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.

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 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.

The Divorce Act applies to those living in Canada for at least 12 months looking to dissolve their marriage.

Regardless of where you were married, provided you lived in Canada for at least 12 months, the Divorce Act will apply to your case.

The Divorce Act deals with all aspects of the separation of a marriage couple such as:

1. Parenting rights and obligations
2. Contact with their child
3. Child support
4. Spousal support
5. Changes to the support obligations

History of divorce law in Canada

Prior to 1968, Canada did not have a uniform divorce law applicable across the entire nation.

Each Canadian province would independently handle the divorce in accordance with their own local laws.

Interestingly, in the province of Quebec, the Civil Code of Lower Canada stated that a marriage can only be dissolved by the natural death of one of the parties. 

For so long as the couple was alive, their marriage could not be dissolved.

Divorce Act of 1968

In 1968, the Canadian government finally adopted the Divorce Act, representing a federal law applicable across the entire Canadian nation.

Every province and territory was bound to respect the terms of the Divorce Act regulating and governing the separation of married couples.

Initially, the Divorce Act provided for several grounds:

1. Acts of adultery committed by the other spouse
2. Separation for over three years due to imprisonment, addiction, disappearance, refusal to consummate the marriage or living separate and apart
3. Bigamy
4. Physical and mental cruelty 
5. Conviction of a sexual crime

Divorce Act of 1986

In 1986, the Canadian Parliament modified the Divorce Act as follows:

• Eliminated bigamy as a ground for divorce
• Reduced the separation to a period of 12 months and recognized that the demonstration of a spouse living separate and apart was sufficient as an acceptable ground for divorce 
• A divorce application can be initiated by one spouse or jointly by both spouses

Changes to the Divorce Act effective July 1, 2020

The federal government has brought important changes to the divorce act taking effect starting as of July 1, 2020.

These changes related to the language used to refer to the care of the children after the separation along with how a parent can move with or without a child.

Previously, the Divorce Act referred to children using terms like custody and access rights. 

With the changes to the Divorce Act, we are going to refer to children as decision-making responsibilities, parenting time and contact with children.

Decision-making responsibility

Decision-making responsibility is a parent’s duty to make important decisions about their child’s life such as health, education, religion, culture, medical treatment, activities and so on.

In Quebec, the Civil Code of Quebec deals with the parental authority concept having a similar definition.

The decision-making responsibilities can be shared or awarded to one spouse only.

Parenting time

Parenting time is the new concept referring to the child in the care of a spouse. 

We used to refer to this as the custodial and non-custodial parent.

The spouse with parenting time will have the ability to make the day-to-day decisions concerning the child without having to consult with the other.

Contact with child

Contact refers to the time a parent or someone like a grandparent who has the right to have contact with the child exercises that contact.

This used to be access rights.

If you are granted rights of contact with a child, you do not have the ability to make the day-to-day decisions relating to the child.

Parenting plan and orders

Parenting plan and parenting orders refers to the parenting agreement between the parents or a judgment rendered by the court relating to the parenting rights and obligations related to a child or children.

Parenting plan used to be called a custody agreement and parenting order was a custody judgment.

Best interest of the minor child

The changes to the Divorce Act establishes a list of factors the court must take into consideration when evaluating a child’s best interest.

Article 16(3) of the Divorce Act lists the factors the court must consider to evaluate a child’s best interest:  

1. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
2. the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
3. each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
4. the history of care of the child;
5. the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
6. the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
7. any plans for the child’s care;
8. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
9. the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
10. any family violence and its impact on, among other things,
    1. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    2.  the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
11. any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Family violence

The court must also consider the impact of family violence when rendering a judgment impacting a child.

The court must evaluate a parent’s ability and willingness to care for his or her child.

Many children are victims of family violence during and after separation and the Divorce Act is now empowering the courts to make the most appropriate decision related to the child. 

The Divorce Act sets out the factors that the court must consider in article 16(4):

1. the nature, seriousness and frequency of the family violence and when it occurred;
2. whether there is a pattern of coercive and controlling behaviour in relation to a family member;
3. whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
4. the physical, emotional and psychological harm or risk of harm to the child;
5. any compromise to the safety of the child or other family member;
6. whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
7. any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
8. any other relevant factor.

Relocation and change of residence

The changes to the Divorce Act also deals with the relocation of a parent with a child.

The relocation with a child after separation is a highly disputed topic between parents resulting in legal battles before the court.

Relocation under the Divorce Act means a change in the home of a child or person with parenting time or decision-making responsibilities affecting those with parenting time, decision-making responsibility or contact with the child.

The Divorce Act now provides for a process that parents must follow should they wish to relocate.

The person who wants to move must give a 60 day prior notice of their intention to move giving details about the relocation.

The other parent or person with parenting time ie decision-making responsibility will have 30 days to object to the relocation.

People with contact rights will not have the right to object to the relocation.

If there is an objection, the court will ultimately decision to approve or not the relocation by analysing some factors:

1. Reasons for the move
2. Impact on the child
3. Past judgments 
4. Reasonable plan on how parenting time, decision-making responsibility and contact will be handled after the move 

Legal resources

Here are some useful links for legal resources to help you in your research:

1. Divorce Act
2. Strengthening and modernizing Canada’s family justice system by the Canadian Department of Justice
3. Legislative background from the Canadian Department of Justice

Conclusion

The Divorce Act has been adopted since 1968 and has gone through several important changes. 

In 2020, the Canadian government brought about important changes to the Divorce Act to keep up with the societal and cultural changes that have taken place.

It may take some time before the legal system, judges, lawyers and legal officers fully shift their mindset and adopt the new principles outlined in the Divorce Act.

This is a normal and natural evolution of the laws.

Time will tell how the new principles of the Divorce Act will be interpreted by the Courts.

The post Divorce Act of Canada appeared first on FamilyLawyer.Zone.

Perhaps you are trying to figure out if the Canadian government dictates the applicable laws to a divorce or the provincial governments.

No matter the reason, this article is perfect for you.

In this article, we go over the divorce laws in Canada in detail. We will briefly discuss the divorce law history in Canada, look at the application of the Divorce Act, look at how the Provincial governments handle divorce laws, the Civil Code of Quebec, and finally we give you a list of all the family courts in Canada along with the family law government website for every Canadian Province and Territory.

This article is divided as follows:

1. History of divorce law in Canada
2. Divorce Act of 1968
3. Divorce Act of 1986
4. Divorce Act Amendment of 2020
5. Divorce laws by Canadian Province
6. Civil Code of Quebec
7. Civil union dissolution for same sex couples
8. Canadian provincial family courts
9. Divorce laws takeaways

Let’s get started!!

1- History of divorce law in Canada

Prior to 1968, Canada did not have a uniform divorce law applicable across the entire nation.

Each Canadian province would independently handle the divorce in accordance with their own local laws.

Interestingly, in the province of Quebec, the Civil Code of Lower Canada stated that a marriage can only be dissolved by the natural death of one of the parties. 

For so long as the couple was alive, their marriage could not be dissolved.

2- Divorce Act of 1968

In 1968, the Canadian government finally adopted the Divorce Act, representing a federal law applicable across the entire Canadian nation.

Every province and territory was bound to respect the terms of the Divorce Act regulating and governing the separation of married couples.

Initially, the Divorce Act provided for several grounds:

1. Acts of adultery committed by the other spouse
2. Separation for over three years due to imprisonment, addiction, disappearance, refusal to consummate the marriage or living separate and apart
3. Bigamy
4. Physical and mental cruelty 
5. Conviction of a sexual crime

3- Divorce Act of 1986

In 1986, the Canadian Parliament modified the Divorce Act as follows:

• Eliminated bigamy as a ground for divorce
• Reduced the separation to a period of 12 months and recognized that the demonstration of a spouse living separate and apart was sufficient as an acceptable ground for divorce 
• A divorce application can be initiated by one spouse or jointly by both spouses

4- Divorce Act Amendment of 2020

On May 22, 2018, the Canadian government passed the Bill C-78 to strengthen the Canadian family justice system.

This Bill makes changes to several family laws particularly the Divorce Act.

Bill C-78 received Royal Assent on June 21, 2019 and will take effect as of July 1, 2020.

In general, the legislative changes tries to achieve the following objectives:

1. Better promote and protect the interest of minor children
2. Better handle and address family violence
3. Try to reduce poverty and economic hardships
4. Make the family justice system more accessible to Canadian

5- Divorce laws by Canadian Province

Although the Divorce Act is a federal law applicable to all Canadian provinces with respect to divorce, each Canadian Province will have further local laws apply to a divorce case.

Typically, each Provincial family court will have its own rules of court procedures applicable to a divorce case and how the divorce proceedings is governed from start to finish.

The below is a curated list of the different Canadian Provincial government websites where you can get more information with respect to their local rules:

• British Columbia: British Columbia Ministry of the Attorney General
• Alberta: Government of Alberta Family Law Assistance
• Saskatchewan: Courts of Saskatchewan Family Law 
• Manitoba: Government of Manitoba
• Ontario: Ontario Ministry of the Attorney General
• Quebec: Justice Ministry of Quebec
• New Brunswick: Family Law NB of New-Brunswick
• Nova Scotia: Family Law of Nova Scotia
• P.E.I : Family Law of PEI  
• Newfoundland: Newfoundland Justice and Public Safety
• Yukon: Yukon Department of Justice
• Nunavut: Nunavut Department of Family Services
• Northwest Territories: Government of Northwest Territories

6- Civil Code of Quebec

In the Province of Quebec, in addition to the Divorce Act, civil law principles of the Civil Code of Quebec will also apply to a divorce case.

The Superior Court of Quebec will balance the application of the civil laws of Quebec along with the federal Divorce Act.

For example, the Divorce Act requires that child support or spousal support be paid if there is a child involved or if a spouse will suffer economic disadvantages as a result of the breakdown of the marriage.

The calculation of the child support or spousal support will be handled by each Province.

In the Province of Quebec, the Quebec child support guidelines will dictate the precise amount of child support that will be required to pay.

The Quebec courts have also a set of rules applicable to determine how spousal support will be awarded and calculated.

7- Civil union dissolution for same sex couples

The Divorce Act is intended to dissolve the marriage of a man and a woman.

As a result, same-sex couples cannot not get married and are legally deprived of the protections afforded by the divorce laws such as the Divorce Act and other related legislation.

The Quebec Provincial government therefore introduced the concept of civil union in the Civil Code of Quebec.

The civil union is defined as follows:

A civil union is a commitment by two persons 18 years of age or over who express their free and enlightened consent to share a community of life and to uphold the rights and obligations that derive from that status.

A civil union may only be contracted between persons who are free from any previous bond of marriage or civil union and who in relation to each other are neither an ascendant or a descendant, nor a brother or a sister.

Therefore, it is a commitment of two persons of 18 years of age or over. 

The definition no longer specifies a man and a woman.

It says “two persons” of 18 years of age or over.

Therefore, this includes gay couples and individuals of same-sex looking to formalize their union.

The Civil Code of Quebec also governs the separation of civil union couples as well.

We refer to the dissolution of the civil union to refer to the legal consequences of the separation of same-sex couples.

8- Canadian provincial family courts

Every Canadian Province has a family court dealing with family related matters and the divorce laws.

Here is the list of the Canadian Provincial and territorial superior trial courts:

• Court of Queen’s Bench of Alberta
• Supreme Court of British Columbia
• Court of Queen’s Bench of Manitoba
• Court of Queen’s Bench of New Brunswick 
• Supreme Court of Newfoundland and Labrador
• Supreme Court of the Northwest Territories
• Supreme Court of Nova Scotia
• Nunavut Court of Justice 
• Court of Ontario
• Superior Court of Justice 
• Supreme Court of Prince Edward Island 
• Quebec Superior Court 
• Court of Queen’s Bench for Saskatchewan 
• Supreme Court of Yukon 

These family courts have jurisdiction to hear all family related cases such as custody disputes, child support matters, divorce, separation, division of assets and other.

9- Divorce laws takeaways

Canada is a federal nation having both federal laws and provincial laws governing the rights and obligations of married couples going through a divorce.

The divorce courts will apply the divorce laws in such a way to maintain harmony in interpretation and application across the country.

However, each provincial court will also have its own jurisdiction on specific matters relating to family law and divorce.

The divorce laws in Canada are intended to allow for a fair and equitable separation of the couples.

We hope you enjoyed this article on the Canadian divorce laws.

The post Divorce Laws in Canada appeared first on FamilyLawyer.Zone.

Perhaps you are involved in a divorce case and you are looking to educate yourself on the topic?

No matter the reason, we have a great article for you on divorce.

In this article, we will discuss things like what is a divorce, the law in Canada that governs the divorce, the divorce grounds, the objective of the Divorce Act, difference between a divorce and a legal separation or a marriage annulment, contested divorce, at-fault divorce, summary divorce, amicable divorce and more. After reading this article, you will know a lot more about divorce!

This article is divided as follows:

1. What is a divorce?
2. What laws govern divorce in Canada?
3. What court has jurisdiction on divorce matters in Quebec?
4. What is the alternative to a divorce?
5. What are the divorce objectives?
6. What are the 3 grounds for divorce?
7. What is the difference between divorce and annulment?
8. What is the difference between divorce and legal separation?
9. Why file a legal separation file instead of a divorce?
10. What is a contested divorce?
11. What is an at-fault divorce?
12. What is a summary divorce?
13. What is a no-fault divorce?
14. What is an uncontested divorce?
15. What is a collaborative divorce?
16. What is an electronic divorce?
17. What is an online divorce?
18. Divorce Takeaways

Let’s get started!!

1- What is a divorce?

It’s a dissolution of the marriage

A divorce is the legal dissolution of the marriage.

In other words, a married couple looking to terminate or dissolve their marriage will seek a divorce from the local Courts in the Province where they live.

By way of a divorce, once the marital union is dissolved, the formerly married couple will no longer have any legal obligations towards one another.

Typically, married couples are required to adhere to certain obligations such as cohabitation obligations, mutual support and assistance, along with other matrimonial obligations.

Divorce judgment dissolves the marriage

When the divorce courts render a divorce judgment, such obligations are dissolved and so the couple can move on with their lives.

Only married couples are able to ask for a divorce and the divorce judgment can only be rendered by the competent Court.

2- What laws govern divorce in Canada?

Divoce is governed by the Divorce Act in Canada

In Canada, the divorce institution is governed by the Divorce Act.

Under the terms of the Divorce Act, the divorce must be rendered by the competent Provincial Court.

The law outlines several requirements to be met authorizing the Court to render a divorce judgment.

The Divorce Act is a federal law that applies in all Provinces and Territories in Canada.

The provincial and territorial laws will apply with respect to the Court procedures on how to effectively file for divorce along with matters such as the division of marital property.

Legal matters governed by the Divorce Act

Some of these requirements are as follows:

1. Court jurisdiction
2. Residency requirements
3. Divorce grounds
4. Calculation of separation period
5. Duty of a legal advisor
6. Duty of the Court
7. Corollary relief
8. Child support orders
9. Spousal support orders
10. Parenting orders (formerly custody orders)

The Divorce Act is a comprehensive set of legal provisions where the Canadian legislator attempts to deal with the separation of a Canadian couple in a fair and equitable way.

3- What court has jurisdiction on divorce matters in Quebec?

Superior Court of Quebec has jurisdiction over divorce in Quebec

In Quebec, the Provincial Court dealing with family law matters and divorce is the Superior Court of Quebec.

In rendering a divorce judgment, the Court must observe the requirements of the Divorce Act.

Each Province will have its own local court rules of procedure 

The procedure governing the format and content of a divorce application along with any supporting legal forms and documents are determined by the Quebec Province.

Each Province in Canada adopts its own court rules of procedure to handle family matters including divorce.

For instance, the Regulation of the Superior Court of Québec in family matters Code of Civil Procedure outlines the procedural requirements for engaging with the Superior Court of Quebec in family matters.

When the Superior Court of Quebec renders a divorce judgment, the judge will apply the same principles derived from the Divorce Act just like how any other judge in any other Canadian Province of Territory would.

Quebec laws are influenced by the civil law tradition

The main difference in the Quebec system is that the partition of the assets and some other elements are handled by the civil legal system in Quebec.

The Court in Quebec will be influenced by the civil tradition of the Quebec laws and the principles contained in the Civil Code of Quebec when applying the terms of the Divorce Act.

An underlying objective of the Civil Code is to ensure that the principles surrounding the best interest of children or others remain consistently applied.

All other Provinces and Territories operate under a common-law regime and thus will consider jurisprudence differently.

Notably, considering the Divorce Act is a federal law binding upon all provinces and territories, the Courts of each province will also attempt to remain consistent in their application of the law.

The rulings of the Supreme Court of Canada will have a direct impact on how each province will interpret and apply the terms of the Divorce Act.

4- What is the alternative to a divorce?

An alternative to a divorce for married couples is a legal separation

If a married couple does not intend to formally dissolve their marriage and wants to separate from one another, they can file for a separation as to bed and board application, more commonly referred to as ‘legal separation’.

The laws in the Province of Quebec regarding legal separation do not apply for a divorce or unmarried couples.

The consequences of a legal separation is similar to a divorce

The legal separation regime involves handling nearly the same matters as in a divorce case, such as:

1. Court jurisdiction
2. Residency requirements
3. Divorce grounds
4. Corollary relief
5. Child support orders
6. Spousal support orders
7. Parenting orders and child custody

Residency requirement differs

For the Superior Court of Quebec to be legally enabled to render a divorce judgment, one both couples will need to have resided in the Province of Quebec for at least twelve months.

With regards to a legal separation, it’s only required to show that the filing party was residing in the Province of Quebec at the moment of the filing of the application. 

Marriage is not dissolved

The other notable difference is that a Court will not dissolve the marital bond when rendering a judgment with regards to separation as to bed and board.

5- What are the divorce objectives?

The objective of the Divorce Act is to provide in an equitable breakup between the married couple by applying legal standards to the following:

1. Division of assets and distribution of the couple’s property
2. Division of debts and liabilities
3. Child support and expenses
4. Parenting obligations and parenting time also custody and access rights
5. Spousal support and alimony

The Divorce Act provides the rules and parameters to help couples separate should they fail to mutually agree on their own.

Typically, a settlement agreement, although it may not be perfect, will be advisable as opposed to having a judge render a divorce judgment in a contested and adversarial trial.

6- What are the 3 grounds for divorce?

Under the Divorce Act in Canada, there are three divorce grounds: 

1. Separation for over twelve months
2. Adultery
3. Physical or mental cruelty

Twelve month separation

The first ground is the separation of over twelve months.

Essentially, the married couple informs the court that they have been living separate and apart for more than twelve months and asks the court to render a divorce judgment.

This requirement must be satisfied on the day the judge is rendering the divorce judgment.

You do not have to wait twelve months before starting or applying for a divorce.

Adultery

As for adultery, it’s pretty self-explanatory.

There needs to be a sexual act committed by the other spouse and that such act has not been condoned.

The spouse who commits the act of adultery cannot invoke his or her own act of adultery as a ground for divorce.

This divorce ground must be proven in court.

So the spouse invoking adultery as a ground must bring evidence to demonstrate the infidelity of the other spouse. 

Physical and mental cruelty

Finally, physical and mental cruelty is the third ground for divorce under the Divorce Act.

This divorce ground can cover an important range of situations that the Courts may consider to grant a divorce.

If the Court considers that the actions of a spouse has resulted in a physical or mental cruelty rendering the cohabitation intolerable, then the Courts will accept to grant a divorce on this ground.

Some examples of behaviours that could lead to physical and mental cruelty are the following:

1. Sexual harassment
2. Alcoholism
3. Disability
4. Desertion
5. Physical violence
6. Psychological harassment
7. Domestic violence towards the spouse, children or other family members

7- What is the difference between divorce and marriage annulment?

Getting a divorce or seeking the annulment of the marriage are two very unique and different legal demands with very different legal foundations.

Your marriage is assumed as valid in a divorce proceeding

Where in the context of divorce, we assume that the marriage was valid and we determine the most appropriate and equitable distribution of assets and handling of other obligations for dissolving the marriage.

In an annulment proceeding, you attack the validity of your marriage

For an annulment, you are essentially attacking the validity of the marriage retroactively to the date of the marriage.

The annulment is essentially requesting the cancellation of the marriage.

If an annulment order is granted, the law will cancel the marriage and the marriage will be deemed as if it had never happened.

As a result, the Court will attempt to make the parties whole and restitute what the parties have brought into the marriage.

The annulment procedure is exceptional and, in Quebec, requires that the action be instituted within a certain timeline.

Be sure to read our article on marriage annulment vs divorce where we cover the topic in more detail.

8- What is the difference between divorce and legal separation?

Married couples can get divorced or legally separate

Married couples have essentially two options, they can get divorced or legally separate from one another.

A divorce is a definitive dissolution of the marriage

If the married couple wishes to live separate and apart, in a definitive and permanent way, and dissolve their marital bond, then they should ask for a divorce.

By asking for a divorce, the Courts will render a divorce judgment dealing with all the consequences of the separation, such as dividing of the assets and debts, spousal support, child support, parenting rights and time and any other important matter for the couple.

The divorce judgment dissolves the marriage forever

In addition to that, by issuing the divorce judgment, under the Canadian law, thirty one days after the judgment has been rendered, the marriage is formally dissolved and the divorce takes effect.

The couple will then receive a divorce certificate issued by the Court establishing the termination of the marriage.

Once the marriage union is dissolved, then the couple will have the legal rights to get married again if they choose to do so.

Legal separation preserves the marital bond

A legal separation is where, similar to a divorce, the married couple wish separate and apart, in a definitive and permanent way, but they do not wish to dissolve their marital bond.

Therefore, by filing a legal separation application, the couple will need to manage the consequences of their separation in nearly the same way as a divorce, such as dealing with their assets, financial support, children and so on.

The consequences of legal separation are similar to a divorce 

Considering that the Court does not dissolve the marital bond, the couple formally remain married although they do not have an obligation to cohabitate and provide one another with mutual assistance and support.

They can lead a fully independent life and their life decisions will no longer have an impact on the other spouse.

9- Why file a legal separation file instead of a divorce?

There may be many reasons why a couple may decide to ask for a legal separation as opposed to a divorce.

Legal separation is preferred to divorce for religious reasons

The reason may be religious.

In other words, if the dissolution of the marriage is not an option they can entertain from a religious point of view, then, the couple will go for a legal separation.

Legal separation is preferred to a divorce for some tax benefits

Other reasons may be to continue benefiting from some tax or benefits that the couple would want to protect.

File a legal separation to bridge a residence gap

Alternatively, it could also be merely to bridge the residency gap for seeking a divorce.

What do we mean by that?

Well, under the Divorce Act, to ask for a divorce in the Court of your Province, you must have lived in that province for at least twelve months.

However, to file a legal separation, you must be living in the province as of the moment of the filing.

So you may want to immediately start the legal proceedings against your spouse by filing a legal separation application and when you complete your twelve months residence requirements, file a divorce application thus superseding the legal separation file.

You can ask for a divorce at any time after a legal separation judgment is rendered

You can ask for a divorce at any time after the legal separation judgment has been issued.

In other words, at any point in time that you wish to dissolve your marital bond, even after the issuance of a legal separation judgment, you can file for a divorce application and indicate to the Court that the consequences of the divorce were already dealt with during your legal separation file.

The Court will then render a divorce judgment and reconfirm the partition of the assets and terms of your legal separation.

Of course, certain things may be modified having to do with children and child support as these subject matters evolve over time, but the actual partition of the family patrimony, assets and liabilities will tend to be what was decided under the legal separation file.

10- What is a contested divorce?

A divorce case that is submitted to a trial judge

A contested divorce is one where due to disagreements between the couple in how to handle the consequences of their marriage will be submitted to a trial judge for a hearing.

At the trial level, a divorce judge will hear the parties, the representations made by their attorneys and will consider the evidence to render a judgment on the contested issues.

A contested divorce is very expensive

It goes without saying that a contested divorce is a very expensive venture.

Considering that your case will go to trial, your divorce lawyer will need to spend time preparing for the case, meeting with the witnesses, prepare you for your case, review the law, doctrine and jurisprudence and spend several days in Court making the necessary representations for you.

You will also need to take time off from your work and regular life to go through this very stressful and adversarial process.

There are certain points in a divorce that may result in a dispute between the parties and that could be the division of the assets or more importantly the parenting time and custody with the children.

11- What is an at-fault divorce?

A type of divorce where a spouse invokes a fault against the other

An ‘at-fault divorce’ or a ‘fault divorce’ is one where a spouse establishes a marital fault against the other as a ground for seeking a divorce.

In Canada, the fault can be categorized in acts of adultery or acts of physical or mental cruelty.

In such cases, the spouse filing for a divorce will need to factually demonstrate and prove the fault on the basis of which the divorce is being requested.

The acts in question will need to have occurred during the marriage and not pardoned or condoned.

For example, invoking the infidelity of your spouse for acts that had occurred prior to the marriage will not be considered by the Court as a ground for divorce.

When invoking a fault by the other spouse, you’ll need to demonstrate to the Court that the acts in question have resulted in the marriage and relationship to be intolerable for you.

The actions and behaviours can also take the form of collusion, connivance or provocation.

Also, the evidence will need to be persuasive and clearly establish the behaviour and fault in question.

The fault of a spouse will not result in a legal benefit of any kind

In Canada and in Quebec, the fault and behaviour of the spouse during the marriage will generally not affect the division of property, child support, parenting orders and so on.

However, there may be instances that the Courts may consider the behaviour and take that into consideration in the divorce judgment.

Fault-based divorce can of course be contested by the other spouse.

12- What is a summary divorce?

Simple divorce cases can proceed in a summary fashion

A summary divorce or a summary dissolution of marriage is a process by which highly simple cases will proceed with less formality and paperwork at the Court level to obtain a divorce judgment.

In jurisdictions where a summary divorce is offered, typically, you’ll see the following requirements:

• No children natural or adopted
• Short marriage duration
• No family residence, mortgage or real property
• No spousal support demands
• Certain value threshold of individual and marital assets
• No substantial joint debts

Summary process not available in Quebec

Although this process is not available in the Province of Quebec under the civil regime, there are more and more online summary service offerings provided by the Quebec government.

In Quebec, if a couple asking for a divorce has no children, little assets and no demands for spousal support and the like, the couple could file a joint divorce application where they can ask the Court to be exempt from the rules of the family patrimony.

Typically, in such cases, the Courts will authorize such an exemption unless there may be special circumstances that could prevent such an order to be rendered.

SARPA program in Quebec

For instance, the SARPA service allows parents to modify child support obligations through a summary process.

13- What is a no-fault divorce?

This is where the divorce ground does not invoke a fault of any kind

The no-fault divorce is the simplest and least adversarial type of divorce ground that you can invoke when filing for a divorce.

Separation for over 12 months is a no-fault divorce ground

In Quebec and in Canada, the no-fault ground is essentially the separation for over twelve months.

Proving that you have lived separate and apart from your spouse and you have no longer presented yourself as a couple for at least a year will be sufficient to satisfy the divorce ground requirement.

No-fault ground is easiest to prove in court

This is the simplest way of satisfying the divorce ground as you will not need to prove acts of behaviour that would demonstrate wrongdoing by your spouse.

The proof of having lived separate and apart is also much easier to make.

Typically, this evidence boils down to when you and your spouse have stopped living together in your family residence and have adopted a more independent life.

In some cases, although you may continue to live in the same house, you can nonetheless invoke separation over twelve months as you decided to stay in the same house due to financial constraints or you could not make the move in the best interest of your children.

The Courts will need to consider your reasons for not leaving the matrimonial home and decide if you have demonstrated that you have been living separate from one another although not apart.

14- What is an uncontested divorce?

Spouses have mutually agreed on all aspects of their divorce

An uncontested divorce is a divorce process where you and your spouse mutually seek a divorce as you have both agreed on all aspects of your divorce.

Joint divorce application in Quebec

In Quebec, we typically file a ‘joint divorce application’ when it comes to an uncontested divorce.

The joint divorce application is an application that is signed by both spouses.

In other words, there is one legal demand made to the Court and it is requested by both spouses.

An uncontested divorce is synonymous with an amicable divorce

When we say uncontested divorce, we can also say amicable divorce where the parties have reached an amicable settlement.

Where a joint divorce application is filed, it means that the spouses are in agreement to get a divorce and in agreement on all divorce terms right from the initial filing at Court.

The terms of the divorce are typically the division of property, children parenting time and arrangement, previously referred to as custody and access rights, alimony, child support among other things.

If the uncontested divorce presents a fair and equitable divorce terms, the Courts will most likely not intervene.

However, although you may file a joint divorce application, if the Court considers that there appears to be a lack of equity or an unbalanced division of assets and liability, the Court may request that the spouses come and testify to explain why such an arrangement was made.

The Court has a duty to ensure that the consequences of a divorce are fair and equitable and will have discretion in modifying terms of your mutual agreement if it does not consider it appropriate.

15- What is a collaborative divorce?

Alternative dispute resolution method for getting divorced

The collaborative divorce is an alternative dispute resolution method that couples can use in an attempt to reach an agreement on any contentious points in their divorce.

Mediation is the alternative process in Quebec

In Quebec, this collaboration is offered through mediators and a process called mediation.

In common-law jurisdictions, the collaborative divorce will be performed by trained lawyers in the collaborative approach and they will sign a statement whereby if the matter becomes disputed, they will not represent either party in Court.

Their objective is purely to support the couple to reach an agreement in a collaborative way.

Mediation process in Quebec

Now, in Quebec, in the course of mediation, you and your spouse will be making the decisions by yourselves.

Mediators by law are not authorized to represent anyone in Court.

Thus, by default, if mediation fails, then the couple will need to hire a divorce lawyer to assist them in the Court process.

The mediators or any other professionals involved in your collaborative divorce process, such as a social worker, financial specialist or anyone else, will not make any decisions for you but will guide and advise you.

Success of mediation depends on your willingness to make concessions

The success of mediation as a dispute resolution method relies on your willingness and openness to reach an agreement by being able to make concessions.

You will not be able to get the ‘perfect divorce’ but you will need to make decisions as to what’s the minimum viable solution that you can live with.

The mediation process is purely voluntary and you are not obligated to go through with it.

However, if you are able to consider an alternative dispute resolution mechanism to help untangle some legal disagreements, then it may be well worth a try.

Mediators are trained professionals in dispute resolution

The mediators are well trained to help the couple focus on what’s important.

They are trained to:

• Help couples find creative ways to reach an agreement
• Focus on the solution as opposed to the problem
• Help the couple speak their mind openly
• Ensure that the couple share adequate levels of information to make sound decisions

The collaborative divorce or mediation process is a cost-effective way to agree on the terms of your divorce and should be strongly considered.

Also referred to as mediated divorce

A mediated divorce is one where the couple have chosen mediation as an alternative dispute resolution method for reaching an agreement on their divorce terms.

In mediation, the mediator will act as a facilitator.

The mediator will help the couple share what’s on their mind and how they feel they can reach an agreement.

Every mediation session may be different as every couple is different.

In some cases, the mediator will guide the couple or suggest things for the couple to consider as an alternative option in reaching an agreement.

The mediator does not have authority to render binding decisions

The mediator however will never impose any decisions, it is always up to the couple to decide on the terms of their divorce.

Also, the mediation process is voluntary.

As a result, you cannot be forced to pursue mediation if you do not believe that you can reach an agreement or that it may be the best path for you.

16- What is an electronic divorce?

Divorce application filed electronically to court

With the evolution of technology, we are seeing more and more jurisdictions offer the possibility to their residents to file a divorce electronically with the Court, the ‘electronic divorce’.

This is not yet possible in the Province of Quebec but sooner or later, it will surely be a possibility.

Electronic divorce is offered in some countries like Portugal

For instance, Portugal currently offers two persons to file an electronic divorce when it meets certain conditions.

If the divorce is no-fault, uncontested, couple having no real property or children nor asking for support or alimony, then they offer an electronic and administrative method for filing the divorce application.

17- What is an online divorce?

Services offered by vendors to prepare your divorce papers online

Where in the past you needed to hire a divorce lawyer to prepare your divorce papers and application, today, many offer online divorce services where they will assist you in drafting your legal documentation at a fraction of the cost of a divorce lawyer.

Online divorce service offerings are becoming more and more popular as we tend to perform more and more activities online.

Can by a do-it-yourself type of service to prepare your divorce papers

A significant portion of the adult population in Canada and Quebec have access to the Internet either through their mobile phone or home desktop computers.

As a result, completing your own divorce papers and application through the use of an online service provider can help simplify your divorce application paperwork significantly.

If you have an uncontested divorce or an amicable divorce, you are a good candidate to consider the online divorce service offerings.

18- Divorce Takeaways

In Canada, the divorce is governed by the Divorce Act, a federal law applicable across the entire nation.

Each Province will have the powers to adopt their own divorce rules for managing the divorce court proceedings.

In the Province of Quebec, the Superior Court of Quebec is the court given legal jurisdiction to deal with family law and divorce in the Province.

In this article, we have looked at what is a divorce, the grounds of divorce, difference between a divorce and annulment, difference between divorce and legal separation in Quebec and also covered different type of divorce such as at-fault divorce, no-fault divorce, contested divorce, amicable divorce and so on.

Should you need any legal services with regards to your divorce, reach out to our divorce lawyers who are competent to support you. 

Our family law firm is well-positioned in family law to provide you a full range of legal services that you may need.

Be sure to read other related articles that we have written:

1. how is child support calculated in Quebec
2. safeguard orders in Quebec
3. property division in Quebec
4. parenting plans in Quebec
5. compensatory allowance and unjust enrichment in Quebec
6. child custody in Quebec
7. Child support in Quebec
8. family law in Quebec

And more…

In the meantime, we wish you the best of luck in your divorce case!

The post Divorce appeared first on FamilyLawyer.Zone.

Are you involved in a divorce case before the family court and looking for legal representation?

Perhaps you are looking to get the best legal advice from a divorce lawyer regarding your personal situation?

We have great news for you!

You have found the right family law firm!

We will quickly present to you why we are the best family law firm offering you the best divorce lawyers to handle your case. We’ll discuss how our divorce lawyer can provide you with legal assistance, how you can find the best divorce lawyer and why our law firm is well-positioned to provide you with legal services.

This article is divided in the following parts:

1. How can the best divorce lawyer help you?
2. How to find the best divorce lawyer?
3. Our law firm will provide you with best possible legal fees
4. About our divorce law firm

Let’s get started…

1- How can the best divorce lawyer help you?

The best divorce lawyer can help you successfully navigate your divorce case so you can achieve the best possible result, quickly and at the most affordable price.

You can find a good divorce lawyer by calling a few divorce lawyers.

But you need to work with the best divorce lawyer so you can truly see real benefits in the handling of your divorce case.

Great legal advice regarding your divorce case

A great divorce lawyer can help you by advising you on all aspects of a divorce such as:

1. Divorce consequences
2. Divorce strategy
3. Asset division
4. Family patrimony
5. Child custody 
6. Child support
7. Spousal support
8. Compensatory allowance
9. Provisions for cost
10. Amicable settlements
11. Out-of-court negotiations
12. Mediation 
13. Dispute resolution techniques
14. Litigation strategy

And more…

Great divorce case legal strategy

The best divorce lawyers will find clever ways to present your case in the best possible manner before the court while finding concrete strategies in dealing with your case weaknesses.

At the end of the day, the role of a divorce lawyer is to fight really hard for your best interest, your children and your family.

Great court representation

How the best divorce lawyer can help you in your legal case is with regards to your representation before the family court.

It’s one thing to say that I’ll go to court and explain to the judge my case than to say that I’ll go to the court to win my case!

Complex divorce cases require the best divorce lawyer

We understand that many of you strongly consider representing yourself in court and we respect that.

A word of advice.

If you have a complex divorce, lots of assets, complex custody situation, undisclosed revenues, spouses owning businesses, international exposure, you will most definitely stand to gain by having the best divorce lawyer represent you in court.

Let’s face it.

A divorce lawyer is trained to handle divorce cases

A divorce lawyer is trained and groomed to only handle divorce cases, manage evidence, manage witnesses and present your case to court.

It takes years of formal legal education and on-the-job training to achieve a level of experience and mastery of the law to successfully represent clients before the Superior Court of Quebec.

Unless your case is very straightforward or fully amicable, we urge you to consult with a divorce lawyer to see how you can benefit from their services.

Our family law firm offers a full range of legal services regarding divorce and separation. Don’t hesitate to contact us so we can put our experience to work for you!

2- How to find the best divorce lawyer?

Now that you’ve determined that you need a divorce lawyer, how do you find the best divorce lawyer?

There are a few objective and universal factors that can help you find the best divorce lawyer to represent you. 

We have defined a short non-exhaustive list of what you should look for when you are looking for a divorce lawyer. 

This is a subjective list but quite helpful!

What the best divorce lawyer should know how to do

The best divorce lawyer should be able to:

• Accurately tell you about your rights;
• Guide you in dealing with your obligations;
• Fight as hard as he or she can for your best interest;
• Be available to give your advice and guidance by phone or email;
• Understand your challenges deeply to convey that to the judge;
• Have lots of experience in dealing with cases like yours;
• Be prepared and battle-ready at all time;
• Be clear as to what he or she needs from you;
• Only render the right amount of legal services to limit your costs;
• Don’t steer you in the wrong direction so you pay tons to get yourself out of the hole;
• Be fair in his pricing and charge competitive rates;
• Offer you flexibility on payment terms; and,
• Be a super nice person so you enjoy working with him or her!

There may be other points or there may be too many here, that’s up to you to define what’s right for you.

Now, for the million-dollar question…

Assess what you need from your divorce lawyer

Can you find the diamond in the rough, the best lawyer at the greatest rate possible!

Let’s see…

It’s difficult to say that you will find ‘the’ perfect divorce lawyer to represent you who has all the experience, who fully understands you, who fully understands the law, who masters court procedures, has the best price and so on.

Just like anything you buy, you will need to determine what’s your baseline requirement and then make concessions.

For example, if you need a lawyer to be fairly priced, then, you will evidently look for a divorce lawyer who can provide you with the best legal rates. 

You must acknowledge that you may or may not get the greatest quality of legal services if you are looking for just the best fees out there. 

If legal competence and strategy is a key element for you, then, you’ll need to make concessions and accept to pay a little more.

The best divorce lawyers will potentially come with a price tag.

Our divorce lawyers are great at what they do and are affordable

The good news is that at our law firm, we have the best divorce lawyers at the best market rates. 

We are so confident that we can not only provide you with the best possible legal services at the best possible price, you will be stunned!

Contact us to explore the possibilities with us.

3- Our law firm will provide you with best possible legal fees

Our law firm is dedicated to family law legal services, divorce and family law.

There are many options out there, many lawyers and many law firms but there are no other law firms as motivated, eager and passionate about family law looking to serve you.

We want to be very honest with you, we want your business.

When you contact us, we will assess your case and structure a fee arrangement with you in such a way that you can benefit from our services while not being worried about your legal fees going through the roof!

We understand that you never budget paying for lawyers although you need the services of a lawyer.

With this in mind, we will work with you to ensure we find the best possible solution and fee arrangement, you can count on that!

4- About our divorce law firm

Our family law firm is located in the City of Montreal and well-positioned to provide you with legal advice relating to your divorce case, advice, consultation and court representation.

We are not like the other family law firms giving you a scripted message suggesting that we can do everything under the sun and more.

We are the real deal, no marketing talk track, not hidden agendas…

With us, you will get what we say you will get and that’s a high level quality of legal services consistent with our brand’s mission.

Our mission statement is simple: give you the best family law legal services concerning your divorce at the best and most affordable price. Period.

If you need to speak to a lawyer, our experienced divorce lawyer is sitting on the bench to help you.

Don’t hesitate to reach out, it will be our pleasure to serve.

We love what we do and we will passionately execute our mandate for you, that’s our commitment. 

We hope you enjoyed this article!

Best of luck!

FamilyLawyer.Zone

The post Best Divorce Lawyer In Montreal (Top Rated) appeared first on FamilyLawyer.Zone.

You are married and want to better understand your rights and obligations with regards to the assets you acquired during your marriage.

Perhaps you are in a divorce, legal separation or dissolution of civil union case and you are looking to understand the consequences of your separation on the property you owned with your spouse.

In this article, you will learn and understand your responsibility towards family assets and debts along with how your property will be divided upon separation.

You will then be better equipped to make more informed decisions in handling your assets and property division in Quebec.

1. Property owned prior to marriage
2. Value of property owned prior to marriage
3. Revenue from property owned prior to marriage
4. Property acquired after marriage
5. Family patrimony
6. Family patrimony assets
7. Ownership of family patrimony assets
8. Modifying application terms of the family patrimony
9. Exemption to the rules of the family patrimony
10. Matrimonial regimes
11. Partnership of acquests
12. Property considered an acquest
13. Property considered as private
14. Division of assets under the partnership of acquests regime
15. Dissolution and liquidation of the partnership of acquests
16. Separation as to property
17. Community regime
18. Marriage contracts
19. Selecting matrimonial regime
20. Agreeing on asset division
21. Protection of the family residence
22. Consent of spouses needed
23. Declaration of family residence
24. Conclusion on Property Division in Quebec

Property owned prior to marriage

Generally speaking, the assets and property you acquired prior to your marriage will not be subject to partition in the context of a divorce, legal separation or dissolution of civil union.

As a result, if you brought $200,000 in property into the marriage, then upon separation, you can claim back your $200,000 along with any value appreciate.

Value of property owned prior to marriage

Some couples may find it useful to do an inventory of their assets and liabilities prior to getting married so that it is clear what property or debt was brought into the marriage by each spouse along with their respective values.

This inventory may be done in the context of a marriage contract where the couple can also select the matrimonial regime applicable upon separation as we will discuss further in this article.

In essence, the property that you bring into the marriage along with its value appreciation or depreciation will be attributed to you upon separation.

Revenue from property owned prior to marriage

One important legal implication affecting the property you owned prior to marriage is the revenue generated by such property.

If you are subject to the matrimonial regime of partnership of acquests, the revenue generated by your assets, whether from prior to marriage or after, will be considered as “fruits of the marriage” and thus be subject to partition. 

In fact, article 449 of the Civil Code of Quebec states: 

The acquests of each spouse include all property not declared to be private property by law, and, in particular,

(1)  the proceeds of that spouse’s work during the regime;

(2)  the fruits and income due or collected from all that spouse’s private property or acquests during the regime.

In other words, the income generated by all your properties, whether acquired prior or after your marriage will be considered an acquest, which means that it will be subject to division upon separation.

Property acquired after marriage

The first principle outlined in law is that both spouses will take in hand the material direction of the family.

This means that both spouses are given a legal duty to participate in the economic and material decisions of the family and ultimately acquire rights in them as well.

The law further creates a legal tie between the spouses by stating that both spouses are responsible for any expenses and debts related to the current needs of the family.

This is significant as one spouse may incur expenses and automatically bind the other without the other’s express consent.

Family patrimony

When you get married, your assets and property will get divided into two pools: 

1- family patrimony assets

2- matrimonial regime assets

Family patrimony assets 

The family patrimony assets are composed of very specific assets that a married couple may acquire during their union.

These assets are composed of the following:

1- the family residence

2- furniture and movable goods garnishing the family residence 

3- secondary residence 

4- furniture and movable goods garnishing the secondary residence 

5- motor vehicles used by the family 

6- registered retirement savings plans or RRSP’s

7- pension plans 

8- QPP or CPP

Ownership of family patrimony assets 

One particularity of the family patrimony assets is that regardless of ownership, both spouses are entitled to half of the net value of these assets.

For example, imagine that your house is in your spouse’s name, along with the car and all of the RRSP’s, and you do not have anything in your name.

Under the rules of the family patrimony, if the total net value of the house, car and RRSP is worth $200,000, then you will be entitled to $100,000 even though you do not own these assets.

This is a special protection given to the spouses so that both spouses are treated equally at least when dividing the assets of the family patrimony regardless of their economic power and position in the family.

All other assets that you may own with your spouse that goes beyond those contained in the family patrimony pool will be subject to the partition rules as dictated by the matrimonial regime applicable to your marriage and as we will see later in this article.

Modifying application terms of the family patrimony

The law makes it clear that the family patrimony regime is of public order.

In other words, the spouses are not permitted to modify the terms of the family patrimony regime through a contract or other form of agreements.

As a result, even in the case where you mutually agree on how to divide assets subject to the rules of the family patrimony prior to the filing of a formal divorce application, that agreement will not be valid in law and will not produce any legal effects.

On the other hand, when the right to the family patrimony materializes with the filing of a divorce application, then you can mutually agree on how to divide these assets, subject to the final approval of the court.

Exemption to the rules of the family patrimony

In very exceptional cases, upon request, the court may accept to provide the spouses with an exemption to the application of the rules of the family patrimony.

For instance, if your marriage lasted only a few months, then due to the brevity of your marriage, the court can exempt you from having to divide your family patrimony assets.

This is a fair position as you did not have any chance to invest in mutually developing your assets and so it makes sense that you and your spouse take back the assets you each brought into this very short marriage.

Matrimonial regimes

In Quebec, upon marriage, your assets will be categorized in two different pools.

The first pool is the family patrimony assets and the second pool is the matrimonial regime assets.

There are a few matrimonial regimes that can apply to you depending on whether you were married prior to July 1, 1970 or if you have a marriage contract. 

We will cover the three different regimes potentially applicable to you in the following paragraphs.

The three different matrimonial regimes that may be applicable to you under the Quebec laws are:

1- partnership of acquests

2- separation as to property

3- community regime

Partnership of acquests

The first regime that may be applicable to you and also the most commonly applied regime is that of the partnership of acquests.

This is also the matrimonial regime applicable to you by default if you were married on or after July 1, 1970.

The only way that you could change this regime is by signing a notarial marriage contract whereby you and your spouse agree on the application of another regime in the event of a separation.

When the matrimonial regime is applied by the effect of the law, we refer to this as the “legal matrimonial regime”.

If the matrimonial regime is mutually agreed in a marriage contract, we will refer to this as a “conventional matrimonial regime”.

Property considered an acquest

Under the matrimonial regime of partnership of acquests, your property is divided in two categories: 

1- acquests, and

2- private property

Article 449 of the Civil Code of Quebec states that:

The acquests of each spouse include all property not declared to be private property by law, and, in particular,

(1)  the proceeds of that spouse’s work during the regime;

(2)  the fruits and income due or collected from all that spouse’s private property or acquests during the regime.

So to identify the property you own qualifies as an acquest, you should simply identify what is considered as private and qualify all else as an acquest.

If you have a property that does not fall into the definition of a private property, then it’s an acquest.

If you are unable to prove that a property is private, then it’s deemed to be an acquest.

Finally, all property is presumed to be an acquest unless you are able to prove that it’s a private property.

Property considered as private 

The law qualifies very specific types of property as private property under the matrimonial regime of partnership of acquests.

So the rule is that if you can specifically prove that a property is private, then it will be considered private.

If you are unable to prove that a property is private, then it will be presumed to be an acquest.

Article 450 of the Civil Code of Quebec defines a private property as:

The private property of each spouse consists of

(1)  property owned or possessed by that spouse when the regime comes into effect;

(2)  property which devolves to that spouse during the regime by succession or gift, and the fruits and income derived from it if the testator or donor has so provided;

(3)  property acquired by that spouse to replace private property and any insurance indemnity relating thereto;

(4)  the rights or benefits devolved to that spouse as a subrogated holder or as a specified beneficiary under a contract or plan of retirement, other annuity or insurance of persons;

(5)  that spouse’s clothing and personal papers, wedding ring, decorations and diplomas;

(6)  the instruments required for that spouse’s occupation, saving compensation where applicable.

The definition of private property is pretty straightforward.

Property you owned prior to the marriage, what you purchased using your private property, gifts or inheritances are considered private property.

Also, your wedding ring is considered a private property along with your clothing, decorations and diplomas.

The property you use as part of your occupation to earn a living is also a private property as defined under the law.

The law considers other types of assets as private, such as the right to claim damages, compensation received resulting from moral or bodily injury or disability pension are considered private property.

Division of assets under the partnership of acquests regime

Once you have identified your private property, then the remaining property will be considered an acquest.

So how do we divide private property and acquests?

As for the private property, each spouse will retain his or her rights on the private property.

As for the acquests, a spouse may accept or renounce the partition of the acquests regardless of any agreement to the contrary.

The acceptance or renunciation is irrevocable and can only be annulled on the basis of lesion or your consent being vitiated. 

Dissolution and liquidation of the partnership of acquests

The dissolution and liquidation of the matrimonial regime of partnership of acquests is materialized by any of the following events defined by law:

• the death of one of the spouses;
• a conventional change of regime during the marriage;
• a judgment of divorce, separation from bed and board, or separation as to property;
• the absence of one of the spouses in the cases provided for by law;
• the nullity of the marriage if, nevertheless, the marriage produces effects.

In essence, by filing a divorce application, legal separation or nullity of marriage application, the right to the dissolution of the regime materializes as of the date you filed for application.

In the other cases, the effects of the dissolution will be immediate such as in the event of death, absence of a spouse or change in matrimonial regime.

Separation as to property

The second matrimonial regime under the Quebec law is the separation as to property.

This regime is a “conventional regime” as the only way you can be subject to this regime is through a marriage contract.

Under this regime, each spouse will have the full right and has the administration enjoyment of his or her property.

If you own a property that you are unable to definitively prove the ownership, then it is presumed to be jointly owned by each spouse.

Community regime

The community regime is the third and final matrimonial regime that can apply and the least common.

In fact, this regime used to be the default legal regime if you were married prior to July 1, 1970.

Marriage contracts

The law allows you to enter into a marriage contract to select the matrimonial regime of your choosing.

The typical matrimonial regime selected under a marriage contract is that of separation as to property.

For the marriage contract to be valid, you must respect certain formalities failure of which the law will not recognize your marriage contract.

Article 440 of the Civil Code of Quebec requires that all marriage contracts be notarized.

All agreements that do not respect this condition will be declared null and void.

Once the marriage contract is signed, the notary must also enter the same in the register of personal and movable real rights.

These formalities are crucial for the marriage contract to acquire legally binding effects.

Selecting matrimonial regime  

The goal of the marriage contract is in part to change select the matrimonial regime applicable to you in case of separation or divorce.

If you make a selection in the marriage contract, then that matrimonial regime will apply.

If you do not make a selection, then the default matrimonial regime of partnership of acquests will continue to apply to you.

Generally, when spouses enter into a marriage contract, they set their matrimonial regime to be that of separation as to property.

In this manner, upon separation, each spouse will keep all property in his or her name.

Agreeing on asset division

In your marriage contract, you can also mutually agree on the division of your assets provided that you do not go against rules and legal conditions that are of public order.

In other words, the rules of the family patrimony is of public order and will supersede all contracts or agreements of the parties even if it was done in good faith.

Protection of the family residence 

The family residence is given special protection under the law.

The family residence is the place where the married couple called “home” and conducted their main family matters and activities.

If you have many properties, it’s important to qualify your main residence as the family residence as you can get the protection of the law for only one residence, your family residence.

Consent of spouses needed

First, the law states that neither spouse can remove the furniture and the movable goods garnishing the family residence without the consent of the other.

If your family residence is rented, then the Quebec laws state that even if the lease is solely in your spouse’s name, he or she cannot transfer, sublet or assign the lease without your consent.

If the family residence is owned by one or the other spouse, neither spouse can sell or mortgage the property without the consent of the other. 

Declaration of family residence

To ensure that the public is made aware that your house is protected by the laws related to the family residence, you can have your lawyer or notary publish a declaration of the family residence on the property.

This declaration of family residence will signal to the public, the banks, buyers and others that if you intend to sell or mortgage the property, your consent will be required and ultimately you will need provide a discharge of the declaration in question.

Conclusion on Property Division in Quebec

We hope that this article was useful for you to get acquainted with the rules of the family patrimony and better understand the matrimonial regimes applicable in the Province of Quebec.

This article was intended to paint a broad portrait of the legal landscape when dealing with the division of assets under the Quebec laws.

However, there are more details and technicalities that can impact your specific case and when dealing with different types of properties, it may be worth it to consult with an experienced family lawyer who can provide you additional guidance and support.

At our law firm, we have decades of experience and knowledge in the practice of family law and fully understand the intricate details and subtleties of a case. 

If you wish to have a consultation with a lawyer or mandate one for legal representation with respect to the Quebec laws and the partition of assets, we are happy to be able to assist you.

Good luck in your family law case.

FamilyLawyer.Zone

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You got married a few years ago and things are not going as well as you had hoped for.

You heard about marriage annulment as an option and you wonder if it’s the right recourse for you.

You wonder what is the difference between marriage annulment and a divorce?

In this article, we will look over marriage annulment and divorce as legal regimes and give you the highlight of their main differences.

After reading this article, you will know exactly if marriage annulment may be a suitable legal recourse for you or not.

In this article, we will look at the following points:

1. What is a marriage annulment?
2. What is the basis of a recourse for marriage annulment?
3. How long do I have to file a marriage annulment case?
4. The effects of the nullity of the marriage
5. Impact of the marriage nullity on children
6. Spousal support in the context of marriage annulment
7. Divorce
8. Does the court consider if a spouse was in bad faith?
9. Duties of lawyers and court
10. Some similarities with marriage annulment
11. Conclusion on Marriage Annulment vs Divorce

1. What is a marriage annulment?

Marriage annulment is essentially asking the court to cancel your marriage as if it never existed.

On the other hand, a divorce supposes that your marriage was valid and upon filing of a divorce application, you are looking to terminate the marriage as of that moment in time. 

From a legal point of view, marriage annulment is a very exceptional recourse.

The court will exercise great care in ensuring that the legal conditions necessary for the successful ordering of the marriage annulment are met, if not, marriage annulment will not be granted.

Fundamentally, you must ask yourself, were you tricked into a marriage or did your spouse make a misrepresentation about crucial facts that, had you known, you would have never gotten married in the first place.

There is an important distinction between choosing to marry the wrong partner or illegally getting manipulated into a marriage for instance.

2. What is the basis of a recourse for marriage annulment?

The basis of a recourse for marriage annulment is that you consider the marriage to be illegally formed or your consent was vitiated through the misrepresentation or deliberate manipulations on the part of your spouse.

In the province of Quebec, this recourse is founded upon the Civil Code of Quebec, a provincial law.

Article 380 of the Civil Code states the following:

A marriage which is not solemnized as prescribed by this Title and the necessary conditions for its formation may be declared null upon the application of any interested person, although the court may decide according to the circumstances.

No action lies after the lapse of three years from the solemnization, except where public order is concerned, in particular if the consent of one of the spouses was not free or enlightened.

This article therefore outlines both the legal conditions and timelines for filing a marriage annulment recourse.

3. How long do I have to file a marriage annulment case?

Legal Timeline

The Civil Code clearly states that you must file your annulment case within three years from the date of your marriage.

This requirement is pretty strict and so you must act within the allocated timeline failure of which you will not be able to take this recourse.

If you’ve been married to someone for more than three years even if you had sufficient reasons to cancel your marriage, your only option will be to file for a divorce, unless there was a violation of the public order warranting the nullity of the marriage.

Violation of public order

On the other hand, there is an exception if the marriage was solemnized for a cause that violates the public order.

For example, if your spouse has married you for the sole and only purpose to become a Canadian citizen, that could be a reason in violation of the public order.

In this case, you may feel that you have genuinely married the person to live a long life together while your partner was only interested in coming to live in Canada.

4. The effects of the nullity of the marriage

Spouse in bad faith

A spouse that is considered to be in bad faith must take back his or her property after the marriage is declared null.

Spouse in good faith

On the other hand, if a spouse was in good faith although the marriage was declared null will have the right to the liquidate of his or her patrimonial rights.

The parties are presumed to be in good faith when contracting their marriage unless the court specifically declares a spouse in bad faith.

Gifts 

With regards to gifts offered by one spouse to the other, if the spouse was in good faith, the spouse will be entitled to the gifts received in consideration of the marriage.

The court will have some discretion in reducing the value of the gift or declare the gifts as null as well depending on the overall circumstances of the case. 

5. Impact of the marriage nullity on children

Responsible for children

If the couple whose marriage is annulled have children, the law makes it clear that as parents they remain responsible in raising a child that may have been born during their marriage.

Evidently, the laws are highly protective of children and are designed to prevent harm to them in the event the marriage of the parents is nullified.

Challenges in raising your child

We do recognize that it may be a very difficult situation to live when you find out that the spouse you believed to be marrying for the rest of your life had tricked you in marriage or was pursuing an objective going against the public order.

In this context, there may be significant feelings of betrayal that will potentially spill into your parental role of raising a child you have both brought into the world.

The same rules governing custody and child support will then apply to the parents, the whole, in the best interest of the child.

6. Spousal support in the context of marriage annulment 

Court can award spousal support

The Civil Code of Quebec states that when dealing with a nullity of marriage case, the court must decide on matters relating to the children and particularly the rights of a spouse in good faith to receive spousal support.

The court also can consider the circumstances of the case and decide on how spousal support can be paid or reserve the right of a party’s spousal support if the other is unable to pay.

The law requires that the court consider the circumstances and reach an equitable decision given the specific nature of the case.

Reserving right to spousal support

If the court reserves the right of a spouse to receive spousal support, then that right will expire two years after the judgment if no spousal support is demanded.

At any time after the marriage annulment judgment, the court has the power to terminate spousal support whether it has awarded spousal support or had reserved a spouse’s rights to spousal support.

7. Divorce 

Dissolution of marriage

The Divorce Act outlines in article 8 that the court may grant a divorce to a spouse on the ground that there has been a breakdown of the marriage.

This entails that the spouses were married and both recognize the validity of their marriage and now intend to dissolve their marriage as they meet the legal grounds in getting a divorce.

Breakdown of marriage

The Divorce Act further clarifies that the breakdown of the marriage is established in the following events:

• The spouses have been living separate and apart at the commencement of the proceedings and separate and apart for at least twelve months on the rendering of the divorce judgment,
• The spouse against whom divorce application is brought has committed acts of adultery, and
• The spouse against whom divorce application is brought has treated the other with physical or mental cruelty of such a kind as to render the marriage and cohabitation intolerable.

8. Does the court consider if a spouse was in bad faith?

Unlike the annulment of the marriage, whether a spouse was in good faith or not is irrelevant with respect to the partition of the assets and division of the family patrimony.

On the other hand, in the context of an annulment case, a spouse that was in good faith can request his or her patrimony rights or be restituted in full.

The divorce institution in Canada and Quebec is considered a “no-fault divorce” where the marital faults of a spouse will not impact the rights granted to the spouses under the law.

9. Duties of lawyers and court

Another notable difference in cases of divorce as opposed to marriage annulment is that under the Divorce Act, both the lawyers representing the parties and the court have a duty to help reconcile the spouses.

Duty of the lawyer

The law imposes on the lawyer a duty to discuss the possibility of reconciliation and even the possibility to seek marriage counselling or guidance facilities to assist the spouses in achieving a reconciliation.

Duty of the court

The law furthermore imposes on the court a duty to verify the parties can reconcile and ensure that there is really no possibility of reconciliation before rendering a divorce judgment.

10. Some similarities with marriage annulment

Collusion of the spouses

When there is a violation of the public order, under the annulment of marriage regime, a spouse may ask for the nullity of the marriage even past the three year timeline to do so.

There is a similarity under the Divorce Act as it states that the court must dismiss the divorce application if the spouses were acting in collusion.

In Section 11(4) of the Divorce Act, collusion is defined as:

an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court, but does not include an agreement to the extent that it provides for separation between the parties, financial support, division of property or the custody of any child of the marriage.

Child support and custody

Both the divorce institution and annulment of marriage have clear guidelines with respect to child support and custody.

Under both regimes, the law sets out to protect the children of a marriage regardless whether the marriage is considered valid or not in the eyes of the law.

If you have a child during your marriage, then both parents will remain obligated to raise that child and ensure adequate maintenance is offered.

Spousal support

The Divorce Act outlines the objective sought when ordering or awarding spousal support.

Article 15.2(6) outlines the following objectives:

• recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; 
• apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; 
• relieve any economic hardship of the spouses arising from the breakdown of the marriage; and 
• in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

As you can see, the law wants to ensure that spousal support is awarded to cover any disadvantages that a spouse may suffer economically as a result of the breakdown of the marriage.

It may be difficult for a spouse who did not work during the marriage to immediately go out and find a job.

As a result, the court will ensure that in such a case, the spouse can be awarded spousal support for a duration of time reasonable to be able to learn new skills or to go back in the job market.

Child support is priority

When considering an application for both child support and spousal support, the court must give priority to the child support demand first.

When child support is determined, the court can then consider the spousal support demand and come to a decision that will take the overall economic impact of the division of the assets, child support and the overall economic impact of the divorce on both spouses.

11- Conclusion on Marriage Annulment vs Divorce

As we can see, the annulment of marriage institutions along with the divorce institution have important differences but also many similarities.

If you are dealing with a breakdown of your marriage and feel that it was mainly due to incompatibility between you and your spouse, you may be looking towards a divorce.

On the other hand, if you feel violated into getting married for reasons that you discovered after you were married and feel that regardless of your compatibility, you are unable to continue living with your spouse, then you may be looking at an annulment of marriage case.

At the end of the day, getting an annulment is quite difficult.

For many, the distinction between a divorce and annulment is not clear.

You may have chosen a very bad partner to marry but the day you were married, you did give free consent to do so.

On the other hand, if you thought you were marrying a man while it turns out you married a woman, it is difficult to justify that your consent was freely given.

In this case, the nullity of marriage may be the more suitable recourse.

We hope that this article gave you some high-level understanding of the differences between divorce and annulment of marriage.

FamilyLawyer.Zone

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Are you a married or common-law spouse in the separation process?

Are you in a divorce, legal separation, nullity of marriage case or another legal case with your former spouse?

You feel that you have contributed time, effort and energy during your relationship and enriched your spouse to your detriment?

You do not feel that the division of the family assets will adequately compensate you for the sacrifices you’ve made during your marriage.

What can you do about this under Quebec law?

Well, there may be a possible recourse for you.

In this article, we will discuss the recourse of compensatory allowance and unjust enrichment allowing you to legally ask for compensation for the enrichment of your spouse’s patrimony during your marriage or in common-law relationships.

Are you ready?

Let’s get right into it.

1. What is a compensatory allowance recourse?
2. What are the conditions to successfully obtain compensatory allowance?
3. Does the division of assets affect my compensatory allowance recourse?
4. How much will the court award in compensatory allowance?
5. Is housework a reason I can invoke to get compensatory allowance?
6. Can common-law couples invoke compensatory allowance or something similar?
7. Unjustified enrichment recourse for common-law couples
8. Conclusion on Compensatory Allowance and Unjust Enrichment

1- What is a compensatory allowance recourse?

The Quebec law defines a compensatory allowance to be a compensation for your contribution in property or service to the enrichment of the patrimony of your spouse who are married.

There is another recourse available for common-law partners called unjust enrichment that we will present later in this article. 

Compensatory allowance’s objective is to compensate for the past actions resulting in a financial inequality between the spouses whereas spousal support and alimony have an objective to deal with the future needs.

2- What are the conditions to successfully obtain compensatory allowance?

For your compensatory allowance recourse to succeed, you must meet the legal conditions necessary to this effect.

There are four conditions that must be satisfied:

1- you must have put yourself in a financial disadvantage for the benefit of your spouse

2- your contribution in goods or services helped make your spouse become wealthier

3- there is a very close link between your contribution and the increase in wealth of your spouse

4- your contribution was to help your spouse and there was no other reason that benefited you

In other words, what you did for your spouse or the money you gave your spouse directly contributed in increasing his wealth at your expense.

3- Does the division of assets affect my compensatory allowance recourse?

Yes, the result of the application of the rules of the family patrimony and your matrimonial regime impacting the division of assets will be considered by the court when deciding on the recourse of compensatory allowance.

The court will also look at your marriage contract, if any, if your spouse is also obligated to make a donation or pay any sums on the basis of the marriage contract.

The objective of the court is to compensate you for the financial inequality that may have resulted during your marriage for offering goods and services to enrich your spouse.

If the overall division of the family assets and result of marriage contract appears to organically correct the financial inequality, the court will consider that in its judgment.

4- How much will the court award in compensatory allowance?

The amount of compensatory allowance that you can get depends on the facts of your case.

You must demonstrate that you contributed to enrich your spouse.

As a result, you must provide the court evidence showing your contribution in goods or services.

Goods can be money you gave your spouse, equipment or property you gave your spouse to help your spouse out. 

Services can be time you spend helping your spouse free of charge or without any salary or compensation while your spouse was acquiring skills or assets allowing him or her to develop further wealth.

Demonstrate enrichment 

You must then demonstrate how much your spouse was able to enrich himself or herself with your contribution.

For example, you gave your spouse $50,000 so he or she can qualify to get a business loan and use that money as working capital for his or her business entirely in your spouse’s name. 

You then spent time helping with the accounting, answering calls and handling the operations all without any salary or compensation.

Ultimately, upon your divorce, your spouse keeps everything and you are left without any compensation for all this contribution in money and time.

In this case, you can show your contribution in money, you can show your contribution in time and you can show how much the business was worth when you filed for a divorce.

The court will then consider the business value to be the enrichment.

Overall advantages you benefited under the law 

Once the enrichment is established, the court will then look at the advantages of the rules of the family patrimony and marriage contract that you may benefit from and ultimately decide on an amount that will compensate you for your loss but preventing you from double dipping in case you received specific advantages in the division of your assets.

For instance, your spouse has kept the company but renounced his or her shared in the family residence and where this renunciation compensates you for the contribution you had made during your marriage.

5- Is housework a reason I can invoke to get compensatory allowance?

Above normal housework

While regular housework is not considered as a valid reason to be awarded compensatory allowance or unjustified enrichment, if you did housework over and above what’s a normal level of household work that helped contribute to your spouse’s enrichment, this may be considered by the court as a valid reason to award compensatory allowance or unjust enrichment.

Court discretion

The court has discretion to decide what may be excessive or normal level of housework, so there is no specific formula that is available to make this determination.

Consider the example where you were taking care of four children by yourself and one of them being a special need child requiring a lot of effort on your part and imagine that your spouse was constantly away where you were the only one who had to arrange for the children’s school, pay the bills, handle the house chores and so on while your spouse was only advancing in his or her career.

This may be a situation where your contribution in service and time to the household and housework can be considered above what’s normal and a judge may award compensatory allowance.

At the end of the day, the facts of the case are important and you must still be able to show the four legal conditions underpinning the compensatory allowance recourse.

6- Can common-law couples invoke compensatory allowance or something similar?

The legal remedy of compensatory allowance is only available to married couples and can be awarded in divorce, legal separation and nullity of marriage cases.

As a result, this specific recourse is not possible for common-law couples separating.

However, just because you did not get married, it does not mean that you did not contribute to enrich your spouse and where upon separation, there is a significant financial inequality and injustice.

What can be done?

Is there a recourse for common-law partners?

Yes, the good news is that there is the concept of unjustified enrichment available in the contractual and extracontractual regime that could provide us with some remedy.

The law does not specifically provide for a recourse like the compensatory allowance for common-law couples and so the Quebec courts have taken contractual obligation remedies and adapted it to help protect common-law partners.

7- Unjustified enrichment recourse for common-law couples

Article 1493 of the Civil Code of Quebec establishes the recourse for unjust enrichment, stating the following:

A person who is enriched at the expense of another shall, to the extent of his enrichment, indemnify the other for the latter’s correlative impoverishment, if there is no justification for the enrichment or the impoverishment.

This notion has been used by the Quebec courts to provide remedy to de facto spouses or common-law couples separating and where there is a case of enrichment of one spouse at the expense of the other.

In fact, the Quebec courts will not hesitate to award an indemnity for unjust enrichment if a de facto spouse was enriched at the expense of the other.

In 2018, a woman who was in a sixteen year relationship with her de facto spouse and with whom she had two children took a recourse for unjust enrichment and succeeded in being awarded 20% of the value of her spouse’s total net worth.

In this case, she had helped her spouse for many years in developing his company and shortly before their separation he sold his company for several millions of dollars becoming a millionaire while she ended up with nothing.

The court had no problem in awarding an indemnity forcing the spouse to pay 20% of the value of his net worth to compensate her for her time and effort in building up the company. 

8- Conclusion on Compensatory Allowance and Unjust Enrichment

The compensatory allowance recourse for married couples and the unjustified enrichment for de facto couples allows for the balancing of financial inequalities that may have been caused by the contribution of one spouse to the enrichment of the other.

This recourse is not one that should be taken if you are not happy with the standard application of the rules of the family patrimony and matrimonial regime or to compensate you for poor decisions that you may have made during your relationship.

However, it’s a powerful recourse when in fact there was a significant contribution that impoverished you while enriching your spouse.

The courts also have a duty to ensure that a decision made is equitable when considering the overall nature of the case and financial consequences of the separation on the couple.

As a result, the compensatory allowance or the unjust enrichment recourse is analysed closely before a ruling is made.

We hope that this article helped clarify this recourse for you.

Should you need a family lawyer or a divorce lawyer to guide you and assist you in this regard, we are happy to assist you. 

Our divorce lawyers and family lawyers know the intricate details of compensatory allowance and unjust enrichment and you can reach out to us at any time for support.

We wish you the best of luck.

FamilyLawyer.Zone

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