If you are not married and consider yourself in a common law relationship or a common law marriage, you do NOT have any of the same rights as married couples. The rules of family patrimony do not apply to you and the rules of the partition of the matrimonial regime also do not apply to you. That means that you are not entitled to share the value of the house, furniture, RRSP, Quebec Pension Plan, Private pension plan, owned cars, unless of course any of these assets are in both of your names. The take away message is that if you are not married and do not plan to get married, ensure that everything you own is in both of your names, regardless of who paid for it. As a result, if you are co-owners and the relationship ends, the party that was in the weaker financial situation will still have the chance to walk away with half, as a result of the property rules of co-ownership. It would also be best to set up joint accounts as at the time of separation as that would be the only way to be entitled to half the value in your bank amounts if you are common law.
The only consequence of being a common law couple in Quebec is that you can file your taxes together, that is all! For married couples that are getting divorced, it is critical to have an idea about your families’ expenses. At the time of separation, it is very helpful to know what your family’s cost of living is, what bank accounts you have jointly and or separately, investments, and all-around assets. This helps us get an idea during the initial consultation of what kind of lifestyle you have been living and what needs to be requested.
It can be difficult to estimate the total length of the divorce process. However, the process begins when one of the parties files a proceeding in court called an Application for divorce (you can also file a formal request for a safeguard order for emergencies and a formal request for provisional measures, such as custody). The other spouse is then served (receives) the application with all of the requests.
The other spouse then has 15 days to file an answer in the court record. The spouses then go to court if a safeguard order or provisional measures are requested, but this is not the trial, this is in order to obtain temporary order from the court while waiting for trial. Requests for provisional measures must be made 10 days or more after they have been served, however this delay can be reduced if there is something urgent, which is called an Application for safeguard order or Application for interim request.
The next step is to outline a timetable with deadlines of when certain procedural steps need to be completed, which is called a case protocol (examinations out of court – questioning of witnesses, deadline to file an expert opinion, etc.). The case protocol must be filed in court within 3 months of service. The judge will then have a hearing on provisional measures such as child custody, child support etc. The decision is temporary. The parties must fix a date for trial. To get a trial date, all documents must be ready within 1 year after the judge accepts the case protocol. The trial can then be scheduled for a duration based on the case, it can be any length between a few hours to a few days. After the trial, the judge usually has 6 months to render their judgement.
However, if you and your spouse agree with all the points of your case and sign a consent agreement at any point, a document called a Consent to Judgment on Accessory Measures will be drafted for both parties to sign.
One option is a joint Application for divorce. The spouses are referred to as joint applicants. You can do a joint request for divorce in the following situations: if the spouses agree on all the consequences of their divorce, including the custody of their children, child support, support payments to the other spouse, how their property will be divided, etc.
The spouses must also agree on all points, such as the date they stopped living together.
The grounds (reasons) for the divorce are that the spouses have been living separate and apart for at least one year. Adultery or physical and mental cruelty cannot be used as the grounds in a joint request for divorce. If the spouses hire the same lawyer or notary to prepare their divorce agreement and other paperwork, he or she must give both parties the same advice and look out for their interest jointly.
However, the spouses do not have to apply for the divorce together, even if they agree on everything. Spouses can collaborate, but they can apply for the divorce separately. Here are a few examples:
Spouses can put all the points they agree on in a written agreement called a Consent to judgment on Accessory Measures. Then this will then be homologated by the court which means it becomes a judgment of the court.
During the court process both parties have the obligation to be fully transparent and forthcoming with financial disclosure. However not everyone follows these rules. If your spouse does not collaborate to provide the necessary documents, the court can order that he/she provide them, we can send the party subpoenas with a detailed list of documents that are needed and outstanding. If your spouse does not comply with the subpoena, we can also send them to all the financial institutions where he/she does their banking. The third party is bound to communicate the documents prior to the court date and or attend court to provide them. A subpoena is a court order. Therefore, if the documents requested are not provided there are consequences to a breach of a court order. The necessity to have to take these additional measures to obtain what should have been provided, can lead to an opening to request a provision for cost. A provision for cost is a sum to cover portion of your legal fees.
Answer Two spouses may wish to remain married but no longer live together. In this case, one of the spouses, or the two spouses together, may apply to the court for a legal separation, technically known as a separation from bed and board. This option is not available to spouses in a civil union.
Unlike divorce, a legal separation does not break the bonds of marriage, therefore the consequences of marriage remain in effect. The spouses still owe each other respect, fidelity, assistance and may also remain bound by some additional clauses in their marriage contract.
As of now we do not have legislation in Quebec that has a standard for custody. One of the principles that is always used is the status quo which means that judges like to make a decision based on what the child has always become accustomed to. There are obviously exceptions to this rule however the legislators at this point are moving towards legislation where shared custody will be the default custody arrangement and the parties will in fact have the burden to prove why there should not be shared custody in that particular instance.
In Quebec the courts will take into account the children’s wishes as of the age of 12 if they deem a child sufficiently mature to make this type of decision. This is not the only determining factor. It is one of many factors and it’s considered when determining what is in the child’s best interest. In circumstances where the parents do not agree to the custody arrangement of the children and the child is not old enough to be able to express his wishes and for children under the age of 12, the parents can hire a psychologist to do a psychosocial expertise to determine what custody arrangement is in the child’s best interest. During the evaluation, the psychologist will do testing to determine the parental capacity of the parent and will evaluate the child with each parent separately and meet with both parents alone. Once the report is complete, the judge decides what weight to give the report.
A judge can decide to render a custody order that is different from the report and they have the discretion to do so based on the testimony or other evidence that is presented in court record or if they feel that the report is biased.
There are really two types of custody: joint custody and sole custody.
Sole custody can be exercised with or without visitation rights of the other party.
Joint custody is when a child spends between 40% and 60% of the time with each parent – that is between 146 and 219 days each year. In order for joint custody to work, it must be in the best interests of the child and both parents must be able to take care of the child, give the child stability, communicate without arguing and live close to each other. Sole custody is when a child spends more than 60% of the time with one parent only, this is equivalent to more than 219 days each year.
A judge may also decide to give visitation rights to the other parent, which allows the other parent to have contact with the child, regardless of whether or not that parent has custody.
If you and your partner are unable to agree on a custody arrangement, a Superior Court judge will make the decision based on the best interests of each child. In order to render a decision based on the best interest of the child, the judge considers a variety of different factors, namely:
Children are the ones who are most vulnerable during the divorce proceedings. The goal is to shelter them from the conflict, they are just children and should not be burdened with adult issues. That being said in certain cases, where the parents cannot agree on custody, a lawyer is appointed to the child and/or children in order to act as a voice for them. The role of the children’s lawyer is to act as the voice of the child to the court. The children’s lawyer meets with the child to receive a mandate with the child’s wishes as to custody. The goal again is to shelter the child and this avoids the necessity of the child having to testify in court.
On occasion, a parent might try to manipulate or influence a child with respect to custody, among other things. A parent will convince or bribe a child to say that they would prefer living with that parent. That parent might also say other things in order to destroy the child’s perception of the other parent and to shed negative light on that parent. That parent’s goal might be to cut the other parent out of their child’s life.
Parental alienation can have very detrimental and long-lasting effects on a child, who does not know who to be loyal to. In less severe cases, some parents manipulate their children by making promises they cannot keep, by bribing their children with gifts or by simply criticizing the other parent. There are different ways to counter act this type of behavior.
Some of the different routes to take are to send a demand letter to the parent who is manipulating the child, asking him or her to stop what they are doing or to get an expert opinion (generally this is done by a psychologist) on the situation. In certain situations, the best way to proceed is to ask a judge to either order the parent to stop alienating the child, to order supervision when the parent is alone with the child or to let that parent spend more time with the child to try and reverse the manipulation that has been occurring.
It is always important to have a judgment in place to protect your children’s rights. A court order may include child custody, child support and parental authority. Having a court order helps the parents to have a written guideline on how to move forward after the divorce or separation with respect to the children. It is particularly important in the event one parent stops respecting the judgement, the other parent can execute the judgment and force the disobedient parent to comply with the court order.
No, they have a right to maintain a relationship with your children. Please read our blog post: I am a grandparent: what are my rights?
It depends on the child’s maturity, age and ability to express his or her wishes. After the age of 12, the courts will consider the child’s wishes as one of the factors. However, this is not the determining factor; it is the child’s best interest as a whole that sways the decision of the court. This means that even if a child “chooses” to live with one parent, if his or her wish goes against his or her best interest, the court will rule against it.
Child support in Quebec is public order, it is both parents obligation to support their children. There are specific guidelines, which determine the amount of support payable based on the parents respective incomes.
In accordance with the Civil Code of Quebec, you can ask for arrears for three (3) years. This applies to both child support and special expenses. Special expenses are your children’s extracurricular activities, private school etc. and are paid in proportion to the parents respective income. However, there are exceptions to this rule, which apply on a case-by-case basis.
In Quebec, child support is calculated based on a provincial table of child support. It takes into consideration the custody arrangement (the amount of time (actual days) each parent spends with the child per year) and both parents’ income. If you have a court order that determines the amount of child support, the order can be reviewed if there has been a change of circumstance such as a substantial reduction of income, or loss of employment, etc.
In order to end child support payments your child needs to be financially independent and no longer considered “ a child of the marriage”. This means child support does not automatically stop when your child turns 18. If you wish to stop child support payments because your child has completed school and is now working and supporting themselves, you would have to issue an application in court to make the modification.
Child support can be modified anytime there has been a substantial change in circumstance. In order to have child support modified, you need to issue an application in court and a judge will decide if the circumstances allow for the modification.
You can claim that your ex-partner has undeclared income or other sources of revenue. However, this is a heavy burden to prove. The Quebec Civil Code explicitly determines that the parties are obligated to provide full financial disclosure in view of a divorce or separation. Your attorney might be able to prove that your ex-partner’s lifestyle does not correspond to his or her income and therefore prove his or her ability to pay a higher amount in child support.
Some people believe that no matter how long you’re married, you are automatically entitled to a spousal support. This is false. In order to be entitled to spousal support you need to prove the following three things: that there was an economic dependency during the marriage, that there was an enrichment and impoverishment of the parties, and that the payor has the capacity to pay.
The amount of spousal support is based on a document known as a Form III which is a government created budget in order to determine how much money you need to live per month without having a monthly deficit. This form covers all expenses that you would need to live and it factors in each party’s income. The duration of spousal support ordered depends on the length of your marriage as well as your education and capacity to earn an income, as the goal of spousal support is to ensure that the parties maintain their lifestyle as much as possible.
It goes without saying that when going through a divorce, income needs to be split over two households and it could be difficult to have the exact same lifestyle as before but the intention is to be sure that it is as similar as it was during the marriage.
If you are already divorced and your ex-spouse is not respecting the judgment, with respect to custody, has not paid the support, or any amounts that were awarded, we can discuss the options as to how to execute the judgment. If something has changed since your divorce, we can also apply for a modification of the judgment in the event that there is a change of circumstance.
You cannot exactly claim damages in family law. If you have been financially dependent on your spouse throughout your marriage, have been impoverished and your spouse enriched as a result of your marriage, and your spouse has the capacity to pay, you can request a provision for costs. This is based on complexity of the case. The quantum of the provision for cost is left to the judge’s discretion.
If you are going to court on an urgent motion or application for a safeguard order, you can request a provision for costs if the above criteria is met. It is possible that the judge may refuse it on an interim basis and defer it to the trial judge. It is also possible to be awarded an amount on an interim (temporary) basis to be adjusted at trial. If the other party is being abusive in their proceedings, in other words, that they are unnecessarily duplicating proceedings and or not respecting orders or undertakings that were made to the court, you may ask for damages. However, it is not common that they will be granted in family court. You would need to prove that you incurred exorbitant fees as a direct result of the other parties’ bad faith with respect to the proceedings.
In order to obtain your Canadian citizenship you need to submit an application for citizenship. However, in order to be eligible to apply for citizenship, you must have lived in Canada as a permanent resident for 3 years out of a 5 year period, be a permanent resident, have filed your taxes, pass a test on your rights, responsibilities and knowledge of Canada and prove your language skills.
You can come to Canada as a visitor by applying for a visitor’s visa or with an ETA (electronic travel authorization) for nationals from visa exempt countries. You can stay in Canada for 6 months as a visitor, unless the immigration officer stamps a different date on your passport at the time of your entry, which they have the discretion to do. Receiving a visitors visa or an ETA is not guarantee that you will enter Canada.
In order to come to Canada as a student, you need to apply for a study permit, after you have been accepted at a Designated Learning Institution (DLI). Your study permit is not a visa or an ETA. In Quebec, prior to applying for a study permit you need to apply for a Certificate of Acceptation of Quebec (C.A.Q). Several requirements must be fulfilled for both applications. For more information you can visit our blog post, hyperlink.
To come to Canada as a worker you need an open or closed work permit on top of your visa or ETA if applicable. In order to obtain a work permit you need to find an employer who wishes to hire you as a foreign worker in his company. You should also apply for a C.A.Q if you will be working in the province of Quebec and your employer must obtain a positive LMIA in certain cases. There are several requirements that need to be fulfilled for each application according to each specific case. If you have more questions, do not hesitate to contact us.
You can include your dependent children who are under 22 years-old (and if they are financially dependent on one of their parents and are not married or in a common-law relationship), your spouse or common-law partner and their dependent children and a dependent child of a dependent child.
We tell all of our clients that the best solution is always settling amicably. Why: minimize your legal fees, reaching a solution together that you made, rather than a judge who has never met you and/or your children. Even if you have gone through lengthy litigation already, it is never too late to find a solution.
We always encourage our clients to settle their files. If you are contemplating a separation and do not know where to start, we advise you during the consultation about your rights and obligations, and the different options available.
In current times, families have tendencies to move around. We represent clients where one spouse has already moved, either out of province, or out of country. If you were married out of province or country, however have been residing in Quebec for one year, we can represent you for your divorce, separation or any other legal matters you may be dealing with. We also service clients oversees in seeking both child support and/or spousal support with proceedings that need to be instituted in Quebec.