Breakup

Mediation is a process designed to clarify, validate, share, and gather information in order to find a solution based on each party’s interests, while taking into account the needs of those affected by the separation and the best interests of the children.

Family mediation is a process that allows couples to amicably resolve all issues arising from the end of their relationship with the help of a certified professional.

It is intended for married couples, common-law partners, and conjugal partners.

Our office offers two types of family mediation services:

• Mediation subsidized by the Quebec Ministry of Justice.
• Non-subsidized mediation.

Check out our brochure “Is Family Mediation Right for You?” to learn more.

The legal process involved in a divorce can be very costly. Fortunately, mediation can significantly reduce these costs by encouraging the parties to reach an agreement rather than going to court. The mediator can support them throughout the process by providing neutral and impartial information and guiding their discussions. They can also handle the various legal procedures required to finalize the divorce.

This method of resolution is strongly encouraged by the government, which offers subsidies for mediation sessions.

The following situations qualify for subsidized mediation for a total of 5 hours:

• Married couples with one or more dependent children, in the event of a divorce or separation;
• Couples living as common-law partners (cohabiting) with one or more dependent children, in the event of a separation;

The following situations qualify for subsidized mediation for a total of 2.5 hours:

• Couples who are already divorced and are revising the terms of their divorce decree;
• Couples who are already separated and are revising the terms of their separation decree;
• Couples who have lived as common-law partners with dependent children and are revising the terms of their separation decree

Can legal action be taken regarding our agreement? Is this included in the government-subsidized program?

The government-subsidized program does not cover litigation of your case. For a flat fee, our firm can obtain and prepare all necessary documents for a petition for separation or divorce.

If additional sessions are required, they are available at the regulated hourly rate of $110.

This service is also available to childless couples, who are not eligible for subsidies, at the mediator’s rate.

Since the decision to separate is up to the couple, so is the resolution of the separation. Thus, although most issues can generally be addressed within this timeframe, mediation may require more than 5 hours. In such cases, the mediator’s hourly rate is set by regulation and must be billed at the same rate as subsidized hours, which is $110 per hour.

When the parties reach an agreement, the mediation concludes with the drafting of a summary of the agreements reached (concluded) between the parties. This summary is drafted and signed by the mediator and provided to you.

Please note that no legal proceedings, such as a petition for divorce, separation, or other matters, are included in the subsidized program. You may have your agreement ratified by the court or certified by the special clerk so that it is enforceable between the parties.

Can we obtain a judgment regarding our agreements, and is this included in the subsidized program?

The subsidized program does not include taking your case to court. However, our firm can, on a flat-fee basis, handle all the steps related to your divorce or separation application.

The topics covered include the following:

• Child custody;
• Visitation and access rights;
• The amount of spousal support;
• The amount of child support;
• Division of family property;
• Spousal support;
• Other rights arising from marriage or civil union.

For more information about the provincial family mediation program, please contact us.

The subsidized program is intended solely for couples with children. We believe that mediation is a respectful, effective, and cost-efficient way to resolve all issues arising from a separation. We offer this service on an hourly basis.

Once the summary of agreements has been drafted, you can have your agreement approved by the court or certified by the special clerk, as applicable.

We can handle all legal proceedings related to your separation for you on a flat-fee basis.

“I got married twenty years ago, and we’ve been living apart for nineteen years. I have my own home, my own property, and even a new partner in my life with whom I’ve had children.”

Although this reflects reality, this lifestyle has simply no legal implications. Consequently, the spouses are still married and therefore still have obligations toward each other. They can continue living this way or choose between divorce or legal separation. The option chosen will affect their obligations.

To help clarify matters, we offer a general overview of the implications of each situation. The following information may not apply to your specific situation.

If you have any questions regarding this text, we invite you to contact us for clarification regarding your situation.

LEGAL SEPARATION
Contrary to popular belief, legal separation is not simply a matter of living apart.

It must therefore be requested from the court and granted by a judgment. Once the judgment is issued, you remain married; however, the spouses are released from certain obligations arising from the marriage, including the obligation to live together. However, the obligations of fidelity, mutual support, and spousal support remain in effect.

The purpose of the spousal support obligation is to ensure a decent standard of living for the spouse with fewer resources by helping them meet their needs. Therefore, spousal support may be requested and granted after legal separation. Thus, if one spouse becomes unable to meet their obligations due to job loss or illness, the other spouse may be required to provide assistance, particularly through the payment of spousal support, even if they have been living apart for several years.

When a legal separation is granted, the community property regime is replaced by the separate property regime. With regard to children, legal separation does not prevent them from enjoying the benefits arising from the marriage, and parental obligations remain unchanged.

When legal separation is granted, issues of child custody and child support are also addressed. It is important to note that decisions regarding the children may be reviewed by the court at any time.

Legal separation ends with the dissolution of the marriage, whether due to the death of one of the spouses or divorce. The voluntary resumption of cohabitation also automatically ends the legal separation without further formalities, provided the spouses have a continuous and close relationship.

DIVORCE
Divorce dissolves the bonds of marriage. The law recognizes three grounds for divorce: separation, adultery, and physical or mental cruelty. One of these grounds must be cited when filing for divorce.

With regard to separation, which is the most commonly cited ground for divorce, it must have lasted for more than one year prior to the court’s decision on the divorce petition. Additionally, the spouses must be living apart as of the date the petition is filed. For adultery and physical or mental cruelty, the Divorce Act does not specify a required duration for granting the divorce or for filing the petition.

It is important to understand that the law no longer distinguishes between separation and abandonment, regardless of whether only one spouse decided to end the marriage. The grounds or fault are not factors considered in this process. Moreover, these will have no bearing on the amount of spousal support or on child custody, which will be awarded solely in the children’s best interests. Furthermore, even if one spouse chooses to leave the family home, this will not affect their rights.

Divorce has the effect of dissolving the property that forms part of the family patrimony and the property under the matrimonial regime. As a general rule, between the spouses, this effect of dissolution is retroactive to the date of the petition for divorce. However, the court may make the effects of this dissolution retroactive to an earlier date, namely the date on which the spouses ceased to live together.

To understand this principle, consider a couple who married on January 2, 2010, stopped living together on January 2, 2013, and filed for divorce on July 4, 2013.

During their marriage, the couple accumulated assets that form part of the family patrimony, such as automobiles and residences. Although the divorce is not finalized until 2014, they will have to divide the family patrimony assets accumulated up to July 4, 2014—namely, the automobiles and residences—since the date taken into account is that of the filing of the divorce petition. If the court decides that the effects will date back to the end of cohabitation, the assets to be divided will be those accumulated up to January 2, 2013. The same principle applies regarding the division of the matrimonial regime.

Le divorce emporte la dissolution du mariage une fois le délai d’appel expiré, c’est-à-dire 30 jours suivant le jugement prononçant le divorce. Par exemple, un couple dont le jugement de divorce serait prononcé le 31 décembre 2013 aurait jusqu’au 30 janvier 2014 pour en appeler. S’il n’y a aucun appel de cette décision, le divorce serait alors effectif en date du 31 janvier 2014. Il est donc possible pour les époux de se remarier. Lors du prononcé du jugement de divorce, celui-ci entrainera la liquidation du régime matrimonial, le partage du patrimoine familial, et, le cas échéant, la détermination d’une pension alimentaire pour conjoint et pour enfants ainsi que les modalités de garde. Vous obtiendrez également un certificat de divorce qui atteste votre nouvel état civil.

Il est important de comprendre que le divorce ne libère pas les époux de leurs obligations envers leurs enfants puisque le divorce ne modifie pas leur qualité de parent et n’altère pas les droits des enfants découlant de la loi ou du contrat de mariage. Les décisions concernant la garde des enfants et la pension alimentaire pourront être revues en tout temps par le tribunal.

Spousal Support
In the event of a divorce or separation, one spouse may pay the other spousal support for a limited or indefinite period, solely to help the other spouse meet their needs.

Generally, for spousal support to be paid, the spouses must be living separately as a result of the breakdown of the marriage at the time of payment, and the terms of the support must be specified in a written agreement or by a court order. Payments must be made at regular intervals and be intended to support the recipient. The use of the spousal support must be left entirely to the recipient’s discretion.

In some cases, other forms of payment are considered spousal support payments:

• When payments were made or received before the date of the written agreement or court order establishing spousal support.
• When payments were made to the spouse or a third party for specific expenses, such as child care, rent, or insurance.
• Certain lump-sum payments, meaning a payment made in a single installment, such as a payment for overdue spousal support.

The person receiving spousal support
The person receiving spousal support must include it in their income. They will therefore be taxed on it even if the person paying it does not claim the deduction.

The person paying spousal support
The person paying spousal support may deduct it from their income. This deduction will allow them to benefit from a tax savings on their income. If they pay support for both a spouse and children, they may claim the deduction for spousal support only if all child support payments for the year, as well as any arrears from previous years, have been paid in full.

At the provincial level

If you receive income subject to withholding tax, you can ask the person paying you (your employer or payer) to take into account the deductions and tax credits to which you are entitled when calculating your withholding tax.

Two different forms can be completed to make this request:

• Declaration for Withholding Tax (TP-1015.3)
• Request for Reduction of Withholding Tax (TP-1016)

In fact, Revenu Québec allows you to ask your employer to automatically deduct the amount of tax payable on spousal support payments from each paycheck. This will allow you to budget based on the net cost of the support.

TP 1015.3: The employer does not need authorization from Revenu Québec to take into account the information provided on this form. It must therefore be submitted directly to the employer. This form addresses specific situations, including spousal support.

TP 1016: In this case, the employer must have authorization from Revenu Québec to take into account the information provided on this form. This form must therefore be submitted to Revenu Québec.

If you have any questions, you can contact Revenu Québec at 514 864-6299.

At the federal level

Form TD1 – Personal Tax Credit Return must be completed to ask the person who pays your wages (employer or payer) to take into account the deductions and tax credits to which you are entitled when calculating your withholding tax.

The TD-WS worksheet – Worksheet for Reporting Personal Tax Credits must be completed if you want to claim a partial amount from Form TD1 based on age, for caregivers, or for dependents aged 18 or older with a disability. Do not give this worksheet to your employer.

For non-refundable deductions or tax credits not listed on Form TD1, use Form T1213-14 – Application to Reduce Pay-As-You-Earn Withholdings for the year(s) at the following address: https://www.canada.ca/en/revenue-agency/services/forms-publications/forms/t1213.html

You must complete Form T1158 – Registration of Family Support Payments if your court order or written agreement specifies an amount of support payable to your spouse or common-law partner.

If you have any questions, you can contact the Canada Revenue Agency at  1-800-387-1194.

Your change in marital status will affect the amount of benefits you receive from the CCTB and the GST/HST credit. You must notify the Canada Revenue Agency (CRA) of your new status and the effective date by the end of the month in which the change occurs so that the amounts can be adjusted to reflect your situation. Otherwise, you may face penalties if you received excess benefits.

Generally, the same rules apply to the CCTB application as to the GST/HST credit application.

If you are now married or in a common-law relationship:
The CRA will recalculate your benefit based on the number of children in your care and their ages, your province or territory of residence, and your net family income.

If, after your change, there are children living with you, the CRA will list all the children on the mother’s account since she is presumed to be the responsible parent. If you are married or in a same-sex common-law relationship, one of you will receive the CCTB for all the children.

As a general rule, for any given child, only one parent is eligible to receive the benefits.

To report your change, you must contact the CRA directly or send a letter to your tax center indicating the date of the change, your name and Social Insurance Number, and those of your spouse or common-law partner, or complete Form RC 65 Marital Status Change, available online at the following address: https://www.canada.ca/en/revenue-agency/services/forms-publications/forms/rc65.html

If you are now separated, divorced, or widowed:
The CRA will recalculate your benefit in the same manner described above.

If you are going through a separation, you must wait until you have been physically separated for a period of 90 consecutive days before notifying the CRA. To do so, you must follow the same procedure as in the previous section.

Regarding your claim for the GST/HST credit, if you did not claim it on your tax return, you can file the claim by contacting your tax centre directly or by sending them a letter.

If you have shared custody:
It is possible for two parents to share custody of a child more or less equally. Examples include situations where the child lives with one parent for one week and the other for the next, or where the child lives with one parent for 3 days and the other for 4 days. Each parent is therefore responsible for the child’s care and upbringing during the time the child lives with them.

Since July 2011, if parents share custody, they are considered eligible to receive the CCTB. Thus, they will receive the benefit in equal shares on a monthly basis.

Keep in mind that it is entirely possible that one or both parents may not receive any benefits due to a family income that is too high.

If you are starting or ending a shared custody arrangement, you must notify the CRA by contacting them directly or by completing Form RC66, Canada Child Benefit Application, available online at: https://www.canada.ca/en/revenue-agency/services/forms-publications/forms/rc66.html

If you are already receiving the CCTB, you can contact the CRA directly or send a letter explaining the shared custody arrangements to your local tax centre. You can find the tax centre nearest you at the following address: https://www.canada.ca/en/revenue-agency/services/child-family-benefits/address-tax-centre-mail-your-forms.html

**To get an idea of the amount of benefits you are entitled to, a child and family benefits calculator is available at the following address: https://www.canada.ca/en/revenue-agency/services/child-family-benefits/child-family-benefits-calculator.html

If you have any questions, you can contact the Canada Revenue Agency at 1-800-387-1194.