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Frequently Asked Questions

Alimony

Q.        What is the position of our courts regarding long term marriages and more specifically the standard of living to which the homemaker - spouse is entitled as well as the duration of such alimony payments?

A.         In the decision rendered by the Supreme Court of Canada in Moge -vs- Moge, the Court determined that marriage has to be regarded by the courts as a joint endeavour and that the longer the relationship endures, the closer the economic union and the greater will be the presumptive claim to equal standards of living.  The Court decided in that case that although more and more women are working outside of the home, their employment continues to play a secondary role and sacrifices continue to be made for the sake of domestic considerations.  Those sacrifices often impair the ability of the partner who makes them - usually the wife - to maximize her earning potential because she may tend to forego educational and career advancement opportunities.  Those same sacrifices may also enhance the earning potential of the other spouse who, because of his wife tending to domestic matters, is free to pursue economic goals.  Thus the Court stated:

“...in many cases the former spouse will continue to suffer the economic disadvantages of the marriage and its dissolution while the other spouse reaps its economic advantages.  In such cases, compensatory spousal support would require long term support or an alternative settlement which provides an equivalent degree of assistance in light of all of the objectives of the Divorce Act.”

            In relation to the issue as to whether or not a “term” or date of termination for the payment of alimony  is concerned, the passage of time (after the separation or divorce) alone does not in itself constitute grounds to put an end to the ongoing obligation of payment of alimony in relation to long term traditional marriages.  The passage of time is only one of the criteria that must be looked at by the courts amongst the others outlined in the Divorce Act and each case has to be studied on its own merits.  Some circumstances and factors may loom larger than others.  In cases where the extent of the economic loss can be determined, compensatory factors may be paramount.  In other cases, where it is not possible to determine the extent of the economic loss of a disadvantaged spouse, the court will consider the need and standard of living as the primary criteria together with the ability to pay of the other party.  
            In other words there are no hard and fast rules and the judge must look at all of the factors in light of all of the stipulated objectives of support in the Divorce Act and then exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.

Undeclared income and mediation 

Q.        If one of the significant factors in determining the quantum or amount of alimony (or child support) awarded is based on “condition and means”, how do the courts deal with undisclosed assets or unreported (under the table) income?

A.         In fact one of the greatest obstacles to securing a just and equitable financial settlement after dedicating years of life to a marriage is bad faith and dishonesty.  In the Province of Quebec where I have been practicing family law since 1976 and teaching since 1985, legislation was introduced requiring at least one compulsory session of mediation as being a prerequisite to the initiation of legal proceedings in contested cases.
            Mediation can be an extremely useful vehicle towards the resolution of financial conflict where there is no fear of undisclosed assets or undeclared income. However, as a family law attorney specializing in highly litigious cases, I encounter in my practice, on a weekly basis, a phenomena which merits very special attention.  In many cases an individuals declared or reported income has little or no relation to their real income.  This is significantly more apparent with individuals who operate their own businesses.  
            In my earlier years of practice, the tendency of our courts was to focus on income tax returns as the barometer of earnings.  The courts have a much more flexible approach to such matters over the last decade and are now fully cognizant of the discrepancies which exist between declared income and  “notional” (real) income such that benefits, perks, write offs, bartering, undeclared cash earnings, etc. are all factored into the notional income when assessing an individuals true earnings.
            In the event that your spouse is in any similar situation wherein the possibility exists that full and complete financial disclosure will not be forthcoming, mediation may not help the parties to achieve a just and equitable financial settlement. 
            In the process of determination of financial means and needs of the family members, you may well be struck (during this process of discussion, mediation or otherwise) with a significant variance between the declared income and the lifestyle of the family.  It is in situation such as this (wherein individuals are not forthcoming about their total income from all sources) that FULL disclosure can only be elicited through the scrutiny inherent in the process of litigation.  Rectification of this injustice is my specialty.  I have been honing and perfecting it for decades and if you feel that you are in this unfortunate position, I invite you to communicate with me.

Cohabitation or living together 

Q.        What is “common-law marriage” and more specifically do couples who are living together for a certain number of years have equivalent rights to those of married couples?

A.         In Quebec the phenomena of couples who choose to live together outside the institution of marriage is approximately twenty-five (25) percent. There is a widely held belief amongst many people that after a certain number of years of cohabitation together, that one eventually acquires rights similar to those rights existing between married couples.  This is not the case.
            No such legislation exists in the Civil Code of Quebec in relation to people who choose to live together “en concubinage”.  The Civil Code neither legally recognizes nor sanctions the notion of “living together”.  This differs significantly from other provinces of the country as well as many American states which recognize “common law marriages”. In Quebec however neither of the partners have any of the rights or duties of spouses such as to right to financial assistance, the obligation to contribute towards the expenses of the household in proportion to their respective means, etc.
            Although the Civil Code of Quebec does not recognize living together, there are other laws of a social nature which do give such recognition.  For example since the 1^st of July 1999, the Act Respecting the Quebec Pension Plan authorizes the partition of benefits between common-law spouses for the duration of their life in common together.  Thus under certain conditions they can make a request to “la Régie des Rentes du Québec” to have any and all benefits which have accumulated in either name partitioned between them.

Cohabitation agreements

Q.            Considering that there is no legislation governing the relations between people who are living together, is it possible to enter into an agreement which would outline the respective rights and duties of the parties and which would be upheld by the courts in the event of the termination of the relationship?

A.         The answer to both of these questions is yes and it is highly advisable that individuals who are living together enter into such agreements. A formal agreement can be prepared which would outline the respective rights, duties and obligations that both people require to be applicable to their relationship as well as outlining the consequences of what would transpire upon the dissolution of the relationship either voluntarily or through death. 
            These consequences can range from respective rights of ownership in a shared home, administration and disposal of assets acquired while living together, possession and ownership of assets acquired before the couple began living together as well as after, the appointment of beneficiaries for life insurance policies and, if so desired, provisions for continued financial support after the dissolution of the relationship.  
            Thus there are numerous reasons for a couple to enter into an agreement of this nature and it is essential that it be drafted in a manner that it is “tailor made” to suit the particular needs of the specific couple entering into the agreement. 

Family patrimony

A.         On the 1^st of July 1989 Bill 146 came into effect in the Province of Quebec.  The purpose of this bill was to promote  economic equality between spouses and more specifically to remedy the economic disadvantages that became evident over the years in relation to those couples who chose the matrimonial regime of separation as to property.
            Thus the new law enunciated the premise that marriage brings  with it the constitution of a family patrimony which is divisible in equal parts between the spouses upon the rupture of the marriage or death, irrespective of in whose name those particular assets were purchased during the marriage. These assets have been defined by the legislator as the following:

1.           Residences (both principal and secondary) used for the family

2.          Rights to pension plans

3.          Furnishings

4.           Automobiles used for the family.

The dispositions in the Civil Code relative to family patrimony are applicable to all spouses at the time of their marriage.  They cannot (except as herein stated) by way of marriage contract or otherwise, renounce to their rights in the family patrimony.  The only time that this can be done is at the time of the death of either spouse (by his or her heirs) or during the course of proceedings of divorce, separation from bed and board or nullity of marriage.

Q.        Do the provisions of family patrimony apply to those who were married before the coming into effect of the law on the 1^st of July 1989?

A.         The legislator, not wanting to automatically impose the new law, gave to such couples the option of renouncing to the applicability of that law (before a notary and conditional upon both spouses agreeing to do so). That option having been opened until December 31^st, 1990.

Q.        If my spouse and I did renounce to the applicability of the  provisions of family patrimony before December 31^st, 1990, does that mean that under no circumstances would I have the right to share, in the future, to the value of those assets that constitute family patrimony  in the event of a separation or divorce?

A.         As mentioned, the agreement that would have been entered into between the spouses in order to exempt themselves from the application of the law of family patrimony would have been a contract signed before a notary.  As in all contracts, the consent of both parties must have been given in a “free and enlightened” manner. Our civil law states that contracts can be declared invalid by the courts if it is proved that one of the parties signed a contract as a result of fear having been induced by abusive exercise of a right or power or by threat.              Our Civil Code also states that a contract can be declared invalid as a result of error which can be either an error of fact or an error in law.  An example of an error in law is ignorance or misinterpretation of the law which actually induces one or both individuals to be mistaken as to an essential element or determinate aspect of the contract. Another factor which can be of very significant importance in determining whether or not there was “error” is whether or not the notary carefully explained all of the aspects and consequences of the signing of that agreement. 

Thus, as can be seen, vitiating or annulling contracts is a complex area of law and each case would be judged on the basis of the very particular circumstances that unfolded before as well as at the time of the signing of the agreement.

Mobility rights

Q.        Does the parent who has custody of the children have the automatic right or preferential rights to move out of the province with them when there is an objection from the non custodial parent?

A.         The Supreme Court of Canada decided in the case of Gordon -vs- Goertz (1996) 2 R.C.S. 27, that the fact of having “custody” does not in itself confer a more favourable right to the custodial parent in relation to their decision to move out of province.  The Court stated that each case depends on its own unique circumstances and the only relevant issue is the best interest of the child in the particular circumstances of each case. In assessing the best interest of the child the courts must consider the following:

1. The existing custody arrangement and the relationship between the child and the custodial parent;

2. The existing access arrangement and the relationship between the child and the  access parent; 

3.  The desirability of maximizing contact between the child and both parents;

4.  The views of the child;

5. The custodial parent’s reason for moving, only in the exceptional case where it is   relevant to that parent’s ability to meet the needs of the child;

6. Disruption to the child of a change in custody;

7. Disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 

The message sent to the lower courts by the Supreme Court of Canada is that they are obliged to weigh the importance of the child’s remaining with the parent to whose custody it has been accustomed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this; what is the best interest of the child in all of the circumstances, old as well as new.

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