What are your rights on the matrimonial home?

What happens to the house in a divorce?

These are great questions and we’ve got answers!

In this article, we will break down all you need to know about the family residence.

Are you ready?

Let’s get started!

What is a family residence 

The Quebec family laws clearly define the concept of the family residence.

The family residence is the place where the spouses choose to ordinarily live and conduct their principal activities.

The family residence is awarded special protection when married couples separate and file for a divorce.

As a result, it’s important to have a clear definition of what is a family residence so the spouses know on which property they will have a special entitlement.

In the case where a married couple owns only one family home, that property is their family residence as they conduct all their family activities out of that home.

In cases where spouses own several properties and spend time in each of those properties, then a thorough evaluation is needed to define which of those properties is considered to be the family residence.

Only one property can be qualified as a family residence.

In the absence of a clear choice made by the spouses as to their family residence, the law will presume that the family residence is the residence where the members of the family carry out their principal activities.

So the family residence is the house or property playing a central part of the family activities.

Why is the family residence important

What happens to the house in a divorce?

To answer this question, we must first determine that the house is considered a family residence.

The family residence is important as the spouses can claim an equal share of its net value under the Quebec family laws regardless of which spouse actually owning the property.

In other words, whether the property is owned by the husband or the wife, both spouses have the right to half of the net value of the family residence.

The family residence is one of the assets composing the family patrimony.

The assets forming the family patrimony, such as the family residence, furniture garnishing the family residence, vehicles used by the family, RRSP and pension plans are equally shared between the spouses for what was acquired during the marriage.

Since there can only be one family residence or matrimonial home forming the family patrimony, the legal definition of the family patrimony is highly relevant.

What are the matrimonial home rights

Spouses separating have many questions relating to their matrimonial home.

What are my rights if I have a matrimonial home?

How is the matrimonial home split between us?

Can I sell the family residence?

Let’s look at some of the rights associated with the family home.

Ability to sell the family home

During their union or following their separation, the spouses cannot sell the family home without the authorization of the other spouse.

This means that you cannot sell the matrimonial home without having received the consent of the other.

In Quebec, a notary instrumenting the sale will typically require the other spouse to intervene in a sale contract to ensure that the sale of a property, qualified as the family residence, is duly authorized by the other spouse.

Charging a mortgage or lien against the matrimonial home

A spouse, although the sole owner of the family residence, cannot charge the property with a mortgage, lien or a real right in favour of a third-party without the consent of the other spouse.

This is important to protect the equity in the family home.

If a spouse can refinance or pull out the equity in the family home, the other spouse’s share will be dissipated rendering the protection of the family residence useless.

By preventing a spouse from financing the property or transacting on the property equity, the law is effectively protecting the share of the other spouse in half of the net value of the property.

Declaration of family residence in the land register

A declaration of family residence is a declaration registered in the land registers on the family home informing the public that this property is the family residence of the parties.

This is a useful tool when the family residence is owned by only one spouse.

With this declaration registered against the property, a notary cannot perform a transfer or a sale without the spouse registering the declaration to agree to its discharge.

Effectively, the declaration of family residence serves to ensure that the spouse owning the property is unable to sell or transfer the property without the formal implication of the spouse having registered the declaration.

Right of use and possession on the family home in a divorce

When a spouse files a divorce application, the court has the power to award the use and possession of the family residence to the spouse to whom it awards the custody of a child.

This means that the court can authorize either spouse to use the family residence, whether they own it or not, during the divorce proceedings so they can continue taking care of the children.

If the spouses are unable to reach an agreement on the terms of the right of use, the court may render a judgment establishing the conditions of use and possession.

Exclusive right to live in the family residence

In some cases, due to the nature of the conflict between spouses, a spouse may want to use the family residence exclusively during the legal proceedings.

The spouse must file a safeguard order or a legal action to request from the court the exclusive use of the family residence during the divorce proceedings.

The spouse making such a request must provide detailed justification as to the reason why an exclusive use of the family residence is sought.

The court will evaluate the request and decide based on the inconveniences that such a request may have on the spouses, the impact on the children and other factors such as where the other spouse can go live.

Can a spouse change the locks to the family residence

Fundamentally, both spouses have a right to stay in the family residence during the divorce proceedings.

Having said that, can one spouse change the locks and prevent access from the other?

The answer is no, but it depends!

If you are confronted with a situation where your security and safety is at risk or that of your children, it may be justified to change the locks.

However, if you change the locks without any serious underlying justification, the court may see that as an unreasonable act on your part.

The best thing is to consult with a family lawyer who can advise you on your rights.

If a spouse changes the locks and prevents the other from accessing and using the family residence, the spouse locked out can file a safeguard order requesting relief from the court.

The court will evaluate the merits of the request and render a judgment.

Takeaways

The family residence, also commonly referred to as the matrimonial home or family home, benefits from a special protection and treatment under the Quebec laws.

The first important legal treatment is that both spouses are entitled to half of the net value of the family residence regardless of title or ownership.

In other words, whether the property is fully owned by one spouse, partially owned by either of them, the total net value of the family residence will be equally shared between the spouses.

Yes, the house is split 50/50 in a divorce!

In the event a spouse does not own the family residence, the law provides further protections to ensure that the spouses’ share in the family residence is protected.

The law prohibits a spouse from selling the family residence without the consent of the other.

Also, the owner of the family residence cannot mortgage, refinance or withdraw equity from the property without the consent of the other.

Another protection is to publish a declaration of family residence against the property in the land registry of Quebec.

When the declaration is published, the public is made aware that this property is a family residence and is therefore protected by law.

The only way the property can be sold or transferred is for the spouse publishing the declaration agrees to discharge it.

The matrimonial home is a protected property and is important in the context of a divorce.

It may be prudent to speak with a divorce lawyer to fully understand your legal rights and obligations with respect to your rights in the house.

We hope this article helped you better understand the notion of family residence under the Quebec family laws.

Good luck!

The post Family Residence: Rights On The Matrimonial Home In a Divorce appeared first on FamilyLawyer.Zone.

What assets form the family patrimony?

How is the family patrimony divided when married spouses divorce?

In this article, we will look at all you need to know about the family patrimony.

We will look at what assets it includes, how the net value is calculated and how it is divided in the event of a divorce.

Are you ready?

Let’s get started!!

What is a family patrimony

Under Quebec family laws, when you get married or form a civil union, through the operation of the law, a family patrimony is created.

The Civil Code of Quebec, in article 414, establishes the family patrimony: 

Marriage entails the establishment of a family patrimony consisting of certain property of the spouses regardless of which of them holds a right of ownership in that property.

Consider the family patrimony to be a pool of assets specifically designated by law owned by either spouse.

The family patrimony is established on the marriage date and will remain until the separation or divorce of the parties.

The family patrimony will include the following assets:

1. Family residence where the couple live
2. Secondary residence like a cottage or villa used by the couple
3. All furniture garnishing the family residence and secondary residence
4. Cars and motor vehicles used by the family 
5. Registered retirement savings plan
6. Pension plan 

The reason why these assets are included in a pool of assets called the family patrimony is due to their special treatment they get in the context of a divorce or dissolution of civil union.

The purpose of the family patrimony

The Quebec family law has created the concept of a family patrimony to provide married couples and those in a civil union some protection in the division of the family assets upon divorce or separation.

Historically, the man acted as the breadwinner while the woman used to stay home and take care of the family and raise the children.

Often, the wife was economically dependent on her husband.

Upon separation, the wife was financially vulnerable and suffered prejudice as all the assets were owned by the husband. 

Due to this inequality, the concept of family patrimony was established.

The law designated some properties like the house, furniture, cars and RRSP, for example, and determined that regardless of ownership, both spouses must equally share the net value of the family patrimony assets.

This guaranteed a fair share in some of the most important family assets a couple may purchase together during their marital union.

What assets are included in the family patrimony

The family patrimony is composed of very specific assets.

Article 415 of the Civil Code of Quebec outlines the assets that should be included in the family patrimony, it states:

The family patrimony is composed of the following property owned by one or the other of the spouses: the residences of the family or the rights which confer use of them, the movable property with which they are furnished or decorated and which serves for the use of the household, the motor vehicles used for family travel and the benefits accrued during the marriage under a retirement plan. The payment of contributions into a pension plan entails an accrual of benefits under the pension plan; so does the accumulation of service recognized for the purposes of a pension plan.

This patrimony also includes the registered earnings, during the marriage, of each spouse pursuant to the Act respecting the Québec Pension Plan (chapter R-9) or to similar plans.

The earnings contemplated in the second paragraph and accrued benefits under a retirement plan governed or established by an Act which grants a right to death benefits to the surviving spouse where the marriage is dissolved as a result of death are, however, excluded from the family patrimony.

Property devolved to one of the spouses by succession or gift before or during the marriage is also excluded from the family patrimony.

For the purposes of the rules on family patrimony, a retirement plan is any of the following:

 — a plan governed by the Supplemental Pension Plans Act (chapter R-15.1) or by the Voluntary Retirement Savings Plans Act (chapter R-17.0.1) or that would be governed by one of those Acts if one of them applied where the spouse works;

 — a retirement plan governed by a similar Act of a legislative jurisdiction other than the Parliament of Québec;

 — a plan established by an Act of the Parliament of Québec or of another legislative jurisdiction;

 — a retirement-savings plan;

 — any other retirement-savings instrument, including an annuity contract, into which sums from any of such plans have been transferred.

Based on this article, we can conclude that the following assets are family patrimony assets:

• Family home
• Secondary home
• Villa 
• Cottage
• Condo 
• All types of furniture like beds, TB, appliances
• Cars
• Boats
• Motorcycles 
• Any motor vehicle used by the daily 
• RRSPs
• Pension plans
• Canada pension plans (CPP)
• Quebec pension plan (QPP)

If a property does not specifically qualify as a family patrimony asset, then it will not be part of the family patrimony pool.

What assets are no included in the family patrimony

All property that is not specifically named as a family patrimony asset is therefore excluded from the family patrimony.

Any property used by a spouse personally will remain excluded from the family patrimony.

To give you an idea of the type of property excluded from the family patrimony pool, we have put together a short list:

• Money in a bank account
• Term deposits
• GIC
• Mutual funds
• Stock investments
• Business ownership
• Gifts
• Inheritances 
• Profit-sharing plan in a company
• Non-registered plans
• Purely personal property

The rule of thumb is: if it does not qualify as a family patrimony item, then it’s excluded.

How is the family patrimony divided

Step 1: Identify the assets qualifying as family patrimony assets

The first step is to define what assets are part of the family patrimony.

Based on the legal definition of the family patrimony, you are looking to see if the spouses own a family residence, furniture, cars, RRSP and pension plans.

Take for example an average couple who bought a house together, each owning a car and having contributed to their RRSP during their marriage.

To keep this example simple, let’s assume that all the family patrimony assets were acquired during the marriage.

The family patrimony assets are therefore:

1. Family residence
2. Car in wife’s name
3. Car in husband’s name
4. RRSP in wife’s name
5. RRSP in husband’s name

Step 2: Establish the net value of the family patrimony

The next step is to establish the net value of the assets composing the family patrimony.

This step entails that you look at each asset, see who owns it and how much it’s worth.

Here is what we have identified:

1. House: 100% in the name of the wife worth $400,000 and $150,000 in mortgage
2. Car 1: 100% in the name of the wife worth $20,000 and without any car loan
3. Car 2: 100% in the name of husband worth $30,000 with $15,000 of car loan remaining to pay
4. RRSP 1: 100% in the name of husband worth $100,000
5. RRSP 2: 100% in the name of wife worth $50,000

The total gross value of the family patrimony is $600,000.

The total debt and liabilities amount to $165,000.

The net value of the family patrimony is $435,000.

Step 3: Calculate each spouse’s share in the family patrimony

Once we have the net value of the family patrimony, we must calculate each spouse’s share in the family patrimony.

The law makes this quite simple.

Each spouse is entitled to 50% of the net value of the family patrimony.

In our example, it’s $435,000 / 2 = $217,500.

Step 4: Perform a compensation

The last step is to compensate for what the spouses have and what they are entitled to.

Let’s assume that each spouse wants to keep the assets in their name.

In our example, the wife owns $320,000 in family patrimony assets.

The husband owns $115,000 of family patrimony assets.

So if they are each entitled to $217,500, this means that the wife must pay $102,500 to the husband.

This payment is the compensation payment to ensure that each spouse ends up with half of the net value of the family patrimony.

As of what date do we evaluate the family patrimony assets

The family patrimony value is evaluated as of the date a spouse files a divorce application in court.

So two dates are important:

1. The establishment of the family patrimony upon marriage
2. The end of the family patrimony upon the filing of the divorce application in court

The family patrimony is established as of the marriage date and its value will then be determined as of the date a spouse files for divorce.

In some cases, the court may consider a date other than the divorce application filing date to evaluate the family patrimony.

Namely, the court can evaluate the value of the assets and liabilities as of the date the spouses separated.

If a spouse wants to use the separation date as the evaluation date of the family patrimony, the spouse in question must specifically make the request.

Without a request to this effect, the default date will be the date a divorce application is filed in court.

Are there any deductions possible from the value of the family patrimony

Under the Quebec family laws, a spouse may deduct certain assets from the value of the family patrimony.

The following assets can be deducted:

1. Property owned by a spouse before the marriage
2. Property acquired during the marriage using proceeds coming from a succession
3. Property acquired during the marriage using proceedings coming from a gift

In other words, if a spouse receives $50,000 as an inheritance and uses that money to pay off $50,000 of a mortgage on the family residence, this contribution will not be included in the value of the family patrimony.

Not only the contribution of $50,000 will not be part of the value of the family patrimony but also any increase in value on the $50,000 can also be deducted.

The calculation may get complicated so in the event you have received an inheritance or a gift and used it to purchase a family patrimony asset, you are better off to speak to a divorce lawyer to understand the rules related to the partition.

Exception to the family patrimony division

In some exceptional cases, the law gives the power to the courts to exceptionally order the non-partition partition of the family patrimony.

Upon request of a spouse, the court can make an exception to the rule of partition into equal parts:

1. when it will result from an injustice
2. due to the brevity of the marriage
3. a spouse wasted the property of a spouse
4. a spouse acted in bad faith

In other words, if the court considers that an equal partition of the family patrimony may not be fair or it does not make sense due to the short duration of the marriage, the court may order that each party remain the sole and absolute owner of his or her property.

This is a very exceptional measure and the courts do not grant this easily.

There must be a serious justification as to why the court should award an exception to the rule of the equal partition of the family patrimony.

Takeaways

In this article, we looked at the concept of family patrimony under Quebec laws.

The family patrimony is defined under the Civil Code of Quebec whereby the law designates specific assets and imposes an equal partition of those assets between the spouses regardless of ownership.

Generally speaking, the following assets form the family patrimony:

1. Family residence
2. Furniture in the family residence
3. Cars and motor vehicles
4. RRSP
5. Pension plans 

The family patrimony is established upon the date of marriage until the date a spouse files for a divorce application in court. 

In some cases, the end date of the family patrimony can be the separation date of the spouses as well.

If a married couple decides to get a divorce, the law requires that the net value of the family patrimony be divided between them equally.

To get the net value of the family patrimony, we add up the value of the assets and deduct the total liabilities to get the net value.

Some assets, such as those acquired via gift or inheritance, can be deducted from the net value of the family patrimony.

Each spouse will then be entitled to half of the net value.

In some exceptional cases, the court can consider making an exception to the rule of the equal partition particularly if there may be an injustice, due to a spouse’s bad faith or the short duration of the marriage.

At the end of the day, if you have important assets and you want to make sure you properly calculate your legal entitlement in the family patrimony, you should consult a family lawyer to advise you in this regard.

We hope this article was useful in helping you better understand how family patrimony assets are divided.

The post What Is A Family Patrimony (Dividing Assets Under Quebec Laws) appeared first on FamilyLawyer.Zone.

What are the advantages of an amicable settlement in court?

In what way can a family lawyer or mediator help in achieving an amicable settlement?

In this article, we will discuss what is an amicable settlement and why you should consider it in the context of your family law case.

Are you ready?

Let’s get started!

What is an amicable settlement

An amicable settlement is a broad term referring to the resolution of a dispute in a friendly and non-contentious manner.

For example, in the context of a family law case, a couple or spouses can reach an:

1. amicable divorce
2. amicable separation agreement
3. amicable agreement on spousal support and alimony
4. amicable settlement on child custody and child support
5. amicable settlement on property division

As you can see, any type of dispute or legal matter can be settled in a friendly way.

An amicable settlement can be partial or a full and final settlement of the cause of dispute.

What are the advantages of an amicable settlement

There are many advantages in reaching an amicable settlement in the context of any family law dispute.

Cheaper to resolve your conflict

First and foremost, an amicable settlement is much cheaper in helping you resolve your conflicts.

If you can find a common ground to reach an amicable agreement on the contentious elements of your family dispute, you’ll spend less money on lawyers and court process.

Think about it, the more you fight, the more lawyers and the court system have a well-paying job thanks to the money you spend.

Sometimes, it’s just not worth fighting and spending excessively just to prove you are right.

In some cases, you may decide to fight the fight for the principle of it.

However, you should be mindful that it may cost you a lot of money and your hard-earned savings to make a point.

As hard as it may be, you should consider resolving your dispute in a friendly way.

Faster to complete the legal process

Another important advantage in settling a case amicably is that you can quickly put an end to your legal dispute.

Let’s take the example of a divorce case.

If the parties are able to reach an amicable divorce settlement, they can file their divorce settlement agreement in court and demand a divorce judgment to be issued.

From the moment the divorce papers are filed, it’ll take a few months for the court to process them and issue a divorce judgment often without the spouses having to testify in court.

Reduces the stress in your life

We all want to live our lives in a stress-free and joyful manner.

Why create an unnecessary sources of stress when it can be avoided.

An amicable settlement can help minimize time loss and stress that you may need to suffer and endure in fighting a disputed divorce case.

Instead, channel your focus and energy in achieving an amicable settlement agreement with your spouse or ex-partner.

You will reduce the stress in your life and move on in a faster less damaging way.

What is the amicable settlement procedure 

The amicable settlement procedure in court is typically quite simple.

In most cases, you’ll need to draft an amicable settlement agreement where you outline the key terms and conditions of your agreement.

Once the agreement is concluded and signed, you or your family lawyer will file this agreement in court following a non-contentious court procedure.

Once the court is notified of your intention to settle the case, the court will administratively refer your case to a judge who will review your settlement in his or her office.

If everything seems reasonable and fair, the judge will ratify your agreement and render a judgment on the basis of the terms you agreed upon.

The judgment issued by the judge officially puts an end to the legal procedure.

For example, in the context of a divorce case, you’ll need to agree on the terms of your divorce.

In Quebec, you’ll need to draft an agreement on the accessory measures to your divorce outlining the content of your agreement.

Once the agreement on the accessory measures is signed, you will make sure you file all your supporting documents and legal forms in court so the matter is complete for a judge to process and render a divorce judgment.

If your case contains all the necessary forms and supporting documents, a judge will render a divorce judgment and mail it to you.

In what way can a family lawyer help with an amicable settlement

If you are able to directly negotiate with your ex-spouse, know what you want and understand the court procedure, you may not need a lawyer.

However, a family lawyer can help you define the terms and conditions of your settlement agreement, negotiate the settlement with your former spouse and do what’s necessary for the court to quickly render a judgment.

If you are too emotional or you are unsure of the terms you need to negotiate, you should seriously consider hiring a family lawyer to support you.

A family law lawyer has experience in both family law and court procedures to negotiate the best possible settlement for you.

The lawyer can guide you during the negotiations to demand what you are legally entitled to in such a way as to lead to a settlement.

They can also help draft the amicable settlement agreement in such a way that it will comply with the court rules of procedure.

What value can a mediator bring in settling a case 

Many refer to mediation as an alternative dispute resolution mechanism.

If you feel you have what it takes to negotiate an amicable settlement yourself, you can work with a mediator who can facilitate a settlement between you and your former spouse.

To go to mediation, you and your ex-spouse will both need to agree to voluntarily participate.

Once you both accept to participate in mediation, the mediator will act as a guide or facilitator in helping you resolve the different aspects of your divorce, separation or family law case.

If you reach an agreement, you can draft a full and final settlement agreement and submit to the court for ratification.

Mediation can be great if you are able to keep calm and rationally work through your family matter.

Takeaways

In this article, we discussed what is an amicable settlement.

An amicable settlement is the process of achieving a friendly resolution on various legal elements in a lawsuit.

In the context of a family law case, it’s the process of resolving the different aspects relating to divorce, child support, custody, alimony, division of assets or any other point important to the spouses.

Finding ways to amicably settle can be quite advantageous.

You’ll spend less money on lawyers and the courts, you’ll settle your case faster and you’ll end up with a result that you had direct control over.

If you can settle in such a way that you get what’s important to you and make concessions on the other things, you will end up a winner.

Should you need the assistance of an experienced family lawyer to support you in your family law case and potential settlement agreement negotiations, we are happy to assist. 

Contact us at your convenience.

In the meantime, good luck with your amicable settlement! 

The post What Is Amicable Settlement (A Family Law Perspective) appeared first on FamilyLawyer.Zone.

What are the legal consequences when married couples separate vs common-law couples?

There’s also something called legal separation, what is that?

In this article, we go over the concept of separation, divorce and legal separation so you can understand the differences.

Let’s get started…

Separation definition 

Separation is the process where married couples or common-law couples separate from one another and no longer live in a union or relationship.

Separation is a broad term referring to the splitting up of the couple.

The separation of couples is often a challenging process for the individuals involved.

The separation may be temporary or permanent. 

Separating may involve emotional hardship, financial challenges, changing habits and living arrangements and more.

Some couples are able to manage their separation in a peaceful way minimizing the negative consequences in their lives.

Unfortunately, other couples may go through a contentious and disputed separation charged with negative emotions and anger.

What does separation mean for married couples and common-law couples?

What is separation for married couples

The separation for married couples means that the couple intends to live separate and apart.

If the intention is to separate permanently, then you’ll need to determine if you want to put an end to your marriage or not.

In most cases, married couples separating definitively will ask for the court to dissolve their marriage through a divorce judgment.

However, some married couples may decide to separate but not actually get divorced. 

In this case, the couple will live separately and handle their affairs independently from one another but they do not complete the legal steps to get a divorce.

At the end of the day, most married couples will decide to get a divorce once they separate, some may decide to separate and remain married.

Separated and getting a divorce

Often, married couples that separate will file for divorce.

This means that not only they are intending to stay separated but their separation may be irreversible.

The couple will no longer want to continue living together and consuming the marriage.

When you get a divorce, you no longer have any obligations imposed on you by law to cohabitate with your spouse or be financially responsible in some cases.

As a married couple, one spouse can legally bind the other spouse for the current financial needs of the family.

When the couple gets divorced, then an ex-spouse will no longer be able to bind the other spouse in any way with third parties.

Separated by remaining married

In some cases, not often though, some couples decide to separate from one another but remain married.

There may be many reasons why couples may want to stay married.

Perhaps it’s for religious reasons.

Perhaps it’s to take advantage of a tax benefit.

It can even be because they just don’t feel like going through a divorce process.

Following their separation, the couple will lead an independent life and perhaps even find another partner with whom they get into a defacto relationship.

Being separated and married does have some risk.

Under Quebec family law, the law states that both spouses together take in hand the moral and material direction of the family.

It also states that the spouses must contribute to the expenses of the marriage in proportion to their respective means.

What’s more is that a spouse who enters into a contract for the current needs of the family also binds the other spouse for the whole.

This means that although you may be separated, the law still recognizes you as a married couple and imposes the same obligations as before.

If a spouse acts in a way to financially bind the other, the other spouse must make sure to notify his or her intention not to be bound by the obligation.

If one day, a spouse wants to remarry, they’ll need to get a divorce and still deal with potential recourse for division of assets, alimony and other elements.

Unless you are sure that you will not remarry and that you will not ask for a divorce in the future, it’s not ideal to separate and remain married.

Amicable separation of married couples

If the married couple intends to file for a divorce following their separation, they’ll need to agree on the terms and conditions of their separation.

Under the rules of separation in marriage and the applicable separation laws or divorce laws, the couple will need to address certain mandatory topics.

For example, a married couple must decide on the following points:

1. Separation of property
2. Spousal support or alimony 
3. Child support if they have a child 
4. Custody and decision-making responsibilities on a child

In Canada, the Divorce Act establishes the points on which married couples must agree upon.

When the married couple amicably agrees on the terms of their divorce, they’ll generally sign an agreement that they will file in court along with their divorce application.

Based on that agreement, the court will render a divorce judgment.

The divorce and family laws may appear as a burdensome process but generally the provisions of the law allow for a fair and equitable partition of assets and distribution of risk in the separation of the parties.

It may not look like it to parties going through a divorce process as they may be overwhelmed with emotional hardship, financial pressures, lawyers, lawsuits etc. 

The laws are not perfect but in most cases, the consequences of the separation of married couples get split in such a way the couple can find ways to resume their lives independently.

Disputed separation of married couples

If the married couple is unable to reach an agreement on all aspects of their divorce, then the matter is considered to be disputed.

Any of the spouses can file a divorce application and seek remedies or relief from the family court.

Depending on the nature of the dispute, the matter can be resolve quickly or can go all the way to trial.

Statistically, 93% of all family law cases get settled before a final judgment is rendered by the court.

This means that only 7% of all family law cases end up in trial for a court to have to render a divorce judgment to settle the dispute of the parties.

Divorce laws protect the vulnerable spouse

Married couples have the protections and remedies provided in the Divorce Act.

Although a divorce process may appear complicated at face value, you will see very often a vulnerable spouse against another.

The divorce laws and family laws have the objective of leveling the playing field.

Legal separation 

In Quebec, we have the concept of legal separation.

Legal separation is an option available only to married couples.

The official term for this is “separation from bed and board”.

To request legal separation, you are essentially asking that the court decide on the consequences of your separation, partition assets, award spousal support and alimony and even get a legal separation judgment.

The difference between separation vs divorce is that the legal separation judgment does not dissolve the marriage whereas the divorce judgment dissolves the marital bond.

A legal separation can be requested in situations where the couple wants to get a divorce but do not meet the requirements to file a divorce application.

A couple may want to keep the marital bond for religious reasons.

No matter the reason, legal separation in Quebec is governed by the Quebec laws whereas a divorce is governed by the Canadian federal laws.

Both legal separation and divorce offer similar, if not identical, legal protections to the spouses.

What is separation for common-law couples

Common-law couples are not married by definition but in a de facto relationship.

This means that they do not have the obligations of married couples to provide each other with fidelity, succour and assistance and share a community of life.

They will also not be financially accountable for some actions taken by the other spouse during their relationship or after.

The separation for a common-law couple comes down to the couple mutually agreeing to the terms of their separation.

If the couple can reach an agreement, then it’s settled.

If not, the couple may need to seek relief from the court just like married couples.

Many couples choose not to get married as they fear horrible consequences of having to go through a divorce process.

However, what most people don’t realize is that common-law couples tend to live exactly like married couples, the only difference between them is the married.

If a common-law couple was together for a long time and invested a lot of time and resources for the benefit of the relationship, upon separation, they may realize that they may be faced with the absence of a proper legal regime to help them overcome vulnerabilities.

Legal consequence of common-law separation 

What is the legal consequence of a common-law separation?

Common-law couples are not subject to the divorce laws.

Divorce laws are applicable strictly to married couples.

In simple cases where a couple had lived together for a short period of time and did purchase any assets together or incurred liability for the couple, it’s better that way.

However, for common-law couples who have lived a long time together, for many years shared their income, bought property together, made concessions and sacrifices for one another, the separation without the legal protection of the divorce laws can hurt.

For example, common-law couples do not have the right to equally share the family patrimony as the concept of family patrimony strictly applies to married couples.

Common-law couples in Quebec do not have the right to claim spousal support or alimony whereas married couples can.

There are significant differences in how a common-law couple and married couple separate and the legal rights and remedies they can invoke.

A married spouse can get remedy for financial hardship caused as a result of the separation whereas a common-law couple does not have this recourse.

If you want to get into a common-law relationship or get married, it’s advisable to consult a family lawyer to get a sense of your rights and obligations in case you separate down the road.

Nobody wants to separate but there is no excuse not to plan ahead for such eventuality, even if the chances are slim.

Separation agreement for common-law couples

One way common-law couples or de facto couples can settle their separation is to mutually agree on the terms of their separation in a separation agreement.

There are no legal guidelines of minimum requirements to respect as there is no law imposing a separation agreement on common-law couples.

As a result, common-law couples can define the terms and conditions of their separation based on their needs and wants.

If the couple is able to mutually agree, ideally the agreement should be in writing.

If you want the agreement to produce a maximum legal effect, you can submit the agreement to court to have it ratified or homologated.

This means that the court will render a judgment confirming your agreement.

When ratified, your agreement will acquire the same legal value as the judgment of the court.

Disputed separation between common-law couples

Common-law couples unable to reach an agreement on the terms and conditions of their separation may need to go to court to remedy the situation.

Considering they are not married, they will often present civil lawsuits against each other as if they were partners in a business venture, as if they were parties to a contract or parties some sort of a civil relationship.

They’ll need to base their legal recourse on concepts of contract law, unjustified enrichment and legal remedies outside of family law.

Unfortunately, dealing with separation on the basis of contract law and obligations is not ideal and may not provide the best outcome for common-law couples.

It’s best to consult with a family lawyer to understand the difference between separation vs divorce so you are aware.

Where family law continues to apply to common-law partners in Quebec separating is when they have children.

Married couples or common-law couples will be governed by the same rules when it comes to their children on matters such as child support, custody, contact, access, parenting plan and all other legal regimes applicable to children will apply.

Takeaways

In this article, we discussed the concept of separation vs divorce.

Separation can mean a few things.

It can mean the actual separation of a couple or some people may refer to separation “legal separation”.

Legal separation is formally referred to as “separation from bed and board”.

Married couples may separate and choose to stay married or formalize their separation through a legal separation or divorce.

Both legal separation and divorce are similar in terms of legal protection to the couple.

The major difference is that with a divorce judgment, the court dissolves the marriage whereas with a legal separation, the court maintains the marital bond.

For common-law couples, separation only refers to the actual separation of the couple.

In other words, the splitting up of the couple.

When a common-law couple separates, they will not have the ability to invoke the divorce laws or legal separation laws for protection as there are no specific laws governing the separation of common-law couples.

In most cases, common-law couples end up having to invoke contract laws in an attempt to find a legal remedy to their problem.

If you want to understand your legal rights and obligations as a married couple or a common-law couple, we recommend you speak to a family lawyer to guide you on this topic.

You don’t want to end up with a surprise after heavily investing in your relationship.

We hope this article was useful to you.

We wish you best of luck with your decision!

The post Separation vs Divorce: What Does It Mean And What Are The Differences appeared first on FamilyLawyer.Zone.

How should you go about filing for divorce?

What are the steps after you’ve filed for your divorce?

In this article, we will look exactly at that.

We will give you 7 important tips on how to get a divorce.

Let’s get started!

Divorce rates are high

Over the past decades, statistics show that more and more marriages end in a divorce.

Today, nearly half of those who choose to get married will statistically see their marriage dissolved.   

When we think divorce, we could think of some nasty legal battle between couples fighting over anything and everything.

We hear about celebrity divorce cases heavily mediatized giving us a pretty grim outlook on what it means to get a divorce.   

In real life it does not have to be that way.

Many couples can file for a divorce without destroying each other’s lives.  

In a typical divorce case, you will need to reach an agreement on:

1. How to divide your family patrimony and assets
2. Who will walk away with debts or loans contracted for the benefit of the marriage
3. How will you handle your children such as decision-making responsibilities, care and parenting arrangements
4. How will you handle child support to financially share your children’s expenses
5. Will a spouse need to get spousal support or alimony 

If you are emotionally affected by your separation, filing for divorce can become quite a challenging process.

The less you have a divorce case charged with negative emotions the easier it will be on you.

So how to file for divorce?

Step 1: Find a divorce lawyer   

Learn more about divorce

To begin the process, you’ll need to do your research and learn more about the general concepts of divorce and separation.

Educate yourself on the divorce basics so you can have a better sense of your rights and obligations.   

You are reading this article, you are on the right track!!

Read about how to get a divorce and what services are out there that you can take advantage of.

Some individuals will consider preparing their own divorce application.

They’ll educate themselves by reading articles, blogs, reports and any material they can find online in an attempt to drive the divorce process by themselves.  

Look for a divorce lawyer

If you do not intend to file for a divorce yourself, then you’ll need to look for a divorce lawyer.

When looking for the divorce lawyer, there are a few things to look out for.

First and foremost, your lawyer must have the experience and competence to understand your situation and be able to legally guide you in the course of the legal proceedings.   

Second, your lawyer must be responsive and act in a timely fashion so that you are confident they will be capable of handling a barrage of legal procedures from the other party if your divorce is contested.   

Finally, you should give your lawyer a clear mandate with respect to the services being rendered and the fees being charged.

Your divorce case is already complicated as it is, you do not want additional complications with your lawyer. 

Once you have found your divorce lawyer, you can get your lawyer to prepare your divorce papers.  

Step 2: Prepare your divorce application   

All divorce cases will formally start with the filing of a divorce application in the record of the Court whether the couple is filing amicably or not.   

Filing of a joint divorce application

In the case where you both agree on collaborating and settling the entire terms of your divorce, you can file a joint divorce application based on which you will ask the court to render a divorce judgment. 

A joint divorce application is an application signed by both spouses and filed together in court along with all the necessary legal forms and supporting documents.  

Filing of divorce by one spouse

If you do not mutually agree to file a joint divorce application, then any one of the spouses can prepare and serve the divorce application and documents to the other spouse.

In this case, the court process is started unilaterally by one spouse.

Nonetheless, even a unilateral divorcer process may be settled amicably if the other spouse receives the divorce papers and signals his or her intention to collaborate to resolve the matter amicably. 

You do not need any permission or consent from your spouse to file a divorce application.

So long as you prepare your divorce filing in accordance with the rules of the court and the law, any spouse can ask for a divorce. 

When filing for divorce, you will need to include some mandatory information in your divorce application.

For example, you’ll need to demonstrate that you meet the residency requirements imposed by law, you have invoked the proper divorce ground and so on.   

Residency requirement

Residency requirements may vary from one province to another but typically the residency requirement is one that will help establish which court has jurisdiction to hear your divorce case.

For example, under the divorce laws in Canada, the residency requirement is that you must be residing in the province for at least twelve months in order to be able to file a divorce application before the courts of that province. 

Divorce Grounds

In Canada, there are three grounds for divorce:

1. separation for over twelve months
2. adultery
3. physical and mental cruelty

All divorce applications must provide minimum one or a combination of such grounds. 

With regards to the separation for over twelve months, all you need to prove is that you have been separated for over twelve months and that your separation is irreversible.  

With regards to the other two divorce grounds, adultery and physical and mental cruelty, you will need to establish the facts based on which the divorce is being sought.

The spouse making the allegation will need to testify to this effect.

Perhaps other evidence may be needed to prove the divorce ground. 

Step 3: Service of your divorce papers 

At this point, you have decided to get divorced, you have done your research online and also found your divorce lawyer.

You have worked with your divorce lawyer to draft your divorce application along with its supporting documentation. 

What do you do next? 

Well, the next step is to serve a certified copy of your divorce application along with any supporting documents to your spouse.

You need to gather the evidence that your spouse has received your divorce papers.

As they say, proof that the papers “have been served”!

Bailiffs serve legal documents

The service is typically done via a bailiff or process services in other places. 

The cost of a bailiff or a process server is not that high relative to your other divorce fees but it’s a sure and reliable way to ensure you can prove that the divorce application has been served to your spouse.

In some cases, if your spouse makes himself or herself difficult to find for you to serve your papers, a sure way forward is to serve your papers through a bailiff.

Once the bailiff serves the papers, he or she will draw up a proof of service making evidence that your spouse has been served.

Even if your spouse does not open the door for the bailiff allowing the service, the bailiff can leave the papers in front of the door or in the mailbox and validate that the papers have been served.

Proof of service

Take note that the court will generally not accept to hear your case when you have not proven that your spouse has been duly served k.

The court wants to give the chance to any defendant to have the opportunity to review the divorce application, have time to seek advice of a lawyer and respond to the application. 

Acknowledgment of receipt

In cases where you and your spouse are handling your divorce amicably, your spouse can acknowledge the receipt of the divorce papers in writing.

That written confirmation will serve as your proof of service.  

Service through lawyers

Once a party retains the services of a divorce lawyer, the lawyer will have the ability to legally serve documents to the other party’s lawyer. 

When both parties are represented by a lawyer, the personal service of legal documents to the spouse is no longer required.

The divorce lawyer will be the designated representative of the party and could validly receive service or serve legal procedures and documents. 

Step 4: Wait for your spouse to respond   

Once your spouse receives your divorce application, he or she must respond within the allocated timeline.

Contested legal proceedings 

If your spouse has the intention to file an answer or contest your divorce application, you will then start the legal steps in court.   

The court proceedings can be somewhat complex for someone who is dealing with the legal system for the first time.

If your case is contested, you’ll need to do your research to see if you should handle your own case or retain the services of a divorce lawyer.

If your spouse has received your divorce application but does not respond, you can proceed by default against your spouse.

Proceed by default

If your spouse does not file any response to your divorce application while duly served, upon the expiration of the required legal delays you can request for the file to proceed by default.

By proceeding by default, you’ll still need to provide the court with the evidence of your family assets, divorce grounds and so on, with the only difference that you’re the only party presenting evidence to the court.  

To obtain a judgment by default, you will need to file all the necessary exhibits, documents and supporting material to your divorce application.

The court must be satisfied that you have established and proven your demands.

Upon validation of your divorce application and supporting documents by the court, a divorce judgment by default will be rendered and mailed to you. 

Step 5: Negotiate a settlement if possible  

Depending on how you and your spouse are able to resolve your disputes amicable, you have the option of negotiating a settlement even if you have filed a divorce application in court. 

A settlement is something that the law and the courts will try to favour to the extent possible. 

You need to make concessions

When a judgment is issued on the basis of a mutual agreement, in most cases both spouses will feel that they have walked away with a more favorable outcome.

An agreement will require both parties to make an effort on issues and topics in dispute and this effort will require that each spouse make concessions to make it work. 

Negotiate a settlement through your divorce lawyers

In cases where you and your spouse are unable to reach an agreement by communicating with one another, another alternative is to engage in negotiations through your lawyers.

Your lawyers will act as the vehicle to pass on and receive your positions to the other party.

Divorce lawyers can help you see the situation more objectively so you can make more rational decisions in your overall best interest as opposed to emotional decisions that may be detrimental. 

Negotiation a settlement using the court settlement conference

If negotiations through your lawyers fail, depending on the jurisdiction, the courts may offer a settlement conference where the Court will try to facilitate the negotiation discussions between you and your spouse.

Settlement conferences are particularly effective as they are facilitated by an active judge who will guide the discussions and provide his or her valuable pointers in the attempt to help you reach a settlement. 

Negotiate a settlement through mediation

There is also the option of opting for mediation which is a negotiation session facilitated by a mediator in a setting outside of the courtroom. 

Any negotiation and settlement route that you select can be very interesting as it will result in significant time savings and particularly will potentially save you lots of money in lawyer fees or other.

As a result, looking at how your case can be settled is a great way to potentially resolve any dispute or outstanding issues so that you can close this chapter of your life and begin a new one.  

Step 6: Get safeguard orders in case of dispute  

What is a safeguard order

It is inevitable that in some cases, if your separation is more difficult due to a high level of conflict, you may need to seek a safeguard order, or interim order, to help you deal with certain urgent legal issues that cannot wait until the final divorce hearing. 

Safeguard orders are effective when you cannot wait a year or two to get to trial to get legal remedy. 

You need the judge to make a quick ruling on more pressing concerns that could not wait. 

Typically, the use of the family residence, custody matters, child support and spousal support are urgent enough to be dealt with through a safeguard order.

What can be dealt with in a temporary order

For example, if you intend to separate and you have children, then you may need to have your spouse contribute towards the children’s expenses and regularly provide you with child support.

In the event your spouse fails to provide you with the financial support needed to contribute to your children’s ongoing expenses, you can ask the court to issue a safeguard order ordering your spouse to pay child support.   

Step 7: Proceed to trial to get final judgment  

Divorce trial as last step

If you’ve done everything you could to try to resolve your divorce case without success, then the last step is to proceed to trial.

A divorce trial is a costly venture and so if you have reached the point where you must go to trial, you must be prepared to spend a lot of money on your lawyers and a lot of time in preparing your case. 

Present your case to a judge

This is the step where you present your case to the judge. 

The final judgment will end your divorce case and the divorce judgment will definitively rule on your differences.

You will need to provide evidence and supporting documents to substantiate what you are seeking from the court.

Once your evidence is presented, your spouse will have the right to present his or her observations and demands as well.   

You have no control over the judge’s decision

When your case is presented to a judge, you must understand that you are leaving your fate in the hands of this person.

You will have a far less predictable outcome and, in most cases the court’s judgment will not really be satisfying. 

If you are able to avoid your divorce case to go to trial, then you should make an attempt to settle beforehand. 

Divorce judgment and the dissolution of your marriage 

Once the court has heard all the evidence, saw the documents and considered your demands, following the divorce trial, you will each receive a copy of the court’s divorce judgment.

This judgment will evidently dissolve your marital bond and will also decide on all your demands such as asset partition, child custody and support, spousal support and alimony along with any other demands that were presented. 

The divorce judgment puts an end to the divorce proceedings.

Once the delays to appeal the divorce judgment is over, the court will then issue your divorce certificate.

Conclusion 

As you can see, a divorce case, on one side of the spectrum can be fairly simple and on the other side of the spectrum, can become quite costly and complex.

In this article, we’ve presented to you how to get a divorce and the steps you need to take to get there. 

Our family law firm provides advisory, strategic counselling and legal services in a flexible and innovative manner.

Be sure to reach out to our divorce lawyers for any further support or assistance, we will be delighted to assist you.  

The post 7 Steps On How To Get A Divorce (Filing for Divorce) appeared first on FamilyLawyer.Zone.

You’ve heard that child support is calculated based on the applicable child support guidelines, but what are they?

There are federal child support guidelines and provincial ones, which one applies?

In this article, we will discuss child support guidelines in detail!

We have divided this article into the following sections:

• What are child support guidelines
• Objectives of child maintenance guidelines
• Child support guidelines in Canada
• Provincial child support guidelines
• Child support guideline tables
• Takeaway

Let’s get started…

What are child support guidelines

The child support guidelines are a set of rules established by provincial and federal governments providing the guidelines for calculating child support for legal purposes.

When a parent is required to pay child support to another, how do you determine what should be the actual amount payable?

That’s when you use the applicable child support guidelines as a framework to calculate child support.

Depending on your child support case, either the Canadian federal child support guideline will apply or a provincial child support guidelines.

The child support guidelines will apply to separated parents either married or in common-law relationships.

In this article we look at each of these child maintenance guidelines.

Objectives of child maintenance guidelines

The child support guidelines are designed in such a way that the parents will both continue to share the expense of their children in proportion to their income as if they were still living together or in a relationship.

This means that the child support obligations must be assumed by both parents and not just the one having decision-making responsibilities or taking care of the child.

The child support guidelines are generally structured in such a way that based on the paying parent’s income and the number of children requiring child support, the child support guideline tables will define a specific amount to pay.

Federal child support guidelines 

The Canadian government has adopted the federal child support guideline applicable when parents are applying for a divorce in any Canadian province.

Since the Divorce Act is a federal law, the child support guidelines in Canada provides the framework to calculate child support will be the federal child support guidelines.

You can access a full copy of the Federal Child Support Guidelines.

The federal government offers a convenient way for you to calculate your child support online based on maintenance guidelines.

You can consult our article on child support calculator for more information on calculating child support.

Provincial child support guidelines

In addition to the federal child support guideline, every province and territory in Canada has its own set of child support guidelines.

There are some Canadian provinces that have negotiated an arrangement with the federal government whereby they will apply their own child support guidelines even in the context of divorce proceedings.

These provinces are called “Designated Provinces”.

The Designated Provinces are Quebec, Manitoba and New Brunswick.

In general, the child support guidelines in most Canadian provinces and territories are similar to the federal guidelines. 

The child support guidelines of the designated provinces may be different.

Particularly, the Quebec government’s child support guideline is substantially different than the Canadian one.

It is important that you validate which child support guidelines apply to your case to ensure you are calculating child support based on the right child maintenance guidelines.

Child support guideline tables

The child support guidelines are composed of tables outlining the possible child support amounts payable depending on the payer’s income and number of children.

In the federal child support guidelines, at its Schedule I, you have the Federal Child Support Tables.

As an example, the Federal Child Support Tables shows something like the following:

It’s literally a table of where you have a range of revenue and the child support payable per month for one child.

If the paying parent earns $20,000 per year, he or she will need to pay $223 per month for one child if the Quebec tables apply.

Each provincial government will also have its own child support guideline tables.

The Quebec child support guideline tables, called the Basic Parental Contribution Table, are published on Justice Quebec’s website.

There is a separate child support table for each province.

Takeaway

In Canada, you have the federal child support guidelines and each province will have its own child support guidelines.

The child support guidelines are intended to allow for the calculation of child support payments for parents separating.

If you are filing for a divorce, in most Canadian provinces, the federal child support guidelines will apply except for Quebec, Manitoba and New Brunswick where they will have their own applicable guidelines.

For common-law couples separating, the child support guideline of their local province will apply.

Generally, even if the provincial child support guidelines apply, the calculation will be similar, if not identical, to the federal child support guidelines.

You’ll need to ensure you define which child support guidelines apply to your case so you can ensure you calculate your child support adequately.

We hope this article was helpful and wish you good luck in your child support research.

The post Child Support Guidelines (All You Need To Know) appeared first on FamilyLawyer.Zone.

You are a Canadian resident and wondering if there are online child support calculators you can use to determine how much you may be entitled to receive or obligated to pay in child support?

Don’t go very far as we’ve got what you need!

In this article, we will provide you details on online child support calculator tools applicable in most Canadian provinces.

This article is divided into the following sections:

• What is a child support calculator
• Designated provinces in Canada
• Which child support guidelines apply
• Federal child support calculator
• Quebec child support calculator
• Provincial department of justice or attorney general
• Child support lawyers
• Takeaways

Let’s get started!

What is a child support calculator

A child support calculator is a tool that can be used to calculate child support.

The child support calculator must be based on the applicable child support guidelines.

In Canada, child support may be calculated based on federal child support guidelines or provincial child support guidelines depending on the one applicable to your case.

In this article, we will go over the child support calculators that are available in Canada particularly related to the federal child support guidelines and the Quebec child support guidelines.

The online child support calculators are not official child support calculations for legal purposes, they are intended to give you a good estimate of your child support entitlement or obligation.

If you want to formalize your child support through the courts, you’ll need to ensure that a formal child support calculation document is filed in accordance with the court rules of your province.

You should consult a child support lawyer to assist you if you think you may need some legal assistance.

Designated provinces in Canada

There are three provinces in Canada that have their own unique arrangement with the federal government with respect to establishing child support.

As such, these three provinces have established their own provincial laws to calculate child support in divorce cases when both parties live in their territory.

The three designated provinces are:

1. Manitoba
2. New Brunswick
3. Quebec 

As a general rule, the other Canadian provinces apply the federal guidelines for calculating child support in a divorce case.

The provinces applying the federal guidelines in divorce cases are:

1. Alberta
2. British Columbia
3. Newfoundland and Labrador
4. Northwest Territories
5. Nova Scotia
6. Nunavut
7. Ontario
8. PEI
9. Saskatchewan
10. Yukon

Are there online child support calculators that can be used to calculate child support?

We’ll look at the federal child support calculator and the Quebec child support calculator.

Which child support guidelines apply

Depending on the specifics of your case, there may be different child support guidelines that can apply.

If you are divorced or have applied for a divorce, the federal child support guidelines apply when:

1. You both live in any Canadian province other than Manitoba, New Brunswick or Quebec
2. You live in different provinces or territories, even if one lives in Manitoba, New Brunswick or Quebec
3. One of you lives in Canada and the other lives outside of Canada

The provincial child support guidelines will apply when:

1. You both live in Manitoba, New Brunswick or Quebec whether you are in a divorce case or not
2. You were never married and you both live in Canada
3. You are married or have separated but not getting a divorce and looking to establish child support
4. You had previously established child support based on a provincial guideline

Federal child support calculator 

The federal government offers and online child support calculator helping Canadians calculate child support when subject to the federal child support guidelines.

The federal child support calculator is called the 2017 Child Support Table Look-Up.

It’s a very simple child support calculator where you enter:

1. The number of children for which you are asking child support
2. The province or territory in which the paying party lives
3. The paying parent’s annual income

With this information, the federal child support calculator tool will calculate how much child support you may be required to pay under the federal child support guidelines.

The Child Support Table Look-Up tool will calculate only the base child support payment.

If you have special expenses or extraordinary expenses for your children, you should consult the federal government step-by-step child support guide offered by the federal government to determine if there are special expenses or extraordinary expenses to account for.

Special expenses or ordinary expenses, if awarded, are added to the base child support amount.

Quebec child support calculator 

The Quebec government also offers an online child support calculator.

Just like the federal child support calculator, the Quebec child support calculator is intended to give you an estimate of the amount of child support you are either entitled to or must pay.

The Quebec child support calculator should be used when both parents live in Quebec.

Since Quebec is one of the three designated provinces, it has a special arrangement with the Canadian government whereby if both parties live in Quebec, then the Quebec child support guidelines apply.

You can also consult the Quebec government’s step-by-step guide for the determination of child support for further information on how to calculate child support.

In this case, you should use the child support calculator offered by the Quebec government.

In the event that one party lives in Quebec and the paying party lives outside of Quebec, then you’ll need to use the federal child support calculator tool as the federal child support guidelines will apply.

We cover in detail how child support is calculated in Quebec if that’s of any interest to you. 

Provincial department of justice or attorney general 

You can get more information on child support calculation applicable to each specific Canadian province by consulting each of the provincial department of justice website or that of its attorney general.

Here are the relevant links to each of the provincial or territorial departments of justice:

1. Alberta
2. British Columbia
3. Manitoba
4. New Brunswick
5. Newfoundland and Labrador
6. Northwest Territories
7. Nova Scotia
8. Nunavut
9. Ontario
10. Prince Edward Island
11. Quebec
12. Saskatchewan
13. Yukon

Child support lawyers

In some cases, due to the particular nature of your case, you may need to consult with a lawyer to calculate your child support.

In such cases, a child support lawyer will consider the specifics of your case to determine what should be the appropriate child support amount to be established.

In the following cases, you may need the assistance of a family law firm for child support and an experienced child support lawyer:

1. When the paying parent’s revenues are not disclosed
2. When the paying parent’s revenues are not disclosed accurately 
3. When the paying parent’s income is kept in a separate company
4. When the paying parent is a self-employed 
5. When the paying parent does not have a lot of revenues but has significant assets
6. When the children have special expenses or particular needs
7. When the child support should apply retroactively

In the above cases or other complex cases, using the online child support calculator may not adequately calculate for you the real child support amount that you may be entitled to.

If you any complexity in your case, you are better off getting a legal consultation from a child support lawyer so you know what will work best for you.

Takeaways

There are convenient tools available now to help you calculate child support online.

The Canadian government and some provinces like Quebec have developed an online child support calculation tool to help you get an estimate of your child support entitlements or obligations.

The Canada child support calculator is simple to use and applicable in most cases.

The child support calculator Quebec tool is also another new and convenient child support calculation tool allowing those subject to the Quebec child support guidelines to calculate their child support obligations. 

We hope this article was useful in guiding you and helping direct you to the right online child support calculator.

We wish you all the best in your case!

The post Child Support Calculator (How To Calculate Child Support Online) appeared first on FamilyLawyer.Zone.

You want to file for a divorce but you’re not sure what documents you need?

In this article, we will make sure you know what to do. We will go over the divorce requirements in Quebec and if those requirements are satisfied, we will outline the divorce papers you need to file to get a divorce in Quebec.

We have divided this article into the following sections for your ease of navigation:

• Divorce in Quebec
• Divorce conditions in Quebec
• Residency requirements
• Divorce grounds
• What divorce papers do you need to file
• Where to file your divorce papers
• How to file your divorce papers
• Service of divorce papers
• Takeaways

Let’s get started…

Divorce in Quebec

You’ve reached a point in your relationship that you realize a divorce may be inevitable.

Where do you start?

What do you do?

What divorce papers do you need to file?

Filing for divorce in Quebec is not that complicated.

First, you’ll need to ensure that you meet the criteria to file for a divorce in Quebec.

Then, you’ll need to file the necessary paperwork.

Divorce conditions in Quebec

To be able to file divorce papers in Quebec, you’ll need to satisfy to main conditions:

1. Residency requirement 
2. Divorce grounds

Let’s look at each of them.

Residency requirements

The first condition that must be satisfied is your residency.

Article 3 of the Divorce Act states that “a court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”

This means that you or your spouse must have been living in the Province of Quebec for at least one year at the moment you file your divorce papers.

What is the second requirement? 

Divorce grounds

The second requirement is for you to satisfy the divorce grounds so the Quebec courts can render a divorce judgment.

The Divorce Act states the divorce grounds applicable in Canada and in Quebec.

The law states that a court may grant a divorce when there is a breakdown of the marriage.

There are three ways you can demonstrate that there was a breakdown of the marriage:

1. 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
2. the spouse against whom the divorce proceeding is brought has, since the celebration of the marriage, committed adultery, or
3. treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

The simplest ground for divorce is to demonstrate that you have been living separate and apart for at least 1 year prior to the filing of the divorce papers.

The grounds for adultery and physical or mental cruelty will require additional evidence in court, so for the sake of this article, we will assume that you will invoke the simplest divorce ground which of separation for over 12 months.

You’ve met the residency requirement and you have been separate for over 12 months, what divorce papers must you file?

What divorce papers do you need to file

In Quebec, you’ll need to file certain documents and supporting exhibits to be able to get a divorce judgment.

A complete divorce application will require the following:

1. Divorce application
2. Settlement agreement
3. Sworn statement of the parties
4. Statement under article 444 of the Code of Civil Procedure
5. Child support determination form if there are children involved
6. Attestation in respect to birth registration or Form II
7. Statement of Income and Expenditures or Form III if spousal support is requested
8. Income taxes for the past year
9. Notices of assessments for the past year
10. Proof of income
11. Marriage certificate
12. Birth certificate of the parties
13. Children’s’ birth certificates

Depending on the nature of your case, additional documents and exhibits may be required.

Where to file your divorce papers

Once you’ve gathered all your divorce papers and ensured they respect the requirements of the Divorce Act and the court procedures, you’ll need to file your divorce papers at the courthouse.

To determine which courthouse will have competence to render a divorce judgment for you, you’ll need to make sure that you file your divorce papers before the courthouse in the same judicial district as your address of residence.

You can use Justice Quebec’s judicial search tool to identify the right courthouse for filing your divorce papers.

How to file your divorce papers

Now that you know with which courthouse to file your divorce papers, you’ll need to physically bring your divorce papers to there.

You’ll need to make sure your divorce papers are all signed and you have a sufficient number of certified copies.

At the courthouse, you’ll need to pay the applicable court filing fees to be able to file your divorce papers.

You can look up the applicable court fees and tariffs to file your divorce papers.

Service of divorce papers

If you are unable to file a joint divorce application where you file an amicable divorce, you’ll need to make sure you serve a copy of your divorce papers to the other party.

Service of divorce papers simply means you need to make sure your spouse gets a copy of the divorce documents.

To make sure you have no problem filing your divorce papers in court, you’ll need to make sure your spouse signs the divorce documents and is present at the courthouse when you are filing your paperwork.

If you see yourself having to serve your spouse, you may be in a situation where you are unable to reach a mutual agreement or have all the documents signed by both spouses.

Takeaways

What divorce papers do you need to get a divorce in Quebec?

In this article, we’ve outlined precisely what divorce papers you need and how to file them.

You now know what conditions you need to respect to be authorized to file your divorce papers before the courts in Quebec and you know what documents to file.

Should you need any support and assistance with your divorce papers, our divorce lawyers are here to support you.

You can reach out to our family law firm at any time!

In the meantime, we wish you the best of luck.

The post Divorce Papers To File A Divorce In Quebec (Overview) appeared first on FamilyLawyer.Zone.

What type of child custody arrangements can a Quebec court award?

What are the factors that a Quebec court will consider to render a child custody judgment?

In this article, we will go over child custody under Quebec laws. We will define what is child custody, what happens after the break up of the parents, the type of child custody arrangements possible and the factors the court will consider to render a child custody judgment.

We have divided the article into the following sections for ease of navigation:

• What is child custody?
• Child custody when parents break up
• Types of child custody
  • Sole custody
  • Sole custody with prolonged access rights
  • Sole custody granted to each parent
  • Shared custody
  • Child custody combinations
• What factors will a family court consider for child custody?
• How is child custody established?
• Takeaways

Let’s get started…

What is child custody?

Child custody is the term we use to refer to how a child or children are cared for by the parents.

Having custody is having the responsibility for the care of the child.

When a couple is together, the couple will take care of their children and mutually arrange their activities and obligations.

They each exercise shared custody of their children.

The parents will provide their children with emotional support, stability and security.

They’ll make sure their child is happy, well-nourished and develops in a healthy way.

The parents will educate their children academically and socially.

They will provide their children with moral and religious guidance.

Child custody as a concept does not change whether you are in a relationship with the other parent or not.

From the moment you become the parent of the child, you have custody over that child.

Child custody takes on more of an importance after a break up as the parents will need to find new ways to individually care for their child and manage the custody schedule and logistics among themselves.

Let’s look at child custody when parents break up.

Child custody when parents break up

The concept of child custody after the break up of the parents does not change.

Parents remain responsible to take care of their children, provide them with emotional and financial support and make the right decisions in the life of their child to help them become contributing members of our society.

What is challenging in most cases is how the parents will handle the child custody logistics among themselves.

There are several factors making this process quite challenging after the break up:

1. The parents are no longer in a relationship as they no longer consider their relationship as viable long-term
2. In many cases, the end of the relationship is as a result of conflict between the parents
3. The parents will need to adjust to their new life after their relationship
4. As the parents adjust to their new lives, they must also continue providing care for their children
5. The break up in most cases results in financial hardship for both parents
6. The children may not accept the break up and have difficulty adjusting to their new lives

There are many factors that will result in major challenges for the parents to move on.

It will take dedication, effort, patience, concession and collaboration on the part of the parents to make it work.

After their break up, parents must keep good communication to be able to sort things out with one another.

If the parents are able to mutually manage and handle the care of their children following their break up, things will be much easier to handle.

If the parents are unable to handle the care of their children after break up, then chances are a family court will need to define how child custody will be managed between them.

Under the Quebec laws, there are different types of custody arrangements.

Based on the circumstances of the parents and the family, the family courts will render a custody judgment in such a way that the best interest of the child.

What are the different types of custody arrangements under Quebec laws?

Types of child custody

Child custody under Quebec laws is divided into sole custody, sole custody with prolonged outing rights, sole custody granted to each parent, shared custody and child custody combinations.

Sole custody

Sole custody is a type of custody arrangement where one parent has sole custody of the child and the other parent may exercise visitation rights for less than 20% of the time.

When we say 20% of the time, we are referring to the number of days in a year.

For example, if one parent has the sole custody of a child and the other parent has the child every Saturday, then we are in a sole custody arrangement.

The parent with sole custody will have the child 313 days in a year while the other parent will have 52 days in a year.

The parent with sole custody therefore has 85.7% of custody time while the other parent has 14.3% of custody time.

Sole custody with prolonged access rights

The second type of custody arrangement under Quebec laws is the sole custody arrangement with prolonged access rights.

Under this type of child custody arrangement, one parent will have sole custody while the other parent will have visitation rights anywhere between 20% to 40% of the time.

This means that the parent not having sole custody will exercise custody over the child between 73 days and 146 days in a year.

An example of this type of child custody arrangement is when one parent has custody 5 days a week and the other parent has 2 days a week.

When you look at the number of days each parent will have child custody in a year, one parent will have 260 days (71.2%) while the other parent will have 104 days (28.8%).

Sole custody granted to each parent

The third type of child custody arrangement in Quebec is sole custody granted to each parent.

Although rare, for this type of child custody to be possible, the parents will need to have at least two children.

The court will grant the sole custody of one child to one parent and the sole custody of the other child to the other parent.

The same visitation right rules apply.

If the visitation rights are under 20%, then the custody arrangement for the child is considered sole custody arrangement.

If the other parent has visitation rights ranging between 20% and 40% of the year, then we’ll say sole custody with prolonged access rights.

Shared custody

The shared custody arrangement is the custody schedule where each parent will have between 40% and 60% of the child’s custody time in a year.

If parents share custody on a weekly basis, on an alternating basis, then they’ll have a 50/50 child custody arrangement.

Each parent will have exactly half of the child’s custody time.

Child custody combinations

The final possible custody arrangement is when the court grants a different type of child custody arrangement per child.

For this child custody arrangement to be possible, the parents will need to have at least two children.

For example, the court may grant a sole custody arrangement for one child and a shared custody arrangement for another child.

What factors will a family court consider for child custody?

Child custody is established by the Quebec family courts in consideration of the best interest of the child or children.

Each family’s situation is different and the interest of each child will also be different.

Child custody is not a one-size-fits-all type of solution.

The family courts will have the delicate task of considering what’s the family dynamic, what are the children’s needs, the parent’s relationship and what type of child custody arrangement will promote the best interest of the children.

There may not be a perfect solution where both parents will be happy.

In some cases, the court will need to make a difficult decision and allocate the child custody time in such a way that it considers the children’s health, safety and overall progress will be optimized.

The family court will try to establish what is the best interest of the child by considering several factors such as:

1. Your child’s age
2. How your child has been developing so far
3. Your child’s special needs
4. Your child’s level of maturity
5. Your child’s relationship with siblings
6. Your child’s relationship with each parent
7. Your child’s opinion and wishes
8. The caring abilities of each parent
9. How each parent has been handling himself of herself after separation
10. The ability of the parents to cooperate
11. The ability of the parents to communicate well
12. Cultural differences
13. Religious differences
14. Language barriers 

These are just some factors the court will consider in order to render a child custody judgment.

There may be more depending on the particular facts of each case.

How is child custody established?

Child custody can be established either by the court or upon the mutual agreement of the parties.

If the parents are able to mutually agree on the child custody arrangements, they’ll be able to find a more long-term solution and the transition for their children can be smoother.

However, if the parents are unable to mutually agree on the child custody arrangements, implementing a judgment from the court may be adversarial and frustrating and the transition for the children will be more difficult.

Takeaways 

Child custody under Quebec laws defines the criteria the court must take into consideration to decide on child custody.

There are also several types of custody arrangements possible under Quebec laws:

1. Sole custody
2. Sole custody with prolonged access
3. Sole custody granted to each parent
4. Shared custody
5. Child custody combinations

Depending on how much time you have with each child, your child custody arrangement will fall under one of the above child custody buckets.

With this article, we hoped to provide you an introduction to child custody under Quebec laws.

We hope that you enjoyed it.

Should you need the assistance of a child custody attorney or a child custody family law firm having experience in the area of child custody laws, we are here to support you.

Don’t hesitate to reach out to our experienced family lawyers.

In the meantime, we wish you all the best!

The post Child Custody Under Quebec Laws (Overview) appeared first on FamilyLawyer.Zone.

You’ve heard of the concept of parental authority and want to know what it entails?

Perhaps you are curious to learn about the Quebec custody laws!

No worries, we’ve got you covered!!

In this article, we will discuss what is custody based on Quebec laws, what is parental authority, routine or important decision in the life of a child, relocation with the child and more.

This article is divided into the following sections: 

• What Is Custody Based On Quebec Law?
• What Is Parental Authority?
• Make Decisions Concerning The Child While Having Custody
• Objections Raised For Routine Custody Decisions
• Relocation With The Child By Parent Having Custody
• Best Interest Of The Minor Child
• Takeaways

What Is Custody Based On Quebec Laws?

Having custody of a child means having the right to make decisions about the care of the child.

In the Province of Quebec, having custody does not mean the same thing as having parental authority.

While custody has to do with taking physical care and maintenance of a child, parental authority is the concept of making important decisions about a child.

You can consider custody is a component of the rights and obligations of parental authority.

Article 599 of the Civil Code of Quebec states that “the father and mother have the rights and duties of custody, supervision and education of their children. They shall maintain their children.”

The Civil Code clearly states that each parent has a duty to care for the child and ensure they are well maintained and educated. 

What Is Parental Authority?

Parental authority refers to the rights and responsibilities of the parents to ensure they make the important decisions relating to a child’s development, progress and well-being.

Article 600 of the Civil Code of Quebec states “the father and mother exercise parental authority together”.

Concretely, parental authority means that the parents must:

1. Ensure they take care of their children until at least the age of 18
2. They provide the child with a safe and secure environment
3. They make decision in the best interest of the child
4. They provide the child education
5. They make all health and medical-related decisions in the best interest of the child 
6. They provide the child with food and shelter
7. They offer the child with psychological support 
8. They provide moral and religious values to their child

Essentially, all the important decision impacting the life of a child is captured under the notion of parental authority.

Under the Civil Code, both parents will have parental authority regardless of the custody and access rights arrangement.

The parenting time does not take away parental authority rights of a parent or component of it.

The court has the ability to deprive a parent of parental authority rights or attributes of parental authority if there is a “grave reason and in the interest of the child”. 

Make Decisions Concerning The Child While Having Custody

A parent with custody over a child will have the right and obligation to maintain the child and make the day-to-day decision relating to the child.

Day-to-day decisions mean what time the child wakes up, what the child wears, with whom they hang out with, what time they come home, what time they are allowed to stay out at night, how much time they spend on the computer and so on.

When a parent has the physical custody of the child, that parent will be legally entrusted to make the best decisions to ensure the child goes through the day happily and safely.

Objections Raised For Routine Custody Decisions

If a parent having custody is negligent or recklessly puts the child or children in danger, even though that parent is entrusted with the right to make the day-to-day and routine decisions for the child, the other parent may object to it.

The objection is grounded upon the fact that any decision made relating to a child must be in the child’s best interest and to keep the child safe and secure.

If a parent consumes excessive quantities of alcohol and is not in a good state of mind, the other parent may ask to court to reconsider the custody arrangement.

The court may take custody time away from a parent if that parent is unable to adequately care for the daily and routine decisions relating to the child.

It must be noted that if the court reduces a parent’s parenting time with the child, unless the court expressly deprives that parent of parental authority rights or attributes of parental authority rights, then that parent’s parental authority remains intact.

This means that both parents will need to mutually consult one another on important decisions concerning the child.

Relocation With The Child By Parent Having Custody

The relocation with a child can quickly become a highly disputed and adversarial between the parents.

If a parent has the custody of a child, that parent, in normal circumstances, will have the right to move.

The breakup or a custody order must not prevent a parent from being able to move on with their lives and exercise their fundamental freedoms of movability we enjoy in a free and democratic society. 

However, if the relocation will adversely impact the child, then the other parent may object to this decision and ask the court to intervene.

If it’s proven that the relocation may do more harm than good to the child or children, the court may potentially prohibit the relocation.

Here are some circumstances where the court may most likely disapprove of the relocation:

1. The move is primarily intended to frustrate the other parent
2. The move will adversely affect the children
3. The children are old enough to express their opinion and are highly against the move
4. The children have a good relationship with the other parent and the move will prevent the continuation of the healthy relationship

The court will be guided by the principle that all decisions must be made in the best interest of the minor child.

Best Interest Of The Minor Child

All decisions concerning the custody, access rights and parental authority must be done in the best interest of the minor child.

The best interest of a child is not fixed and exactly identical for all children.

Every child has different needs and every family’s situation is unique.

The parents must exercise proper diligence in deciding what’s best for their children by taking their family circumstances into consideration along with the psychological and emotional needs of their child.

There are some factors you can consider in evaluating what’s in the best interest of the child such as:

1. Your child’s age
2. How your child has been developing so far
3. Your child’s special needs
4. Your child’s level of maturity
5. Your child’s relationship with siblings
6. Your child’s relationship with each parent
7. Your child’s opinion and wishes
8. The caring abilities of each parent
9. How each parent has been handling himself of herself after separation
10. The ability of the parents to cooperate
11. The ability of the parents to communicate well
12. Cultural differences
13. Religious differences
14. Language barriers 

The list can go on.

What’s very clear is that a judge will want to consider any variable that can affect a child in a divorce case or separation to come up with the best possible parenting arrangement. 

Takeaways

We hope this article helped clarify for you the concept of custody and parental authority under the Quebec laws.

A parent with custody has the right to make the routine and daily decisions concerning the child.

Both parent are automatically vested with the right and obligations resulting from parental authority which is to make important decisions in the life of their child.

Should you have any questions or need the assistance and support of a child custody lawyer, our family law firm is happy to help.

Contact us now if you have child custody legal issues or have questions about your rights and obligations.

The post Custody And Parental Authority Under The Civil Code of Quebec appeared first on FamilyLawyer.Zone.

You’ve heard of things like decision-making responsibility and the principle of the best interest of the child and wonder what it all means?

We have great news!

You are at the right place.

In this article, we go over the concept of parenting arrangement, decision-making responsibility, joint decision-making responsibility, divided decision-making responsibility, parenting time and more. You will understand what each concept means and how it may be applied to you.

This article is divided into the following sections:

• What Is A Parenting Arrangement?
• Best Interest of The Child
• Joint Decision-Making Responsibility
• Sole Decision-Making Responsibility
• Divided Decision-Making Responsibility
• Parenting Schedule
• Terms Used Referring to Decision-Making Responsibility
• Takeaways

Let’s get started!

What Is A Parenting Arrangement?

A parenting arrangement is the manner both parents will continue to take care of their children and split the parenting obligations between themselves.

After you separate from your spouse or get divorced, you will continue to make important decisions related to your children.

These decisions will relate to things like where the child will live, the choice of school, religious education, medical care and other things like extracurricular activities. 

Your parenting arrangement is essentially how you agree to handle these important decisions with the other parent.

When making parenting arrangements, you’ll need to make your decisions in light of what is in the best interest of your child.

This sounds easier said than done!

If you have a conflictual relationship with the other parent, you may end up in court if you cannot agree on the parenting arrangement.

If that were to happen, a family court can allocate the decision-making responsibility based on what the judge will evaluate to be the best interest of the child.

In that case, the judge may award a joint decision-making responsibility to both parents, a sole decision-making responsibility or perhaps a divided decision-making responsibility.

Best Interest of The Child

In case you are unable amicable handle the parenting arrangement amicably, you may need to go to court to have a family judge render a judgment.

You will quickly hear about the principle stating that all decisions must be made in the best interest of the child.

This means that the court will evaluate what’s a good parenting arrangement from the perspective of the child and not from the perspective of the parents.

Although a parenting arrangement may be more convenient for a parent, this does not mean that it may be in the best interest of the child.

Family laws are designed in such a way that the focus and primary attention is to protect the children in a relationship.

To decide in the best interest of the child is to decide in such a way to promote your child’s development, happiness and overall well-being. 

What’s challenging is that the best interest of one child is not the same from one child to the other.

Every family and child’s situation is different.

There are some factors you can consider in evaluating what’s in the best interest of the child such as:

1. Your child’s age
2. How your child has been developing so far
3. Your child’s special needs
4. Your child’s level of maturity
5. Your child’s relationship with siblings
6. Your child’s relationship with each parent
7. Your child’s opinion and wishes
8. The caring abilities of each parent
9. How each parent has been handling himself of herself after separation
10. The ability of the parents to cooperate
11. The ability of the parents to communicate well
12. Cultural differences
13. Religious differences
14. Language barriers 

The list can go on.

What’s very clear is that a judge will want to consider any variable that can affect a child in a divorce case or separation to come up with the best possible parenting arrangement. 

The judge will weigh the pros and cons of any possible parenting arrangement and will decide on an arrangement that will give the most benefit and the least adverse effects on the child.

Joint Decision-Making Responsibility

A joint decision-making responsibility is a parenting arrangement where both parents will have the right to make important decisions in the life of their child.

Each parent will need to consult with the other to make such decisions.

For example, if you have a joint decision-making responsibility, then you must consult the other parent should you want your child to go to private school.

If you both agree, that’s great.

If the other parent does not agree, then you can have the court render a decision based on what’s in the best interest of their child.

Sole Decision-Making Responsibility 

Sole decision-making responsibility is a type of parenting arrangement where one parent is allocated the sole right to make all important decisions in the life of the child.

Remember that decision-making responsibility and parenting time is not the same thing.

You can have parenting time with your child but not have decision-making responsibility.

This means that you are able to spend time with your child and see your child but you may not have the right to decide on medical treatments, religious teachings or education if you do not have decision-making responsibility.

We suspect that if the court were to award decision-making responsibility solely to one parent, it must result from a highly conflictual relationship or a situation where there is a critical concern for the best interest of the child or even the chid’s safety.

In most cases, both parents should have some form of decision-making responsibility.

A joint decision-making responsibility can be a good parenting arrangement when both parents have a good enough relationship allowing them to jointly decide on important aspects of their child’s life.

However, if the court takes that decision-making right away from one parent, probably the parents are highly incapable of jointly deciding on what’s good for their children or there is a safety concern for the child.

Divided Decision-Making Responsibility 

Divided decision-making responsibility is essentially allocating different components of the decision-making responsibility to each parent.

For example, one parent will have the right to make decisions about the health and medication treatment related to a child while the other will decide regarding school and religious education. 

Depending on what you consider to be in the best interest of the child, you may agree with the other parent to divide the decision-making responsibilities so each of you can make the best possible decision for your child.

You should be careful in how you divide the decision-making responsibility as a decision in the realm of one parent’s responsibility may affect the other.

This type of parenting arrangement should be considered with care to avoid future conflict.

For example, imagine if one parent can decide on medical treatments and health of the child while the other parent decides on school and education.

If the parents disagree on the proper administration of medication to the child, then the child may suffer at school.

This is a type of conflict that can arise if the parenting arrangement is divided as such.

It would be a good exercise to consider how such conflicts may be resolved so your child is not affected.

Parenting Schedule 

A parenting schedule is the actual parenting time of each parent with their child or children.

For example, two parents may choose to have a 50/50 parenting time.

This means that each parent will equally share half of the time in a period with a child.

A typical 50/50 parenting schedule is one week of parenting time for one parent and one week for the other in an alternating way.

The parenting schedule you will determine for your child will also need to be designed in the best interest of the child.

For example, if one parent lives very far from the child’s school, it would be difficult to have a lot of parenting time as it will force the child to wake up very early in the morning and commute for hours to reach go to school.

All the factors should be considered in devising a parenting schedule that makes sense for the child and the parents.

Terms Used Referring to Decision-Making Responsibility

There are many terms used to refer to decision-making responsibility, parenting time and contact.

The Divorce Act has been amended to modernize the terminology in the Act to better reflect the parenting roles and responsibilities and therefore new legal terms are now used.

Here is a list of the different terms you may encounter:

1. Custody
2. Sole custody
3. Joint custody
4. Shared custody
5. Split custody
6. Access 
7. Access rights
8. Visitation rights
9. Decision-making responsibility
10. Parenting time
11. Contact
12. Parenting orders
13. Contact orders
14. Parental responsibility
15. Guardianship
16. Tutorship
17. Parental authority 

Depending on the applicable law, each of these terms may be employed.

For example, in Quebec, if the Civil Code of Quebec applies, the terms custody and access rights will be employed.

The Civil Code also refers to the parental authority to refer to the concept of decision-making responsibility under the Divorce Act.

You will need to pay close attention to the legal foundation of your family law case so you can better grasp the actual legal significance of the terms referring to the care and parenting of your child.

Takeaways

In this article, we have looked at different types of parenting arrangements possible.

The family laws in Canada are designed to protect the children and promote their overall growth and well-being.

Having said that, the parenting arrangements should be considered in light of what works best for the child as opposed to what’s more convenient for the parents.

There are different types of arrangements you can have with respect to the decision-making responsibility such as joint decision-making responsibility, sole decision-making responsibility or even a divided decision-making responsibility.

If the parents are unable to decide what’s best for their children and agree on a parenting arrangement, the courts will do it with what they have.

We hope this article was informative.

If you need any legal support and advice from our family lawyers relating to decision-making responsibilities and the parenting arrangement, be sure to contact us as needed.

Our family law firm operates in the area of family law and our family lawyers have the experience and competence to provide you practical and useful legal advice.

We wish you all the best!

The post Different Types of Custody And Parenting Arrangement After Separation appeared first on FamilyLawyer.Zone.

You heard about decision-making responsibility, parenting time and contact and wonder what they mean exactly?

We have good news for you!

In this article, we go over the Divorce Act amendments relating to the decision-making responsibilities of the parents. What used to be custody and access rights are now referred to as decision-making responsibility, parenting time and contact. What does the decision-making responsibility actually mean? We will cover that in detail!

This article is divided into the following sections:

• Objectives of The Divorce Act Amendment
• Changes To The Terms Referring to Custody
• What Does Decision-Making Responsibility Refer to?
• Decision-Making Responsibility Refers To Major Decisions
• How is decision-making allocated between parents?
• Previous Divorce Act Terminology Related to The Care of A Child

Let’s get started!

Objectives of The Divorce Act Amendment 

On June 21, 2019, Bill C-78 received Royal Assent and provided for important changes to the Divorce Act to take effect as of July 1, 2020.

The amendment of the Divorce Act is an important revamping of the divorce law aligning its terms and provisions with the realities of our society today.

The purpose of this amendment is to:

1. Promote the best interest of the child
2. Address family violence
3. Help reduce child poverty 
4. Make Canda’s family justice system more accessible and efficient

Changes To The Terms Referring to Custody

The wording used under the Divorce Act prior to the amendment referred to “custody” and “access rights” when referring to the care and parental responsibilities in raising a child. 

The wording employed was highly parent-centric adversely impacting the parents. 

The parents were led to fight for the custody as if it was a property to be won or the prized legal achievement objective in court.

The amendment to the Divorce Act repealed the terms custody and access replacing them with “decision-making responsibility”, “parenting time” and “contact”.

Article 16.3 of the Divorce Act now states:

Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

Based on this new provision, the court can allocate decision-making responsibility to either one or more persons.

A person can be either souses or a person other than a spouse who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

As you can see, the court has a greater level of discretion in grant decision-making responsibilities to the parents or other persons who care for or intend to care for the chid.

The replacement of the terms custody and access is found upon the objective to focus the attention on the parental relationship with the child as opposed to subjecting the child to a parent in parent-focused terminology of “custody” of a parent or “access” of a parent.

What Does Decision-Making Responsibility Refer to?

Decision-making is a fundamental responsibility of the parents to make important decisions in the life of their children.

Every child needs and deserves the to have parents make the best possible decisions to give them the best chance at life.

Parents need to step in and make important decisions such as the choice of school, medical treatments, the child’s overall health, values, religion and others.

The decision-making responsibilities are essentially the ability of a parent to make important decisions in the life of their child.

In Quebec, we are already familiar with this concept when referring to parental authority. 

By referring to decision-making responsibility, the person allocated with this responsibility will be the one making the important decisions about a child.

This could be both parents or one parent as the court may decide.

Decision-Making Responsibility Refers To Major Decisions

The concept of decision-making responsibility refers to major decisions related to a child, not the routine day-to-day decisions.

For example, decisions about the choice of school, doctors and religious teachings will be considered as decision-making responsibilities.

Decisions about where the child goes today, with who they play, what they eat and what time they come home will by their day-to-day decision that will be handled by the parent having parenting time.

Major decisions for a child can include:

1. Choice of schools
2. Extracurricular activities
3. Health-related questions
4. Medical treatments
5. Choice of doctors
6. Surgeries
7. Religious teachings

How is decision-making allocated between parents?

In most cases, if the parents are able to demonstrate that they care for their child and they are able to overcome their differences for the greater good of their child, the court will grant decision-making responsibility to both parents.

In situations where the parents are unable to get along or there are unique circumstances the court can consider such as family violence and abuse, the court may allocate decision-making responsibility to only one parent.

The court’s decision must be based upon the best interest of the child.

Previously, there was a presumption that a child needs the most compatible time with each parent.

Today, the courts must consider the best interest of the child and decide what type of decision-making responsibility will lead to the greatest protection of the child’s interest.

It’s worth noting that the court will have the ability to allocate elements of decision-making responsibility to a parent.

In other words, the court can say that parents will have decision-making responsibility only with respect to cultural and religious matters. 

The court must always be guided by the best interest of the child in any parenting order.

Previous Divorce Act Terminology Related to The Care of A Child

Previously, the Divorce act referred to the term custody and access rights.

It was not clear which parent had the ability to make important decisions in the life of the child.

Was it the parent with custody? 

Was the parent with access right enabled to make important decisions in the life of the child or just be consulted?

The law was not clear.

The courts across Canada had developed a set of jurisprudential rules and local statutes to clarify this legal ambiguity. 

Now, the law is clear.

The decision-making responsibility will be decided by the court in the best interest of the child.

If it is allocated to both parents, regardless of parenting time, then both parents are responsible to make important decisions.

If not, then the person appointed by the court will have such responsibility.

The terms custody and access rights evoked negative feelings and a custody battle typically resulted in a winner and loser mentality.

Takeaways

The Divorce Act is modernized to reflect how society requires better protection of the children in the context of a divorce and parental conflict.

The changes to the law are intended to promote the best interest of the child and coin a more appropriate term related to their care and upbringing.

The parent-focused terminology of custody and access rights have been changed to a more child-focused terminology of parental decision-making, parenting time and contact.

In the next few years to come, we will see how the courts will interpret these new concepts and align past jurisprudential teachings to the new statutory regime.

This article focused specifically on the decision-making responsibility of the parents so you can get a better understanding of this concept.

We hoped you were able to find the answers to your questions.

Our child custody lawyers are here to support you for any question or legal assistance in this regard.

Don’t hesitate to reach out to use for legal assistance and consultation.

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