QuebecDivorceLawyer.com

My common law spouse and I have separated these past few months and my question is that I have bought a cottage and a duplex in Quebec under my name solely and was living common law with him for 9 years and he's name is nowhere on the bank nor the notary papers. He has only paid for not more than 30% of the monthly bills, because he couldn't afford it, so I had to pay for the remaining 70% of all the expenses and now that we are separated, he wants me to sell the properties and give him 50%. What are my options ? Can you advise.... Are the properties solely mine or do I have to divide with him ?

The properties are 100% yours and he has no right to share in them whatsoever.

So called "common law" spouses in Quebec do not have any rights in property registered in the name of the other spouse unless it it can be proven that there was a contribution to the acquisition or improvement of the property that has resulted in the impoverishment of the party that contributed and the enrichment of the party that benefited. That does not appear at all to be your case.

My sister in law is seeking a divorce but is unsure of the best way to go about it. She contacted legal aid and was told that her salary was too high to be eligible. Her salary exceeded $8,800.00/yr and therefore disqualified her for legal aid. Is there another, inexpensive way, to go about getting a divorce, something "quick & simple". Her ex-husband is not contesting this request. She was married here in Quebec and has been apart from her ex-husband for more than 3 1/2 years. She no longer has any dependant children. If there is any advice you could offer it would be greatly appreciated.

Your sister-in-law should proceed by joint divorce application with her husband.
It involves drafting the agreement and the proceedings and submitting all of it to the court. The parties would proceed by affidavit.
I charge $1,200 and guarantee that it is done properly. It will take about 3 to 4 months to get the judgment once the proceedings are issued.

My wife and I are in the process of separating. My wife immigrated to Canada and I have sponsored her. I am responsible for her until December 2001. She does have a full time permanent job with a good income. I have drafted an agreement myself dealing with the division of our property and confirming that my wife will never ask me to support her. I am doing this to cover myself in the event that my wife files for divorce. The agreement reads as follows:
"I, the undersigned, am moving away from my husband out of my own free will. I acknowledge that he has not given me any reason such as adultery or violence. I am simply fed up and I do not want to share my life with him anymore.
Attached is the list of things we have both agreed I take with me. I understand that in the case of a divorce, I will not pretend to acquire any further material goods my husband possesses, whether he acquired them before or after we were together. Furthermore, I will not demand any financial support from him of any kind and I will not pretend to have a share in his present or future income, regardless of its form and source.
I declare signing this document in a sound state of mind, I fully understand its content and I am under no physical or psychological pressure from anyone to sign it."
Do I need a witness for this document? Should I have it legalized in some way to make it more official?

The document that you want your wife to sign will not suffice for a number of reasons, including the fact that she cannot validly renounce to her rights unless she obtains or waives her right to obtain proper and independent legal counsel regarding the document - otherwise the renunciation has no legal value.
The best course of action is to have an attorney, like myself, draft a proper separation agreement, and have your wife sign only after she reviews it with her own lawyer. If you do not do this you are wasting your time.

I have been divorced for 8 years now, still having problems with my ex. Right now he says he does not want to see his son anymore on weekends, just once a week (and usually that once a week he is with the grandmother). The judgment says that he takes him every second week end. Do I not send him at all?

My ex mother in law says that it is his girlfriend who does not want my son. Do I have to go back to court again?

My new husband says not to give him the child anymore, my lawyer the same. But it seems dangerous if I end up in front of a judge again he might think I was in the wrong. What do you think?

Your instincts are correct. Doing what you have been told is commonly referred to as "taking the law into your own hands". I advise against such a strategy.

You should ask for a modification of the existing court order to change the access schedule based on the new circumstances.

If you proceed this way you can put your conscience at ease, as there will be no danger at all of being charged with contempt of court.

My ex keeps taking me back to Court approximately every year to year and a half. How do I make a petition to show that this is harassment both mental and financial and make him stop?

will assume that your ex husband's proceedings every year have no foundation in fact or law and as such are unreasonable, and excessive. If that is indeed the case article 83 of the Rules of Pracice in the Superior Court provides that the Court on application (i.e. on motion by yourself) may make an order forbidding any further proceedings by your ex-husband without its prior authorization.

If you can get the Court to apply this provision it will solve your problem. It may not, however, be an easy thing to do. You will have to convince a judge that your husband's proceedings are in fact unreasonable, and excessive.

I was married in Montreal, Quebec in 2002. I have 2 children aged 2 and 4. I decided to ask for a legal separation in January 2007 due to the fact that neither of us was ready to apply for divorce.

I recently found out that he has been having an affair since February 2007 with another woman (whom is married herself and has 2 children same age as mine) and my husband has expressed his desire to move on with his life with her.

I already have a legal separation judgment but I would really like to apply for divorce asap. Can I use the grounds of adultery in order to obtain it asap??

Yes you can ask for a divorce on the grounds of adultery.

Having an affair while still married (before divorce) is still adultery.

What is the effect of asking for divorce based on adultery, and can my wife's adultery if proven result in her losing her right to claim support from me?

I am reproducing for you s. 8 of the Divorce Act 1985 which deals with the grounds on which a divorce may be granted.

Adultery is dealt with at s. 8 (2) (a) (i). When it is invoked you can apply for a divorce right away and do not need to be separated for one year before a judgment of divorce can be granted. In other words a judgment of divorce can be granted at any time in the year following the institution of divorce proceedings.

8. (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

Breakdown of marriage
(2) Breakdown of a marriage is established only if

(a) 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; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Calculation of period of separation
(3) For the purposes of paragraph (2)(a),

(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and

(b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated

(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse's own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or

(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.

What you should also know is that the fact that one of the spouses has committed adultery does not and cannot have any impact on the Court's decision on the accessory issues - custody, support, and division of property. In this regard see s. 15.2 (5) in relation to support and 16 (8) in relation to custody which both read as follows:

Spousal misconduct
In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Your wife's adultery will not have any effect on her right to claim spousal support from you

I've been in a relationship with a man for twelve years, and have decided to leave him. We technically live together, but I have my own apartment where my mail goes to.

He has been verbally abusive and has slowly destroyed my self-confidence.

I'm planning to seek alimony from him.

Under the law do I have the same rights as a common-law wife?

Unless you were married to the man in question you have no right to claim alimony from him.

There is no obligation of support between partners in Quebec that arises from a non-marital relationship.

I am writing on behalf of my friend who lives in Israel. He got married in Quebec and then moved back to Israel with his wife. Now they agree to divorce but it appears that his wife was married before and did not get divorced before marrying my friend. The Israeli authorities can't divorce them because their marriage was not legal. Is this going to be a divorce or just a marriage cancellation?

I do not believe that the Quebec courts have jurisdiction to deal with your friend's case because neither of the parties lives or has lived in Quebec - they just married here.

What I believe they should do is apply in Israel to have the marriage annulled. Get an opinion from an israeli lawyer on this.

If for some reason your friend is given an opinion that because the parties were married in Quebec nothing can be done in Israel (which I doubt would be the case) I would try then to get the marriage annulled here in Quebec.

I have some reason to believe that my husband of one year was still married when we got married.I live in the US and he is Canadian.We got married in July 2006 in the US. We agreed that I would move to Montreal after the religious ceremony which was scheduled in December 2006. In October 2006, he canceled the ceremony for no reason. We both agreed to put an end to the marriage in July 2007. I would like to file for annulment of marriage in the US.

My first question is this: is there a way to verify if he was divorced at the time of our marriage? I found some documents that lawyers of both parties have exchanged, in January 2006, in Montreal, concerning a previous marriage.

He is telling me that he can file for annulment in Montreal since we have never lived together. Is that reason a ground for annulment in Quebec?

I can verify whether your ex was divorced in Quebec. Just give me his name or send me the documents that you found.

I do not believe that not living together alone is a cause for annulment. However if it extends to non-consummation of the marriage the latter is cause.

The best way to understand annulment of marriage is to think of marriage as a contract and what the grounds would be to set aside or annul a contract such as error, fraud, coercion etc. Such grounds apply equally to marriage - the best is example is error as to the person. You marry an individual thinking that he is a man and he turns out to be a woman - don't laugh - it has happened!

I visited your website and others and found fraud or error as a basis for annulment. Can you give me some examples of what can constitute fraud or error in a marriage?

Error - you marry a woman and after the marriage you find out that she is really a man - believe me this has happened!

Fraud - your spouse lies to you about a critical fact that induced you to consent to the marriage.

I was wondering if it is possible to get a legal annulment in Quebec for a civil marriage performed in Ontario. And if it is on what ground goes the law grant it and what is the procedure in filing for one?

The first thing that you should know is that you cannot annul a marriage in Quebec after 3 years.

If you can still ask for the annulment the action can be taken here if you husband resides in Quebec.

You proceed by ordinary action (declaration), and the grounds may be:

a) that the required formalites for the celebration of the marriage have not been complied with

or

b) like any contract that your consent to the marriage has been obtained by error, fraud, under duress etc.

My ex-husband's lawyer has asked me to produce a form according to article 827.5 C.p.c. I am representing myself. what is this? Is she obligated to send me a blank form so that I can fill it out?

The 827.5 form is required by the Minister of Revenue whenever support is in issue. It provides the information needed by the Minister to fulfill its role as collector and payor of support. The other attorney should provide you with a copy of the form. If not you can pick up a copy of the form at the Court House.

My boyfriend has been separated from his wife for 4yrs and he wants us to get married. He has not filed for divorce yet because he is afraid of losing half of his company to his ex-wife. He wants us to get married the customary way for now. What are the legal implications of such a marriage?

I'm not sure what you mean by the "customary way", but if you mean he wants to marry you before divorcing his wife your marriage will not be legal and your boyfriend will be committing the criminal offence known as bigamy - you cannot legally be married to more than one person at the same time in Canada.

I've been divorced for 15 months. I'm presently paying child support & alimony.

I can no longer afford to pay alimony.

What information is required, to legally remove my alimony payments? What chance do I have in getting this removed. She is presently working part time & is capable of working full time.

What is the cost involved?

In order to cancel your spousal support obligation you must show that your ex has either acquired or should have acquired her financial autonomy by now.

If your ex is working part-time and there is nothing that prevents her from working on a full-time basis and providing for her own support then I would say that your chances are good of getting your support obligation annulled or at the very least having the court fix a term for the continuation of your payments.

The decline in your income or increase in your expenses will also be a factor, although secondary.

You will have to pay based on an hourly rate as it is impossible to fix a falt fee in such cases, not knowing at this point the extent of the contestation that you are likely to face and thus the time required to get the judgment that you want.

I am involved in ongoing divorce litigation. My wife's lawyer is stalling and I do not believe that my lawyer has been aggressive enough. My lawyer is holding a sizeable retainer from me. How do I go about changing attorneys, would it cause more delays, and what will it cost me to make the change?

It is very simple to change attorneys, and does not have to involve any more time than for your new attorney to become acquainted with the file.

Just tell your current lawyer that you have decided to change. Ask for your entire file as well as a refund of the unused portion of the retainer that should be on deposit in your lawyer's trust account. She will of course bill you for any unbilled time and disbursements that she has and should refund the difference. There is no additional cost in changing lawyers other than the fee for the time spent by your new lawyer to read through the file.

The procedure for changing lawyers is to have your new lawyer prepare and send what is called a "Consent to Substitution of Attorneys" to your old lawyer for signature and then to the attorney for the other party for signature. This usually does not cause any delay. If there is a lack of cooperation all that your new lawyer has to do is ask the court for permission to substitute as your new lawyer

I'm writing on my sister's behalf who lives in Quebec. She just received a phone call from her husband saying he had met someone else and had cheated, and wished to get divorced. He is supposed to come back at the end of this month to settle the custody issues regarding their only child. He mentioned to my sister that she could keep the house and would pay for the mortgage for an entire year. The problem is that he also demanded she pick him up at the airport and let him stay at their house during the negotiations. Needless to say, my sister is devastated and told me she would not have the strength to have him around the house for an entire week. She does not know what to do and is unsure if she is allowed to deny him room and board. She does not have any problems with letting him come to the house to pick up his belongi! ngs. I looked all over the internet for answers and was unsuccessful. Thank you so much for your assistance in this matter.

Your sister is fully within her rights not to allow her cheating husband back into the house. She should immediately change the locks, pack his belongings, and arrange a time for him to pick them up when she should leave them outside of the house.

Furthermore your sister should institute divorce proceedings and not allow her husband to dictate how the issues that must be resolved (custody, division of property, support) are to be settled.

Tell your sister that she is living in Canada, not Iran.

My husband has decided to end the marriage and just moved out of the house. We have three children who remain with me. Can I change the locks to the house without asking him or telling him or giving him a key, and if I do so will it have any negative legal consequences for me?

Yes, you can change the locks to the house.

No, it will not affect your legal position in the event of divorce proceedings because it is the appropriate thing to do.

If, however, your husband is under the wrong impression that he has still has the right to enter the house, and gives you a problem in this regard, the best way to resolve the issue is to institute divorce proceedings and make an immediate provisional request to the Court for exclusive possession of the family residence.

An order to this effect will be granted very quickly in your favour if the children are living with you in the house and your husband has moved out.

I am acting on my own without a lawyer to ask for child support in the context of a post-divorce request for a change of custody. I have to fill out a child support determination form. My husband refuses to cooperate and provide me with his annual revenue which I need in order to complete the form. I have a court date set. How do I go about getting the necessary information concerning my husband's salary from his employer myself?

You have to serve your husband's employer with a duces tecum subpoena (a subpoena to bring documents).

You must get the subpoena by going to the Courthouse and asking a clerk for the required form, and for help filling it out.

I currently live in Minnesota. I have been divorced (in Quebec) for less than one year and I would like to know if it would be possible to determine how much child support that I should have to pay.

I have 3 children, ages 11, 6, 5 who live with their mother in Quebec. I made $31,543 US for 2003 and approximately, $22,000.00 for 2002. I am currently paying $550.00 US per week plus I am paying for the childrens private school, school books and clothing.

Any assistance would be greatly appreciated.

The amount of support you must pay for three children with an income of $31,543 US converted to CDN at 1.35 = $42,583 CDN, would be $678 per month. This is based on the Federal Child Support Guidelines for Quebec that apply to your case.

The base amount includes clothing. School fees and books are usually extra but the cost should be shared on proportionately to the incomes of you and your ex. It is also debatable whether at your income level, you can be compelled to pay for private school, unless you agreed to do so. Your ex cannot impose private school on you.

It thus appears that you are paying way too much.

I have a judgment that grants me custody of my two children who are three (3) and four (4) years old. The decision also says that my ex common law spouse must pay me child support, but she refuses to pay. What steps can I take to force her to pay child support to me?

The Minister of Revenue for Quebec is charged with the collection of support payments.

You can apply to have the judgment in your favour executed both with respect to the arrears and for the future by contacting Revenue Quebec - Perception des Pensions Alimentaires at 1-800-488-2323. Give the agent the details of your case, and have the Court number handy.

I have been served with a Motion for Provisional Measures by my wife, who is representing herself. I am required to complete a Child Support Determination Form and Statement of Revenues and Expenses. Do I have to engage a lawyer to fill out these forms or can I get the forms and complete them myself? Also my wife's motion was not accompanied with these forms. Is she required to send me these forms herself. She just started a new business and I have no knowledge of her earnings.

You do not have to have a lawyer to prepare these forms, though I would recommend highly that you have a lawyer do so. There is special software called Aliform (which most family lawyers have) that is required to obtain an accurate statement of what is required.

If you do the forms yourself you must have them certified by a clerk at the Courthouse in order to be able to file them with the Court. They will not be certified if they have not been filled out properly.

There are some links on my website which provide information regarding the support tables which may help you fill out the forms.

Your wife is required to send you the same forms. If she does not do so her request for support cannot and will not be heard.

I have split custody of my 8 year old son from a previous marriage, and I am paying child support for him to my ex-wife. I remarried in October 2000 after living with my new spouse for 4 years. In December my new wife told me that she had made a huge mistake by getting married, and now is seeking a divorce.

My second wife supported, nurtured and accepted my son during the four year period of our co-habitation, even though she is not his biological mother. Can I ask her to pay child support to me for him?

Also my emotional state and self-esteem have suffered as a result of what my new wife has put me through. Can I seek damages from her for emotional distress and mental cruelty, on my own behalf and that of my son who she refuses to speak to since she decided to leave?

On my website I deal with the issue of requesting support from a non-biological parent - the answer to your question on this issue would be that if your second wife assumed the role of a mother to the child, in principle you would be able to claim support from her.

On my website I also deal with suing one's spouse in damages. One spouse can sue another in damages but the claim cannot relate to marital misconduct - such as mental cruelty. What you wish to claim is therefore NOT the proper object of a claim in damages.

I signed a divorce agreement in 1990 in which I agree to make child support payments to my ex-wife until our two children (who are now 14 and 15 years of age) are 24 years old. Since the divorce in 1992 my wife moved to New Zealand. After the move I saw the children briefly at Christmas in 1993, but have not seen them since. Can I ask that the judgment be modified so that my obligation to pay child support terminates when the children reach 18 years of age?

The first thing that you should know is that you can apply to modify the child support portion of your divorce judgment on the basis of the coming into force on May 1, 1997 of the Quebec Guidelines, which in and of itself constitutes a change of circumstances entitling you to revision of the amount that you must pay.

Secondly, your wife's move to new Zealand, which makes it prohibitively expensive for you to exercise access, is another important change of circumstances which the Court will take into account in fixing the amount of child support which you would have to pay based on the Guidelines. In fact this can be raised to reduce the Guidelines amount. You can plead that there should be a derogation from the Guidelines on the basis of "excessive difficulty" - the difficulty being the extraordinary travel expense created for you to see your children based on your wife's unilateral move to New Zealand.

I was married in 1978, separated in 1987, and divorced in 1989. I have joint custody of our two children who are 18 and 20 years old and live with their mother. I have a good relationship with the children, see them regularly, and have paid child support to their mother for the past 13 years as well as various other expenses for them. The 20 year old just finished CEGEP in December 2000, is not showing any interest in attending university, and will most likely get a job shortly while attending courses at the same time. The 18 year old is enrolled in a 12 month technical course which will terminate in August 2001 and will most likely find a job shortly afterwards. I am aware that the laws have changed. What is my best course of action to discontinue my child support payments and what are my options?

Children over 18 are considered to remain dependent and merit support as long as their studies are serious, or there is some other reason which prevents them from being self-supportive (such as a medical infirmity).

Students are under an obligation, generally speaking, to apply for any available loans or bursaries, or to work on a part-time basis during the school year and full-time during the summer, to contribute to their own support. Usually the parents' obligation is reduced by 1/3 of the amount of the student's revenues from employment.

Regarding the 20 year old, a good case can be made that she no longer be considered dependent as she has stopped her studies. You should therefore apply now to have your support payments for her cancelled.

You will probably have to wait until August of this year to cancel your support obligation for the 18 year old. However it would be important to determine if there any available loans or bursaries which he can apply, or should have applied, for. Also the 18 year old should be working to contribute to his own support, and thereby reduce the amount that you currently have to pay.

My wife agrees to have my child support payments stopped because she now agrees that our children are independent. The Minister of Revenue is collecting the child support that I am now paying, and a lien (legal hypothec) has been registered against a property which I own to secure my child support obligation. How do I go about having the support payments cancelled and the lien removed by agreement with my wife?

The only way to get what you want is have a consent to judgment prepared in which both you and your ex recognize that the two boys are no longer students, but are working and self-supportive, and thus no longer financially dependent "children of the marriage". In the consent your wife will agree to release you from the payment of any further child support retroactive to whatever date you want.

You will have to appear in Court only to deposit the consent and obtain judgment ratifying it. In the request to be presented to the Court to ratify the consent you can also ask the Court to order the radiation of the legal hypothec registered against your property. You will then have to register the judgment.

As an alternative you can have a deed of radiation prepared and signed by your wife that would then be registered against your property.

All of this would be done in a spirit of cooperation and on a non-contentious basis.

I can help you if you wish. Your wife would not necessarily have to retain her own counsel, as long as she fully understands what she is doing

When child support is deducted automatically from a person's paycheque is it tax deductible for the payor?

Child support is paid in net after-tax dollars. It is not tax deductible for you. Your wife does not have to include the child support payments that you are making in her income that she declares for tax purposes.

Your child support payments are deducted automatically from your paycheque because the Minister of Revenue (MRQ) is charged with the collection of all support payments, and your employer is under a legal obligation to withhold the amount that you have been ordered to pay and remit it directly to the MRQ.

I stumbled upon your website and I was wondering if you could help me. My mother and father divorced when I was very young and she has a judgment which allowed her the right to ask for alimentary support. My mother, due to various medical and addiction problems, never took my father to court. My father always had a very good job and makes a substantial amount of money. I have suffered many financial hardships through my teenage years and adult years and I am trying to decide if I can should take a judgment against him.

In my whole life - he has never given me anything except for maybe two years of birthday gifts. We recently met after not seeing each other for almost 14 years and he promised me that he would assist me with the costs of my schooling.

I was attending university but had to leave because of the cost of education was too high. The loans that the government offered barely covered my living expenses and debt load. I have a very good job right now and make a decent salary. I have had to previously declare bankruptcy and struggle from additional debt that I am still paying off. I am 30 years old now and I do not think I have a chance to win- but it just kills me that he offered to help, and then he went and changed his phone number. I am wondering if I could get past child support payment or have him pay part of my schooling.

I really feel like he should help with something- is there anyway I could actually win something like this? Please advise.

Quite an unusual claim. You are now 30 years old, working on a full time basis, and you want to ask for your father's assistance now because he never adequately provided for you when you were a child and to make up for those lost years of support.

Article 585 of the Civil Code says that relatives in the direct line in the first degree owe each other support.

Article 595 says that support may be claimed for needs existing up to one year before the application.

It seems to me that you have a theoretical right to ask for support from your father, but only in relation to needs that have arisen in the past year. You will have to prove those specific needs and your father's capacity to pay. The fact that you are working and are presumably self-sufficient is the principal factor that works against you regarding such an application.

My ex-wife and I have been divorced for a couple of years now. We have shared custody of our 2 children. The custody time is 50% for each of us; the children spend one week with me followed by one week with her. I receive roughly $300 per month from my ex. Her salary is roughly double mine. My lawyer tells me that the child support payments I receive from my ex is so that we can now both pay for roughly half of the child expenses. My ex insists that her $300 per month that she pays me is the only money she will spend on the children; she claims that I have to pay for all the expenses like daycare, transportation, orthodondic, traveling for school, all school activities, summer activities, summer camps, etc. My lawyer also says that items like orthodondic surgery and school trips do not fall under the "normal" everyday expenses. These expenses are above and beyond normal monies set aside for the children. We should contribute to these extra expenses by our ability to pay; therefore, if my ex makes double my salary, she should pay 66% of the expense and I pay the remainder.

My 3 questions are:

1) Though my ex pays me child support of roughly $300/month, should we both be paying half of the normal expenses (ie. we should be splitting the expenses 50-50 for daycare, activities, etc.)? At the moment, I write all cheques for daycare, activities, camps, etc..

2) Are items like orthodontic services and school trips (ex. Toronto for a week, Europe for 5 weeks, etc.) above and beyond normal everyday expenses where we parents need to contribute extra money? That is to say, these types of expenses are not covered by the normal child support regime; that the money needs to be contributed by both parents and the level of contribution depends on salary.

3) If my ex-wife should have been paying for half the expenses, after contributing child support to me, is there a government agency I can contact or a legal procedure to correct the situation and to help me recover my overpayments and to make sure she pays her fair share in the future? I cannot afford to go back to court to fight this point; my ex-wife knows this and takes advantage of my situation.

I have just lost my job recently and am therefore very concerned about my ex-wife not paying her fair share.

In a split custody situation each party is supposed to pay and assume the everyday expenses that each incurs while the children are with him or her.

It appears that the $300 per month that you wife pays you represents the "base amount". It is meant to equalize the living standard in both homes for the children by having your wife subsidize your home thereby compensating you for your wife's greater earning power.

Over and above the "base amount" there are what are called "special expenses" - these are child care, school expenses including tuition, books, uniform, school trips etc. and, other expenses including extra curricular activities, medical, dental, orthodontic etc. - expenses that are necessitated by the child's particular situation.

The special expenses are calculated, added on in the appropriate place on the Support Determination Form, and factored in to determine the amount of child support payable. The addition of the special expenses to the base amount thereby increases the amount that the debtor parent pays and the Minister of Revenue collects.

Special expenses should not be treated separately and divided on a proportionate basis by the parties as they are incurred as they are in your case. Your doing so, your wife's apparent refusal to assume her share, and her misrepresntation that the sum of $300 is all that she has to pay, has led you to wrongly believe that you must assume and pay all of the special expenses.

Your wife is not paying her her fair share, and you are thus being taken advantage of.

Unfortunately, unless you qualify for legal aid, you must either institute the proceedings necessary to remedy your situation yourself or hire a lawyer to do so.

You can go back one year to claim your wife's share of what has already been expended.

I'm looking for information on getting child support from my spouse. We recently separated and he has paid me $100.00 a week, we have 1 child (1 1/2years old). I have made a date to see a lawyer in one month. The thing I am worried about is he owes $66.000 in child support for 2 other children, never made a payment to the government. We live on an Indian reserve and he has no assets in his name and he works under the table. I feel he is just giving me money so I won't take him to court because he feels he will get arrested for the outstanding amount he already owes. What should I do?

The amount of child support is based on your income, the father's income and the amount of time that the children spend with each parent. These are the factors that the Guidelines depend on to determine the amount that must be paid.

You are dealing with someone who has no declared income and appears to be paying voluntarily. To get a judgment applying the Guidelines you will have to prove what the father earns. If you do go to court you risk angering the father which in turn risks causing him to stop his voluntary payments. Unless you can prove that the father is working and can give the court a fair idea of what his under the table income is, I would leave the status quo alone and let sleeping dogs lie. You risk coming away with nothing and then getting nothing after that.

I know that the above sounds unfair - but sometimes you just have to be practical. $100 per week or $430 per month net is about what you would get if you could prove that the father was earning about $40,000 gross.

My new wife has custody of her two children from her prior marriage and court orders
that provide for child support and access rights in favour of her ex-husband. Her ex is not obeying the orders to see her children.

What can she do?

I would ask for an increase in increase in the child support that your wife is receiving on the grounds that her ex does not see the children and that this causes her financial hardship (the legal term is "excessive difficulty"). This is one of the grounds for asking that the Court increase the amount of child support payable over and above the Guidelines amount.

I just moved back from Toronto. I was paying child support on the federal guidelines (about $200.00 more than when I lived in Quebec) with the same visitation and the same salary. I was wondering how I go about getting the amount changed back to what it would be under the Quebec Guidelines, and how much it will cost to do so. My divorce was finalized in January 2003. I don't know how to re-open my case and get my child support obligation revised.

To apply the Quebec Guidelines you must make a "motion to modify accessory measures" before the Court here asking that you child support obligation be re-determined based on your move back to the province of Quebec and thus that the Federal Guidelines no longer apply.

A family lawyer should do this for you. You will be charged for the time spent on your file at the laweyr's hourly rate. Don't cut corners. Do it with a competent and effeicient attorney and it should be done properly at less potential cost.

Where a child is over 18 years of age and is a student

Must I return to court to request that the child support payments that I am receiving continue once the children reach the age of 18 years, and if so, how long before my children reach 18? They are presently 14 and 15 and are expressing an interest in college.

If after 18 your children continue their studies, they will still be considered to be dependent, and the existing support order will continue without your having to do anything. It will continue until it is set aside by an order of the court as a result of an application by your ex which is granted, or an agreement that you make with your husband - because in either case the children are no longer students and are self-supportive

The father of my child says that he does not work and has no money, when he does for a fact work but is paid cash. What can I do to prove his cash income?

If the father has no reported income you will need to obtain proof of his under the table earnings. A good way to do this is to get him to admit that he is working under the table, and the amount that he is earning if possible, on tape - either during a phone conversation (he does not have to know that he is being taped), or in person by getting him to talk.

Buy a small tape recorder that plays micro-cassettes. They are sold at Bureau en Gros. Hide the tape recorder on you and just get him to talk. Tape him until you he says the things that you want him to say. Record all of your phone conversations with him.

Such evidence, if obtained is admissible, because child support is a matter of public order and we are dealing with an issue that involves the best interest of a child.

I was involved in a case where the father refused to disclose his real income. The mother hid a tape recorder on herself and got the father to talk over dinner in a restaurant. During the conversation he admitted his real income. The mother transcribed the conversation and file the tape and transcription into the court record. The judge ruled that the tape was admissible even if the father did not know and consent to his being taped because the tape was proven to be authentic and the issue involved the father's obligation to pay child support.

Ten months ago I broke up with a woman. We lived together for about a year. She kept all my belongings estimated by me at 16000 and refused to let me have them. We have a joint line of credit for approximately 25000 wich is now in collection. I offered to pay it back in full but I wanted my things back. She would only give me my things back if I took a loan to pay it back and removed her from the papers.This I have on paper from her lawyers office. I had to go and buy new things for my appartment and my children of whom I now have shared custody. I am trying to work out an arrangement with the bank because I cannot pay the full amount every month and survive.

Does the bank have the right to repossess my furniture, my newly leased car, my possessions in her house, most of which were mine prior to us living together ?

How do I secure my belongings and my custody arrangement? The children are from my previous marriage not hers.

You did not buy your furniture from the bank - so there is no question of any "repossession" by the bank. If you do not pay the bank what you owe it can sue you for the balance owing on the loan, obtain judgment, and attempt to seize the furniture. If, however, the items have a value of $6,000 or less they will be exempt from seizure by the bank.

The bank cannot touch your leased car. You do not own it. The bank can only seize what you own.

What you need to do is take what is called an "action in revendication" to have the court recognize your right of ownership in the items in question and to recover your property. The action should be accompanied by an immediate seizure before judgment to remove everything that belongs to you from your ex and to have the items seized placed in storage until the court confirms your right of ownership.

The way to secure your custdody arrangement is to make a motion to the Court asking for shared custody based on the status quo, and get the court to render judgment confirming your custodial rights.

I purchased a home 3 years ago with my girlfriend. We put down a deposit together, and purchased the home for 175 000$.
She left in June of 2004 to go live with another man. We put the home in her name, at the notary, to protect our investement because I own a company and have creditors to whom I am personally liable. The mortgage loan on the property is in both of our names. The balance owing on the mortgage is 125 000$. I had the property evaluated in October 2005, and it is now worth 230 000$. I have made the majority of the mortgage payments .

She is claiming the house that the house is hers and says that she will give me 50% of the profits once the house is sold. She wants me to contimue to make the mortgage payments until it is sold.

Do I have any rights???

Sounds to me that putting the house in your girlfriend's name was a simulated transaction, with the real agreement being one of co-ownership (or sui generis partnership). If that is the case between you and your girlfriend the solution to the problem lies in applying the co-ownership rules. This means that you would have the right to claim back from her one half of the monies that you will have paid to preserve capital (i.e. the mortgage payments) until the property is sold. If she is occupying the propertyare entitled to claim compensation (the rental value) during the period of her possession as well. These amounts would paid to you off the top before there is any division of the net sales proceeds - which would of course be divided equally.

You would have to prove that you bought the property in partnership notwithstanding what appears in the title deed. It will be a question of credibility. You will be more credible if you can corroborate your testimony with other proof tending to show that your real intent was to co-own the property and that it was put in her name alone to protect it from your creditors.

My girlfriend and I have been together for two years , and would like to live together. Prior to our meeting she lived with a guy for a little over three years in a common law relationship.

During this time she bought a home, made all payments on her own with no financial help from him. He did do some repairs on the home costing him approxmently $3000.

They have been separated now for four years. He has his own apartment and someone else in his life.

Now that he found out that we want to get married and live together in her home, he is saying that he will take half of the property from her and leave her on the street. She has three kids, none of them his.

Can he do this after such a long period of seperation? What rights does he have?

The answer to your question depends on whether your girlfriend's ex boyfriend is registered as a co-owner of the home.

If not the threats are empty ones.

If so, then there may very well be a problem. The answer lies in the application of the rules in the Civil Code on undivided co-ownership. These rules provide for compnesation where one of the co-owners makes a payment on behalf of the other to preserve capital - such as the capital portion of a mortgage. They also provide for compensation to the non-possessing party where the other co-owner occupies the property.

To apply the above rules in your favour and to avoid a 50 / 50 split of the net value, you would have to determine how much your girlfriend has paid on account of capital on her ex's behalf - this amount would result in her being entitled to compensation from his share for an equivalent amount, but this would be LESS the amount corresponding to one-half of the rental value of the property (he is entitled to compensation for her exclusive occupation of the property).

I have just spent the previous week with my children and discussed with them the possibility of living with me. My oldest son, who is 11, informed me that their mother rarely spends time with them and she told him that I had mental problems. My question, what chances do I have in obtaining custody since I am the father?? How long would the process take and would it be necessary to ask for a reduction in child support payments if I were to seek custody??

Should I hire a private investigator to document the amount of time that my ex wife spends away from home?? What can I do to increase my chances of obtaining custody??

If you can prove that your ex rarely spends time with the children, and in that respect can be considered uninvolved (except for the collection of child support from you) and that your wife has denigrated you to the children and thereby interfered with and impeded their relationship with you, you should succeed. It would also be good to be able to prove that the children themselves wish to come to live with you - this can be done by having an attorney appointed to the children whose role would be to advise the Court what the children want.

You must prove in essence that the children are better off and will be in a more stable and nurturing environment should they come to live with you. In the end, assuming that we can prove your wife's lack of involvement and interference in your relationship with the children, which are both factors that are counter-indicative to custody, and which would be considered changes of circumstances justifying a revsision of the custody order, it is what is in the best interest of the children that will determine whether there will be a change of custody.

Anything that you can afford that will help bring out the truth is good.

I helped build my husband's business. My husband says that I am not entitled to any share when we divorce.

The company and its success has been entirely generated during our marriage together. How can I enforce my right to a share of the business?

Based on the information you are now providing it would seem to me that you would have a better case if you made a claim for what is called a compensatory allowance.

This is applicable if it can be shown that you made a contribution in money and/or services that has had the effect of enriching your spouse and impoverishing you correspondingly.

This is often the case where there is a family business which belongs to one of the spouses and the other helps to make the business successful by doing work without being paid a salary.

If you can claim a compensatory allowance you will able to claim what you would otherwise not be entitled to by way of division of the value of the business.

My question is that my ex and I are going for divorce but I don't know if we are legally married.

We went to a priest for a marriage certificate but we didn't send it to the city.

That was about two years ago.

To be married for purposes of the civil law you must have an act of marriage that has been registered with the Directeur de l'état civil. If you were married in a church the priest, or officiant, draws up a declaration of marriage and is supposed to send it without delay for registration to the Directeur de l'état civil.

If I were you I would check with the Directeur de l'état civil to see if your marriage has been registered. This will determine whether you are married for legal purposes.

To reach the Directeur de l'état civil you can call:

Quebec region 418-643-2545
Montreal region 514-864-3900
Elsewhere in Quebec 800-567-3900

How do the Courts determine who gets custody of minor children? What factors are taken into consideration?

There are a number of factors used in determining who gets custody. The overriding
criterion is the best interest of the child, not what is in the interest of either
parent.

The factors looked at to determine what is in the child's best interest are:

the parental capacities of both parties (including all positive and negative
factors which will impact the ability to provide the care that the children
require)

who has been the primary caregiver and who is better able to provide primary
care

the availability of the parties to provide care

the involvement of the parties with the children - in their education, activities,
medical appointments etc.

the availability of a safe and secure home environment

who is more willing to facilitate and maximize contact with the other party

the non-involvement of the children in the marital conflict provoking conflicts
of loyalty

ensuring that the children maintain respect for the other parent

not denigrating the other party and alienating the children

non-interference when the children are in the physical custody of the other
party

The above list is not exhaustive, but it provides a good indication of what
to focus on.

I would like to know if I need to file for custody of my children before I file for divorce.
My problem is that my husbands won't take responsability for the kids now but when we seperate he will make it his mission to take the kids from me...So before I file for divorce I want to make sure not to lose my children.

If you are a good mother you will not "lose" your children - no matter what your husband threatens.

You gain no advantage by asking for custody before filing divorce proceedings. The same criteria for determining custody apply whether the request is made in a divorce motion or in the context of a motion for legal separation.

If my ex-husband and I have shared custody of our 7 year old boy, could that be over-turned if emotional abuse is involved? My son started speaking to someone at his school about everything that's going on at his dad's place, and how his father's girlfriend yells at him constantly and everyone puts me down in front of my son. I'll be seeking more help for my son, but is there something that can be done?

Yes you should ask that the shared custody arrangement be stopped, and that you be granted sole custody of the child.

You would do this by motion to the court to modify the existing court order.

My wife has custody of our 13 year old daughter. She has been telling me that she wants to come and live with me. I cannot afford to hire a lawyer at this point. Can my daughter hire her own lawyer based on a legal aid mandate to ask for a change of custody if her mother does not agree?

If I understand your question correctly, you are wondering whether your 13 year old daughter can hire her own lawyer and ask herself for a change of custody, or more particularly ask that the court authorize her to come to live with you.

Firstly, assuming that your daughter expresses the desire to come to live with you, you must be the one to apply for the change of custody.

A lawyer can be appointed to represent your daughter, but only to ensure that her views are properly presented to the Court.

A lawyer for a child is only necessary where the child's interests may not necessarily coincide with those of the parents, and only then to ensure that the child's competing interest is accurately represented and properly conveyed to the Court.

In your case, if your daughter is able to properly express herself, and she is clear and unequivocal in her desire to come to live with you, it is highly probable that, if your wife does not agree, a judge will listen to her and order a change of custody.

Your daughter is of an age where she can choose where she wants to live. Unless it is clear that she is, for some reason, not acting in her own interest, the change of custody requested should not require the kind of expensive litigation which you seem to envision.

I was born in Bogotá, Colombia and have Canadian citizenship. I have been married for eight years to a Lebanese citizen, who is also Canadian and we have a baby girl that was born in Montreal and is currently 20 months. I came to spend my vacation in Colombia on December 12th and I am supposed to return to Montreal on March 4th. My marriage has not worked for years, and I want to get divorced, but am scared to go back since my husband and his family will not leave me in peace, or have threatened to not let me leave Canada with the child, or to take her to Lebanon for good. I My husband wants to go to Lebanon in April with the child but I do not agree. Since he got her a Lebanese passport without my permission I am really afraid of not seeing her again. Before going back to Canada, I would like to know: 1. Can I leave Canada with my baby at any time or can he can forbid me? 2. Can he take the baby to Lebanon and leave her there without my permission.? 3. My marriage is not registered here in Colombia, could I get divorced in Colombia? 4. I have a letter from him allowing me to take the baby out of the country at any time, can he revoke it? 5. If I stay here can he sue me for not taking the baby back?

I would be very concerned by the fact that the baby has a Lebanese passport. If your husband succeeds in getting the baby to Lebanon you can be assured that you will never see her again.

I do not believe that you can take divorce proceedings in Colombia because if the laws there are like ours here, you would have to reside there for one year in order for the court to have jurisdiction.

If you stay in Colombia you will force your husband to go there to try to get the child out. You should consult a Colombian lawyer as to your options there. You may find a favourable judge in Colombia since you are Colombian.

If you come back to Montreal you can ask for a divorce and custody of the baby. With a custody order theoretically your husband cannot leave the country with the child without your consent. The only risk that you run is that your husband can try to slip out of the country with the child and take her to Lebanon on the basis of the Lebanese passport. You would have to notify the authorities as soon as you get the custody order. You should also ask that the court order your husband to deposit the child's Lebanese passport with the court here because of the threat that he may try to leave the country with the child.

If you do come back to Montreal I would institute the divorce proceedings right away. Do not wait. Get interim custody as soon as you can.

My husband and I are just about to file our completed divorce document. My son approached me this weekend to tell me that he doesn't want to live with his father part time as per our divorce agreement and would rather live with me full time. My son is only 13. Can he make that decision at this age? Should I hold off on filing the divorce papers? Is there some special clause that I should put in the current agreement to cover the possibility of such a change in our child sharing agreement? What happens if the change is requested after the divorce is finalized?

At 13 your son can decide who he wants to live with, and the Court will usually give effect to the wishes of a child of this age. The cutoff age is 12 according to the jurisprudence. The judge must be satisfied that your son has expressed his wishes free of influence and that it reflects what he truly wants.

You should not sign any agreement that does not reflect what your son wants. It can be changed later, but will more difficult and will most likely cause unnecessary expense as your husband will surely contest it. The time to deal with this issue is now.

Does it ever happen that a judge disregards a psycho social expertise when determining custody and visitation or do they more often than not adhere pretty closley to what is recommended?

An expert's report is considered to be persuasive evidence. It is not, however, binding on the Court.

An expert's report will be rejected when the Court has reason to question the expert's objectivity, or when it is shown that the expert's analysis is flawed in some way - he has failed to take into account certain important facts, has misinterpreted the facts, or has erred in his application of the principles on which his report is based.

I have often seen judges set aside expert's reports. This is why it is very important to be careful in the choice of the expert to be engaged.

My ex husband is seeking a change of custody. I have always had
custody. A psycho-social expertise was done but he hasn't given me a
copy of it. Now he seems to have abandoned the procedures. I want to
have the visitation modified, and I want to obtain a copy of the expert report
obtained by my husband which he has not filed and refuses to provide to me.
What are the procedures I need to do?

You must make a motion for modification of accessory measures asking fo a change of the existing access order.

In the context of your motion you should request that your husband be ordered to file the expert's report that he has in his possession, but refuses to file probably because the recommendations are not in his favour. Such an order can be obtained. In a recent case in 2002 a judgment was rendered ordering the father to produce an expert's report written by his expert which he had refused to file. The decision was rendered by Mr. Justice Gilles Hébert and is reported at REJB 2002-31908.

I moved from the province of Quebec to Las vegas, Nevada where I married, had a child, and was divorced in 2003. The child has had a history of learning disability, hyperactivity, and aggressive beahviour. At the time of divorce I was granted permission by the Nevada court to move back to Quebec with my child. The father was granted summer access. The Nevada judge stated in the judgment that the Nevada court was retaining jurisdiction on the issue of custody to guarantee the father's access. I moved back to Montreal in April 2003. Soon after my child was diagnosed as autistic. He has been attending a special school and has been receiving therapy ever since.
The father refuses to recognize the child's problem, and wants to exercise access in Nevada as if nothing is wrong. He wants the child to fly alone to him in Las Vegas - which is impossible. I want the father to visit the child here in Quebec. I maintain that the child cannot travel. The father has brought a motion for contempt against me in Nevada. My lawyer there says that unless I comply with the Nevada judgment I risk having the Nevada Court issue a "pick-up order" for the child in Quebec and that I risk losing custody. Is there anything that I can do here in Quebec since I have lived here with the child for over a year?

The Quebec Court of Appeal has determined that as a matter of public order the issues relating to the custody of a child (and by extension access) are within the jurisdiction of the Court of the place of the child's domicile - where the child has his principal residence.

The Court of Appeal has also said that the best interest of a child requires that questions concerning custody and access be determined by the Court of the child's domicile.

Under the Civil Code the Quebec Superior Court can, exceptionally even when a child is domiciled in Quebec, decline jurisdiction to hear a custody case on the basis of the principle of legal "forum conveniens" - if it is determined that the Court of another jurisdiction is better placed to decide the issue of custody because, although now living in Quebec, the child has a more substantial connection to the other jurisdiction.

It is clear that the Quebec Superior Court has jurisdiction to hear your case. It would appear that in the past year the child has established a more substantial connection with the province of Quebec where his autism was diagnosed, where his doctors are, where he is being treated, where he is undergoing therapy, where he is attending school. It is highly unlikely that, given the foregoing particular circumstances, the Quebec Superior Court would decline jurisdiction and refuse to hear a motion to review the access provisions of the Nevada judgment.

Once the Quebec Superior Court accepts jurisdiction to hear your motion, on request it should issue a suspension of any proceedings taken in Quebec to execute the Nevada judgment.

I am writing on behalf of my sister who is an anglophone married to a francophone and living in Montreal. They have two children - ages 2 and 4. From conversations with my sister, it appears that the home situation has been deteriorating since the birth of their youngest child. My sister's husband is a lawyer, and my sister is a stay at home mom.

Over the past two years, my sister's husband has effectively imprisoned my sister in the sense that she has no access to funds, is not permitted to travel outside of Quebec with her children (her family lives in Ontario and Manitoba) and has been informed that, according to Quebec law, if she files for divorce she will be required to live within 30 km from the children's father. He has also told her that, since she has no income, Quebec law will side with him in terms of custody agreements.

She is reluctant to obtain any legal advice because she is certain her husband will find out. I'm sure this is paranoia on her part, but he seems to have convinced her that he will be made aware of any such correspondence, as he is also a lawyer.

I would much appreciate your clarification on the following:

• with regards to the children, will she be required to remain within a certain distance of their father after a divorce?
• what is the likelihood of her losing custody of the children considering that he is the sole income earner?
Any advice you can offer would be very much appreciated.

Your sister is being manipulated by her husband who is misrepresenting the situation to her. He is the last person who should be advising her as to her rights.

Your sister is not required to remain within any distance of her husband after the divorce in Quebec. If she wants to leave Quebec with the children she has to apply for authorization from the Court to do so, and will most probably obtain it if she has been the primary caregiver, she has a good reason for wanting to leave, and by leaving she is not deliberately seeking to deny the father access to the children. I have pleaded many of those kind of cases.

The incomes of the parties have absolutely no relevance to the issue of custody. She has no chance whatsoever of losing custody because her husband is the sole breadwinner. The issue of custody will be decided on what is best for the children and who is better able to provide for the children’s needs (physical and emotional). The fact that your sister has been the primary caregiver will be a key factor.

It is also clear that your sister’s husband will have to pay both child and spousal support, and will most likely be condemned to pay her legal fees (based on the inequality of financial means to support the litigation) if the case goes to trial.

At what age can a child testify to the judge about where he would prefer to live? Is 10 and a half old enough?

The wishes of children as to where they woull prefer to live are taken into account by the Court as one of the relevant factors in determining custody. The weight to be given to such testimony or expressed preference will depend on:

-age

-maturity

-level of articulation

-whether the opinion expressed is rational (makes sense under circumstances)

-whether it coincides with child's best interest

-whether it is based on impulse (caprice in French)

-whether it is the result of undue influence by a parent

The opinion of a 12 year old child is "largely determinant".

The opinion of a child between 10 and 12 should be considered carefully.

Is it within the Quebec Superior Court's
jurisdiction to make a ruling concerning a case where
a father in Quebec filed papers with the court for
visitation rights, but the child and mother have
resided in Ontario for 5 years (mother has sole
custody since birth, child never lived with father)?
Would a judge hear this case, or should the case be
heard in the province where the child resides and not
where the father resides?

In custody matters the Court having jurisdiction is the Court of the place where the child is domiciled.

Article 3142 of the Quebec Civil Code says - A Quebec authority has jurisdiction to rule on the custody of a child provided he is domiciled in Quebec.

Article 75 of the Quebec Civil Code says - The domicile of a person, for the exercise of his civil rights, is at the place of his principal establishment.

In custody matters the domicile of a child is the place of his habitual residence.

It appears that the Quebec Courts do not have jurisdiction to hear the father's request for access. It should be heard by the Court in Ontario where you and the child reside.

If the father has filed a motion here you should have a lawyer request that it be dismissed on the basis of lack of jurisdiction.

I am writing to you since I need advice regarding immigration laws
(England-Canada) and custody-related issues. I was married to a
Canadian citizen and have two children from the marriage. Our marriage
ended in a divorce in 1995 in which I let my ex-husband get custody of
the children only because he did not have a job at the time and claimed he could
receive more assistance from the Canadian government having
full-custody. I was still in love with him at that time and I agreed.

I realized a couple of years later how huge that mistake was. My
ex-husband got a job in England, re-married and took the children with him.This happened 7 years ago.

Since then I have been lucky to see my children once a
year, since it's not very cheap to go and visit.

I got a phone call this Sunday from my ex-husband's wife asking me to
sign an application form because they want the whole family, including
the children, to obtain British citizenship. I am scared to sign any
more papers that could make my situation worse. Therefore, I refused.

What I'd like to know is - what the rights of my children are, how the
laws of England would affect them? What responsibilities would it entail
becoming a British citizen?

My children are only 10 & 14 years old.

Their only reasoning for becoming a British citizen was that "all their
schoolmates are British". I find this insufficient as a reason.

Could you also tell me what my rights are as a mother toward my children.

If I were you I would apply for custody of your children or at the very least proper access. It seems that your children's relationship with you (their mother) has been seriously compromised by a) your misguided agreement to surrender custody to the father when it appears that it was not in the best interest of the children and b) the father's move to England which makes their contact with you extremely more difficult. It appears to me that you have grounds to ask that the initial custody order be set aside and/or revised. Because the children habitually reside in England the English courts probably have jurisdiction in any application that involves them. You may have to go to England to resolve these issues.

You should consult both an immigration and family lawyer in England.

You can meet me if you like and I can look over the divorce judgment and original custody agreement.I may be able to put you in touch with someone who can help you with the custody problem in England if it cannot be resolved here which seems unlikely.

For answers on immigration issues you may want to look at
http://www.fitzgeraldlawcompany.com. They may be able to put you in touch with someone who can help you. In Montreal you can call Me Joyce Yedid 916-2660 - she is an immigration lawyer here.

I would not give in to any more threats or attempts at manipulation. I would advise you not to sign anything unless and until you are fully aware of the implications and do so knowingly.

I have been separated from my husband for a short time and I am
considering purchasing a home before actually beginning a divorce. Is it
possible? Are there any risks involved when I actually do begin
divorce proceedings. I got married in 2001 and there was no marriage contract

When you divorce the effective date of partition of your property will be either the date of the proceedings (the general rule) or the date of the separation (by exception if applied for).

You can count on it being the date of separation if since that time you have been financially independent of your spouse.

I think that you can go ahead now and purchase the house. If you want 100% assurance wait until you issue your divorce proceedings.

I obtained my divorce judgment on August 13, 2003 and got reamrried in in a foreign country on September 9, 2003. My divorce certificate is dated September 13, 2003 .Is my foreign marriage valid here in Canada?

You cannot remarry legally until you are divorced.

Your divorce becomes final on the 31st day after the date on which the divorce judgment is rendered. If the divorce judgment is dated August 13 then you are only legally divorced 31 days later or as of September 13. Thus your foreign marriage on September 9 will be considered illegal and non-existant in Canada.

How long is a registered Declaration of Family Residence good for? Does it become automatically nullified once a divorce is final? Can it go on indefinitely?

Once you have registered a declaration of family residence your husband cannot sell, mortgage, or convey any rights in the property (including a right of habitation to his mother) without your consent. Third parties who have legitimate claims (such as a creditor with a judgment) can validly register liens.

My husband and I entered into an agreement in relation to a condominium which we moved into. The agreement states among other things, that we own this property equally, that the fact that title is in his name only is a formality, and that he recognizes that this property is indeed joinly owned by both of us. We have since sold that property and purchased a house and once again, the same agreement was reissued with all of the conditions as outlined in the original agreement.

I have lived in this house for 5 years and now sadly the relationship is ending. While my ex husband has assured me that he will abide by the terms of the foregoing agreement, his actions to date have been secretive and do not reflect those of one who will act honorably. While I was aware of his intent to sell the house, he has had private meetings with a real estate agent who has now posted her sign on our front door and has signed a mandate
with her to sell this property.

What can I do to protect my interest in the house?

If I understand your question properly you are saying that the family residence was purchased in your husband's name, but the two of you have a written side agreement that says that it belongs to both of you jointly.

To protect yourself and prevent the sale of the property by your husband without your consent, you must register what is called a "declaration of family residence". This will prevent your husband from transferring title to the propertywithout your consent.

Since the property in question is the family residence and forms part of the family patrimony, you are entitled to one-half of the net proceeds at the time of divorce.

am asking for a divorce from my husband due to mental and physical cruelty. I am a landed immigrant in Canada and married my husband on coming here. 5 months after my arrival in Montreal I left my husband with the help of the police. I have now lived in Montreal for one year. I am living alone and working. If I ask for a divorce am I entitled to one-half of everything that my husband has? Can I ask the Court to reimburse my marriage expenses? Can I sue my husband in damages for what he has done to my family and I?

Your right to a division of property will be based on your matrimonial regime.

If, for example, you were married in Quebec without a marriage contract, you will be subject to the legal regime of partnership of acquests, which means that you will be entitled to one-half of the value of everything that you and your husband acquired after the marriage up until the date of the institution of divorce proceedings, or more probably in your case the date of separation since you seem to have been living independently of your husband since you left him. The assets to be divided will be evaluated at either the date of proceedings or the date of separation, whichever applies.

If you married outside of Quebec, the regime applicable will be that of the place where you were "domiciled" (intended to reside) at the time of the marriage. Most countries have regimes similar to Quebec's legal regime of partnership of acquests.

As for your other questions I can tell you that I am involved in a similar case where I represent the husband, and the wife is claiming reimbursement of the marriage expenses and damages. I am defending this kind of proceeding so I am familiar with it from the opposite side.

I can tell you that one spouse cannot claim "damages" from the other as a result of the breach of a marital obligation. The only recourses which exist are those available under the Divorce Act. Under the Divorce Act fault for marriage breakdown is compensated by obtaining a divorce (not monetary compensation).

I should point out, however, that if your husband has seriously abused you physically and mentally it is a different story. You can sue him for the physical and material damages resulting from his abusive acts. These actions are outside of the scope of the obligations arising from the marriage, and are considered actionable as "delicts" or "torts". The damage claim can be joined to your divorce action.

I deal with these issues on my website.

After 22 years my husband has decided to leave me and our two children (14 and 17 years of age). My husband is heavily indebted and is now starting a new business. Am I responsible for my husband's business debts? Am I entitled to half the value of the new business? If so, can I refuse to take my half interest, and ask for a share of the income that the business generates?

You do not have to worry about having to assume direct responsibility for your husband's business debts whether you married 22 years ago without a marriage contract and thus subject to the legal matrimonial regime of partnership of acquests in existence in Quebec at the time of your marriage, or whether you entered into a marriage contract at the time of the marriage in which case you most likely adopted the regime of separation as to property.

In neither case are you and your husband directly liable for each other's debts. In the case of partnership of acquests, however, you have to understand that your husband's acquests (or his property in which you would have the right to share) would be exposed to his creditors, and can be seized to satisfy his debts. In this way you become indirectly liable as your share in the division of your husband's acquests can become less if his creditors intervene and seize his property before any division of the acquests is made.

If you are married separate as to property you would have no right to share your husband's interest in his new business. What you own is yours and what he owns is his.

If however you are subject to the regime of partnership of acquests your husband's interest in the business would be considered an acquest assuming the investment in the business is made prior to the effective date of your separation, and you would be entitled to one half of your husband's equity interest in the company.

You cannot substitute your right to half of the value of the business at the date of separation by demanding a direct share of the income of the business in the future (I presume that this is what you are referring to when you speak of "royalties").

Before our marriage I owned a condo which I sold and made a profit of almost $30 000.00 before marriage. Once married we moved into my parents house and lived there for about 7 months ( we were building a new house ).

The total down payment on the house was $60 000.00. $30,000 was given to me as a gift from my father after marriage (my father gave a personal check to the notary at time of signing) and $30,000 was money I made from my condo.

Most of the furniture was mine from my condo.

The house is now on the market and the asking price is $340,000, the purchase price was $264,000 the mortgage on the house is $195,000.

My husband wants half of the money we get once house is sold. My question is, can I claim my $30,000 plus the $30,000 my father gave me as a gift?

In addition, does the furniture need to be divided?

The house is only under my name and so are all the bills (hydro, phone, cable) I also got a credit card only under my name after marriage and would use it for both of us, now he no longer pays any bills or my credit card but continues to pay the mortgage. Can I ask for half of the bill payments including my credit card even though his name is nowhere?

Under the family patrimony rules you would divide the net value of the house. However you are entitled to a deduction off the top before any division is made for both the $30,000 that you put in from before the marriage plus the $30,000 gift from your father PLUS the amount corresponding to the increase in value of these two amounts proportionate to the increase in value of the house.

You would retain sole ownership of the furnishings that you brought in from prior to the marriage.

Regarding the credit card, if the balance relates to family expenses you can claim that he assume and pay half of the debt even if the card is in your name alone.

I would like to know if money received before the marriage as a result of a damage award due to an accident are subject to division at the time of divorce? . Part was used for the down payment on the house and cost of the marriage. Another portion was used during the marriage to pay down debt.

Whether you were married separate as to property, or subject to the regime of partnership of acquests (i.e. - you were married without a marriage contract in Quebec), you will not have to share the proceeds of your damage award because these monies represent your private personal property.

If you have used such private property to purchase a family patrimony asset after the marriage, like making a down payment on a house, you cannot claim these monies back at the time of divorce.

My husband and I are soon to be divorced. As of the date of our separation we had accumulated family debts ( hydro, Bell, cable etc.) of about $2,000. My husband just declared personal bankruptcy. I am left with three young children, and my husband has not left me a penny. Can my husband be ordered to pay one-half of all of our outstanding bills?

You are asking me whether, in a divorce proceeding, after bankruptcy, your husband can be condemned to pay half of the debts which remain from the marriage.

Your husband cannot be condemned to pay the creditors themselves. However you can ask that he reimburse you his share of the debts (whatever that is) by way of lump sum (which is considered alimentary support) or periodic spousal.

Your husband's bankruptcy will not discharge him of his alimentary obligations - i.e. his obligation to support the children and pay spousal support if it can be claimed.

You should definitely institute divorce proceedings and claim support if your husband continues to have revenue.

Two people from Montreal go to England to marry in 1968 and then immediately return to Montreal. No marriage contract was entered into. In 1976 the couple separates and in a separation proceeding (not a divorce action) an agreement providing for child and spousal support only is approved by the Court. In 1980 each spouse buys a home. In 1984 the husband sells his house and keeps all the money. Now in the year 2000 the wife wants to sell her house. Can she do so without obtaining the husband's consent and sharing the net proceeds with him?

Since the parties married prior to 1970 without a marriage contract, and intended to live in Quebec at the time of the marriage they were thus domiciled in Quebec then even if they married in England.

The matrimonial regime that applies is the legal regime of the place of common domicile at the time of the marriage. In Quebec prior to 1970 the legal regime was community of property. The legal regime of Quebec changed in 1970 to partnership of acquests.

A community of property regime exists until it is dissolved. The judgment of divorce to be rendered in 2001 will dissolve the community in this case.

The general rule is that the assets to be partitioned are those that are eligible and which existed at the time of the divorce application. The assets subject to partitioned are valued at this date as well.

In this case, however, a request can and should be made in the divorce proceedings to apply the exception to the general rule and thus to value and partition the assets of the community retroactively to the date of separation in 1976. This can be done if the parties lived financially independent of each other after the separation. The purpose of asking for a partition as of the date of separation is to effectively exclude the house bought by the wife in 1980 from division. Doing this will enable the wife to sell the house and retain the proceeds as her property.

Before the divorce judgment is rendered, and because the community is not technically dissolved until the divorce is pronounced, the notary will most probably ask the husband to intervene in and sign the deed of sale to signify his consent.

There is really no basis for the husband to withhold his consent. If he does a request can be made to the court for an order allowing the wife to act alone which would avail in lieu of the husband's signature.

My partner and I are about to go into mediation. I want to sell the house, he wants to keep it for himself. What are the options that a mediator might present. House is worth 135K and there is a 100K mortgage. His mother lives with us and he has signed an agreement with her to give her one third of the profit from the sale. I have never signed such an agreement and intend to take half. Will there be a problem.

Assuming that you are married or that the house is co-owned you are entitled to one-half of the net equity whether it is realized by sale or by your partner buying out your interest.

If your partner does not want to sell and wants to keep the house demand that he pay you one-half of the equity of $35,000 and no less.

In a divorce can one party force the sale of the house they
both own? Neither of them lives there now.

What you have to do is proceed by way of "motion for partition" to force the sale.

I do not know where you can find info on this subject on the internet - but the applicable section of the Quebec Civil Code would be articles 1015 to 1037. The specific provision allowing the demand for partition is article 1030.

I was married in Quebec.

I was previously divorced in the US.

I am a US citizen and was resding in Quebec at the time of the marriage. I have continued to resdie here.

I was domiciled in Quebec at the time of the marriage. I was residing in Quebec at the time of the marriage and intended to reside in Quebec thereafter.

I did not sign a Quebec marriage contract.

I did sign a "pre-nuptial agreement" in the United States.

There has been a breakdown of the marriage.

What is the legal impact of the US pre-nuptial agreement on the division of our marital assets since we are going to divorce in Quebec?