They say that the holiday season is hard on couples. In fact, January is known to be the month with the highest demand for family law. Therefore, to help you start the year off on the right foot, we offer you a summary of the main basic concepts that everyone should know about family law. Enjoy your reading!
The best interests of the children
All family law has been designed to promote the best interests of the child. Parents must remember that in practice, it is the child who has all the rights, whereas parents only have obligations. The child comes first, and it’s always about the best interests of the children.
Custody and parental authority
Too many people confuse custody with parental authority. Too many parents mistakenly believe that when a child is in their care, they can do what they want and make whatever decisions they feel are in the best interests of their child. In the Outaouais, this false belief is partly explained by the proximity to Ontario, where the law differs in this regard.
Some differences stand out:
Parental authority is the fact that a parent has a right and duty of custody, supervision and education. Anglophones generally refer to the concept of decision-making, which clearly reflects what parental authority is in practice.
By default, parents exercise parental authority together. A parent therefore does not have to apply to the court for parental authority, as he or she has it from the outset and it can only be revoked under exceptional circumstances.
Regardless of whether a child spends most of their time with their father or mother, the parents must always inform, consult and decide together on all important matters concerning the child, whether it is the choice of daycare, school, activities, decisions regarding education, religion, etc. They must also consider the child’s needs. In the absence of an agreement, either parent may apply to a judge of the Superior Court for a decision.
Custody, on the other hand, is only one attribute of parental authority. Parents may agree to delegate or assign custody of a child to one parent or even to a third party. Otherwise, the matter must be decided by the court, as is sometimes the case following a separation. The attentive reader will not be surprised to learn that the court will make the decision it deems most appropriate in the best interests of the child.
Contact Me William Desrochers to learn more about parental authority and child custody.
Shared custody
Let’s shed light on another myth: there is no presumption that shared custody is the most appropriate form of custody, although it is becoming more and more common.
Rather, what jurisprudence teaches us is that on the surface, ignoring all the specificities of a given case, the best interests of the child require that they spend as much time as possible with each of their parents. The court must always carefully consider each case submitted to it, all the circumstances specific to it and, ultimately, make the appropriate decision in the best interests of the child.
In a specific context where shared custody is sought, the court will consider the following criteria:
- The parental capacity of each party;
- Their ability to communicate with each other and the absence of conflict;
- Proximity or distance from their respective residences;
- The presence of a particular contraindication;
- The child’s desire, when the child has reached the requisite age and maturity.
Finally, it should be noted that there is nothing exceptional about shared custody and the fact that one of the parents refuses to consent to it should not be an obstacle. Similarly, one parent cannot keep repeating the same old message to the other and refuse to talk to him or her to prevent the establishment of shared custody.
Alimony
Parents have a moral and legal obligation to feed and support their children. This is self-evident, but following a separation, many people lose sight of this obligation and try to avoid it, sometimes they have the impression that they are paying too much, sometimes they feel that the money is not being used properly by the other parent.
In the past, the determination of a parent’s financial contribution in the form of support was left to the discretion of the court, which then reviewed all the circumstances of each case, including the child’s needs and the respective financial situation of each parent. Each parent would provide a list of their budget and proof of income and expenses. This approach was fair, but had the major disadvantage that the outcome of such a process was relatively random and costly for each party, who had to bear their legal costs.
So the government introduced an imperfect but particularly simple way of doing things. It amounts to establishing mandatory scales for all that automatically determine the amount of support to be paid based on the parents’ income and the custody arrangements in place. Now parents must plan their budgets accordingly. Thus, with some exceptions, such as when a parent has income that is questionable or difficult to establish, child support is not the main source of debate.
Contact our expert for advice on family law.
Sharing of assets and debts
Following a separation, what exactly should be shared? Are we considered married after “x” number of years of living together?
Here is the short answer, which obviously includes certain nuances that we will not discuss, to streamline the text and its understanding. Essentially, married spouses must equally share basic assets (home, cars, furniture, RRSPs, pension funds) and family debts accumulated during the marriage.
Unmarried spouses, referred to as common-law partners, will separate and share only the property or debts that are in both names, regardless of how long they have lived together. However, recourse to unjust enrichment remains available in cases where the separation of common-law partners creates a real injustice against one of them.
Spousal support
Following a separation, can one of the spouses be forced to pay alimony to the other for personal benefit? Yes, if they are married spouses.
However, this process is not automatic and circumstances must warrant it, which is the case when there is a significant disproportion between the respective incomes of the parties and when one of the parents has sacrificed all or part of their career to take care of the couple’s children. However, it is not a question of equalizing the income of all ex-husbands until the end of their lives!
Family mediation
The province of Quebec boasts one of the best-subsidized mediation systems in the world, and rightly so. As soon as a child’s best interest is at stake, parents are entitled to 5 hours of mediation paid by the government during their first dispute, after which they are entitled to 2 1/2 hours for each review or new issue that arises. It is in the best interest of the parties to take advantage of this service, which has a high success rate and contributes, to some extent, to reducing court congestion. The mediator, a neutral and impartial third party, helps the parties to communicate and identify solutions adapted to their problems.
Contact Me William Desrochers if you would like to retain the services of a family mediator.
Conclusion
Has this text caught your attention and been useful to you, yet raises more questions than answers? Have you just separated from your spouse or are you considering doing so? Contact us today to make an appointment with one of our qualified and experienced lawyers. Do not make the mistake of acting without sound legal advice, otherwise the consequences could be irreparable: any rights lost may never be reinstated.
Written by William Desrochers, a civil and family litigation lawyer at Virtulex Lawyers in Gatineau, instructor at the École du Barreau du Québec and accredited mediator.
