According to the Divorce Act, a married couple can request a divorce under one of this three motives described as follows:
- 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;
- Physical or mental cruelty caused by one of the spouses.
When one of the above situations occur and one of the spouses requests a divorce, the Family patrimony regime and the Matrimonial regime will have to be dissolve according to the Civil code of Quebec.
The Family patrimony is composed of the following property owned by one or the other spouses:
- Family residences;
- 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;
- Quebec pension plan and/or similar retirement plans.
In regard to the matrimonial regime, it is governed by their marriage contract. In absence of an agreement, the applicable regime is the Partnership of Acquests.
Family mediation is a conflict resolution approach by which an impartial mediator helps the parents communicate together in order to reach an agreement. The ultimate goal is to reach their specific expectations, establish a consensus, ease the conflict and find a viable solution in a respectful setting.
Mediation is for married and non-married couples and concerns questions of child custody, child support or partition of goods. This conflict resolution approach is based on communication between the parents and allows them to arrive with a negotiated agreement that can satisfy all the parties.
All couples in a separation process, married or not, who have children in their care can benefit of 5 hours of free family mediation offered by the Minister of Justice. Also, when it is required to revise a judgment or an agreement another 2 hours and 30 minutes are offered.
Custody and Visitation Rights
Custody and access rights are certainly the most sensitive topics during a separation. To this end, one of the most important criteria favoured by our Courts is the best interest of the children and their stabilities.
We strongly advise parents to agree, from the moment they make the decision to separate, on custody and visitation rights, the whole by establishing a clear framework. In absence of agreement, the parent must rely on our Courts of law to avoid creating a status quo between parents on custody rights.
Child support is a matter of public order, which means that the parent with sole custody cannot waive the right to perceive maintenance allowance for the benefit of their children. In the same vain, non-custodial parent cannot refuse to pay child support for the benefits of their children, unless there are exceptional circumstances raised.
In Quebec, the calculation of child support is governed by «the child support determination form» which considers, in particular, the gross incomes of both parents, custody time with each parent, the number of children, etc.
Spousal support is a right deriving from civil or religious marriage. However, contrary to many beliefs, this recourse does not apply to common law partners since the Supreme court decision in Eric vs. Lola.
To determine spousal support, our Courts refer to several criteria such as the degree of financial dependence, the longevity of the marriage, the specific needs of the former
Parental authority is also a notion of public order governed by articles 597 and following of the Civil code of Quebec. Indeed, both parents, regardless of their custody agreement, undertake decisions together in regard to their children’s education, health, religion, etc…