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Family Law

Break-up myths and realities

Things have not been going well with your spouse and you're seriously thinking of separating. The only thing holding you back is your fear of the consequences. Will you wind up out on the street? Will you run the risk of losing your children? Are any of your fears justified?

In this Infosheet, Éducaloi explains some of the issues most frequently encountered when a couple separates.

Who can I contact for information and assistance?

A lawyer can inform and advise you on the legal aspects of separation. She can also begin legal proceedings on your behalf, if necessary. You can also contact a notary, but you should keep in mind that a notary cannot represent you before the courts.

If you haven’t already done so, you can attend an information session on family mediation. You can then begin mediation, provided your spouse agrees. If you have children together, you are entitled to six free sessions with a certified mediator. Mediation is not recommended if family violence is a factor, or where one ex-spouse is putting pressure on the other.

If ever you feel overwhelmed and unable to make important decisions, you shouldn’t hesitate to contact a psychologist or a doctor. These are undoubtedly trying times for a couple. Seeking help is a sign of maturity and is in the interest of both spouses – and their children.

Will I lose certain rights if I move out of the family home?

No. You will not lose any of your rights regarding child custody, property division, or any other consequence related to the separation (such as support) if you leave the home. So it makes no sense to keep putting up with an intolerable family situation for fear of losing out.

However, there may be consequences if you move out of the home and your spouse is left to take care of the children. The judge may grant your spouse the use of the residence and the furniture as well as custody of the children during the court proceedings. It all depends on a person’s reasons for leaving, how much time there is between the departure and the court’s decision, the situation of the spouse who left and that of the children, etc.

What steps should a person take before leaving the family home?

If possible, the spouse should gather up and take along important documents such as birth and marriage certificates, the deed to the house, the hypothec (mortgage), tax returns or bank statements. It is a good idea to leave the other spouse a copy of original documents when departing, especially if there is only one copy of the document, as is the case with the children’s birth certificates or health insurance cards.

It is also a good idea to take photocopies of any important documents belonging to the other spouse.

Before leaving, it is helpful to prepare a bag containing clothing, personal effects, jewellery, etc. (anything a person might need in the short term).

The spouse must then find a temporary or permanent place to live, be it with a family member, a friend, or in a new dwelling. In the last case, it is important to choose a home that is suitable for children if the spouse plans to ask for custody or access.

The spouse should keep in mind that the separation may bring with it new financial obligations toward the children and possibly the former spouse. He should therefore adjust his budget accordingly.

It may or may not be a good idea for the departing spouse to tell the remaining spouse of his intentions. It all depends on the state of the relationship between them. It might be helpful to seek advice on this issue from a professional, such as a psychologist or social worker.

It may also be very useful to consult a lawyer for information and advice tailored to the spouses' specific circumstances.

Do I need any particular reason to get a divorce?

Divorce is a judgment ending a marriage, so it doesn’t apply to de facto or civil union spouses.

The court will grant a divorce if it accepts that the marriage has failed, i.e. in the event of one of the following situations:

• Separation for more than a year
  
  You can go ahead and file for divorce on this ground even if the two of you have been living apart for less than a year. However, the judgment will only be rendered once you have been separated for over a year.
  
  
• Mental or physical cruelty
  
  Sometimes, family violence can lead to criminal proceedings and can even be characterized by the courts as physical or mental cruelty. But a person doesn't have to file a complaint with the police in order to invoke cruelty as a ground for divorce. She does, however, have to be able to prove before the court that she was the victim of cruelty.
  
  
• Adultery
  
  Adultery occurs when a person has sexual relations with a person other than his spouse.
  
  Finally, since divorce is a judgment, the spouses always have to ask the court for a divorce, even if they have been living apart for a long time. There is no such thing as an “automatic” divorce.

To learn more, you can consult the Infosheet entitled Grounds for divorce.

What is the main difference between a separation and a divorce?

The main difference is that a divorce terminates the marriage, while a separation from bed and board just frees the spouses from their obligation to live together. In other words, spouses who separate are still legally married.

The court will grant a divorce if it finds “the marriage has broken down” due to one of the grounds laid out in the Divorce Act. You need only prove that the will to live together is “gravely undermined” to obtain a judgment of separation. This is the case, for example, when the spouses already live apart.

Separation from bed and board and divorce produce the same effects regarding custody and child support. In both cases, property is divided according to the rules governing family patrimony and the spouses' matrimonial regime.

Separation from bed and board does not dissolve the marriage. As a result, the spouses remain bound by the rights and obligations they owe each other (except for the duty to live together), including “the mutual obligation of succour and assistance”. This duty means that a spouse in need can ask the other for financial help in the form of support. Spouses seeking separation from bed and board cannot legally waive this right, even if they want to. In other words, a clause in a separation agreement saying the spouses give up their right to support is invalid.

To learn more, consult the Infosheet entitled Legal separation.

Lastly, the other spouse will be considered the “surviving spouse” (widower or widow) if one of the spouses dies after a judgment of separation, but before a judgment of divorce. This status entitles the surviving spouse to collect certain indemnities and benefits, depending on the criteria of the paying institutions and organizations. The surviving spouse is also entitled to claim a share in the deceased spouse’s succession if the latter dies without a will, or if the will is invalid. If a will exists, the ex-spouse can still inherit, unless the will was changed to exclude the surviving spouse.

If the spouses’ matrimonial regime was separate as to property, their marriage contract might contain a clause similar to a will, commonly called the "surviving spouse clause". This type of clause is still valid after a separation from bed and board judgment, but becomes null and void in the event of a divorce.

To learn more about wills, consult the Infosheet entitled Wills.

If spouses are joined in civil union, how can they go about obtaining a judgment following their break-up?

First, keep in mind that only married persons can seek separation from bed and board or divorce.

Spouses who agree on all the consequences related to their separation can dissolve their civil union in one of the following ways:

• by a “joint declaration before a notary”, that is, a document signed before a notary. This option is not available if the separation involves children the spouses had together;
  
• by a judgment rendered by the court, which makes the spouses’ agreement on the results of their separation official. The spouses must obtain a judgment if their children’s interests are involved (custody, access rights, support).

Either spouse can present a “motion to dissolve the civil union” before the court if the couple cannot agree on all the consequences related to their separation. The steps in the legal proceedings, from opening the file at court to receiving the final judgment, will be the same as those in cases of separation from bed and board or divorce. Dissolving a civil union results in the same consequences as a divorce.

To learn more, consult the Infosheet entitled Civil union.

Are spouses who live together for a long time considered married?

A de facto spouse can never "automatically" become married. Marriage is an official commitment that produces legal rights and obligations. An “automatic” marriage is no more possible than an “automatic” divorce. However, some laws (like tax laws) treat de facto spouses the same as married spouses, provided they have lived together for a given period or have children together.

You should keep in mind that civil union is a different concept from de facto union. De facto spouses are not considered joined in a civil union just because they have lived together for a certain time or have children.

What are the possible consequences for spouses who choose to live together outside of marriage or civil union?

One of the most important consequences is that de facto spouses do not have a "family patrimony". This means the spouses are not entitled to a share in each other’s property, nor are they obligated to divide their own property, be it the home where they live, an RRSP, a pension plan, etc.

The second important consequence is that there is no support obligation between unmarried spouses. This means there is no right to claim support from the other spouse, nor any obligation to pay support to an ex-spouse.

But every parent, married or not, has the same rights and obligations toward their children. So, each spouse may be entitled (or obligated) to do the following:

• ask for custody or access rights;
  
• ask for or pay child support;
  
• ask the court to settle any of the above issues if the spouses cannot come to an agreement.

Finally, married or civil union spouses can claim a “compensatory allowance”, that is, compensation for having contributed to the other spouse’s enrichment. A de facto spouse is not entitled to this type of compensation.

In addition, the family residence enjoys special protection if the spouses are married or in a civil union.

De facto spouses do have recourse in some cases though. Examples include: if they co-own the joint residence or if one of them worked for free in the other spouse’s business.

To learn more, consult the Infosheet entitled De facto spouses.

Is it true that custody is automatically granted to the mother following a separation?

No. Custody of the children can be granted to either the mother or father, or both parents can share custody. It all depends on each family’s particular situation, but the overriding factor in every case is the children’s best interest. The decision has nothing to do with meeting the parents' personal preferences.

Can a spouse be granted custody even if family violence was a problem, or if one of the spouses filed a police complaint against the other?

The child’s best interest is the determining factor when granting custody. Violence is one factor the court will consider when making a decision. In this context, the court will consider in particular:

• the nature and frequency of the violent acts;
  
• when they occurred;
  
• the person or persons against whom the violence was directed;
  
• the presence or absence of the children when the violent acts were committed;
  
• the impact the acts may have had on the children.

In theory, the simple act of filing a complaint with the police is not enough to prove that violence occurred: it must be established before the court.

The judge will decide who gets custody of the children, always keeping in mind their best interest. Access rights may be restricted, supervised or even denied if contact with one of the parents puts the child’s security, safety or development at risk.

Does a person have rights and obligations toward his spouse’s children if they are not his own?

In theory, a spouse has no rights or obligations toward the other partner’s children, except if he treated them as though they were his own for a long time. If that is the case, he may obtain access rights, but only if the court determines it is in the best interest of the children.

In the case of marriage, if one acts as a parent to his spouse's children, he may be liable for child support. When deciding if he really acted as a parent, the court will assess, among other things, his intent to take care of them.

A person will not be considered a parent simply because he was nice and affectionate with his spouse’s children.

One of the spouses is afraid that he will not have enough to live on if he has to pay child support. Should he be worried?

One of the spouses may find himself having to pay support for his children, his ex-spouse, or both. Child support is not calculated as a percentage of salary; rather, it is established according to precise rules.

Here is an overview of how it works:

• Child support has priority. This means it is determined before spousal support;
  
  
• Child support is calculated in light of both parents’ income and resources, the number of children, the type of custody arrangement, and according to guidelines provided for by law;
  
  
• A parent with an income of less than $9,000.00 per year is, in theory, not obligated to pay any child support;
  
  
• Special circumstances are also taken into account, such as: the fact that a spouse already pays support for a child from a prior relationship, or is responsible for paying all the household debts;
  
  
• Spousal support will be decided after child support, if it is needed, taking into account factors such as child support, the needs of the spouse, and the payor spouse’s capacity to pay;
  
  
• Keep in mind that there is no support obligation between spouses who are not married or in a civil union.

Support is not intended to make one individual better-off at the expense of the other. Still, it is likely that each of the ex-spouses will suffer a decrease in their standard of living, at least temporarily.

To learn more, consult the Infosheet entitled Spousal support.

Who is responsible for collecting support?

For several years now, the Ministère du Revenu du Québec has been responsible for collecting child support in all cases in which the support judgment was rendered in Quebec.

The Ministère du Revenu’s role consists of deducting the support from the payor’s salary (or by other means if the payor is not an employee), and forwarding it to the beneficiary. The Ministère does not have the authority to decide the amount of support or when support ends.

Under certain conditions, the spouses can decide that the Ministère will not collect support. If they do, then the support will be paid directly by the payor to the beneficiary (from one spouse to the other).

How long does it take to obtain a divorce judgment?

Remember that only married people can get divorced. Legal proceedings between de facto spouses usually only involve custody and child support, which considerably simplifies and accelerates the procedure.

Depending on the grounds alleged, married spouses can obtain a divorce judgment in a matter of weeks if they agree on all the consequences related to their separation. Remember that separation for more than a year is grounds for the spouses to divorce under the Divorce Act. This means that a judgment can be granted one year following the separation, even if the divorce petition was filed before the year was up.

Spouses sometimes want a judgment formalizing their agreement more quickly for practical reasons. They can ask for a judgment of separation from bed and board, then ask for divorce once they have lived apart for more than one year.

You should note that the proceedings will last much longer if the parties disagree on one or several consequences of the divorce, for example, property division or child custody. This could take months, or even years. One or both of the parties can seek a provisional judgment in the meantime, to address specific urgent matters.

To learn more, consult the Infosheet entitled The steps involved in a divorce or separation.

How long do I have to wait before the issue of custody of the children is settled?

Provisional judgments may be rendered prior to the final judgment to temporarily settle certain issues, such as child custody.

An interim judgment may also be obtained in urgent cases. This type of order only lasts a limited time, until the provisional judgment is rendered. Custody will only be settled once and for all when the spouses reach a long-term agreement or a final judgment is handed down.

You should note, however, that child custody can always be modified. This can be done either amicably or by judgment, if there are major changes in the children’s or parents’ situation.

How much will it cost to get a divorce?

A divorce can cost anywhere from $300.00 to $300,000.00! Many of us have heard stories of people being financially ruined because of a bitterly contested divorce. If you want to avoid such a situation, it can help to remain flexible and open-minded.

There are several tools available to help spouses reach an agreement regarding the consequences of their divorce. The most common ones are the following:

• Family mediation: Spouses with children are entitled to six free family mediation sessions with a certified mediator, whose role is to help the spouses reach an agreement;
  
  
• Negotiations between lawyers: If both spouses retain lawyers and authorize negotiations, the lawyers can try to reach an agreement on behalf of their clients to avoid a trial;
  
  
• A settlement conference: At any step during the proceedings, the spouses can agree to a settlement conference presided over by a Superior Court judge;
  
  
• Psychosocial experts: When child custody is at issue, you can ask an expert, such as a psychologist, psychiatrist or social worker, to assess the family situation and make recommendations. It can be a wise investment to pay for this expertise if it helps avoid a trial, which is considerably more costly.
  
  Keep in mind that none of these options will be helpful if either you or your spouse are making unrealistic demands, or if you are motivated by resentment or revenge. Furthermore, remember that legal and expert fees are not the only divorce-related expenses. In addition to court fees for opening a file, which are charged in every case, the other costs to be taken into account include the following:
  
  
• lost income due to time spent at the courthouse or in the lawyer’s office;
  
• stress caused by a long and drawn-out process.

Lastly, it can be wise to ask yourself every now and again, “Is it worth it to spend so much time and money to get exactly what I want?”