divorce

Montreal Divorce Lawyers

When ending is the only inevitable outcome of a family situation, getting the right kind of legal advice is the next step. Kalman Samuels, Q.C. & Associates are family law specialists. Our experienced law firm will help you navigate the world of separation, settlements, custody and divorce with the objective eye needed to provide you with the best care for your needs.

Jurisdiction of the Quebec Courts

In the Province of Quebec, it is possible for a spouse to institute Divorce proceedings if either spouse has been ordinarily residing in the province for at least one year immediately preceding the commencement of the Divorce proceedings (Article 3, Divorce Act).

In situations where a Judgment of Divorce has already been rendered but certain accessory measures to the Divorce are still pending, the Quebec Courts have jurisdiction to hear and determine a corollary relief proceeding. Or they may ask for a variation proceeding with respect corollary relief if either of the former spouses is ordinarily resident in the Province of Quebec at the commencement of the proceedings or both former spouses accept the Court's jurisdiction (Articles 4 and 5, Divorce Act).

In Divorce cases involving an international dimension, a very important issue concerns the determination of the habitual residence of the parties in order to determine in which country or province the proceedings will be instituted.

What are the requirements for a divorce?

There are specific grounds for divorce that must be met before proceedings can be started in Quebec by our Montreal divorce lawyers.

In brief, the spouses must have either lived separate and apart for at least a year, or one of the spouses must have committed adultery or treated the other with physical or mental cruelty since the marriage.

Grounds in support of the breakdown of the marriage

In Canada, it is possible to ask for a Divorce if there has been a breakdown of the marriage in view of one of the following three situations, namely:

  1. The spouses have lived separate and apart for at least one year immediately preceding the determination of the proceedings of Divorce and were living separate and apart at the commencement of the proceedings of Divorce;
  2. The spouse against whom the proceedings of Divorce is brought against, since the celebration of the marriage, has
    • Either committed adultery;
    • Either treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses

(Article 8, Divorce Act)

The past conduct of the parties with respect to the breakdown of the marriage does not play a predominant role in the evaluation of the accessory measures to the Divorce, as it could be the case in certain other countries.

Accessory Measures to the Divorce

At the pronouncing of the Judgment of Divorce, the Court will adjudicate on the accessory measures, including issues pertaining to custody, support and education of the children and the support due to the spouse and to the children. At the same time, or subsequently—depending on the circumstances, the Court will adjudicate on the issues pertaining to the family patrimony and other patrimonial rights resulting from the marriage.

Division of matrimonial property

In general, spouses living in the province of Quebec are subject to the rules concerning family assets, which is a reduced form and binding of the Equitable Distribution-exist in many U.S. states. The family patrimony is composed of the following real and personal property, as described in section 415 of the Civil Code of Quebec:

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

This heritage also includes gains registered during the marriage, each spouse under the Act respecting the Quebec Pension Plan or similar plans.

Gains in the second paragraph and accrued benefit under a pension plan governed or established by an act granting a right to death benefits to the surviving spouse when the marriage is dissolved following the death are excluded the family patrimony.

Property vested in one spouse by gift or inheritance before or during the marriage are 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 Act respecting supplemental pension plans or that would be governed thereby if it applied where the spouse works;
  • A retirement plan governed by a similar Act or a legislative jurisdiction other than the Parliament of Quebec;
  • A plan established by an Act of the Parliament of Quebec or of an other 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.

Various rules pertaining to deduction and exclusion of certain components forming part of the family patrimony may be invoked by the spouses, and in certain cases it is possible to ask for an unequal partition of the family patrimony or demand that there be no partition of earnings registered pursuant to the Act respecting the Quebec Pension Plan.

In certain situations, when neither of the parties is domiciled in the Province of Quebec, it is possible that the rules pertaining to the family patrimony are not applicable and that the law of another province of country must be applied regarding the partition of the movable and immoveable property that would normally fall into the family patrimony in the Province of Quebec. Quebec International Private Law contains very accurate provisions dealing with this particular type of situation (including article 3089 of the Civil Code of Quebec). Knowledge of the law in force in other provinces or countries is essential since the foreign law may contain less generous rules than the ones applicable in the Province of Quebec, or even more favorable rules for one of the spouses in some cases.

With respect to the movable and immoveable property, which is not contained or is excluded from the family patrimony, or when the family patrimony is not applicable, this property is subject to the application of the rules pertaining to the matrimonial regime of the spouses. When the spouses have signed a Marriage Contract prior to their marriage, there is normally a specific clause indicating which matrimonial regime was adopted by the spouses, namely the regime of separation as to property or the regime of the partnership of acquests.

In cases where the spouses did not enter into a Marriage Contract (in the United States, the spouses are normally entering into a "Prenuptial Agreement") and that the spouses were domiciled in the Province of Quebec at the time of their marriage, the matrimonial regime by default, which will be applied, is the regime of the partnership of acquests.

In the event that the spouses were domiciled in different provinces or countries at the time of their marriage, the conflict of law provisions contained in the international private law section of our Civil Code need to be applied. Section 3123 provides that the applicable law to the matrimonial regime of spouses who are, at the time of the marriage, domiciled in different countries is the law of their first common residence nationality or failing that, the law of the place of solemnization of their marriage or civil union.

 

Kalman Samuels, Q.C. & Associates
2000 Peel Street, suite 205
Montreal, Quebec H3A 2W5
t: 514-939-1200
f: 514-939-1201