouse to remove all of the barriers to the remarriage of the deponent within the deponent's religion the removal of which is within the other spouse's control;

(f) the date of the request described in paragraph (e); and

(g) that the other spouse, despite the request described in paragraph (e), has failed to remove all of the barriers referred to in that paragraph.

Powers of court where barriers not removed
(3) Where a spouse who has been served with an affidavit under subsection (2) does not

(a) within fifteen days after that affidavit is filed with the court or within such longer period as the court allows, serve on the deponent and file with the court an affidavit indicating that all of the barriers referred to in paragraph (2)(e) have been removed, and

(b) satisfy the court, in any additional manner that the court may require, that all of the barriers referred to in paragraph (2)(e) have been removed,

the court may, subject to any terms that the court considers appropriate,

(c) dismiss any application filed by that spouse under this Act, and

(d) strike out any other pleadings and affidavits filed by that spouse under this Act.

Special case
(4) Without limiting the generality of the court's discretion under subsection (3), the court may refuse to exercise its powers under paragraphs (3)(c) and (d) where a spouse who has been served with an affidavit under subsection (2)

(a) within fifteen days after that affidavit is filed with the court or within such longer period as the court allows, serves on the deponent and files with the court an affidavit indicating genuine grounds of a religious or conscientious nature for refusing to remove the barriers referred to in paragraph (2)(e); and

(b) satisfies the court, in any additional manner that the court may require, that the spouse has genuine grounds of a religious or conscientious nature for refusing to remove the barriers referred to in paragraph (2)(e).

Affidavits
(5) For the purposes of this section, an affidavit filed with the court by a spouse must, in order to be valid, indicate the date on which it was served on the other spouse.

Where section does not apply
(6) This section does not apply where the power to remove the barrier to religious remarriage lies with a religious body or official.

1990, c. 18, s. 2.


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Grandparental access

QUESTION

My wife and her sister's parents divorced when they were in their late teens (about 15 years ago). My wife and I currently have no kids and my sister-in-law and her husband have two young children (4 and 2 years old).

My wife and her sister have an execllent relationship with their father. However, they have virtually no relationship with their mother and desire to have none. Their mother does desire to have a relationship and continues to make telephone calls despite very rarely having the telephone answered or her messages returned. She has even tried contacting me and my brother-in-law at our workplace.

Very recently, their mother took it upon herself to pick up my nephew and niece from their day care and bring them to my sister-in-law's home and play with them outside until my sister-in-law arrived. Needless to say, my sister-in-law was steaming mad and told her mother to leave immediately. I was interested to know if grandparents have any legal rights with respect to their grandchildren and how we can proceed to once and for all prevent their mother from calling, and showing up unannounced.


ANSWER

Parents exercise parental authority. In so doing they can determine who the children have contact with. They can exercise their discretion to deny contact between the children and grandparents.

If so it would then be up to the grandparents to make a motion to the court to request access which the parents can defend on the basis that it is not in the best interest of the children to have contact with the grandparents.

To prevent contact you can act directly by petitioning the family courts for an order of non-harassment or in your case make a complaint to the police that the children are being stalked by the grandparent and try to get a restraining order in the criminal courts on that basis.


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Grounds for divorce

QUESTION

Both my wife and I want to get a divorce. However we've been separated only for a couple of months and we want it done as soon as possible. My wife is leaving the country in 2 months. If we use adultery as the reason, what will be required from us, and are there any repercussion. There is nothing to divide and no support to pay, and both of us are willing to release each other from any obligations or liabilities resulting from the marriage.


ANSWER

You can raise adultery as a ground. One of you will have to be the Plaintiff and the other (the adulterer) the Defendant. The Defendant will have to sign an affidavit admitting the adultery.There are absolutely no repercussions - nobody cares why you request a divorce anymore in Quebec.


QUESTION

I have filed for divorce. I now want to have the divorce in less than 1 year, and want the reason stated as adultery on my husband's part, I was told I would need to state the name of the person(s) he has committed adultery with? Is this accurate?


ANSWER

To allege adultery you do NOT need to state the name of the party with whom you committed adultery - what you have been told is absolutely false.


QUESTION

I want to file for divorce. My husband agreed to sign the papers. We have been living apart for 7 months. How long will it take to get a divorce?


ANSWER

It usually takes three to four months to get a divorce judgment in an uncontested case counting from the time that the proceedings are taken.

You must have lived separate and apart for one year prior to the rendering of the judgment of divorce. If you start the proceedings now, you should be able to get the judgment of divorce just after the expiry of the one year delay from the date of your separation.


QUESTION

I want to institute divorce proceedings. My wife does not think that there is any problem, and does not accept the fact that I want a divorce. Can my wife contest the divorce itself? Or can she just contest the grounds (reasons) for the divorce?


ANSWER

If you want a divorce you will get one.

The worst case scenario is that you separate, serve the divorce proceedings now, and then wait for one year.

A divorce will be granted on the basis of your living separate and apart from your wife for at least one year prior to the date on which the divorce judgment is rendered. Your wife cannot contest this. She can only contest the custody and financial issues arising from the divorce, if there are any.

If you want the divorce in less than one year you must allege and prove "marital fault" - usually adultery and mental or physical cruelty.

To prove adultery you will need an admission from your wife (which apparently is not the case here).

Theoretically your wife could contest the allegation of mental cruelty against her. However if you are able to testify that she caused the breakdown of the marriage (by reason of persistent arguments, insults, etc.) you will most probably succeed even if your wife denies it. No judge will want to prolong a marriage that is dead for all intents and purposes.


QUESTION

I was married in May of 2003 and now realize it was a mistake. We have been living together for over 4 1/2 years prior to getting married.

I am assuming that the stipulation of "the required fomalities for celebration of the marriage" for an annulment is that we have not had sex since we were married. Is that correct? How is that proven?

Also - and this may asound like a completely stupid question, but if I were to live apart from my husband for 1 year - would I have to be celebate for this period? Could adultery be claimed if I was not alone during the year of separation?

What are the benefits to living apart for a year prior to filing divorce proceedings?


ANSWER

The formalities for the celebration of the marriage have nothing to do with the consommation of the marriage - they refer to the legal formalities (e.g. marriage by a competent officiant etc.) that must be complied with to get married.

You do not have to be celibate for the one year separation period. Technically speaking adultery can only be committed prior to the termination of co-habitation.

If you ask for the divorce on the basis of living separate and apart for one year you do not have to allege and prove marital fault to obtain a divorce - such as mental cruelty or adultery. If for example you allege mental cruelty you can obtain a judgment of divorce prior to the expiry of one year from the date of the separation - but you have to prove cruelty which means more than simple incompatibility


QUESTION

I've been married for more than 15 years and we don't have any kids. My wife was not getting involved financially in the family problems for about 7 years (since she immigrated to Canada). I supported her while in school for some years (she got a graduate diploma in accounting) but now she is just taking some part time jobs and doesn't get involved financially to the family life. She is in good health and she can get a job (as she already had). We faced financial difficulties and I had to declare bankruptcy 2 years ago. I want to divorce her; can I claim mental cruelty as grounds for divorce, considering that I have to deal with all the stress involved in meeting our financial obligations?


ANSWER

Yes you can make a motion for divorce immediately based on having been treated by your wife with mental cruelty – I think the stress that she put you under, refusing to pull her financial weight, would qualify.


QUESTION

If a divorce is sought in Quebec (uncontested) before a year has past, is it still necessary to live apart for one year?


ANSWER

If the ground invoked for the divorce is separation for one year you must have lived separate and aprt for one year prior to the rendering of the judgment of divorce. You can start the proceedings before the year is up, but the judgment cannot be rendered until one year from the date of separation has elapsed.


QUESTION

My friend wishes to file for divorce on the basis of incompatibility. Can he do so?


ANSWER

If your friend does not want to wait for one year before getting a judgment of divorce, he can allege “mental cruelty” as a ground which requires proof of more than just simple incompatibility. Mental cruelty requires proof of insulting or demeaning behavior by his wife toward him.


QUESTION

My husband and I have been separated for two years. We have not physically separated and still reside in the family residence for the sake of the children. We are planning to file for divorce. Will the fact that we live in the same residence affect the divorce proceedings?


ANSWER

You can be separated and still living under the same roof if you are no longer co-habiting as husband and wife in a conjugal relationship.

You can institute the divorce proceedings on the ground of separation for more than one year, the date of separation being the date on which you ceased living as husband and wife.


QUESTION

My wife and I have lived separate and apart since February 2000. I left the family residence believing that our separation would be temporary. We have four children (19, 17, 14, and 10 years of age) who reside with my wife in the family residence. It does not appear now that we will be getting back together. No proceedings have been taken and we have not signed any agreement. We want to do what is best for the children. Can I assume that we are still legally married even after our one year separation? Can we write our own separation agreement? Are there forms for separation agreements that are available to the public?


ANSWER

You remain married until you obtain a judgment of divorce.

If you live separate and apart for more than one year this can be invoked as a ground for obtaining a divorce without alleging anything further, or any fault on the part of either party.

You can write your own separation agreement. There are no specific forms, however, which exist. There are examples, of course, of other agreements which have been entered into.

There are certain standard clauses. Because every case is generally different your agreement should be tailored to your own specific situation.

Experienced matrimonial lawyers know what must be included in a separation agreement in order to give it the specific effects agreed to.

To avoid future surprises consult a lawyer, like myself, who practices in this field, and enjoy peace of mind.


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Joint application for divorce

QUESTION

Could you please confirm your price for a simple divorce that involves no children or division of property. The couple has now been separated for 2 years. As well, please confirm the amount of time it takes to complete the procedure


ANSWER

I assume that you will proceed by joint divorce application,

My fee is $1,500 plus taxes plus the Court fee of $141.

I will draft all of the necessary proceedings and make sure that the file is handled in a timely and efficient manner.

It usually takes three to four months for a divorce judgment to be received. No court appearance is required.


QUESTION

How much do you charge for a 1/2hr preliminary session regarding options for legal separation? Agreement has already been made with respect to the division of family patrimony. Pension and monetary earnings will be waived. There are no children. Separation occurred after 6 months of marriage. Would like consultations on options available (i.e. filing jointly with a court without a lawyer, if not advisable, what is the best route, etc.)


ANSWER

Without a consultation - I can tell that the best option is to confirm the agreement in writing, file a joint motion with a lawyer (to make sure that it is done properly), and ask in the motion that the agreement be ratified by the Court. I can do all of that for you. The cost is $2,000 inclusive of all taxes and disbursements ($1,000 when we start and $1,000 when I give you the judgment which I should get in 3 months approximately.


QUESTION

I have been separated from my husband for over 2 years and I am mainly responsible for our four-year old child. We are looking to file a joint application for divorce and I am wondering if mediation is necessary.


ANSWER

To file a joint divorce application mediation is not necessary.


QUESTION

I was married in May of this year and have now been separated from my husband for 1 month, we both consent to divorce and I want to know what is the first legal step we have to make?


ANSWER

What you need to do is file a joint divorce application.

Since you have been separated for only one month, and a no fault divorce requires a period of separation for at least one year before a judgment of divorce can be granted, you can file the application now, but you will have to wait until next May for the divorce judgment to be rendered.

If you want - I have a kit for joint divorce applications which you can buy for minimal cost on my website, or I can prepare everything and handle it for you for a flat fee.


QUESTION

My husband and I are looking to get a divorce. We have no children and we are amicably deciding this. We have not had marital relations since our wedding night. One of us has had an extramarital affair. The question is in a divorce will there be any information on who had this affair and with whom?
We are looking for a quick clean divorce. One of us is now in a serious relationship and may wish to be married soon.
Do you recommend the do it yourself kit?


ANSWER

Adultery has no impact on the settlement of the issues that arise from divorce. It is only relevant if you want a divorce immediately and can prove it or the other side admits it, in which case you bring a divorce motion against the other side and allege adultery as the ground for divorce.

In your case it would be best if you just left the issue of adultery alone, and did a joint divorce application which would be based on separation for one year prior to the date of the rendering of the divorce judgment. You would sign an agreement releasing each other from any claims, and the agreement would be the basis for the divorce judgment. I would recommend doing a joint divorce application with a lawyer.


QUESTION

My wife of 3 years and I are currently separated. We got married in Texas, where she is originally from, and decided to start the sponsorship and immigration process. She left the country while I was at work with her two children, before they became landed immigrants, hence before the engagement of the sponsorship agreement. I have since sent in a letter with the intent of withdrawing the application for sponsorship and permanent residence. We are now looking at getting divorced, and we've both expressed the desire of a no-contest divorce, in that she does not want any money (support or otherwise) from me, nor do I want anything from her. We are being quite civil with each other, and there is no animosity. How would I proceed with this situation? She is back in the States now, but not back in Texas. We haven't filed for legal separation or divorce yet, and I wanted to know how to go about this whole matter... Including how to protect my assets (RREGOP, not paying child support). In regards to the children, neither are mine, although I was in the youngest's life for the better part of 3 years. They were both conceived with two different fathers; the oldest's father is still in the picture and paying support.


ANSWER

The best way for you to proceed is to file a joint divorce application based on an agreement that you would both sign wherein you release each other from any and all claims that either of you have against each other arising from the marriage and including support and division of property. In other words a clean break - you both go your separate ways and have nothing further to do with one another on a legal and financial basis. If she is agreeable I can prepare everything you need for you. If she does not agree and wants something from you then you have to file a divorce motion and proceed as in a contested divorce case. In either case I can help you get through all of this.


QUESTION

What information and documents do you need to prepare a joint divorce application?.

Also what is the cost and how long will it take to obtain a judgment of divorce once the joint divorce motion is filed?


ANSWER

To prepare a joint divorce application I need

-your legal names, address(es), birth dates, places of birth

-the names of both of your respective parents

-the date and place of your marriage

-both of your birth certificates

-your marriage certificate

-the date of separation

-the points that you agree on regarding the settlement of any accessory issues such as division of property etc.

-the sum of $1,750 to cover my fees

If you get me all of the above I can draft everything. When the proceedings and Consent to Judgment are ready you can both come to my office to sign. I will then issue the divorce motion, we will proceed on the basis of your affidavits (neither of you will have to come to Court) and you can expect a divorce judgment in three months.


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Joint custody for father

QUESTION

I would like to know the laws regarding joint custody for a father. The child is 5 months old and the mother is refusing to allow the father to have the child on weekends or at any other place but her house. The father gives the mother 60$ a week for child support. They are not married and have not done anything legally. I was wondering what his rights are. Thank you


ANSWER

There used to be a principle known as the "tender years doctrine" that said that everything being equal custody of a young child goes to the mother. This principle has been nullified by the courts in the last 10 or 15 years.

Assuming that your friend can take care of the child (and of course that the mother is not breast-feeding) he can have the child with him for overnights and is not obliged to see the child only at the mother's.

If the mother is not reasonable your only alternative is to go to court and get an order.


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Jurisdiction - variation proceeding

QUESTION

I am the defendant in a Quebec Superior Court judgment respecting child maintenance. The terms of the 1989 support agreement of which read as follows:

"So long as the Defendant is employed full-time and so long as the Defendant's employment earnings remain at present level or increase, he shall make payment to the applicant of child support for the minor child Michael as follows."

Support terms were linked to the sale of the applicant's and defendant's joint residence (Beaconsfield, Quebec) and applicant's employment status. While the applicant lived in the Beaconsfield home I was required to pay $900.00 per month plus mortgage and taxes. The judgment set out that the parties agreed to place such house on the market. The house was sold in early 1990. However, in late 1989 the applicant relocated to Ontario with my son whereupon she took up full-time teaching and has been so employed since that time.

The Consent to Judgment advised that once the applicant commenced full-time employment monthly child support payments would thereupon be reduced to $600.00 per month and for the future. I made such payments from late 1989 including indexing (no written court direction on indexing) until I suffered an employment loss in mid-1999 and the monthly child support was discontinued about 3 months later. In late 2001 Ontario Family Responsibility Office advised they were monitoring the agreement. I consulted an Alberta lawyer, where I had resided since 1996. The lawyer's advice was that I was in compliance with the unvaried agreement and to advise OFRO, which I then communicated to that office and no further action was taken by them.

My son reached the age of majority 15 October, 2002 and ended college studies late 2003. In about June, 2006 OFRO contacted me advising a garnishment was being issued. Their appended payment table showed payments at $900.00 per month from December 2001 and ongoing through 2006. Their contact coincided with the death of my mother and my position as Executor of her estate. The garnishment equalled $49,900.00. I am an Alberta resident, my ex-wife is resident in Ontario. Where and how should I proceed legally on this matter? The $900.00 per month OFRO demand I believe is unenforceable as my ex-wife has not lived in the Beaconsfield house since 1989, upon which this amount was premised. I am prepared to act on the $600.00 monthly payment from December, 2001 through to my son's reaching age of majority or alternatively through to his completion of post-secondary education 2003 at which time he began full-time employment.

Your advice on best means to handle this protecting my interests consistent with the judgment are appreciated.


ANSWER

You are talking about issuing what is called a variation proceeding - a motion to modify an existing judgment rendered in a divorce case.

S. 5 of the Divorce Act says that a court in the province has jurisdiction to hear and determine a variation preceding if

a) either former spouse is ordinarily resident in the province at the commencement of the preceding; or
b) both former spouses accept the jurisdiction of the court

It seems that you would be able to institute a variation preceding in Alberta where you reside, in Ontario where your wife resides, or in Québec where the judgment was rendered if both of you accept the jurisdiction of the Québec Superior Court. Obviously, the most practical solution for you would be to take proceedings in the province of Alberta where you reside. This should not be a problem for your ex-wife as you will be in court with the Alberta support enforcement office which will obtain the file from OFRO.

I agree with your statement that, if anything, you should have been paying paying $600 per month from December 2001 until the completion of your son's post secondary education in 2003 at which time he began full-time employment.

There may also be a further defense based on the doctrine of "estoppel" by conduct. If it can be shown that your ex-wife acquiesced in your non-payment of support by acting in any manner since 2001 which is not consistent with her demand now for payment of all of the arrears, you may be able to convince the court that your wife's conduct amounts to a renunciation to or claim for the arrears. This is something that you should discuss with the attorney who may choose to take the proceedings for you.


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Jurisdiction of province - based on residence

QUESTION

I am an Indian citizen and I am married a New Zealander in New Zealand in May, 2003. The marriage broke down after one month and we separated. According to New Zealand law, we need to be separated for 2 years before applying for divorce. After a few months, I met my current partner and he has now sponsored me to come to Canada. I have been residing in Montreal for the last few days.I have been separated from my husband for more than 2 years now. I want to divorce my husband and marry my current partner. I have a separation agreement with my husband and we don't have any kids or any property to divide. I called the New Zealand Family Court and they have advised me to apply for a divorce in Canada using New Zealand law. Is it possible for me to get divorced in Quebec or anywhere in Canada?


ANSWER

To institute divorce proceedings in Quebec (or in any province of Canada for that matter) you must have lived in Quebec (or that province) for one continuous year prior to the date on which the proceedings are instituted. You must confirm this in a sworn affidavit.

If you institute the proceedings here you will have to wait until you have resided here for one year. Otherwise the court will not have jurisdiction and your proceedings will be dismissed.

Do not confuse the grounds for divorce (separation for 2 years in New Zealand) with the residency requirement to give the court jurisdiction to hear your case.


QUESTION

I am Bahamian and my spouse is from Montreal. We want joint custody of our daughter but we were married here. In the Bahamas irreconcilable differences is not a considered grounds - just adultery, violence and neglect. Can you help us?


ANSWER

You can institute divorce proceedings in Quebec if one of you has resided in Quebec for 12 continuous months immediately prior to the institution of proceedings. If not the Quebec courts have no jurisdiction. If so, I can help you.


QUESTION

I saw your information from the web and would like to seek your advice in the following divorce case.

A friend of mine got married in Quebec some years ago. The couple were both Chinese (mainlanders) students then. Now they are back in China, they want a divorce. However, the couple in question does not want to travel all the way back to Quebec to do it properly.

Could you please inform me how they could proceed with this case? What documents do they have to support to apply for divorce while they are in China?


ANSWER

The problem that your friend has is that jurisdiction in Canada for a divorce application does not depend on where the marriage took place, but rather on the residence of the parties at the time of the filing of the divorce motion.

Either one or both parties must have had one year of continuous residence in a province (in this case Quebec) prior to the issuance of the application.

Under the circumstances I think that your friend will have to divorce in China using the Chinese courts.


QUESTION

I would like to get more information about the jurisdiction of the Quebec courts regarding divorce. My
husband and I are citizens of Armenia, but we have resided in Montreal since October
2003. We have multpile enrty Canadian visas with work permits till the
September 2006 (we are both working here). We have a 2 year old son. Our
marriage was registered in Armenia. Is it possible for us to divorce here in
Canada? I contacted the Armenian embassy in Ottawa, and they have told me that
according to the law of Armenia we need to go to Armenia to solve this question.
Must we divorce in Armenia?


ANSWER

You can institute divorce proceedings in a province of Canada if either you or your wife have been ordinarily residing in that province for one consecutive year prior to the date on which the proceedings are taken. Citizenship is irrelevant. What the embassy told you is incorrect.


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Leaving family residence

QUESTION

I would like a divorce and my husband does not agree. If I move out of the house with the child, will it have a negative impact on custody decisions?


ANSWER

I need to know why you are moving out with the child and not staying put and issuing the divorce proceedings immediately with a request that you be granted possession of the house and that your husband be excluded.

The only thing that bothers me about your leaving immediately is whether or not you have good cause for uprooting your child.


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Legal separation motion - procedure and cost

QUESTION

I am seeking advice on how much it would cost for a legal seperation, and
what the procedures are.


ANSWER

You proceed by way of motion in which you make all of your demands - custody, support, division of property etc. A separation motion gives you all of the same recourses as you would exercise in a divorce except you ask for a judgment relieving you of the obligation to cohabit with your husband and not the breaking of the matrimonial bond. Your husband has a delay to retain a lawyer to respond or represent himself.

If the case is uncontested, you sign an agreement with your husband, and get a separation judgment based on that agreement I charge $1,500 plus the taxes on that and the court stamp of $185. If there is no agreement and the case is a contested one, I charge $225 per hour, and would require a retainer of $2,500 to start.


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Maiden name - use after marriage in Quebec

QUESTION

I got married recently. I would like to know if I can carry my husband's name as well as my maiden name. I would like to keep my maiden name but add my husband's after it - is this possible?


ANSWER

Article 393 of the Civil Code states - "In marriage both spouses retain their respective names, and exercise their respective civil rights under those names". This means that after marriage your maiden name remains your name for leagl purposes.

Article 56 of the Civil Code says - "A person who uses a name other than his or her own name is liable for any resulting confusion or damage"

In your case I would say that as long as you include your maiden name in the hyphenated name that you intend to use, you will most likely not cause the kind of confusion envisaged by article 56 as the name used will sufficiently identify you and should not cause third parties with whom you may enter into contracts to confuse you with someone else or to be unable to identify you.

Strictly legally speaking you must retain and use only your maiden name. For practical purposes, however, using a hyphenated name that includes your maiden name and your husband's name should not cause any confusion and/or damage in so far as third parties with whom you deal are concerned.


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Marriage - distinction between civil and religious marriage

QUESTION

I've read the FAQ's on your website but I didn't find exactly the answer I needed for my particular situation. I hope you can provide me with some clear guidelines as to what steps my husband and I should take. My husband and I are both Canadian citizens who resided in Quebec until 1997. We were married in 1987 in Montreal in a legal ceremony which is registered at l'etat civil. About a month later I converted to another religion and got married again, to the same man, but this marriage is not recognized of course with l'etat civil, but we see this marriage as the legal one. Till now we have used the first legal marriage certificate when marriage documentation needed to be produced. However, we have decided that we do not want this first marriage certificate to be recognized as the legal one. We would like the second certificate, although not recognized by l'etat civil, to be recognized as the legal one. How should we do this? Can we have the first marriage annulled or must we go through a proper divorce procedure? If we divorce legally this would only be on paper since we are still husband and wife according to our beliefs and the second marriage certificate. The other question is that we have been living abroad for the past 9 years and will not be returning to Canada any time soon. Can we file for divorce from the county we're living in now since this is really only a legal formality and not 'real' divorce. Once the legal divorce is final, can I then make the second marriage certificate legal in some way?


ANSWER

First of all you must understand that there is a distinction to be made between a civil and religious marriage. Your lack of understanding results from the fact that you are confusing the two and are tying the civil marriage to the religious.

Your second marriage is religious only. It does not add to or subtract from your existing civil status as a married couple based on the registration of the initial marriage.

The best example to understand what I mean would be when a couple gets married first in a civil ceremony and then later marries in a church, synagogue, or mosque for religious purposes. Most often the two are done at the same time and the officiant wears two hats - he performs both a civil and religious marriage.

Where only a religious marriage takes place the officiant may or may not be recognized for the purpose of performing a civil marriage. If he is not recognized as such the marriage is not recognized civilly.

What you may be able to do is to request a rectification of the registers of civil status so that the entry in the register pertaining to your marriage mentions and reflects the second marriage and that any reference to the first religious marriage is removed. Frankly I do not think that this can be done because the first ceremony happears to have the double civil and religious character and the second religious marriage is really irrelevant to your civil status which is what the registers of civil status are meant only to reflect.

Regarding the filing of divorce proceedings, I can only speak for Canada where there is a residency rerquirement of one continuous year in a province to give the courts of that province jurisdiction to hear the divorce application. You cannot file divorce proceedings in Canada. That is all I can tell you. Check with a lawyer in the country that you live in to see what the jurisdictional requirements for divorce are there.


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Marriage contracts

QUESTION

Could you inform me what to look for in a Quebec pre-nuptial agreement that would make it legal in the Quebec - do both parties need independent legal advice...and what other requirements in general would you put into a pre-nup ...if the parties were legal residents in Quebec but U.S. citizens. In your opinion would a Quebec pre-nup stand up in Florida?


ANSWER

So-called prenuptial agreements do not exist under the Quebec civil law.

What we have are marriage contracts which must be signed before a notary (another civil law official - who is a specialized attorney and before whom certain contracts must be entered into such as marriage contracts).

The purpose of a marriage contract is to choose the matrimonial regime that will apply. If you sign a marriage contract it will for all intents and purposes be to opt for separation as to property as opposed to the legal regime here of partnership of acquests.

What you should know as well is that even if by marriage contract you adopt the regime of separation as to property - at divorce certain assets (the homes, furnishings, cars and pension plans) fall into what is called the "family patrimony". The net value of these assets is divided (subject to various rules and possible exceptions) as of the date of divorce.

My understanding of the problem that you are facing is that the attorneys must determine what rules will apply for purposes of dividing the property of the parties. If the case is being decided in Florida based on Florida law, and if the applicable law is the same as the rule in Quebec, the division will be made based on the matrimonial regime adopted by the parties in Quebec where they appear to have been domiciled at the time of the marriage.

In Quebec at divorce the division of all property other than family patrimony assets is made based on the applicable legal regime of the place where the parties were "domiciled" at the time of the marriage (in Quebec or anywhere else). "Domicile" is also a legal concept and means the place of intended residence - which can be different from actual residence.


QUESTION

When a soon to be husband from the US and a soon to
be wife from Canada (Montreal) enter into a prenuptial agreement where
the man signs in the US and the woman signs in Canada--is there any
problem there? Will the prenuptial carry any weight? Does the signing
in two different countries hurt the weight of the agreement? Does
Canada have a notary system in place for authenticating signatures? I
really appreciate any help or guidance you could provide for me.


ANSWER

Prenuptial agreements are not recogized in Quebec. We have marriage contracts by which the parties can opt out of the legal matrimonial regime of partnership of acquests and adopt the contractual regime of separation as to property.

Marriage contracts must be signed before a notary. The legal and notarial professions are separate under the French civil law system in Quebec. Contracts that require authentication suggest as a marriage contract must be signed before a notary.

For more information on the notarial profession in Quebec contact the Chamber of Notaries (Chambre des Notaires) here at 514-879-1793. It also has a website - look it up under Chambres des Notaires du Québec.


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Mediation

QUESTION

What is your opinion on mediation? I am hoping to go this route.


ANSWER

Mediation is an option. But it is slow.

Also for mediation to work both parties have to be willing to make the compromises necessary to reach the best possible solution for everybody under the circumstances. In my experience that does not happen. What does take place is that either one party or both parties use the mediator to convince the other to accept what he/she wants. That in my opinion is not what mediation is about and guarantees the failure of the process.

Also remember that the mediator's role is not to give advice, but to facilitate an agreement. I often see mediated agreements that make no sense for that reason, resulting in having to start all over again and a loss of considerable time.

As you can see I am not a fan of mediation. But you make the decision for yourself. If your husband is one of those people who think that he is right all the time and will not compromise, you will be wasting your time.


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Mediation - can it be ordered?

QUESTION

Can mediation be court-ordered in a child custody dispute if one of the parties requests it even if the other party doesn’t want it?


ANSWER

Mediation requires the Consent of both parties.

A judge can, however under article 814.2.1 of the Code of Civil Procedure, adjourn a hearing and refer the parties to the mediation service at the Court or the mediator of their choice. The suspension of the hearing cannot be for more than 90 days. The parties must begin the mediation process no later than the 20th day. If the parties fail to do so, or the mediation ends or fails prior to the expiry of the period during which the case has been suspended, either party may apply to have the hearing resume immediately.


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Mental cruelty - Ground for divorce

QUESTION

I've been married for more than 15 years and we don't have any kids. My wife was not getting involved financially in the family problems for about 7 years (since she immigrated to Canada). I supported her while in school for some years (she got a graduate diploma in accounting) but now she is just taking some part time jobs and doesn't get involved financially to the family life. She is in good health and she can get a job (as she already had). We faced financial difficulties and I had to declare bankruptcy 2 years ago. I want to divorce her; can I claim mental cruelty as grounds for divorce, considering that I have to deal with all the stress involved in meeting our financial obligations?


ANSWER

Yes you can make a motion for divorce immediately based on having been treated by your wife with mental cruelty – I think the stress that she put you under, refusing to pull her financial weight, would qualify.


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Moving with children to another province

QUESTION

I am a mother of four to the small children and am on the verge of separating with my husband of 10 years who for the moment is the only employed one in the house, as I stay at home with the children. I am wondering what are my rights if I separate and take the children, divorce is not being discussed yet, but is a possibility in the near future. He has agreed that I have the children and I want to know if I can have help from the Government ...etc. and also want to know my rights concerning living in another Province such as Ontario with the children, if the father is in Quebec.


ANSWER

If you separate you should be able to obtain child support and spousal support.

You can move with the children to another province. But you must realize that this makes the exercise of access by you husband more difficult and costly. It may have an impact on the amount of support that you may be entitled to. In some cases it can even impact the custody arrangement.

If you and you husband cannot agree you should institute divorce proceedings and work out the above issues before the court.


QUESTION

I have a question concerning my legal rights to move Montreal
LaSalle to another location within Quebec.

I am currently in divorce proceedings and have custody of the
children and they have been living solely with me for almost two years.
Their father has a written agreement as to his summer access rights until
the end of August. After this time his visitation is open.

I just want to relocate to a rural city within
an hour's drive from where their dad presently lives.

If I put the request in to the court, will he be notified?


ANSWER

You have the right to move if you want to. The only consequence that your move has is that it makes the exercise of your husband's access more difficult by putting more distance between the two of you. You should simply notify your husband and then make the move. You do not need to seek the Court's authorization. If your husband wants to he can petition the court to block your move - he would have to notify you of his request by serving a copy of his proceedings on you. The chances of his succeeding are minimal based on the info that you have given me.


QUESTION

I have been legally divorced for 3 years now. I was with my ex for 14 years in total but married only for 18 months. We have 5 kids together. I have custody of all 5 kids and he is entitled to visitation only.

Lately I’ve been considering moving out of the province of Quebec. I now only have 3 of our 5 kids living with me. My reason for wanting to move is I wish for a fresh start in a new place as I feel there is nothing left here for me. I was wondering what my rights are concerning the three kids, who also wish to move (ages; 15, 14 and 8) with me. I’ve been told that I need my ex’s permission to move out of the province with the kids. I guess what I am wondering is do I really need his permission to move and can he stop me from moving?


ANSWER

If the two of you do not agree on the move, and that appears to be the case, the most prudent thing to do would be to ask the Court for authorization to move before you do so.

For practical purposes he cannot stop the move, but if you do move without his consent, he can make a motion asking for the return of the children. If granted they will have to be returned or you could be charged with kidnapping - not a good thing.

It will help your case if the children agree with the move and express the wish to go.


QUESTION

I know that in most cases an application for relocation to anohter province with a child is granted
if requested. I was wondering how such a move can be stopped?


ANSWER

If you can prove that it is in the best interest of the child not to be removed from Quebec you will succeed. It is the child's best interest looked at independently of the interests of the parties that is determinant.


QUESTION

I was hoping to get information on my rights as a father and what custody I
would be able to obtain.

She is the main caregiver at the moment and is looking for sole custody. I
would not be in a position to move and would have to remain in Montreal due
to work.

She has advised that I can have as much access as I can manage but wondered
whether I can seek shared custody even though I am not living in the same
city? I am concerned my rights as a father will be diminished if she has
sole custody.


ANSWER

If you are concerned about custody you should make a motion to obtain custody in view of your wife's contemplated move. You should ask that she not be entitled to move with the child until the custody and access issues are resolved by the Court here.

In that context if you do not obtain custody seeing that your wife has been and is the "main caregiver", you should get the Court to determine and fix your rights of access in view of the geographical distance that the move will put between you and your child.

The custody and access issues will be decided on the basis of what is in the child's best interest. The Courts have held time and again that where both parents are equally capable and have something to offer the child it in the child's best interest to maximize the amount of time spent with both parents. Assuming that you are a good and involved father, you should ask for as much time with the child as possible - the whole summer, half of the Christmas holidays, Easter, and Spring break, and as well at any time that you are able to travel to New Brunswick and visit. You should be able to get this without much difficulty.

You should ask for "joint custody" which means shared parental authority. "Shared" or split custody by definition is impossible if you both live in different cities.


QUESTION

I’m the mother of a 4 year old. Her father and I separated but we were never married. There is no formal custody agreement between us. I now wish to move with my child from Saskatoon to Quebec.

Her father does not want her to move to Quebec. He never got a lawyer, so can we just go? And if we go will we have to move back ?


My questions are:
1) Can my daughter and I move to Quebec whenever we want?
2) Can the Quebec laws protect me and my daughter from having to move back to Saskatchewan?


ANSWER

The best advice I can give you is to retain a lawyer where you are and apply for permission to move with your child to Quebec.

If you simply come here without authorization you are risking that the father will bring a motion for the return of the child to Saskatchewan where all issues relating to that child must be litigated now because the child is domiciled there. Normally the Court that has jurisdiction in child related custody and access matters is the Court of the place where the child is domiciled.

If you come to Quebec, I can help you here. But the most prudent course would be to do what I said above.


QUESTION

My husband and I have been in the process of getting a divorce. I am a Japanese citizen as well as a landed immigrant residing in Montreal since July, 2009. We married in Japan in January 2008 and have a girl who is 3 and a half years old. I have agreed to shared custody as I witnessed that my daughter seems more emotionally stable with shared time with both parents. However, because Japan has not signed the Hague Convention on International Child Abduction, my husband will not give me the permission to go to Japan with my daughter. He is afraid that he will never see our daughter again if he lets us go. I have no intention of kidnapping her, but he does not trust me. I would like to take my daughter to Japan as she has my side of family there, and she can benefit from experiencing the culture. I would like to continue shared custody, but I am not sure how my daughter and I can go and visit my family. Would it be possible to get a court order for this? I would also like to know if I will be able to move to other provinces if I do not find employment in Quebec.

I am currently a student as I was not able to find any work last summer due to bilingualism. I studied and worked in Alberta for 8 years before my husband and I moved to Quebec for my husband's going back to school in Montreal.


ANSWER

You should be able to get permission to travel from the Court as long as you can prove that you do not represent a "flight risk", and that you guarantee your return.

You can prove this by showing that you have sufficient ties to Canada, and if necessary by posting a surety bond in acceptable form.

As far as moving to another province is concerned with your child, the likelihood of getting permission is good if you are the child's primary caregiver, if you can show that your reason for moving is not meant to distance the child from the father (i.e. it is a move being made in good faith), and if the benefits to the child of the move outweigh the disruption by the reduction of access with the father. The courts have held that if the child is young his/her best interest is identified with the interest of the primary caregiver.


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Name change

QUESTION

I am a Canadian citizen (Montreal, Quebec). I wish to have a change of name
legally. (from a foreign name to a English name)

Please let me know where to go for information on how to do this.:



ANSWER

Go to the following website. It will provide all of the info that you need.

http://www.etatcivil.gouv.qc.ca/English/ChangeOfName.htm


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Obtaining a copy of a divorce judgment

QUESTION

My fiance has discarded his copy of his divorce judgment.

The divorce was rendered in the province of Quebec about 1 year ago, and we currently live in Toronto.

How would we go about obtaining a copy of the judgment?


ANSWER

Call 514-393-2330. This is the number at the Montreal Courthouse for photocopies of judgments.

If you have a problem call me and I can order the judgment for you and send it to you for a small fee plus disbursements. I will need the court number.


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Obtaining exclusive possession of house

QUESTION

I have 3 children, my oldest lives with her father full time, my middle child lives with me full time, and my youngest visits his father once during the week and on weekends. My ex has asked for the sale of the home I live in and half of the value of the house? What are the chances that the judge will allow me and the kids to stay in the house. The house is paid in full and we estimate the value to be 275,000.00? I am a stay at home mom and havenot worked in 14 years. I have a cegep education, minimal french, no degree. Will I be forced to work. Do you think I will be forced out of my home?


ANSWER

Assuming that the hearing is provisional you should not be ordered to do anything with the house. The issue as to whether or not the house should be sold will be decided at the final hearing only unless there is an extremely urgent and compelling reason that has to do with the interest of the family as a whole for selling the house now - like the possibility of losing the house due to a threat of foreclosure.

As for the rest it is quite obvious that you have been disadvantaged by the marriage (stay at home mom, off the labour market for 14 years). I would say that your husband will have to support you over the long term. Spousal support is intended to compensate for the disadavantages imposed by the marriage and its breakdown.

Finally at the final hearing you should ask for the right to live in the house with the children until the last one reaches 18 years of age. Only then should the house be sold and the proceeds divided.


QUESTION

Presently I am seeing a lady that I have met two weeks ago. She is married and has two young children. They consulted a legal aid office and started proceedings for a legal separation. He was to follow through with the paper work but failed to do until recently. The agreement (apparently verbal) was for the husband to move out of the house with his belongings and some furniture, and to keep the children during the weekdays and hand the children to the mother on Friday afternoons until Sunday evenings.

As part of the agreement she is to keep the principal residence until the ownership and mortgage is transferred to her name, assuming she qualifies for mortgage. At present the mortgage is in the name of the husband only while only she keeps the children on the weekends. The husband has moved out of the house 4 months ago but has not changed his address, still receives his mail at the same home address and still has the keys for the house, comes in the house everyday while she is at work and checks everything out. Also he comes in at night to check her out while she is sleeping.

Because of my relationship with her, things have become complicated and more strained for her. He is accusing her of adultery and threatening to kick her out of the house. He also has not brought over the children to her care for the last 2 weekends.

Here are my questions:

1. I am hesitant to accept her invitation to enter the house for even five minutes let alone overnight because he has threatened to have me charged with trespassing. Since the mortgage is still in his name only and he still has the keys but not live there, does he have grounds to have charges laid on me when I am in the house in her presence?

2. Even though she is not legally separated yet, does her relationship with me constitute adultery? Can he commence divorce proceedings on that basis? Could this have an effect to her custody arrangement for her children and access rights? Can he refuse the transfer of ownership of the house on that basis because of her relationship with me even though she is the only one continuing to pay the mortgage and has the children only on the weekends and not during the week?

3. He refuses to hand over the key for the house to her, Can she change the lock to the house without telling him, or does she have to get a court order?

4. Is it legal for him to sneak in the house and check her personal belongings and check at nights to see if she is spending the night with somebody? Does it constitute harassment or stalking? Can it be stopped or prevented? What is the best way to proceed to put a halt to this situation?

5. Could my relationship with her result in an unfavorable legal outcome regarding her access to her children either now or in future? As I do not want to cause any damage to her relationship with her children and be the cause of reduced access rights. I would like to mention that I do not co-habit with her or spent time with her while she has the children.

6. How could he be enticed and encouraged to live up to his agreement to bring over the children to their mother on the weekends, as he does not answer and return phone calls regarding her access.

7. What would be your overall advice for her next step to take or to proceed? It seems there is no amicable way of resolving the situation. I am encouraging her to obtain a legal opinion or legal counsel.

Also I would like to know your fee schedule in case she would like to have a consultation session with you.


ANSWER

The simple answer to your problem is to have your girlfriend institute divorce proceedings right away.

The proceedings would be accompanied by a motion for provisional measures in which she would ask for exclusive possession of the house on the conditon that she assume the expenses as she is currently doing anyway, as well as a non-harassment order. She would also ask the court to confirm the current status quo regarding the custody arrangement.

Once she has the order for exclusive possession of the house, if her husband enters the house he is in contempt of court and can face a fine and/or imprisonment if found guilty.

Your friend should change the locks immediately even before the order is made - she has the de facto possession of the house - I tell my clients to do this all the time. She should also lay a criminal in complaint of harassment and stalking with the police - do not threaten this - just do it. If the complaint is accepted and the police arrest the husband he will get the message and lay off. Asking the police for a restraining order is also a good cause of action.

Your friend should not be in any hurray to have the mortgage transferred to her - if after the provisional order he wants to proceed to the transfer of the house it can be done then. There is no reason to rush incurring this liability.

The adultery issue is a red herring and raised by the husband out of sheer ignorance. The Divorce Act explicitly states that marital misconduct (such as adultery) has no influence on decisions that the court has to make regarding the children or the financial issues.

You should use your judgment as to how your relationship with your girlfriend is presented to her children. You should not be seen by the children as a replacement for their father - but they should know that you are involved in their mother's life now. Go slowly. Act with caution.


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Obtaining legal aid

QUESTION

My wife and I have agreed on a divorce. We're both quite poor, though educated and would like to know the contact number and address of the courts / government body that could assist us with this. We cannot afford a lawyer.


ANSWER

You most probably qualify for legal aid. If so you are entitled to legal services at the expense of the government.

Look in the phonebook under "Aide Juridique" for the legal aid office in your area.

Here is the central number for legal aid in Montreal - call 514-864-2111.


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Parental Authority - Quebec

QUESTION

Does it make a difference who has legal custody when it comes to making important decisions affecting a child? Who has the final say?


ANSWER

In Quebec the law provides that parental authority (decision making on important matters relating to health, education, religion etc) are made by both parents jointly irrespective of who has "legal custody".

If such a decision must be made and the parents disagree, the Civil Code provides that the court can be requested by either party to intervene and resolve the dispute. The custodial parent thus does not have the final say, and the participation the non-custodial parent regarding the exercise of parental authority of is guaranteed.


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Partition of spouse's pension - when payments begin

QUESTION

I am a divorced woman since 1996. My husband is 65 years now. I am 59 years old.

In my divorce statement it is written that I am going to have half of my husband's pension.

I would like to know when I am getting this half.

Do I get this with my pension, when I am 65 years old?


ANSWER

More than likely (if the pension in question is locked in until your husband is 65) you will begin to receive your benefits at the same time as your husband.

At the time of your divorce didn't your lawyer review with you the details regarding the payment of your pension benefits? If not call your lawyer and have him do this, or call the company, tell them that you are entitled to pension benefits as the x-spouse of a former employee, and ask them when you can expect to receive your benefits.


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Partnership of acquests - liability for debts of spouse

QUESTION

A student loans that was taken by one of the spouses during the marriage (in Quebec). Upon divorce, can the other spouse be made liable for reimbursing the loan? The loan was used for tuition payments and some living expenses.


ANSWER

If you were married without a marriage contract and subject to the matrimonial regime of partnership of acquests, all assets acquired after the marriage that would be considered acquests and would be subject to division between you and your spouse, can be seized by your spouse's creditors.

In this way you would be indirectly liable because your property acquired after the marriage, and/or the property of your wife acquired after the marriage in which you would have a right of partition, can be seized and sold by the creditor of the student loan to satisfy the debt due by your spouse.


QUESTION

I’m looking for some information. My husband and I separated on December 8th 2005 due to the fact he was gambling. We had no children and owned no property together. Since then he has been in treatment and my question is concerning what I would need to do to protect myself financially should we choose to reconcile. When we married we had no marriage contract but would it now be possible to have some kind of legalized document drawn up that would take effect? I am wondering whether I can have a legal document that would state that based on my salary I would give him a certain amount of money each month towards household bills (example Rent, Hydro ect) but that after that the remainder of my salary would be mine. I would also like the document to state that I am not requiring my husband to give me anything financially just that I would remain separate when it came to finances.



ANSWER

I am assuming that when you married you did not sign a marriage contract, and that therefore you and your husband are governed by the matrimonial regime of partnership of acquests - in which case basically at divorce everything that is acquired after the marriage is subject to division on an equal basis (subject to certain exceptions).

To obtain the protection that you want for the future the only thing that you can do is to change your matrimonial regime to "separation as to property". You can do this by executing a marriage contract now providing for separation as to property - where what is yours is yours and what is his is his and his creditors have no recourse against property acquired after the change of matrimonial regime. You must do this before a notary.

You should understand that, even though you adopt the regime of separation as to property, the family patrimony provisions of the Civil Code still apply, such that at the time of divorce there will be a division of the net values of those assets that are subject to the family patrimony - the house, the contents of the house, the cars, any pension plans and RRSPs.

It is important to understand that the rules regarding the division of assets based on the applicable matrimonial regime and the family patrimony apply only if there is a divorce, and based on the values of the assets to be divided at the time of the institution of divorce proceedings.

While the marriage is ongoing each spouse has the full administration and control of all assets registered in his / her name. However under the regime of partnership of acquests for debts that are incurred, the creditors of either party may seize any asset that is considered the private property of the debtor spouse as well as any property that is considered an acquest (was acquired by either spouse after the marriage). In the case of separation as to property creditors can only seize the private property of the debtor spouse and cannot seize property acquired after the marriage and owned and/or registered in the name of the other spouse.


QUESTION

My wife and I are married under the regime of partnership of acquests. If i declare personal and business bankruptcy will my creditors go after my wife due to the fact that she is working and earning a salary?


ANSWER


When you marry in Quebec subject to the matrimonial regime of partnership of acquests, each spouse acquires property in his or her own name and administers that property during the marriage as he / she sees fit. Thus, during the marriage (while the regime of partnership of acquests lasts) neither spouse is liable for the debts incurred by the other.

The regime of partnership of acquests is dissolved, or comes to an end, when a judgment of divorce is rendered.

The date of dissolution is deemed to be the date on which the proceedings started, or by exception the date of the separation of the parties. The assets that make up the partnership of acquests are those that existed on the date of dissolution and they are valued as of that date.

When a judgment of divorce is rendered, the time comes to partition or divide the assest that make up the partnership of acquests. Each of the parties must then decide whether to accept or renounce to the partition of the acquests of the other.

You would decide to avoid, or renounce to, the partition of the acquests of the other party if his / her debts exceed the value of his / her assets. The reason for this is as follows. On the dissolution of the regime of partnership of acquests if the parties accept the partition of each other's acquests, the all of the assets partitioned are subject to seizure by the creditors of both spouses. Any asset that is considered to be an acquest (whether previously owned by the debtor spouse or the other spouse) may be seized.

Thus when one of the spouses incurs debt during the marriage (i.e. during the period of co-habitation), there is a divorce, the regime of partnership of acquests is dissolved, and the other spouse accepts the partition of the acquests of the debtor spouse, the creditors of the debtor spouse can execute against (i.e. seize) all of the assets that formerly made up the partnership of acquests. In this way, and in this way only, one spouse may see his or her "property" seized to pay for the debts of the other.


In your case, if you are insolvent your wife would simply renounce to the partition of your acquests and avoid any action against her by your creditors.


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Paternity

QUESTION

I live in Belgium and my child’s father lives in Montreal. We are not married. I lived with him in Montreal for 6 months, after which I returned to Belgium. Our child is due in a couple of months. I am fully dependant on him financially. My child’s father now refuses to acknowledge his paternity.

Here are my main questions:

1) How may I force him to acknowledge paternity?
2) Should I give birth to our child in Montreal or in Belgium?


ANSWER

You can bring a motion here in Quebec "in recognition of paternity" to have him declared as the father.
To prove that he is the father we can force him to take a DNA test.
If he is in fact the father he can then be forced to pay child support.

It does not matter where you give birth. Wherever you do decide to have the baby mention that Mr. X is the father that way he is mentioned as the father on the birth certificate.


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Place where divorce proceedings should be taken

QUESTION

I lived in Quebec from Aug 06 - Dec 07 on working holiday permits (not residency) and married in April 07 a man of Quebec nationality.

We separated in Dec 07 in New Zealand.

Can I institute divorce proceedings in Quebec?


ANSWER

To institute divorce proceedings in Quebec (or in any province in Canada) you have to have one year of continuous residence in the province during the period immediately preceding the filing of the divorce motion. You appear to have left Quebec in December 2007. Thus it appears that the Quebec courts do not have jurisdiction in your case.


QUESTION

I married in Quebec in 1995. My husband and I are both Canadians (I am naturalized) and we have joint property in Quebec. We have two children. Currently we live outside of Canada, in Africa. We came to Africa due to my work but it was a family decision and we both left our respective jobs in Canada for this experience. At the moment I know that my contract will be valid until April 2013. My husband however works as a consultant but momentarily is without work. For last 7 years our relationship has gone from bad to worse. My husband is harassing me on many levels (mainly psychologically) and was on a few occasions violent (I have a medical proof for that). He is constantly living in a world of yelling and screaming. Nothing I do is good enough or up to his standard. In our current scenario I pay all the expenses for our life outside of Canada while he pays our mortgage and running cost for house maintenance in Quebec. We are come to Quebec every summer for vacation. We live under the same roof and take care of children and pretend to have normal life. In reality we just have kids and mortgage together.

My questions: How can I proceed with a divorce while I am outside of Canada? My fear is also that if I file for a divorce while in Canada this summer he would not allow my children to go back with me. This would put me in a position that I will have to quit my work in order to be with my kids, which I would do instantly. I have no problem for him to continue living in same area where we live however I would like him to move out and find his own place. Contract we have for house outside of Canada is under my name. Although I have mentioned on number of occasions that we can’t continue living like this anymore my husband is unaware thus far that I am contemplating divorce


ANSWER

The very short answer to your question for now would be that you cannot bring a divorce proceeding before the Court of any province of Canada unless you have been a resident of that province for one continuous year prior to issuing the proceeding.

Also you cannot bring a custody motion before the Quebec Superior Court unless the child has his/her permanent residence in Quebec.

I think that you will have to bring whatever proceedings that must be taken where you are, unless you and the child move back here.


QUESTION

I was a resident in Alberta when I married in 2007. From January 2011 to April 2011 I lived in Saskatchewan. My husband and I agreed to separate April 10th 2011. My husband is still in Saskatchewan and I moved to Quebec on May 10th 2011. I would like to use April 10th as our one year separation date, since that is when we decided to separate.

Could you please advise me where I need to file for our divorce? We have settled all matters and I would like to get the paperwork underway so the matter is finalized by the time our one-year has elapsed.


ANSWER

To file in Quebec or any province, you need to have lived in that province for one continuous year prior to the filing of the divorce motion. You can file in Quebec after May 10, 2012.


QUESTION

I will be relocating to Montreal as a Canadian Permanent Resident, within next three months. I have been married for four years, but recently, after having our PR visa issued, we encountered some major problems in our relationship and we agreed to divorce. Fortunately, we do not have children to be concerned about his/her custody after divorce. Neither have we any disagreement on issues like the division of assets. The problem is that we want to get divorced as soon as possible. After having done some research, I am under the impression that we need to wait at least 12 months before filling for divorce in Canada. Below you will find key points in my some how complicated application:

1. We would like to get divorced as soon as possible. Waiting for another 12 months after immigrating to Montreal is not practical for either of us.

2. If this 12 months of separation is essential for any divorce case being done in Quebec, would you recommend we apply for a divorce here in our country and submit an authorized translation of it to the Canada Immigration Office? If that is a quicker option, how long will it take for us to be granted a divorce according to Canadian regulations?

3. Should I stay in Canada during those 12 months or I can have my lawyer act on my behalf if I needed to go overseas?


ANSWER

In order to institute divorce proceedings in any province in Canada you must have first, before you can issue the proceedings, have lived in that province for one continuous year.

Consequently there is not a province in Canada where there is a court with jurisdiction to hear your case until you satisfy the above condition.


QUESTION

My husband and I were married in Quebec and now wish to divorce. The divorce is simple, no children, no assets, uncontested. Our only problem is that we no longer live in Canada, my husband is French.


ANSWER

It is not the place of the marriage but the place of your residence that determines where divorce proceedings are taken.

You cannot ask for a divorce in Quebec (the same applies to all other provinces of Canada) unless you have lived in Quebec for one consecutive year prior to the filing of the proceedings.

You no longer live in Canada. The place where you live probably has the same residency requirements. You should take the proceedings there.


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Pre-nuptial agreements in Quebec

QUESTION

Do Quebec courts typically recognize (or honor) pre-nuptual
agreements? I am engaged to a Quebec woman and I'm the US.


ANSWER

In Quebec there is no such thing as a "pre-nuptial agreement". We have what are called "marriage contracts" by which you adopt a matrimonial regime - separation as to property i.e. - you each continue to own your respective assets. If you do not sign a marriage contract you automatically marry subject to the regime of partnership of acquests which is the default legal regime in Quebec - i.e. - what you own on the date of the marriage you keep - what you thereafter acquire is subject to division at the time of divorce. Of course the actual rules are a little more complicated.


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Protection of new home purchased after separation

QUESTION

A couple has decided to separate. They are currently living together in a rented apartment. The husband is the one who will be moving out and he wants to buy a condo or a home in lieu or renting, and the wife will be staying on in the apartment. They have decided to split things as follows: All assets that he brought into the relationship are his, and what she brought in are hers. They are both responsible for their own debts and RRSP's and pensions are their own.....If the husband decides to go and buy a home, using the deposit from his RRSP, does the wife have any right to the home? and will she if they go for a divorce, say three years in the future? If so, what steps would be needed to protect the house from the wife? Thank you


ANSWER

The way to protect the home from the wife is to sign a written separation agreement that confirms the date of the separation, provides for a division of the assets subject to the family patrimony and partnership of acquests, and provides for a full and final mutual release and discharge of all claims that both parties have against the other arising from the marriage.

In divorce assets are valued and divided at the date of the institution of the divorce proceedings, or if there is a prior separation as of the date of the separation provided that the spouses have lived financially independent of each other from that time. The latter situation seems to apply in your case.

I would propose signing the agreement and then proceeding with a joint application for divorce to finalize everything.

If you want to absolutely certain do not buy the condo until the agreement is signed and the joint divorce application has been filed.


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Provision for costs

QUESTION

My ex-husband has recently served me with a Motion for Safeguard, change of custody and a provision for costs. He had not paid special expenses for our 3 children and I had to sue him. Long story short he drove my legal costs to $12,000 with stall tactics and last minute changes of attorney while he radiated his costs by declaring bankruptcy thereby also defaulting on a loan I had granted for monies he owed me pursuant to the divorce. Our middle child went to live with him in an adolescent fit and now he is claiming for full custody, although she had declared for the 5 weeks before she left that she did not want to go to his house anymore. (We have legal shared custody). What are the implications of a safeguard order (keep in mind I had to sue him for child expenses which he had not paid in 28 months)? Is he allowed a provision for costs?? And if he does get full custody, besides the change in child support, what would be the expenses I would be responsible for? Thanks.


ANSWER

A safeguard order is an interim order to deal with an urgent matter, pending the trial of the motion that is before the Court. It is made on the basis of affidavits. It is without prejudice to the rights of both parties, and will be revised when the case is heard.

It is rare that a judge will change custody by way of safeguard order. Your ex is probably asking that since the middle child has gone to live with him, he should be granted custody of her on an interim basis, until the actual custody hearing takes place. Of course that will reduce the amount of child support he has to pay, which is probably what is driving the whole thing.

A provision for costs is granted to level the playing field when there is a gross discrepancy between the financial means of the parties to financially sustain the costs of the litigation. Is that the case? Also to get a provision for costs you must be in good faith and acting reasonably. The claimant's conduct is a relevant factor.


QUESTION

My husband and I started with mediation and while we could continue that way I'm getting tired of him manipulating me because he thinks I can't afford to be represented. I'd really like to know what my rights are and if I'm getting all that should come to me. Can you help me?


ANSWER

If your ex thinks that he has an advantage because he has the money to pay an attorney and you do not - what he does not know is that , in such a case and particularly where there is a large discrepancy between the financial measn of the parties, the Courtcan order him to pay your legal fees because of the principle that in a family case neither side should have an advantage because of money and the playing field must be level. Such an order is referred to as a provision for costs.


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Psychological assessment

QUESTION

What can I do to have the courts see that the woman that I'm with is a narcissist and that she was classified as being an unfit parent by a psychologist when her teen age daughter was placed in a half-way house.


ANSWER

I will assume that you have asked your question because it relates to an actual or potential custody debate before the court.

If this is the case, and there are allegations putting your partner's mental health in dispute, you can prove mental pathology by having your attorney issue a subpoena to have her undergo a medical exam by a psychiatrist.

You cannot force her to submit to a psychological assessment, but if she agrees to do so she will undergo testing which should reveal her psychological profile.

You should also obtain a copy of the report to which you refer and ensure that it is filed in the court record of your case to show that a prior evaluation determined that she is an unfit mother.


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Recovering possessions after termination of common-law relationship

QUESTION

My girlfriend formerly lived common-law with a man in Quebec for ten years. During this time they lived in Quebec City, Montreal, and Sherbrooke.

They were briefly separated a couple of times during this period, and four years ago purchased a home in Sherbrooke. The house is registered in her ex-boyfriend's name, however, for the last four years, she personally paid the mortgage, utilities, and groceries, even providing him with spending money.

The majority of the furnishings in the house were purchased by her.

She broke up with him last summer, and continued to cohabit until September of this year, when she left to come to British Colombia to work.

She has no plans to return to Quebec, except to visit her family from time to time, and her relationship with this man was ended before she came here.

She would, however, like to know what steps she might take to recover her personal property from the home. He is generally uncooperative about letting her get anything out of the house, and keeps insisting that she should come back to him. In essence, he wants her to come back, and holds her possessions hostage, and makes suggestions that perhaps harm will come to her personal effects if she doesn't comply with his wishes.

What remedies are available to her in Quebec?


ANSWER

What your girlfriend can do is to institute an action in "revendication" (recovery) of her property accompanied by a seizure before judgment where we have a bailif go in and physically remove the goods. This would happen at the same time that her ex is served with the proceedings.

The goods must be clearly identified.


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Refusal to provide financial disclosure

QUESTION

I have been separated since Jan 2001. We were originally going to get and uncontested divorce. Her attorney asked for a statement of financial disclosure, which I was willing to grant. However, my wife refuses to give any financial disclosure. Her attorney has since resigned from the case.

She is on welfare. I am currently on unemployment insurance and have no major assets other than some personal possessions, such as clothes and some personal articles.

She owns a car and all the household property acquired throughout the marriage.

She is working for cash while on welfare and earns more than I do at this time.

How do I get a divorce if my wife refuses to cooperate and provide a financial disclosure.

I have nothing to my name. I gave here everything.


ANSWER

The solution to your problem is to commence divorce proceedings yourself - this way you will force your wife to make the "financial disclosure" that she has up to this point refused to make.

The principal issue in your case will be your obligation to pay spousal support, if any. If your wife earns more than you do, you should not be paying any support now.

In the future, when you have more revenue and your wife tries to come after you for support, assuming that you can prove your wife's undeclared revenues, you can make the argument that:

a) she is working, and is self-supportive

b) she has no credibility as to her real revenue because she has been defrauding the welfare authorities by working under the table while collecting social assistance

The most important thing for you now is to get proof of your wife's undeclared revenues.


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Removal of children to Quebec

QUESTION


My ex-wife and I were married, had two children, and divorced in
Ontario.

As a result of the divorce I have joint custody with reasonable access on
reasonable notice.

I also pay child support according to the Guidelines.

The separation agreement was finalized in Pembroke, Ontario in 1998 and I filed a request for an
uncontested divorce in Ontario in 2002.

A couple of years ago my ex-wife moved to Quebec with
the children without my permission.

I was in no position, emotionally or financially to be a part of my childrens lives until last year.
Since then I have maintained constant contact and visit as regularly as I can.

Until recently things went relatively smoothly. Things however are now
getting out of hand.

My ex-wife is being unreasonable on the amount of access I can have with my
children.

What can I do to get reasonable access and how much will it cost me?




ANSWER

You will have to file a motion here in Quebec asking the Court to fix your access rights based on the changes in circumstances that have taken place since the last judgment in Ontario.

You would be much better off doing this through a lawyer.

It is difficult to say how much it will cost you. I work on an hourly basis at the rate of $200 per hour. I would need an advance for deposit to my trust account. The conditions of my mandate are set out on my website under the heading "legal mandate".

You will succeed at getting the court to provide you with fixed rights of access. The move to Quebec that puts distance between you and your children, which you have tolerated and for all intents and purposes accepted, will be a factor taken into consideration in determining what periods of time that your children will spend with you. They obviously cannot be taken out of school. It is common in such cases to get most of the children's school holiday periods, including summer, Christmas, Easter, Spring Break - if you are an involved, available, and loving father. The children have the right, and it is in their best interest, to benefit as much as possible from time spent with both parents. If you were living in Quebec I would advise you to seek split custody on an alternating weekly basis.


QUESTION

I am writing to request your assistance in a very sensitive matter, I am Lebanese married to a dual citizen (Lebanese -Canadian) man since 2002, we have a 4 year old boy, we are living in Beirut, my husband sponsored me in 2004 and I have the permanent resident status in Canada since then. When we first got married I discovered that he has a mental illness that isolated him from the world and made him aggressive, I stayed by his side and never left him during that hard time, we decided to have a child thinking that this would help him gain social and emotional stability. Now he is becoming more nervous and aggressive since he decided not to take his medication anymore, I do not wish to hurt him but I need to get away since I can't take the pressure anymore and I cannot allow my son to live in such environment. I decided to move to Montreal with my son since I am eligible to do so, but he refused and didn't accept, he threatened that if I leave him, he will have me deported back to Lebanon and kill me, or take away my son, which he can do here considering the political connections that he has and the judges that he knows in the country. I don't feel that filing a divorce here will get me the protection that I want and will secure that I will be able to raise my son in peace.

We have not had any sexual relationship for the past 2 years, he never spend time with his son since he is either working or playing video games, he never spent a dime on us, he only pays for the schooling. I will not ask for any financial support as I am educated and capable of supporting myself and my son financially. I am not seeking any material help all I want is peace.

I wish to leave to Montreal and lead a normal and peaceful life knowing that I have a government that protects me, I do not want to be charged with child abduction if I leave the country without his permission.

My permanent resident status will expire in 2014, if I want to keep it I should leave Lebanon the soonest, I am counting on your support in this, and please let me know what should I do, and how much this supposed to cost me.


ANSWER

I recently had a case where the parties were living in Dubai. The father was Muslim from Dubai and the mother was French Canadian. They had two children and were living in Dubai. The mother was abused physically and psychologically and wanted to leave Dubai with the children to return to Montreal to live. She knew that the father would not allow that, and to leave Dubai with the children she needed his consent. She got him to agree to let her take the children for vacation to Disneyworld, on the understanding that she would be coming back with the children to Dubai. She took the children to Montreal to visit her family first. She then cancelled her trip to Disneyworld, and stayed in Montreal. She applied for custody of the children to the Quebec Superior Court.


The Court having jurisdiction in a custody case is the court of the place where the children have their permanent residence and domicile. There is no question that in this case it was Dubai. The mother asked the Court nevertheless to accept jurisdiction to hear her case because she said that she could not get a fair custody hearing in Dubai where Sharia law is applied. The judge here agreed with her, and the custody issue was thus heard by the Quebec Superior Court where the mother won custody.


Your case, while not identical, is similar.


I think that you should leave Lebanon with the child, if you can get out. Come to Montreal and bring proceedings asking the Court here to grant you custody because you cannot get a fair custody hearing in Lebanon for all of the reasons you mentioned, including I believe the application of Sharia law.

I can represent you once you get to Canada.

If the case is contested be prepared to spend $15,000 plus. I cannot tell you exactly how much because I do not know how many hours will have to be put in. The figure I gave you is just a guess. It can be more or less.


QUESTION

My wife and I resided in Florida while we were together. Recently she left Florida with the children and came to Quebec where she has stayed since. In the meantime I obtained a judgment in Florida granting me custody of the children. My wife refuses to return the children to Florida. Should I be asking to have the Florida judgment granting me custody recognized in Quebec to get the children back?


ANSWER

It is clear that the children were illegally removed from Flordia (their place of habitual resdience) and brought to Quebec.

The choice is a "motion to recognize" the Florida jugment (rendered after the move which grants you custody) or a "motion for the return of the children" (under the Quebec Hague Convention statute) to Florida where any and all matters pertaining to custody should be dealt with.

It seems that if youproceed by a "motion to recognize" the result will be a trial of the custody issue all over again here.

The following appears in Droit de la Famille Quebecois:

[¶36-185] Les ordonnances relatives aux enfants ou aux aliments
Il est reconnu que l'une des conditions que doit respecter un jugement dont on demande la reconnaissance au Québec est que ce jugement doit être «final et définitif».

Or, comme une ordonnance en matière alimentaire ou en matière de garde n'est jamais finale et définitive, mais est, au contraire, essentiellement révisable en tout temps, nos tribunaux ont de fait refusé de reconnaître ici les jugements étrangers en ces matières... et la reconnaissance du jugement étranger est plutôt remplacée, de fait, par une instance nouvelle où sont demandés la garde ou des aliments!

D'ailleurs, même lorsque la demande procède alors officiellement par une demande de reconnaissance et d'exécution du jugement étranger, le tribunal procède en fait à une audition de novo de l'affaire, révision où peuvent être soulevés, non seulement le bien-fondé du jugement étranger, mais les faits nouveaux en affectant la pertinence. Comme on le souligne dans Chapat c. Delrue, 1971 C.S. 648:

«Le jugement accordant le divorce est final et définitif, tandis que cette partie fixant une pension alimentaire ne l'est pas et ne saurait être exécutoire ici.

Il importait donc à la demanderesse de venir établir quels étaient ses besoins et ceux de son fils pour permettre au tribunal de pouvoir fixer le montant de la pension.» (p. 649)

On en arrive alors à une nouvelle instance où toutes les parties doivent avoir dûment été appelées et où, en pratique, l'on recommence l'enquête à nouveau.


If, on the other hand, you proceed by "motion to return" under the Hague Convention statute the Court will only be called upon to determine where the children had their habitual place of residence at the time of their removal, and if it concludes that it was Florida, the Court here will order that the children be sent back to Florida for the purpose of enabling the Florida Courts to deal with and resolve all residual custody related issues there.

Also, in terms of time, here in Quebec a motion under the Hague Convention is considered an urgent matter, is heard by preference, and thus rapidly, while a motion to recognize would be subject to the ordinary delays and will take more time to get a hearing date.


In conclusion it seems to me that you are much better off proceeding by motion to return because by doing so will limit what the Court here has to decide. If successful you will avoid a custody hearing here. The custody issue will only be tried in Quebec if the Court concludes that one of the exceptions to the return of the children applies - i.e. - that their return places them at risk or that you have acquiesced to their removal to Quebec. Based on what you have told me it seems that neither of these exceptions will apply.


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Safeguard Order

QUESTION

My ex-husband has recently served me with a Motion for Safeguard, change of custody and a provision for costs. He had not paid special expenses for our 3 children and I had to sue him. Long story short he drove my legal costs to $12,000 with stall tactics and last minute changes of attorney while he radiated his costs by declaring bankruptcy thereby also defaulting on a loan I had granted for monies he owed me pursuant to the divorce. Our middle child went to live with him in an adolescent fit and now he is claiming for full custody, although she had declared for the 5 weeks before she left that she did not want to go to his house anymore. (We have legal shared custody). What are the implications of a safeguard order (keep in mind I had to sue him for child expenses which he had not paid in 28 months)? Is he allowed a provision for costs?? And if he does get full custody, besides the change in child support, what would be the expenses I would be responsible for? Thanks.


ANSWER

A safeguard order is an interim order to deal with an urgent matter, pending the trial of the motion that is before the Court. It is made on the basis of affidavits. It is without prejudice to the rights of both parties, and will be revised when the case is heard.

It is rare that a judge will change custody by way of safeguard order. Your ex is probably asking that since the middle child has gone to live with him, he should be granted custody of her on an interim basis, until the actual custody hearing takes place. Of course that will reduce the amount of child support he has to pay, which is probably what is driving the whole thing.

A provision for costs is granted to level the playing field when there is a gross discrepancy between the financial means of the parties to financially sustain the costs of the litigation. Is that the case? Also to get a provision for costs you must be in good faith and acting reasonably. The claimant's conduct is a relevant factor.


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Search for birth parent

QUESTION

I am seeking information about how one proceeds to garner information about a 1928 adoption in Montreal. We seek information on the birth-parents. The adoptee is deceased, as are the adoptive parents.


ANSWER

I have never done a search for a birth parent. If I had one to do I would enagage the services of an investigator.

I am going to give you the number of a private investigator that I use and can recommend - the firm of Chartrand Laframboise 514-745-5695


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Settlement conference with a judge

QUESTION

I have been told that a Settlement Conference is often valuable in
resolving disputes that are heading for litigation. I looked for
information on your web site, but may have missed it. Some other web sites,
including that of the Quebec Govt, have given me a picture of the
procedure. However, my question is: what is the nature of the judge's
"verdict"? For example:
1. Does he/she simply state an opinion of how he/she would judge the case
if the same evidence was presented in a formal hearing?
2. Does he/she offer compromise solutions, as in mediation? In my case,
mediation failed. Might the judge merely recommend trying again (with a
different mediator?) or would the judge conduct the negotiations?


ANSWER

A settlement conference with a judge (conférence de règlement à l'amiable) is a procedure that is available after litigation has begun - not before proceedings have been taken.

In such a conference the judge does not make any decision that is binding on the parties. He acts like a mediator does to try to get the parties with the assistance of their attorneys to resolve the issues that are in dispute and are being litigated.

The advantage lies in the fact that a judge's suggestion to the parties of what they might expect the Court to decide if the case goes to trial should be more persuasive in terms of inspiring the parties to evaluate their respective risks in going to trial and to make the necessary compromises to arrive at a settlement.

Also unlike ordinary mediation, where the attorneys are absent, the parties attend such a meeting with the judge with their attorneys who are there to advise them but play a passive role in the discussions that take place between the parties directly with the judge.

Like mediation nothing that is said during such a settlement conference is admissible in the litigation.

This morning I was in Court before a judge who stated that the rate of success in the Quebec Superior Court in such settlement conferences since the beginning of the year when they began is about 80%.


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Sharing of assets acquired after separation

QUESTION

I have recently separated (6 months ago) after a 3 year marriage, and will eventually get a divorce.

In the meantime, if I buy a car or a house, will I be required to split these assets with my husband at the time of divorce?


ANSWER

I am assuming that you were married without a marriage contract and therefore subject to the regime of partnership of acquests (i.e. - all assets acquired after the marriage are split)

The general rule is that all property owned as of the date of the institution of them in divorce proceedings is split. However if you and your ex have been financially independent of each other since the separation, you can ask that the division be made as of the date of separation and your request will be granted.

Thus if you buy the car or the house before instituting divorce proceedings they should not be subject to division.


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Split custody - imposition by Court - factors considered

QUESTION

I have a question regarding a change in a current custody arrangement. I have been divorced for two years (separated over a year before that) and I have sole custody of my daughter and my ex has visitation every second weekend. My ex has recently told me that he wants to file for shared custody. I am against this and feel it is not in the best interests of my daughter. My ex works over time and night shifts four months of the year and often cannot see her on his scheduled weekends. I am a teacher and able to care for my daughter all the time - even during holiday breaks and all summer. What are the chances of him getting shared custody? What can I do now to prevent this from happening?


ANSWER

First of all in order to change the custodial arrangement your ex must show that a significant change in circumstances has taken place since the last order that would justify a revision of the status quo.

That being said, you don't get shared custody simply because you want it. For the court to impose shared custody a judge must be convinced that it has a reasonable chance to succeed. Both parents must be involved, available, and able to provide for the physical and emotional needs of the child, including the need for stability, structure, consistency and continuity. There must be proximity of residence. There also must be functional communication. The child's wishes are also a factor. What the child wants becomes determinant around the age of 12 years provided that it coincides with what is in the child's interest.

Be consistent and adamant about a change in the current arrangement not being in the child's best interest. Try to record as much as possible everything that happens that might be used in your favour. Video and tape recordings are admissible. Keep a diary of what happens.


QUESTION

I was wondering, exactly what does the Court take into consideration when dealing with children who are boys and are 9 and 12 years old respectively, when the mother has had custody, and when the father wishes to change the custody arrangement and ask for split custody. Can the Court impose split custody in spite of the opposition of the mother?


ANSWER

Split custody will be imposed if the Court considers that it has a reasonable chance of success. This will be the case if the following factors are present:

1. both parents have parental capacity - i.e - both can provide for the physical and emotional needs of the children and provide a stable environment for them

2. the parents live in relatively close proximity to one another

3. there is "functional communication" - the parents have a means of communicating information to one another about the children that each needs to know

You will need to provide detailed explanations of the following:

-your involvement with the children - care-giving, activities, school, medical appointments

-your availability - your work schedule in relation to having the children with you on a full time basis one week out of two - your plans for daycare during the periods of time that you or your partner cannot be physically present with the children

-whether there has been any effort to reduce or interfere with your contact with the children (failure to maximize the contact of the children with the other parent is considered counter-indicative to custody)

-whether there has been any effort to undermine your relationship with the children - such as encouraging the children to regard a step-parent as parent, attempts to alienate the children, or denigrate you to the children

-what the children want - at 12 years of age the Court must give the wishes of the children very serious consideration and weight

-whether there has been any attempt to influence or manipulate the children

-the state of your communication with your wife regarding matters affecting the children


The older children are the less the Court will consider the objective of maintaining the relationship of the children with the parent having the history of primary care-giving.

In general when making a case for split custody I prefer to stress all the positives about your self and your ex-spouse. The purpose is to make out a positive case that will lead a judge to conclude that split custody can work.


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Split custody - modification

QUESTION

I am an Australian citizen and currently reside in Australia.

I had met my ex in July 1995 in Brisbane, Australia and had an ongoing relationship with him for approximately 9 years.



In 1998, I moved to Montreal, Canada to live with my ex. In September 2001, I decided I did not wish to live in Montreal long term and moved back to Australia.



When in Canada, I had applied for Landed Immigrant status. In order to get the status, I returned to Canada in July 2002 for a 2 week holiday. We had talked frequently, nearly everyday by phone. During this visit to Montreal, I fell pregnant with my son (now aged 3 ½ years). I also found out that my ex had been seeing another girl via a telephone answering machine message she left for him.



After finding out I was pregnant, I decided to move back to Montreal to try and establish a family with my ex. At that time, we were on good terms and he had said he would end his relationship with the other girl, which he said had not been serious.



I moved to Montreal in December 2002. My son was born in February 2003. My ex was not working at the time. 3 months after the child was born, I started applying for jobs, but was not successful. In November 2003, I moved back to Australia with my son. At that time, I had spent all my Canadian savings. My ex had been unemployed since December 2002 and I did not feel it was inmy son's best interests to remain in Montreal.



Before leaving Montreal, I signed an agreement with my ex that the child would spend 6 months alternately with each party – i.e. 6 months with me then 6 months with him, wherever we were living at the time.



After arriving in Australia, I realised that this arrangement was not in the child’s best interests. At the time I signed the agreement, I was under a lot of stress with a newborn, no family support and no income.

In December 2003, I filed for custody of the child in the Australian Court system.



Under the Hague Convention, the child’s place of habitual residence was ruled to be Montreal and all proceedings were moved there. I engaged the services of a lawyer in Montreal. Before the matter reached court, my ex and I reached a mediated agreement which has been ratified in both Quebec and Australia.

Under the agreement, my ex was to move to Australia until July 2006, at which time we would alternately take the child for 6 months.

I was not completely happy with this agreement, but had just got a job and had settled in to a normal life with my son for the first time.



My ex moved to Australia in September 2004, where he has had gainful employment to July 2006.

When in Brisbane, my ex and I had joint custody of the child– spending 4 nights with me and 3 nights with my ex per week.

I live with my Mother, who looks after the child 1 day a week – the child attends daycare 4 days per week.

The child is well established in Australia and has close friends at daycare.



On July 7, my ex and the child left for Montreal, where they have been residing to now.

The child is in daycare fulltime.

My ex and the child are living with the girl my ex had been seeing in 2002. He had not told me he would be living with her or had a continuing relationship with her. I have never met, seen or spoken to her. My ex is currently not working.



As part of our mediated agreement, the child will return to Australia in December 2006, then my ex can take him to Montreal in July 2007 etc.

When the child reaches school age, this will no longer be an option.

As all legal proceedings must be done in Montreal, I need a lawyer to advise me on the best approach to ensure my son’s best interests are preserved.



I believe my son has a better environment with me in Australia. I do not speak French (neither does my ex).



When in Australia, my ex has secured a high paying job. Before he left, he told me that he sees the child’s future for the next 10 years primarily in Australia, perhaps spending 6 months every 2 years in Montreal. When asked about this again, my ex said he sees the child’s future for the next 5 years in Australia…. – i.e. he changes his story all the time. I don’t trust or respect my ex and feel I am at a significant disadvantage with legal proceedings in Montreal.



This is a brief summary of my situation – seeking legal advice to put me in the best position to secure my child’s longer-term future at school in Australia.

What are my chances of securing my child’s long-term place of residence in Australia ?

What does the court look at in deciding this ?

What can I do to give myself the best chance ?


ANSWER

Your son was born in February 2003. This would make him approximately 3 1/2 years old, and about two years away from school age. As I understand it the back-and-forth between Montréal and Australia will end when your son reaches school age, and rightly so. The question appears to be - where and with whom will your son reside when he reaches school age.

It is the child's best interest which will determine who will obtain custody - a judge will have to decide who is better able to provide for the child's physical and emotional needs, and provide him with the most stable environment. Based on the information that you have provided it seems that your situation is substantially more stable than your ex's. He is frequently unemployed and his relationships do not appear to be long-lasting. If you can make an argument based on the facts that you have been the child's primary caregiver this will help as well.

One thing appears certain. You are looking at an eventual custody battle in Montréal in the short term - perhaps 1 1/2 to two years away. You should petition the courts here to modify the existing judgment and to ask for sole custody so that you can bring the child back with you to Australia. It can take one year or so to get a hearing date for such a case. What I would do if I were you would be to bring the motion for sole custody in Montréal in the next six months or so in order to ensure that the date of hearing coincides with the child starting school in Australia. Once the motion is made I would ask for an assessment by an expert (a psychologist) for the purpose of making custody recommendations for the court given the circumstances. The expert will look at the entire situation and determine where the child's interest would be best served, in Montréal or Australia. You will obviously have to come here for the assessment. Doing it in the way that I have suggested will give you the best chance, I believe, of ultimate success


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Spousal - making claim for the first time four years after divorce

QUESTION

I never got alimony. M husband was on welfare.

Now ,4 years later, he is working. Is it too late to go after him for alimony.

Is there a statue of limitations?


ANSWER

If your incapacity to support yourself is related to the marriage, you would be justified in coming back and asking for support now.


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Spousal support - basis

QUESTION

My husband receives disability pensions and claims because it's federal, as his housewife I am not entitled any alimony.

Thank you for any advice.


ANSWER

Your husband is wrong. Don't fall for this nonsense.

Assuming that you are financially dependent on him, and as you say have been a housewife who has not worked during the marriage, you are entitled to claim support from your husband even if his income consists of a disability pension.


QUESTION

Regarding spousal support where both spouses have good incomes, but one of the spouse makes double the income of the other, can support be claimed?


ANSWER

The granting of spousal support requires financial dependence or that the marriage and/or its breakdown has caused negative economic consequences. If both parties are self-sufficient and the marriage or the divorce has not caused any disadvantages that should be compensated for then there is no need for alimony. If the divorce causes one of the parties to take a substantial drop in his or her living standard there may very well be a claim to be made for compensatory support.


QUESTION

Your site is fantastic, but I have specific questions to ask. My wife and I were married in the UK, 22 years ago. We moved to Quebec in 1987. We have no children. We have focused on career and earn similar salaries (in fact, she earns slightly more). If we separate and then divorce and my wife decides to give up work and stay in Canada or return to UK, what are my obligations for support, as I will continue to work in Quebec? Is there a difference if her doctor says that the stress of the separation or divorce is stopping her from working?


ANSWER

Your wife appears to be self-sufficient and clearly has not suffered any negative economic consequences as a result of the marriage and/or its breakdown. There is no basis for the payment of support to her. Moreover your wife cannot voluntarily abandon her revenue generating activities and then use that as a basis to claim support from you.


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Spousal support - basis for calculation

QUESTION

My wife has been having an affair with another man for the past 5 years while I was working away from home. I have always been faithful to her. I am self employed and earn more than $150,000 per year. My wife makes $20,000.00 year. Is she going to have 50% of my income if I apply for divorce? what is my right?


ANSWER

Unfortunately you are in a situation where your wife’s adultery is the cause of the breakdown of the marriage, and she can nevertheless force you to pay her support.

There is no rule that exists that says that in a divorce the dependent spouse is entitled to 50% of the other’s income. Support is calculated on a case by case basis, based on means and needs with the creditor spouse having the obligation to do everything possible to acquire self-sufficiency within a reasonable period of time.

Your wife will be entitled to child support based on your respective incomes and the time of custody, and most likely spousal support given the gross discrepancy in your incomes and the probability that even with child support she will be incurring a deficit. The amount of spousal support will reflect what is required to make up that deficit.


QUESTION

What factors are taken into account in calculating spousal support?



My earnings were 40,000.00 a year gross.

I am presently not working but will begin to work again in Feburary 2004.


ANSWER

The way to calculate spousal support is to:

a) determine if your wife is eligible - did the marriage or the breakdown of the marriage disadvantage her financially?

If the answer is yes:


b) determine what your wife's needs are - do her monthly budget - this will produce a net amount that will have to be grossed up to take into account the taxes that she will have to pay on the support that she will receive so that she realizes the net amount that she needs

the foregoing is only one-half of the equation

c) the amount that you must pay will be dictated by the revenues that are available to you. You must do your own budget and determine what you need on a net basis to pay your own monthly net expenses. What you have left over, if anything, is theoretically what you have to pay support with.

Do not forget spousal support is deductible so that paying does not cost you exactly what you pay out, but less depending on the tax bracket that you are in.

If there is not enough money to go around as is the situation in your case - both of you will have to reduce your expenses in your case to free some dollars to pay, and in your wife's case to reduce what she needs.

Also to the extent that it is possible your wife will have to consider working to reduce or eliminate her financial dependence on you. She does have an obligation to provide for her own needs, at the very least in part, if she is able to.


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Spousal Support - cancellation

QUESTION

My ex-wife does not work. She should be working as she is well trained and has many years of experience in a certain technical trade. Meanwhile I'm paying $1500 per month spousal support. We had no children, were separated 4 years ago, and we divorced 1-1/2 years ago, having been married less than 7 years. She is clearly taking advantage of situation. What would be your recommendation?


ANSWER

I would bring a motion before the Court to ask that your alimentary obligation be cancelled on the basis that your wife has been fully compensated for any financial disadvantages that she has suffered as a result of the marriage and/or its breakdown, and that enough time has elapsed for her to have taken the steps to acquire her self-sufficiency.

Your case is classic - short marriage, wife with skills who refuses to re-enter the work force. You have paid for long enough.


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Spousal support - in the event of mental illness after the divorce

QUESTION

If my spouse has been diagnosed after the divorce with a serious mental illness, which prevents her from working but is still able to function on her own, can she choose not to work and oblige me to pay her spousal support?


ANSWER

There is a recent Supreme Court judgment which applies to your situation - Bracklow v Bracklow.

To answer your question I will assume that the husband and wife are separated.

Spousal support is based on financial dependence resulting from the marriage and/or its breakdown. It can as well be compensatory in nature to help alleviate any resulting negative economic consequences which the marriage has produced.

If the wife's medical condition (not necessarily the diagnosis) predates the separation, and is not something entirely new which has arisen because of circumstances after the separation, then it can be said that there is financial dependence which is connected to the marriage.

I think that it is clear that in such a situation the husband would be ordered to pay support. It is moreover unlikely that any term would be imposed unless it is foreseeable that the wife's financial dependence can be overcome within a certain period of time.

There may be a right to compensatory support as well, which will depend upon whether the marriage has disadvantaged the wife economically in any significant way - for example -loss of career opportunity to raise children.

I believe, however, that to lessen her dependence (which she would be obliged to do) the wife should apply for any governmental financial assistance for which she is eligible.


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Spousal support - late claim

QUESTION

If someone has been divorced for a number of years, but never received spousal support, would it be possible for that person to file for spousal support anyway?


ANSWER

Yes you can ask for spousal support - such a claim is referred to as a demande tardive.

In order to succeed you must establish that your current state of financial dependence has its origin in the marriage - for example the marriage and/or its breakdown has caused you financial hardhip that over the years you have been unable to overcome.

The passage of time is only one of the factors that the Court will look at in determining whether such a claim is justified.


QUESTION

When I first separated my ex husband did not pay alimony can I go back and ask for support now.


ANSWER

You can always ask for spousal support even if you did not request it at the time of the divorce or separation. To succeed you must show that you are financially dependent and your dependence has its relation to the marriage.

Fianancial dependence usually has its its cause in the disadvantages which the marriage or its breakdown may have caused you. As an example your dependence may be due in part to the fact that you interrupted your career during the marriage to stay at home and raise children relieving your husband of this obligation.


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Spousal support - reduction of payments due to retirement

QUESTION

I am paying alimony to two ex wives, not large amounts ($300/mnth). I have recently retired (age 67).I do not have a company pension and am therefore living off my RRSP and Quebec pension.

My Quebec pension has been reduced due to the partition law here in Quebec by approx 20% in favour of the second of my former wives who does not work to my knowledge. I now have a common law spouse and a 12 year old son. What is your advice?


ANSWER

I will assume that your income has decreased as a result of your recent retirement.

If this is the case you should apply to reduce your support payments to bring them into line with your new level of income and current financial obligations.


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Spousal support - short marriage

QUESTION

Hello, I really need your help! I want to divorce my husband, but I’m afraid he may take advantage of me. We've only been married for a little over a year. I'm a stay at home wife (his decision) with 0 income. We have no children together. Since we've been married he's been very controlling and abusive towards me in every way (physical, mentally, verbally, and emotionally). I guess what I'm trying to ask is, am I entitled to anything? Do I qualify for alimony? What are my rights? And most importantly...What if he kicks me out? I have nowhere to go. In other words, I'm screwed if this back fires in my face.


ANSWER


The marriage requires your husband to support you should there be a breakdown, particularly if the marriage has disadvantaged you negatively in an economic sense.

The circumstances that you have described would in my opinion entitle you to short-term spousal support.

The short duration of the marriage would be a factor to be taken into account. Most likely you would get support, assuming that your husband has the financial means to support you, for a certain period of time (a transitional term) during which you would be expected to retrain or recycle yourself with the objective of gaining your economic independence.

The period of time during which your husband will be required to support you may very well be defined as a "revision term". This means that at the end of the term, if you still need support, you will have to show that circumstances beyond your control have prevented you from becoming self-supportive.


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Spousal support - short marriage, wife employable

QUESTION

I married my wife in August 2001 while I was a medical resident earning approximately 30 000 per year. My wife graduated in June 2001 and is basically at home since deciding what to do with her life. I became a staff doctor in December 2001 and my salary has increased substantially. Our marriage is failing and divorce may be an option. We have no children. My wife has no income. We have no marriage contract.

Q: is my wife entitled to financial support?


ANSWER

Given the short duration of the marriage, the fact that your wife is young, is employable, and should be seeking employment, and most importantly given that the marriage and its breakdown have not caused your wife any financial disadvantages that require compensation, I would say that you have a good argument not to have to pay your wife any support and to say that she is self-supportive.


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Student at university - continuing support obligation

QUESTION

I have a child support payment judgment against me for over 10 years. At the time, my child was a few months from turning 18 years old. During the past 10 years, I was employed for only 1 year and have not been employed since then until June 2010. My child has been employed for over 7 years and she is almost 30 years old! How can I get most if not all of the owed amount removed from the judgment.


ANSWER

You need to make a motion to cancel your child obligation NOW. Every month that you delay will cost you.

You should have stopped paying child support when your child ceased being financially dependent – i.e. after the age of 18 when she ceased a full-time student, or at the very least when she became employed and became self-sufficient.


QUESTION

I have a daughter born in 1986.

I have been paying child support continuously since about 1988. I have no contact whatsoever with my daughter.

I need to understand how long I am obligated to pay child support and what my options to discontinue support are.


ANSWER

You are obligated to pay child support for a child over 18 as long as the child remains dependent. Dependency arises from either one of two causes in that case - either the child cannot support herself because of a medical infirmity or because she is a full-time student.

In your case because you have no information about your daughter I will assume that there are no medical issues and you do not know whether she is registered as a full-time student or not, and if she is whether she is in a serious course of study and getting reasonable grades. Also if she is a student she has an obligation to apply for all available bursaries and to work at least part time to pay a portion of her expenses. Your ex-wife also has an obligation to make a contribution based on her income. Since 1997 the amount of child support is based on the application of Guidelines which take into account both incomes.

Because you are not getting any cooperation or information, I would suggest making a motion to cancel your child support obligation. The proceedings will flush out all of the information that you need.


QUESTION

My ex-wife and I were legally separated in Quebec in 1998. Part of the agreement was that I pay pay child support for my son who remained with his mother and was a full time student. He is now 24 years of age and about to accept a full time position with the Federal Government, but he will continue his university studies on a part time basis. I have been told that child support automatically stops at age 24, yet I've been also advised that as long as the dependent is in full time studies, then support must continue.

Can you please clarify my legal obligation with regard to continuing with child support payments.


ANSWER

The information that you have been given is wrong. Support does not stop automatically at any age. In Quebec being a university student in an undergraduate program is justification for claiming support subject to certain conditions:

-the child must be in a serious and practical course of study
-the child must achieve passing grades
-the child must apply for all loans and bursaries to which he is eligible, and use the funds so obtained to contribute to his support
-the child must contribute to his support further by working part-time during the academic year and during the summers

In your case the agreement that was signed says that you will continue to provide support for your son as long as he remains with his mother and is a full-time student. I have no idea whether account was taken of any revenues that your son has had over the course of his studies and your obligation reduced accordingly. Nor am I aware whether your son fulfilled his obligation to apply for available loans and bursaries and reduce your obligation in that way. In any event it seems that you should now apply for the cancellation of your support obligation simply on the basis that your son is no longer a full-time student and that he is working full-time and has employment revenue. The basis for the payment of support is now gone - with a full-time job your son can provide for himself. Continuing part-time studies would not in my opinion justify continuing your payments.


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Support - loss of job - severance - impact on support payments

QUESTION

I have been divorced 5 years and my husband has been paying child support for 2 children on a regular basis which has been deducted from his pay through the court system. He has had his job for 13 years. He is leaving his job now and will be receiving a severance package. How do I go find out about the decrease in my child support payments that will result since my husband will no longer have a job. Also is it his responsibility to continue his group insurance coverage for the children.


ANSWER

What you need to do is get the particulars concerning your husband's severance package.It should include contain a lump sum payment equivalent to your husband's salary over a certain period of time - for example 3 months. For purposes of support this means that your husband will be considered to have his full salary until the severance period runs out. He will only be considered to be without an income at the conclusion of the severance period.

More than likely your husband will find another job during the severance period. He is under a legal obligation to inform you as soon as he does and to provide you with the details as to his earnings. If he neglects to provide this information voluntarily, it can be obtained by bringing a motion before the Court to reset the amount of support payable. Your husband will then be obliged to make a disclosure of his earnings or risk having the Court arbitrarily fix his income.

As for the insurance for the children (presumably group medical and dental), the coverage should continue during the period of severance. Hopefully your husband's new employer will provide the same group insurance coverage, and if your husband refuses to cover the children you can petition the court for an order that he obtain such coverage.


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Threat to kidnap child

QUESTION

I am in divorce proceedings instituted by my wife in 1999. Since that time, my RRSP and personal assets have grown significantly. We are going into negotiations before our scheduled court date. How can I ensure that the increase in value of these assets since the divorce action is not considered in any settlement or judgment? There has been a full disclosure of my assets.


ANSWER

The assets subject to division by way of the partition of the family patrimony and partnership of acquests are valued as of the date of the institution of the divorce proceedings. This is the general rule. By exception you can request that the valuation be made as of the date of the separation if the two of you lived financially independently of each other for the period of time from the date of separation to the date of the institution of proceedings.

The above being the case, you do not have to worry that you will have to share the increase in value of your assets and RRSP since the proceedings were taken. These values, however, will come into play when determining your capacity to pay support if that is an issue.


QUESTION

My husband and I have been in the process of getting a divorce. I am a Japanese citizen as well as a landed immigrant residing in Montreal since July, 2009. We married in Japan in January 2008 and have a girl who is 3 and a half years old. I have agreed to shared custody as I witnessed that my daughter seems more emotionally stable with shared time with both parents. However, because Japan has not signed the Hague Convention on International Child Abduction, my husband will not give me the permission to go to Japan with my daughter. He is afraid that he will never see our daughter again if he lets us go. I have no intention of kidnapping her, but he does not trust me. I would like to take my daughter to Japan as she has my side of family there, and she can benefit from experiencing the culture. I would like to continue shared custody, but I am not sure how my daughter and I can go and visit my family. Would it be possible to get a court order for this? I would also like to know if I will be able to move to other provinces if I do not find employment in Quebec.

I am currently a student as I was not able to find any work last summer due to bilingualism. I studied and worked in Alberta for 8 years before my husband and I moved to Quebec for my husband's going back to school in Montreal.


ANSWER

You should be able to get permission to travel from the Court as long as you can prove that you do not represent a "flight risk", and that you guarantee your return.

You can prove this by showing that you have sufficient ties to Canada, and if necessary by posting a surety bond in acceptable form.

As far as moving to another province is concerned with your child, the likelihood of getting permission is good if you are the child's primary caregiver, if you can show that your reason for moving is not meant to distance the child from the father (i.e. it is a move being made in good faith), and if the benefits to the child of the move outweigh the disruption by the reduction of access with the father. The courts have held that if the child is young his/her best interest is identified with the interest of the primary caregiver.


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Uncontested divorce

QUESTION

I am South American and have been been living in Quebec for about two years, and my husband is a Quebecer There are no kids involved in the relationship and we were married for about one year. We do not have contact with each other and we are living in two different locations, both still in Montreal. There are no furniture, belongings or real state to be shared.

I would appreciate if you could provide me the following info:

1st) quotation for the case

2nd) how long would it take to get all the paper work done

3rd) which documents would you need from the wife’s end



ANSWER

My charge is $1,500 plus taxes plus the court charge of $141.

From the time that the proceedings are served it should take three to four months.

It would be best to sign an agreement wherein you both release each other from any claims. This will probably be the result once the other party is served.

I will need the birth and marriage certificates.


QUESTION

I was married in Montreal in 2004. I have been living in China since 2007. My questions are as follow:

1. How can I get the joint application with draft agreement
2. Should I send all documents to court by myself or just mail it to court; then mail to which person
3. Whether we can get approval from judge after we send our documents for one year


ANSWER

There is do it yourself divorce kit on my website with all of the explanations.


QUESTION

I would like to know the cost and time required to make official a divorce as per the information below:

- we signed a marriage contract in 1998
- no kids
- no house
- we were both working during the marriage
- in May 2002, we will be apart for 1 full year (not living at the same apartment)


Please provide me a rough estimate.


ANSWER

You can file a joint application on the basis of a separation agreement wherein you basically release each other from all claims that either of you have against the other arising from the marriage.

You will proceed on the basis of affidavits. You will have your divorce judgment in 3 to 4 months.

My fee is $1,200 plus taxes plus disbursements of $150.


QUESTION

If a divorce is sought in Quebec (uncontested) before a year has past, is it still necessary to live apart for one year?


ANSWER

If the ground invoked for the divorce is separation for one year you must have lived separate and apart for one year prior to the rendering of the judgment of divorce. You can start the proceedings before the year is up, but the judgment cannot be rendered until one year from the date of separation has elapsed.


QUESTION

If divorce papers were signed and accepted by both parties (no contest) and there are no issues involving child support or alimony, how long will it take for the court to pronounce a divorce judgment? p.s. parties have been legally separated for 14 months.


ANSWER

You can file a joint divorce application, proceed on the basis of affidavits and get the divorce within three months or less in Montreal.


QUESTION

If my ex and I file a joint divorce application thru you, is the total fee the same ? What would it be if I file the divorce alone?


ANSWER

The fee is the same whether you file a joint application or not provided that the case is not a contested one.

If there is no agreement a flat fee is not possible.


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Uncontested divorce - what should it cost?

QUESTION

I was wondering how much a divorce costs? And how you go about getting one done......

Ours seems to be pretty simple and easy......We know who's getting what and all assets are divided. If you could let me know this, then perhaps we can meet you to finalize everything...


ANSWER

It will cost you $1,500 plus disbursements and taxes (about $1,700 plus the GST and TVQ on that).


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Unfair settlement - setting aside

QUESTION

clearly received an unjust settlement when I divorced in 2002. I did not have legal advice , other than the lawyer that my husband at the time had hired. I have my reasons for what I did at the time, however I need to know is it possible to correct such a unfair settlement.


ANSWER

It would be possible to set aside the agreement if it can shown that the negotiating process was contaminated in some way.

In your case you did not receive legal advice and you most certainly should have before signing, unless you waived your right to your own independent legal counsel. You should have been advised at the very least to retain your own counsel for an opinion on the draft consent that you signed.

Assuming that you were not advised to retain your own counsel, and there was no waiver, you have grounds to apply to set aside the agreement.


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Validity of foreign divorce in Canada

QUESTION

I am a Canadian citizen who is planning to get a divorce in Japan. My wife is also a Canadian citizen. We got married in Montreal in 1993. She has been living in Korea for the past five years and I have been living in Japan for the past four years. We agreed to a divorce three years ago. We cannot get a Canadian divorce because we are not residing in Canada. Korean lawyers say they cannot help us because neither of us are Korean. However, there is a Japanese law firm that says it can help us.

So, my question is, if we went ahead and got a Japanese divorce, would or could the divorce be legal in Canada? If it could be legal, how?


ANSWER

Assuming that the Japanese court has jurisdiction and your wife is properly served, a Japansese divorce judgment translated into English or French can on a motion be declared executory in the province of Quebec, and thereby acquire full legal force and effect and be subject to execution in Quebec if there are assets here.


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When child support payments begin

QUESTION

I have agreed to joint or split custody of a child. What happens if one of the two parents becomes faced with the possibility of moving to another province?


ANSWER

Under s. 16 (7) of the Divorce Act the court can order that a custodial parent who intends to move must notify the other at least 30 days in advance. This gives the other parent the chance to make a request to the court to block the move in the interest of the child, or to request a change of custody.

You should, if you are concerned, ensure that such a clause is properly included in your separation agreement.


QUESTION

I would like to know that if I have been separated since September 2001, and the paper work just got started in February 2002, would I have to pay child support starting in February 2002 or from the day that I separated in September 2001.


ANSWER

You will have to pay child support retroactively to the date of separation.

Article 595 of the Civil Code says that support may be claimed for needs existing up to one year before the application.


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Wills and Estates - death without will and after separation

QUESTION

I require some advice as my father has passed away in Quebec, leaving no will, a separated wife (40 years since split) and no divorce. There are no assets except a bank account with $108,000. Is my mother entitled to any funds even if she has not lived with him since 1968.


ANSWER

In Quebec when a person dies without a will his estate goes to his legal heirs. Two thirds of the estate would go to his children and one third to his wife.

The right of the wife to inherit applies even in the event of a separation. She is still his wife for legal purposes because there was never a divorce.


QUESTION

My husband and I have separated. I would like some information about how we go about dividing the following assets. We did not sign a marriage contract and are thus subject to the regime of partnership of acquests. My husband's assets as of the date of the separation consist of: -RRSPs -a private company pension (contributions thereto were made during the marriage) -non-registered mutual funds invested in his personal name -a bank account -a house (value now $200,000, value at marriage $60,000) My assets as of the date of the separation consist of: -an RRSP -non-registered stocks -an interest in a limited partnership that owns revenue generating properties in the US as a result of your previous divorce settlement -cash from the accumulated income that I have derived and saved from my interest in the limited partnership my questions: is the increase in value of my husband's home subject to division? is my husband's pension plan subject to division? what portion of the RRSPs, IRAs are subject to division? is my interest in the limited partnership and the income that I have derived from it, saved, and converted to capital assets subject to division? what capital assets are subject to division?


ANSWER

The following assets will be subject to division under the family patrimony laws:

-your husband's house (value now $200,000, value at marriage $60,000), his RRSPs, and his private company pension

-your RRSP

The value of the house at the date of separation will be subject to division. However, before a division is made your husband will be entitled to a deduction in his favour from the net value (i.e. - the fair market value LESS the balance of the mortgage if any) subject to partition equivalent to

1) the value of the house at the time of the marriage - = $60,000

and

2) the proprtionate increase in that value of $60,000 during the marriage based on the following formula:


increase in value X net value at marriage
gross value at marriage


= 140,000 X 60,000
60,000

= $140,000


(1) + (2) = $200,000

Thus assuming that there was no mortgage at the date of the marriage and there is no mortgage presently the entire value of the house will escape division and will go to your husband.


The contributions that your husband made to his private company pension will be subject to division, as will your resepctive RRSPs and IRA.

The following assets will be considered "acquests", assuming that they were acquired during the marriage, represent the re-investment of the proceeds of salary earned during the marriage, or represent income earned during the marriage on property owned prior to the marriage, and will be subject to the rules governing partnership of acquests:

-your husband's non-registered mutual funds invested in his personal name )and not through a corporation or holding company), his cash in the bank

-your non-registered stocks


Your capital interest in the limited partnership that owns revenue generating properties in the US will not form part of the partnership of acquests.

The cash that you have accumulated representing income that you have derived and saved from your private property will be subject to division.


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Witness - letter in lieu of testimony before the Court

QUESTION

What is the procedure to send in letters in lieu of a witness's actual presence at Court?


ANSWER

You cannot submit a letter in lieu of the testimony of a witness for the simple reason that a letter cannot be cross-examined.

A written statement indicating what a witness will say if he testified can be filed in lieu of the witness's testimony if both parties agree.


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