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Our Family Lawyers Team

Child Support and Spousal Support Montreal

All children have a right to child support from their parents, regardless of the circumstances of their birth. That is the law in Quebec, and this law is vigorously enforced by the Courts. Quebec Superior Court judges put a lot of effort into ensuring that each child obtains a fair amount of support once all of the relevant facts have been properly analyzed. The key is establishing the important facts. The rest is simple legal science.

Under the right circumstances, many spouses also have a right to spousal support in Quebec, sometimes also referred to as “alimony”. However, there is a counterbalancing objective of encouraging every one to become independent as soon as possible after the marriage breaks down. For this reason, we consider Quebec spousal support cases to be more a matter of “art” than a “science”

Our firm is very well known
for its work in helping to obtain and enforce awards
of child and spousal support in Montreal, Quebec,
across Canada, throughout the U.SA.
and even further abroad.

Kalman Samuels – Child Support and Spousal Support – ICONS-1

The Science of Child Support in Quebec

In Canada and in the Province of Quebec child support calculations are simplified with the introduction of tables used to calculate the exact amount of the support payable for the benefit of the children. Please be careful, however. The tables and methods of calculation for the Province of Quebec are different than those for Canadian child support cases.

In a situation where both spouses are residing in the Province of Quebec, child support is established in conformity with the Quebec regulations respecting the determination of child support payments (R.S.Q., c. C-25) and the income of both spouses is taken into consideration.

If one of the spouses is residing out of the Province of Quebec, the Federal (Canadian) Child Support Guidelines [DORS/97-175, (1997) 131 Gaz Can., Partie II, 1031] will be applied and only the income of the payor will be taken into consideration in order to determine the exact amount of support. It is important to specify that under Quebec law, the Federal Child Support Guidelines are only applicable in Divorce proceedings and not in cases where the parents were not married.

In our experience, the greatest challenge in determining the amount of child support payable for the children of the marriage is related to the establishment of the exact income of the parties. Sometimes, especially when business incomes are concerned, one party attempts to minimize, hide or camouflage their income. Other times, a person’s income may be greatly exaggerated by the other party who neglects to take into consideration all of the real business expenses that must be factored in. It is important to provide the Court with a more accurate perspective so as not to find oneself with a crippling financial obligation.

In highly contested cases, our firm has the knowledge and experience required to cut through layers of financial data so as to help the Court see a clearer picture and reach a fair judgment. For extremely complex and high value cases, we bring in financial experts, accountants, and actuarial specialists to provide solid financial opinions in support of our client’s position.

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Kalman Samuels – Child Support and Spousal Support – ICONS-2

The Art of Determining Spousal Support

Certain spouses may have a right to spousal support in Quebec once the marriage breaks up. Spousal support, sometimes also referred to as “alimony”, can be awarded when one spouse is financially disadvantaged compared to the other and cannot afford to maintain a lifestyle similar to that enjoyed during the marriage. This is, of course, limited by the other party’s ability to pay, and counterbalanced by a presumption that everyone needs to do what they can to find work and become independent.

A spouse who has set aside their career for decades in order to raise a family will suffer economically from the results of the breakdown of the marriage. Such a person cannot suddenly be expected to re-start their career after a twenty-year absence from the working world. The same can apply in other circumstances, such as a spouse who left their home country for the sake of the marriage, and now have no contacts, do not speak the local languages, and their previous education is insufficiently recognized for them to be able to work. Under Quebec spousal support law, such spouses could be entitled to support to compensate them for losses resulting from the breakdown of the marriage. This has to be counterbalanced against the law’s objective of encouraging every one to become independent as soon as possible. A person should not have to pay spousal support for the rest of their lives, or perhaps at all, for a very short marriage between financially equal partners. The Courts are also wary of anyone who is qualified to earn a reasonable income but chooses to make only minimal efforts to support themselves.

Unlike Quebec child support and Canadian child support guidelines, there is no established formula to follow when establishing spousal support in Quebec. The Court must take into consideration a huge number of variables in order to come up with a fair judgment. Most importantly, those variables need to be presented to the Court in a clear, comprehensive, and convincing manner. This is where your child and spousal support Montreal lawyers at KALMAN SAMUELS excel.

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Common Law Spouses

In Quebec, the concept of common law marriage is not recognized. This is unlike the law in the rest of Canada and most of the United States. In Quebec, you generally have to be married (or joined in a civil union) in order to obtain spousal support upon separation. There are a few exceptions to this rule, however, and changes to the law are in process. This is an important area to consult with a knowledgeable lawyer before assuming anything!

Child and Spousal Support Following a Separation

Both Quebec’s provincial law and Canada’s federal law address this.

In Quebec, the accessory measures pertaining to child custody and alimentary support are governed by the Civil Code of Quebec in separation as to bed and board proceedings (articles 507 and following of the Civil Code of Quebec).  In Canada, these matters are addressed in the Divorce Act.  The general principles are similar to one another.  It is, however, very important to note the existence of important differences on certain aspects between the Divorce Act and the Civil Code of Quebec. One important example is the retroactivity of alimentary support claims and the notion “in loco parentis” existing solely in cases of Divorce proceedings.

Execution of Foreign Support Judgments in the Province of Quebec

As leaders in the field of international family law, we are often asked to help enforce support judgments from abroad, most commonly from the U.S.

In order to proceed with execution in the Province of Quebec, U.S. Support Judgments are required to be exemplified by the Superior Court. Depending on the State where the Debtor is located, the recognition of U.S. Support Judgments can be effected in two different manners, namely, the procedure in accordance with an Act Respecting Reciprocal Enforcement of Maintenance Orders (R.S.Q., c. E-19) and the general procedure of recognition and enforcement provided in the Civil Code of the Province of Québec (S.Q. 1991, c. 64). Our attorneys are often called upon to deliver presentations explaining these to students, community groups, legal information clinics and lawyer association.

We provide you with a brief summary here below:

When there is a Reciprocal Agreement Between Quebec and a U.S. State

The procedure will be conducted in accordance with the Act Respecting Reciprocal Enforcement of Maintenance Orders

This is the most expedient way to exemplify a U.S. Support Judgment in the Province of Quebec. In order to invoke this Act, the State in which the Support Judgment was rendered must be listed in the Order Respecting the Application of the Act Respecting Reciprocal Enforcement of Maintenance Orders (c. E-19, r.1) namely:

States with which Quebec has a Reciprocal Agreement

New York—From and after September 1st, 1996

California—From and after March 9th, 1994

Florida—From and after March 9th, 1994

Massachusetts—From and after March 9th, 1994

New Jersey—From and after March 9th, 1994

Pennsylvania—From and after March 9th, 1994

Maine—From and after June 23rd, 1999

Vermont—From June 8th, 2005

New Hampshire—From July 12, 2006

Oregon—From July 12, 2006

For these ten American States, there is no need for the institution of proceedings in order to exemplify a U.S. Support Judgment. Indeed, the only formality required is the filing of a certified true copy of the original Support Judgment before the Superior Court of Quebec, in a District where the Defendant has his domicile or his residence, or in the District of Quebec in the event that this information is not available. The details pertaining to the filing and inscription of the foreign support orders are more fully explained in the provisions of the Act. The Judgment duly inscribed by a Special Clerk of the Superior Court shall then produce the same effects, particularly as to its execution, as if it had been rendered by a Court sitting in Quebec.

It is important to note that the Debtor can raise grounds of incompatibility with the laws or rules of Public Order of the Province of Quebec by way of an opposition to execution. The incompatibility must pertain to the conformity of the laws and rules in force in the Province of Quebec, especially those relating to marriage or civil union.

Finally, where a Judgment incorporates a support payment order in U.S. currency, a conversion into Canadian currency will be effected by the Special Clerk of the Superior Court, at the rate of exchange in force on the date of the Judgment.

When there is no Reciprocal Agreement Between Quebec and a U.S. State

The following general procedure will be applicable to the States not enumerated in the Reciprocal Act above.

For the American States not enumerated in the Reciprocal Act, we must institute an Application before the Superior Court. We will then obtain a judgment whereby the U.S. Support Judgments will be declared enforceable. This process is known under various terms such as “perfecting”, “exemplifying” or “homologating”. Quebec courts will very readily perfect U.S. Judgments except in the following cases:

  1. The State where the Decision was rendered had no jurisdiction under the provisions of our Civil Code pertaining to jurisdiction of foreign authorities;
  2. The Decision is subject to ordinary remedy, or is not final, or enforceable in that State. It is important to note that our Civil Code provides that a Decision rendered outside Québec awarding periodic payments of support may be recognized and declared enforceable with respect to both payments due and payments to become due. According to this principle, it is not possible to argue that a Support Judgment is not final in virtue of the possibility of variation by the Courts;
  3. The Decision was rendered in contravention of the fundamental principles of procedure;
  4. A dispute between the same parties, based on the same facts and having the same object has given rise to a Decision rendered in Québec or is pending before a Québec authority, or has been decided in a third country and the Decision meets the necessary conditions for recognition in Québec;
  5. The outcome of the Decision is manifestly inconsistent with the Public Order as understood in international relations;
  6. The Decision enforces obligations arising from the Taxation laws of a foreign country;

In the general regime of exemplification, the Plaintiff has the burden of demonstrating that the foreign Decision is meeting the necessary conditions for recognition in the Province of Quebec, as opposed to the Reciprocal Act where the enumerated States benefit from a presumption to that effect.

It is also important to note that a U.S. Support Judgment rendered in U.S. currency will be converted into Canadian currency at the rate of exchange prevailing on the day that the Decision became enforceable in the State where it was rendered. The conversion procedure slightly differs from the provisions of the Reciprocal Act where the conversion in Canadian currency is effected on the date of the Judgment.

The Execution in Québec of International Decisions

In 1995 there came into force an Act to Facilitate the Payment of Support (R.S.Q., c. P-2.2).  In virtue of this Act, the Quebec Government is responsible for the execution of support Judgments, including the U.S. Decisions exemplified in the Province of Quebec. Until September 2003, the Superior Court of the Province of Québec ruled that in virtue of this Act, the Government authorities had sole jurisdiction to execute the Support Judgments. In September 2003, the Quebec Court of Appeal reversed that interpretation of the Superior Court and it is presently possible for private Attorneys to proceed with the execution of Support Judgments in connection with the Government authorities.

A creditor wishing to execute a Support Judgment in the Province of Quebec has two different options: the first one is to proceed with the Quebec Government authorities at no charge and the second one is to hire a private Attorney. The second option is certainly more appropriate in complex cases or situations where the Debtor is endeavouring to squander or hide his assets and where the rapidity and precision of the execution is a factor.

The Execution in Québec of Court Judgments from France

France and Quebec have a special reciprocal enforcement agreement.  It is therefore much easier to execute in Québec support orders from France than from other countries and states, aside from the ten U.S. states with which similar agreements exists.

Seizures for Payment

The various seizures that may be used in the Province of Québec are similar to the ones existing in the U.S.A.; the principal seizure being that of movable and immoveable property and the various seizures by garnishment. We wish to bring to your attention that our Courts have decided that other measures of execution not provided in our Code of Procedure may be used in accordance with the general powers of the Courts. The following example may be useful for a Creditor requiring to seize a defaulting payor wearing valuable jewelry on his person:

Our firm was representing the ex-wife of a well-known major league baseball coach who was in default of spousal support payments. Our client informed us that her ex-husband was wearing a world champion’s ring which was worth approximately $30,000.00. Our firm obtained permission from a Superior Court Judge to effect a seizure upon the person of the baseball coach and to remove his personal effects and to entrust it to a guardian pending the process of a Bailiff’s sale. The seizure was very effective and the arrears of spousal support were quickly paid. This is one of the many examples of cases where our firm was created jurisprudence that has since helped many people seeking assistance from the law.

Amicable Agreements for Support

Not every case needs to go through a difficult and sometimes expensive litigation process.

Our firm is very experienced in helping and motivated to obtain settlement agreement. It is almost always safer to obtain an agreement than to litigate before a judge. We are experienced in the art of negotiating Montreal family law cases and in the drafting of complete agreements resolving the entirety of the most common disputes in family law, including child and spousal support in Montreal. Where necessary for cases with extremely large and complicated assets and patrimonies, we solicit the help of experts such as actuaries and forensic accountants so as to present offers that are accurate and well supported. Because of the emotional involvement often inevitable in a divorce or separation and the numerous difficulties in establishing the exact income, assets and liabilities of the other spouse, it is important to have the best quality team that you can afford supporting you and representing you in these difficult matters to ensure that you are properly heard.

If you have any questions about child and spousal support in Montreal, please contact us
and schedule a consultation with one of our attorneys.

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