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UNDERSTANDING THE LAW SAVES TIME AND CUTS COSTS

Goldwater, Dubé is committed to providing clients and visitors with the utmost in resources available to satisfy interest in family law. Our Frequently Asked Questions should address some basic concerns about divorce, custody, alimony and child support.

Many queries are related to collecting on a judgement (unpaid balance runs interest at the rate of 6% per year; please browse our table of applicable interest rates) and anything relating to the firm's expertise on parental alienation (readers can browse through publications to learn more about the issue).

The issues of relocation of children after divorce and the impact of bankruptcy in divorce cases are also common concerns. The firm also offers to visitors basic court forms available in Excel and PDF formats, such as the Child Support Determination Form and the Sworn Statement of Income and Expenses.

If you have a judgment of spousal support or child support rendered in your favour, it goes up by the cost of living on January 1 of each year. For 2015, this indexation rate is 1.8%. For past years, please browse our table of indexation rates.

Frequently Asked Questions


Alimony ("spousal support") that is payable on a regular basis is taxable for the recipient and tax deductible for the payer, as long as there is a judgment or written separation agreement that formalizes the alimony that is being paid. If alimony is paid as a “lump sum” however, it is neither taxable for one nor deductible for the other. In cases where alimony is paid, in whole or in part, to third parties (for example, to a landlord to cover the rent), such payments are not taxable for the recipient nor deductible for the payer – unless special provisions of the Income Tax Act are invoked!

Fortunately for some, and unfortunately for others, child support payable pursuant to a written separation agreement or judgment of the court, after May 01 1997, is no longer taxable for the recipient, nor deductible for the payer.

For child support agreements and judgments rendered prior to May 01 1997, both recipient and payer may file a declaration to make the payments tax-free for both of them.

The Canada Revenue Agency allows you to deduct legal fees incurred to increase support, to defend against a claim to decrease support, or to collect unpaid support. Fees to establish child support for the first time are also deductible. Fees for the divorce itself are not tax-deductible.

Revenu Québec has the same rules save that the payor of support (rather than just the recipient, as in the case for the Canada Revenue Agency) can also deduct legal fees relating to the establishment or modification of support.

Before engaging in a costly court battle over alimony, spouses who are discussing amicably how to settle their separation or divorce, or spouses who go into mediation, should concentrate on the same kinds of factors the Court will consider if they cannot solve the problem themselves.

Child Support Payments are never taxable for the recipient nor deductible for the payer, as long as the originating court order or agreement is later than May 1st 1997. Court orders or agreements prior to May 1st 1997 are subject to the old rules (taxable and deductible).

Spousal Support Payments which are payable in the “ordinary” fashion (payable weekly or monthly, by one spouse to the other spouse, without restrictions on the use of the money), are taxable for the recipient and deductible for the payer.

During marriage, spouses owe each other respect, fidelity, succour and assistance, and they contribute to the expenses of the marriage in proportion to their respective means (articles 392 and 396 of the Civil Code of Quebec). Upon separation or divorce, spouses owe each other financial support. If one spouse is in financial need, often by reason of the role he or she assumed in the marriage, then the spouse who is better off will owe alimony (spousal support) to the spouse in need.

Our current Divorce Act is a federal law which has been in effect since February 1986, and is applicable throughout Canada. It is the Constitution of Canada that requires that Parliament set the conditions for marriage and divorce, to be administered equally in every province and territory of our country. In each province, there is a designated court that has the jurisdiction to deal with divorce and all its ramifications.

When parents separate, whether or not they are married, in a civil union, or have no formal ties at all, both of them must financially support their children.

No matter whether the parents are married and so are in divorce proceedings (under our federal Divorce Act), or are merely separating (under our Civil Code of Quebec), or are dissolving their civil union (also under our Civil Code of Quebec), or finally, are not in any formal union, and so are just taking plain old custody and child support proceedings (yet again under our Civil Code of Quebec), the rules are the same!

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Laws


Canada Child Benefit (CCB)

The Canada Child Benefit (CCB) is a tax-free monthly payment made to the custodial parent(s) of children under the age of 19. To be eligible, the parent(s) must be Canadian residents or citizens, they must live with the child and be mainly responsible for the child’s care and upbringing. Both parents must file income tax returns so that the Canada Revenue Agency (CRA) can calculate the benefit and send payment.

Child Support Payment Regulations and Tables

The Regulation respecting the determination of child support payments lays out the process of determining child support payments for parents who both reside in Quebec.

Civil Code of Quebec

The Civil Code of Quebec (CCQ) provides all the general rules, rights and obligations among people with a residence, domicile or some other legal connection to the province of Québec.

The CCQ treats everything from property rights, last wills and testaments, civil liability and all kinds of different civil contracts (e.g. insurance, transport, loans, etc).

Code of Civil Procedure

The Code of Civil Procedure (CCP) provides all the technical rules that apply within the province from the moment you take legal action: How to serve the defendant, where to deposit your proceedings, when time delays begin and expire, right up to how to execute seizures and appeal judgments.

Hague Convention on the Civil Aspects of International Child Abduction

If your children have been removed from the country of their habitual residence, you have recourse to have them returned to their home country, by international law rules that apply in Quebec.

Loi facilitant le paiement des pensions alimentaires, L.R.Q., c. P-2.2

La Loi facilitant le paiement des pensions alimentaires est une bénédiction pour les femmes et les enfants du Québec. En effet, depuis 1997, Revenu Québec se charge de percevoir directement la pension alimentaire du salaire du conjoint débiteur, sans frais pour le bénéficiaire. Cette procédure per...

Divorce Act

The Canadian constitution provides that the federal government has jurisdiction with regard to power over marriage and divorce, though there is some overlap with provincial jurisdictions with respect to various rules flowing from marriage (such as rules regarding the celebration of marriage) and divorce (such as partition of family property).

Forms


Canadian Passport Application

The Canadian Passport Application process involves completing forms furnished by the Canadian Government that can be completed online and printed for submission, or printed and completed by hand.

Child Disability Tax Credit Certificate

The Child Disability Tax Credit Certificate provides extra financial support to parents with children who have serious and long-term special needs.

Child Support Determination Form (Schedule 1)

The Child Support Determination Form (Schedule 1) must be completed to permit the court to fix or modify child support. It must be completed even if both parents come to an agreement on child support.

Consent Letter for Children Travelling Abroad

The Consent Letter for Children Travelling Abroad is a form provided by the Canadian government for situations where a child is travelling without both parents.

Deduction of Spousal Support (Alimony) at Source

The Deduction of Spousal Support (Alimony) at Source provides spousal support payroll deductions for those paying spousal support.

Simulation of Partition of QPP Contributions

The Quebec Pension Plan (QPP) is a compulsory public insurance plan. Revenu Quebec funds the QPP by collecting a portion of income from Quebec workers and employers. Citizens can access their QPP fund in the event of retirement, disability or death.

Statement Required Under Article 444 CCP

The Statement Required Under Article 444 C.C.P. is a form used by Revenu Québec (the official name of the Quebec’s revenue ministry) in order to collect spousal support and child support, free of charge, on behalf of the recipient spouse.

Statement of Income and Expenses and Balance Sheet (Form III)

The Statement of Income and Expenses and Balance Sheet (Form III) is a form that helps the Court determine the financial means and needs of divorcing spouses so it can make an order with respect to spousal support (alimony).

Statement of the Family Patrimony (Form IV)

The Statement of the Family Patrimony (Form IV) refers to all the family assets that must usually be partitioned upon dissolution of marriage.

Publications


Unjustified Enrichment Between De Facto Spouses: A Renewal of the Law, or History Being Re-Written?

This article will take a look at the evolution of the jurisprudence on unjustified enrichment as a viable recourse for de facto couples, who are otherwise completely deprived of any recourse to resolve the consequences of the economic inter-dependency that may have grown during their unions, to th...

La Grande Perturbation: Nouveaux Défis en Droit de la Filiation

The legal and jurisprudential evolution of the Quebec civil law on filiation has been dynamic and avant-garde in these last few years, introducing new principles to define how filiation is established, which are quite distant from the classic blood ties which we believe normally circumscribe it.

D...

The Constitutional case for de facto couples in Quebec

By Anne-France Goldwater and Marie-Hélène Dubé

Goldwater, Dubé

In July 2009, the Quebec Superior Court issued its decision in the landmark case on the legal status of de facto (or “common law”) unions in the province of Quebec. The Court dismissed the constitutional challenge launched by a Que...

Parental Alienation Syndrome

Parental Alienation Syndrome (P.A.S.) may be defined as the manifestation of a child’s systematic alienation from his parent, caused by any one or more of these four factors: conscious programming by the other parent (brainwashing); subconscious or unconscious programming or manipulation by the othe...

Long Distance Custody Cases

When may a custodial parent move away with the children? What constraints may be placed on such a move? Is there a difference between conventional custody access situations and joint or shared custody arrangements?

Bankruptcy & Family Law

Bankruptcy. This is perhaps the most frightening word a family law practitioner can hear. After all, once issues of custody and access are set aside, the remaining claims between husband and wife are all of a financial nature: alimentary support, partition of the value of the family patrimony, comp...

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