Family Law, Divorce Lawyer

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The attorneys at Azran & Associates are experts in the critical field of family law. Our experienced and professional family attorneys will explain your rights and obligations and offer you the best legal advice to resolve any situation. We will help you to make an informed decision that is in the best interests of both you and your children.

Our attorneys are experienced in all areas of family law, including:

     

  • Divorce law, legal separation agreements, marriage law, and marriage annulment
  • Child custody law
  • Child support and spousal support
  • Partition of the family patrimony and matrimonial regimes
  • Recognition of paternity
  • Adoption
  • Same sex couples
  • parental alienation
  • Common law spouses
  • Representation of children before the courts
  • Private international law: foreign matrimonial regimes, foreign child custody and child support
  • Negotiation and drafting of agreements
  • Representation before the courts

REPRESENTATION OF CHILDREN BEFORE THE COURTS

The Civil Code of Québec affords children three basic rights. Parents, or persons acting as parents, are required to furnish the child with protection, security and affection. Children have the right to be heard by the court in cases involving their futures, provided they are of sufficient age and possess the maturity and sensibility to voice an educated opinion. The rights of children … [Read more...]

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REPRESENTATION OF CHILDREN BEFORE THE COURTS

The Civil Code of Québec affords children three basic rights.
  • Parents, or persons acting as parents, are required to furnish the child with protection, security and affection.
  • Children have the right to be heard by the court in cases involving their futures, provided they are of sufficient age and possess the maturity and sensibility to voice an educated opinion.
  • The rights of children are to be respected at all times and the decisions made by the court affecting the child should always protect the child's best interests and well-bein
While every child is different and as parents we want to believe that our child is the most intelligent and articulate child and can express themselves without concern, it is important to keep in mind that they remain children. For the most part, children should be exempted from being part of court proceedings unless there are extenuating circumstances that warrant they being appointed an attorney.

Who are these attorneys representing children?

When the parties agree on custody and access rights, there is no need for an attorney to be appointed to a child.  But you may want to present a request for an attorney for your child if, amongst other things:
  • You and the other parent disagree about custody or access rights,
  • You are worried about your child’s safety (child abuse, domestic violence, etc.)
These are just 2 examples and the possibility of appointing an attorney for your child should be discussed with an attorney.The age that is normally seen as appropriate for a child to have an attorney and be represented before the court is 12 years old. However, we have seen children as young as 8 years old be represented by an attorney due to the important circumstances in a file. It is extremely rare and definitely not the norm. Having an attorney appointed to a child is obviously a very delicate matter. You do not want the child to feel as though they are being interrogated and choosing. When speaking with the child, you are not necessarily asking them direct questions but rather allowing them to talk to you about their parents and it is by doing this that attorney will be able to understand the child’s situation and what the child wants. At no time, does the child’s attorney make recommendations to either the child or the court or either party based on what they believe is best for the child.

They are simply there to inform about what has been related to them by the child.

What sort of situations can appointing an attorney cause?

  Unfortunately, family proceedings may sometimes be very emotional and anger ridden. Once a child expresses their desires and wishes and it becomes known to the parties, one parent may feel rejected. It is always important to remember that children are not involved in the whole divorce or separation process but their opinions should be considered if necessary for their wellbeing. Please do not hesitate to communicate with our firm in order to discuss appointing an attorney to your child or any other family law related issues you may be concerned by. 514-499-2010 Ofelia Lamanna, Attorney Azran & Associés Avocats inc.

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GRANDPARENTS HAVE RIGHTS ALSO

The general rule and consensus would have it that grandparents are entitled to see their grandchildren notwithstanding the divorce or separation proceedings pending. Parents should help maintain their relationship, unless there are serious grounds for not doing so. Separation and divorce matters are already difficult to begin with. The children are affected by the ongoing no matter how much … [Read more...]

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GRANDPARENTS HAVE RIGHTS ALSO

The general rule and consensus would have it that grandparents are entitled to see their grandchildren notwithstanding the divorce or separation proceedings pending. Parents should help maintain their relationship, unless there are serious grounds for not doing so. Separation and divorce matters are already difficult to begin with. The children are affected by the ongoing no matter how much some parents try to shield them. Unfortunately, in some cases the children are not shielded from the proceedings and they are torn away from the family members that they once had contact with on a regular basis. Some children have extended families that they interact with on a regular basis.
Grandparents may be an important part of their lives and growth. In the event of a divorce or separation, grandparents and their grandchildren may be deprived of this interaction.There are also situations when the parents, who are still together, and grandparents do not get along and the grandparents are not able to see their grandchildren.
 

Article 611 of the Civil Code of Quebec reads as follows:

In no case may the father or mother, without a grave reason, interfere with personal relations between the child and his grandparents. Failing agreement between the parties, the terms and conditions of these relations are decided by the court.
In such situations, grandparents who wish to maintain their access rights may enter into an agreement with the parent or parents who have custody of the children. If it is impossible to reach an agreement, the grandparents may file a motion before the court for access rights to their grandchildren.
  The goal is to have the children get to know their grandparents and develop emotional ties with them. They are granted in accordance with the best interests of the children. The court establishes, in particular, the frequency and terms of visits between the grandchildren and their grandparents. Parents may oppose a motion for access rights by the grandparents if they have serious grounds for doing so, for example:
  • the grandparents have a harmful influence on the grandchildren;
  • the grandparents abuse the grandchildren verbally or physically.
Grandparents presenting a motion before the court may ask a judge to allow them access rights to their grandchildren as often as prior to when the problem arose. However, it is important to comprehend that grandparents will not have more access rights to a child than a parent who does not have custody of a child after a divorce or separation unless particular circumstances warrant same.
No matter what the situation, the court renders decisions based on article 33 of our Civil Code of Quebec which reads as follows:
Every decision concerning a child shall be taken in light of the child's interests and the respect of his rights. Consideration is given, in addition to the moral, intellectual, emotional and physical needs of the child, to the child's age, health, personality and family environment, and to the other aspects of his situation.
he court shall take into account the reason behind the grandparent`s requesting access rights.
In rendering their decision, the court may decide that contact between the grandparents and grandchildren be limited to phone calls, letters or family get together or that there be no contact at all, again depending on the particular circumstances that warrant same. Please do not hesitate to communicate with our firm in order to discuss grandparent’s rights or any other family law related issues you may be concerned by . 514-499-2010< Ofelia Lamanna, Attorney Azran & Associés Avocats inc.

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COHABITATION AGREEMENTS ARE THEY REALLY NECESSARY?

More and more every day we are seeing couples that are deciding to live together rather than get married.  In fact the percentage rate of couples living in co-habitation as of 2011 was 16.7% which represented a staggering increase of 13.9% since 2006. This is the one group of types of family ( civil union ) households that had such a dramatic increase and is surpassing single-parent … [Read more...]

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COHABITATION AGREEMENTS ARE THEY REALLY NECESSARY?

More and more every day we are seeing couples that are deciding to live together rather than get married.  In fact the percentage rate of couples living in co-habitation as of 2011 was 16.7% which represented a staggering increase of 13.9% since 2006. This is the one group of types of family ( civil union ) households that had such a dramatic increase and is surpassing single-parent households. The one aspect many couples do not think about when they commence co-habitation is the consideration of drawing up an agreement to be signed between them with regards to their duties and obligations both during their co-habitation periods and also in the event of the breakdown or rupture of their relationship. Unlike married couples, the only benefit that unmarried couples have from the law is that if they have been in a relationship as of July 1st, 1999, they can share and partition the insurable earnings from their Quebec Pension Plans. A cohabitation agreement prepared by either a notary or an attorney can greatly assist the couple both during the relationship and after the relationship.
To start off with, a cohabitation agreement can be tailor made to exactly fit the couple and their concerns. The agreement can stipulate what financial and household obligations the parties have during the cohabitation period such as
  • who is responsible for the tasks around the home;
  • raising of the children;
  • the payments of debts;
  • household expenses; and
  • expenses relating to the children.
Every cohabitation agreement must fully disclose all the assets and financial situation of each party both prior to the cohabitation period and during the said period whether acquired separately or together. Given that the parties have entered into a contract, they should ensure that all purchases, payments and exchange of items and monies are clearly detailed and always in writing. Last but not least, the parties should detail in the cohabitation agreement what shall occur in the event of a separation, namely with regards to the sharing of property that was acquired by the parties together , the possible payment of spousal support by one of the parties and the possible payment of a compensation by one of the parties to the other. Needless to say that a cohabitation agreement can be so detailed that in the event of the breakdown of the relationship between the parties, the consequences of same may not result in requiring lengthy court battles. There are however, certain aspects and items that cannot be contained in a cohabitation agreement as they pertain to aspects which are of public order. For example:
  • parental authority: (both parents share equally in the making of major decisions for the children)
  • custody rights: (the modalities can always be modified and adjusted in accordance to the actual situation)
  • visiting rights: (the modalities can always be modified and adjusted in accordance to the actual situation)
  • child support payments: (the amount is calculated in accordance with the gross revenues of the parties)
It is not possible to list all the items that are not legally allowed to be included in the cohabitation agreement but 2 examples are the following:
  • It is not possible to gift something to the other person or each other for the future in an agreement that is not notarized. If the immediate possession of the gifted item by the receiver is possible, that may be included in the cohabitation agreement;
  • There can be no stipulation of the transfer of property to the other or between the couple after the death as such a transfer can be only done via a last will and testament;
All contracts negotiated by and between persons over the age of 18 and apt to conclude agreements are enforceable and the parties must conform to the terms of their agreement.  Regardless of the sincerity and agreement at the time of the conclusion of the cohabitation agreement, the agreement can always be contested by either or both parties before the courts. In the event of a discussion relating to the children, the parties may opt for mediation sessions with an accredited mediator prior to resorting to the courts.
If any further information is required on this subject, please do not hesitate to communicate with our office. 514-499-2010.

Ofelia Lamanna, Attorney

Azran & Associés Avocats Inc.

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PARENTAL ALIENATION: LETTING YOUR EMOTIONS TAKE OVER

We have all heard it at least one time, “if I ever get divorced, I will do what is best for my kids and not let them be affected by it. I would never keep the other parent away!”. Unfortunately, more often than not, that is not the case. Divorce and separation means recalling bad memories and for some taking many things completely out of context.  I have stated it in previous articles about … [Read more...]

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PARENTAL ALIENATION: LETTING YOUR EMOTIONS TAKE OVER

We have all heard it at least one time, “if I ever get divorced, I will do what is best for my kids and not let them be affected by it. I would never keep the other parent away!”. Unfortunately, more often than not, that is not the case. Divorce and separation means recalling bad memories and for some taking many things completely out of context.  I have stated it in previous articles about divorce and will state it again, the only ones to suffer greatly are the children. Parental alienation is when a child rejects and wants nothing to do with one of the parents subsequent to the divorce or separation proceedings. The custodial parent sometimes verbalizes their feelings in the presence of the child and the child then takes on the role of protector of that parent. What can further exacerbate the parental alienation is the lack of empathy and communication from the rejected parent. This will further confirm to the child that their views are correct.
Every child deserves to have a normal and loving relationship with both parents, despite the possibility that the parents are not able to perhaps communicate with each other.There is also a possibility of fear in the child that if they were to continue to have a relationship with both parents in an equal manner, the custodial parent would react negatively and see it as abandonment by the child. The child feels torn between both parents
Unfortunately, although parental alienation has been seen by some as a form of child abuse, the courts are not easily convinced of its existence and therefore the rejected parent has a heavy burden placed upon him to demonstrate why in fact the relationship between them and their child is non-existent. There is no clear indication that one parent is more likely to promote parental alienation over the other. More often than not, it is a question of which parent has a closer relationship with the child and has more of a reach on being able to control their emotions.
There are 3 types of parental alienations that are possible.In each situation, it is important to keep in mind that parental alienation exists and that the child is being affected by it, regardless of the degree.1)    Mild Parental Alienation: in this situation, the parent is more subtle about the alienation. The parent is not imposing or restrictive and encourages perhaps joint custody or prolonged visitations with the other parent, the whole while continuing to impose their mild degree of programming onto the children. In this situation, the alienating parent makes the child feel at ease and is comforting and tries to project an image to the child which will reinforce on to the child the stronger bond they have with that parent over the other. 2)    Moderate Parental Alienation: in this situation, the parent attempts to restrict as much as possible the interactions between the child and the rejected parent but the whole while maintaining within the lines. The parent will cooperate in therapies and evaluations but maintain her position and while denigration of the other parent occurs, it is not to the point of seriously harpening the relationship between the child and the rejected parent. This demeanor on the part of the parent is the role of a victim who wants to do what is best for the child but struggling to have it be understood. Then chid will form a strong bond with this parent and may see their role as a protector of that parent and other siblings; 3)    Severe Parental Alienation: In this situation, the parent will stop at nothing to restrict and perhaps diminish any form of a relationship between the child and the rejected parent. This type of alienation stems from a need for vengeance towards the rejected parent. There is a strong presence of paranoia on the parent and it is instilled in the children as well. In this situation, there is a clear lack of logic and lack of comprehension by the parent. Often time, the alienation also involves the extended family members of the rejected parent as well
In the majority of parental alienation cases, the mother is usually favoured while the father ensues the rejection and denigration. Regardless of the type of parental alienation, the fact remains that it exists and it should be handled immediately to avoid the deepening of the feelings of hatred by the child towards the rejected parent. If you would like to have further information on parental alienation or discuss your particular situation, please do not hesitate to communicate with us. 514-499-2010 Ofelia Lamanna, Attorney Azran & Associés Avocats Inc.

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Custody: Who will the Children Live With?

Divorce is a difficult decision to make. When children are involved, the emotions can get involved very easily. What are some questions that parents should ask themselves when they are separating and what issues need to be resolved prior to instituting Motions before the court for custody? Firstly we need to decide where the request for custody shall be presented. Jurisdiction is very … [Read more...]

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Custody: Who will the Children Live With?

Divorce is a difficult decision to make. When children are involved, the emotions can get involved very easily. What are some questions that parents should ask themselves when they are separating and what issues need to be resolved prior to instituting Motions before the court for custody?
Firstly we need to decide where the request for custody shall be presented. Jurisdiction is very important as it determines which courthouse will be hearing the case. Normally in family matters and according to article 70 of our Civil Code of Quebec (hereafter CCQ), the chosen court house is where the parties are both domiciled and reside habitually or the domicile of either of the parties. If a judgment had previously been rendered in the matter and the parties are no longer residing in the same jurisdiction, a Motion can be brought before a court of the domicile of either party according to article 70.1 of the CCQ.
Once the jurisdiction has been established, it is time to discuss the actual issue of custody and where the children will be primarily residing.
There are different types of custody arrangements that can be envisioned and if the parties are on an amicable basis, many different solutions and alternatives can be put into place, the whole provided that the best interest of the children is always kept in mind. If an agreement is not possible, the court will decide this issue in the best interest of the children, taking into account the parental capacities of the parties, their involvement with the children and also the level of communication between the parties. It is important to keep in mind that when awarding custody, the court places attention on which of the parents will make an effort to maintain contact between the child and the other parent.
The basic types of custody are
  • sole custody
  • shared custody and
  • sole custody to one parent and prolonged access rights to the other parent.
Prior to discussing custody, it is important to note that regardless of the custody arrangement, both parents continue to jointly exercise parental authority as per article 600 of the CCQ. Parental authority normally refers to the process of making joint decisions when it pertains to major issues such as health, religion and education. All daily decisions relating to the child are taken by the parent who has the care of the child without the interference of the other parent, save and except, of course, in the event that the welfare and interest of the child are at stake.
In the case of sole custody, the child resides primarily with one parent and the other parent sees the child 20% or less of the time. All daily decisions for the child are made and taken by the custodial parent but all major decisions are made and taken in conjunction with the other parent. It is important to note that neither the mother nor the father is privileged to be awarded sole custody of a child. The best interest of the child remains at the heart of the issue. Shared custody entails that the child lives with both parents at least 40% of the time. Shared custody is no longer an exceptional arrangement and must be seriously considered when the parental capacities of the parties are equal.
It is either subsequent to an agreement by the parties or imposed upon them by the court. There have been numerous court decisions rendered which detail the criteria used to determine whether joint custody is a viable custody arrangement. The Quebec Courts have indicated that joint custody is possible when the following is considered: • the age of the child; • the parental capacities of the parties; • the availability of the parties; • the education, moral and spiritual values of both parties are similar; • the capacity to maintain a stable environment for the child; • the capacity of the parents to communicate with each other without any conflict; • the proximity of the residences of the parents; • the absence of any form of parental alienation and the demonstration of the importance of maintaining a relationship with the other parent; • the desire and wishes of the child.
In the case of sole custody to one parent with prolonged access rights to the other parent, this entails that the child spends between 20-40% of the time with the non-custodial parent. This can also be referred to as extended visitation periods and can be a custody arrangement put into place in order to slowly integrate towards a more standard shared custody arrangement for the benefit of the minor child.
It is of importance to note that in making decisions with regards to custody and access rights, the age of the child and maturity level can play a factor in determining the arrangement. In some cases an attorney can be appointed to represent the interests of the child before the court in the event of a dispute between the parents. This allows the child to speak with a neutral third party attorney. Not every child is eligible to be represented as it is dependent upon his age and maturity level. There is a tendency to award the opportunity to express their desires as of the age of 10 years of age. Lastly, it is very important that when speaking to a child about divorce and where they shall be living, that they understand they have 2 homes and they are going to spend time with both parents and to assure them that despite changes that will be occurring, they will still have both their parents available for them.
For more information on custodial arrangements or any other aspect in this article, please do not hesitate to communicate with our office. 514-499-2010 Ofelia Lamanna, Attorney Azran & Associés Avocats Inc.

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WHAT ABOUT THE CHILDREN’S NEEDS DURING A DIVORCE OR A SEPARATION?

When going through a separation or divorce and children are involved, many times there are financial questions which may arise and cause differences between the parties. Child support is payable by one parent to the other and is based on their respective gross incomes and revenues. Child support is also payable in every type of custody arrangement if there exists a discrepancy between the … [Read more...]

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WHAT ABOUT THE CHILDREN’S NEEDS DURING A DIVORCE OR A SEPARATION?

When going through a separation or divorce and children are involved, many times there are financial questions which may arise and cause differences between the parties. Child support is payable by one parent to the other and is based on their respective gross incomes and revenues. Child support is also payable in every type of custody arrangement if there exists a discrepancy between the incomes of the parties. In addition, child support is also payable if the parties were never married as in accordance with article 522 of the Quebec Civil Code, “All children whose filiation is established have the same rights and obligations, regardless of their circumstances of birth.” Child support can be based on Federal guidelines or Provincial guidelines depending on where the parties reside. In the case of the application of the Federal guidelines, the parties use only the income and revenues of the payer to establish the child support and the amounts vary depending on the number of children and province of the where the payer resides. If the payer no longer resides in Canada, then it is the province where the child and the creditor of the child support reside. Since divorce is regulated by the federal government, the Federal guidelines apply solely in circumstances of parties who are in the midst of a divorce or are already divorced and wish to have the amount revised and modified. The Provincial guidelines are in accordance with the gross revenues and incomes of both parties and the number of children involved. They are applicable when both parties reside in the province of Quebec and also in the case of parties who reside in different provinces or countries but have never been married. In both Federal child support and Provincial child support cases, the child support can be payable to the creditor directly or through the involvement by the Quebec Revenue Agency in order to ensure the consistent payment of same.
The basic Child Support amount is meant to cover the basic expenses for the children, such as:
  • food
  • lodging
  • communication services
  • household maintenance
  • personal care
  • clothing
  • furniture
  • transportation
  • activities
There are also Special and Particular expenses relating to the children which may have to be assumed by the parties for the benefit of the children. These particular expenses must be necessary and reasonable both in terms of costs and to the age of the child. Parents are also encouraged, to the greatest extent possible, to try and diminish the overall costs associated with these expenses. A quick explanation of particular expenses would be expenses that are not commonly associated to every child. For example:
  • Tutoring
  • Medical costs not covered by the RAMQ such as orthodontic (braces)
    • Private school in the event that both parents agree or if is required for the child
    • Costs related to special programs in elementary and secondary schools or for boarding school
  • Costs associated with extra-curricular activities for the child.  (A special mention must be made at this point in that the costs associated with same exceed the normal cost allotted to extra-curricular activities.  Normally costs for extra-curricular activities are included in the basic child support. Parents should be vigilant and not automatically expect that all costs will be covered simply because it is an activity. A cost such as piano or violin lessons may be considered a special or particular expense for one family but not for another family)
  • Day camps and overnight camps during summertime periods </div>
Ultimately, if one of the parents is not in agreement with assuming a portion of the cost associated with the particular expense, the courts may be seized. The court however may decide that the expense is not necessary based on the immediate needs and circumstances  of the child.
Do not hesitate to communicate with our firm with regards to any questions you may have relating to child support and special expenses for your children. Ofelia Lamanna, attorney Azran & Associés Avocats inc.

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THE ISSUE OF THE FAMILY RESIDENCE DURING A DIVORCE OR SEPARATION CASE:

There are many different things to think about and discuss while going through a divorce. There are the children first and foremost and their well-being but also the division of the assets of the parties. … [Read more...]

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THE ISSUE OF THE FAMILY RESIDENCE DURING A DIVORCE OR SEPARATION CASE:

There are many different things to think about and discuss while going through a divorce. There are the children first and foremost and their well-being but also the division of the assets of the parties.
One of the major assets that the parties may possess is their Family Residence. This following general information is addressed mainly to couples who are married or in a civil union, however, in today’s world, it is important to keep in mind the changing demographics that exist and that the courts are now rendering judgments, pending the final outcome of the case, of couples that are not married, similar to those of married couples and living in civil unions in the event that minor children are involved.
The Former Family Residence forms part of the Family Patrimony and, unless the parties had renounced to the application of the Family Patrimony via a notarial act prior to January 1st, 1991, it’s net value is normally partitioned equally between the parties. <div class="boitegrise">In the event that the Former Family Residence was purchased solely by and in the name of one of the parties, it is highly recommended and advised that the party who is not a registered owner of the property ensure that a “Declaration of Family Residence” is registered with the Office of the Land Register (Registre Foncier). This declaration protects the non-registered owner of the home from the alienation and lease of the property without their consent or knowledge.
In accordance with articles 404, 405 and 408 of the Civil code of Quebec (CCQ), is a declaration was previously registered against the property, the spouse may apply to have it annulled if the property is with fewer than 5 dwellings. A spouse who has not consented to the alienation of a property with 5 dwellings or more can also apply to have it annulled or request that they be granted a lease from the new owners for the dwelling they are occupying. This ensures that all parties are aware of the on goings of the properties they may be entitled to a share of
You are probably wondering who gets to stay in the Former Family Residence during the divorce proceedings. While there is no rule absolutely set in stone, it is common for the courts to award the right of the use of the Former Family Residence to the spouse who has custody of the children. It is however imperative to keep in mind that the court will also examine the financial capacity of the parties when making such a decision and also the length of time they have been living separate and apart but under the same roof. For instance, should the parties be in a precarious financial situation and in the midst of trying to sell their residence, it may be likely that the court will maintain this status quo.
The court may also rule, depending on the custodial arrangement, that the parties will share the use of the residence all while ensuring that the children stay in the residence. The parents will alternate residing in the residence with the children until a final judgment or agreement on the property. As you can see, it is not clear cut and many scenarios are possible as each case is a case on its own. One party can also certainly decide to move out of the Former Family Residence pending the outcome of the proceedings. It is important to keep in mind that the spouse did not lose any of their rights to their share of the Residence nor to the furnishings garnishing said residence. Their right to the use of the property however has been limited. For more information on Family Residences and the division of assets, do not hesitate to communicate with our office. Ofelia Lamanna, attorney
 

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MATRIMONIAL REGIMES IN QUEBEC

At the time of the divorce, it is not only important to discuss custody, support and the division of the Family Patrimony. The parties must also proceed with the dissolution of their Matrimonial regime. The Civil Code of Quebec (CCQ) outlines the 3 matrimonial regimes in force in Quebec, namely Partnership of Acquests, Separation as to Property and Community of Property. Each couple who … [Read more...]

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MATRIMONIAL REGIMES IN QUEBEC

At the time of the divorce, it is not only important to discuss custody, support and the division of the Family Patrimony. The parties must also proceed with the dissolution of their Matrimonial regime. The Civil Code of Quebec (CCQ) outlines the 3 matrimonial regimes in force in Quebec, namely Partnership of Acquests, Separation as to Property and Community of Property. Each couple who chooses to be either married or in a civil union is subject to a matrimonial regime that they can confirm by virtue of a notarized act prior to their marriage or civil union or decide to be subject to the legal regime in force in Quebec at the time of their marriage or civil union. It is also possible to modify your matrimonial regime after your marriage or civil union should circumstances warrant such a modification and in order to do so, your previous matrimonial regime must be dissolved. PARTNERSHIP OF ACQUESTS (articles 448 à 484 Code Civil du Québec) This matrimonial regime is the present default legal regime and applies to all married couples or couples who have entered into a civil union and have not preceded their union with the signature of a marriage contract. The matrimonial regime is comprised of property divided into 2 categories, namely the ACQUESTS and the PRIVATE PROPERTY of the parties. The acquests consists of all the property not declared to be Private Property of the parties. This is mainly fruits and revenues derived from Private property (with some exception) and also the revenues collected by the parties during the regime form their work.. A general glimpse into what Private property consists of is as follows: property brought into the marriage or civil union, property which devolved to one of the parties by gift or succession (inclusive of the fruits and revenues that emerge from said property), property acquired to replace private property of the party and any insurance indemnity associated to same, clothing and personal documents and jewelry of the party (inclusive of wedding ring), instruments required by the party for their occupation (in some cases compensation may apply). The Partnership of Acquests exists so long as it is not dissolved by the death of a party, judgment of divorce, nullity of the marriage, a modification of the regime or absence of one of the parties.  The court may decide that the dissolution of the matrimonial regime can be retroactive to the date the parties ceased cohabitation SEPARATION AS TO PROPERTY  (Articles 485 à 491 du Code Civil du Québec) This matrimonial regime consists of the parties establishing via a marriage contract that all property in their respective names at the time of the marriage or civil union remains their property and they have the full administration of same.  This includes all revenues and fruits of their labour. The only exception in the matrimonial regime is property which is unable to be established as belonging to one party or the other. It is deemed that both are equal owners and as such separated accordingly It is also important to keep in mind however, that regardless of having entered into a marriage contract and having chosen the matrimonial regime of Separate as to Property, the rules associated with the division of the Family Patrimony are duly applicable. COMMUNITY OF PROPERTY Parties married prior to April 2nd, 1981 are subject to the rules of the matrimonial regime of Community of Property unless they have since signed a marriage contract. It can still be chosen by couples when they sign a notarial marriage or civil union contract, provided they complete it with clauses borrowed from the regime of partnership of acquests”. More information about this regime can be obtained at http://www4.gouv.qc.ca/en/Portail/Citoyens/Evenements/separation-divorce/Pages/regimes-matrimoniaux-union-civile.aspx#. For more information on Matrimonial Regimes and also Family Patrimony rules, please do not hesitate to communicate with our office. Ofelia Lamanna, attorney  

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FAMILY PATRIMONY: WHAT IS IT?

Since July 1st, 1989, a law instituting the Family Patrimony entered into force in order to promote the financial equality between married couples and between civil union couples since 2002 Essentially, this law created the Family Patrimony which is comprised of   assets owned by either of both of the parties and of which the value is partitioned upon the termination of their marriage or civil … [Read more...]

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FAMILY PATRIMONY: WHAT IS IT?

Since July 1st, 1989, a law instituting the Family Patrimony entered into force in order to promote the financial equality between married couples and between civil union couples since 2002 Essentially, this law created the Family Patrimony which is comprised of   assets owned by either of both of the parties and of which the value is partitioned upon the termination of their marriage or civil union.  Regardless of the date of the marriage and matrimonial regime chosen by the married couple or couple in a civil union, they are subject to the rules of family Patrimony. Married couples were able to renounce to being subject to the rules of the family patrimony via the signature of a notarial document signed and registered at the Office of the Land Register by January 1st, 1991.
The assets forming part of the Family Patrimony are
  • The Family Residence
  • The Secondary Residence
  • Furnishings garnishing the Family Residence
  • Furnishings garnishing the Secondary Residence
  • Motor vehicles used by the family
  • RRSP’s accumulated during the course of the marriage or civil union
  • Insurable earnings registered by each party with the Quebec Pension Plan accumulated during the course of the marriage or civil union
  • Private pension plans of the parties accumulated during the  course of the marriage
With regards to partition of the value of the Family Patrimony, it is the net value of the abovementioned assets that is shared between the parties (after deduction of debts for the acquisition, renovation and maintenance of same). Once the net value has been established, there may be cause for further deductions such as the deduction of the net value of a property previously owned by one of the spouses or an inheritance which was then incorporated into the Family Patrimony. Additionally, there is a deduction of the increase in value of the contribution made by the spouse of property previously owned. In addition to the above scenarios for the partition of the Family Patrimony and depending on the circumstances of the case, the court may also award certain property to one of the parties as payment towards their share of the Family Patrimony or order the spouse who must pay the other for their share of the Family Patrimony to make such payments over a period of time not exceeding 10 years.
In the event that all or some of the property forming part of the Family Patrimony was alienated or misappropriated in the year preceding the divorce or separation and was not replaced, article 421 of the Civil Code of Quebec (CCQ) states that a compensatory payment may be awarded to the spouse who cannot benefit fully from the partition of the Family Patrimony. Article 422 of the CCQ further states that, exceptionally, the court can order that there be no partition of the insurable earnings registered with the Quebec Pension Plan or similar plans as it would result in an injustice given the short duration of the marriage or civil union, the dilapidation of certain property or the bad faith of the other party.
The Family Patrimony is an essential component of our Family Law structure. For any additional clarifications and information regarding same, please do not hesitate to communicate with us. Ofelia Lamanna, attorney

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LOLA VS. ERIC – TO MARRY OR NOT TO MARRY….. THAT IS THE QUESTION!!! Many of us have heard about the now infamous case of Lola vs. Eric. Many have also discussed it with their friends and families. Unfortunately, not everyone has a clear understanding of what occurred in this landmark case. Let’s briefly review the facts of the case known to the general public. Lola and Eric were not married … [Read more...]

http://www.azranassocies.com/en/family-law-divorce-lawyer/civil-union-lola-eric-case/

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LOLA VS. ERIC – TO MARRY OR NOT TO MARRY….. THAT IS THE QUESTION!!! Many of us have heard about the now infamous case of Lola vs. Eric. Many have also discussed it with their friends and families. Unfortunately, not everyone has a clear understanding of what occurred in this landmark case. Let’s briefly review the facts of the case known to the general public. Lola and Eric were not married but cohabited together for a period of approximately 7 years. During this 7 year period they had 3 children. Lola alleged in court that she often asked Eric that they get married. On the other hand, Eric alleged that he was very clear about his feelings toward marriage and that it was not an option for him. Like many people that cohabitate in Quebec, Lola presumed that since she had lived with Eric for a certain period of time, she was entitled to the same rights as those of a married couple and that in the event of a separation, she would have her share of the patrimony acquired during her cohabitation with Eric.
Lola discovered that being an unmarried couple, she had no rights to the property or wealth that belonged to Eric. As for many unmarried couples, the children are the main and sole pre-occupation in our legislation. The children have all the rights as those issued in marriage.
Arguments were made that this exclusion of unmarried couples from the legislation of the division of property acquired during the marriage was discriminatory towards women. However, this opinion was not retained, as today, many women are in the same financial position as men.
The importance is to ensure that all couples are aware of the fact that common law relationships do not exist in Quebec with regards to the consequences of the rupture of the relationship. It is an aspect that many continue to not grasp despite the ruling of the Supreme Court and the numerous televised discussions and magazine and newspaper articles.
There is no protection for the spouses in the event of a rupture and this, regardless of the time they cohabitated, the number of children or the reasons for their rupture and it is imperative for everyone to be aware of this. Unmarried couples must turn to other avenues in order to attempt to recuperate any monies or other type of investments made during the cohabitation period.
It is important to take note that the latter is not a done deal and you should consult an attorney to discuss your situation in order to be properly advised. In some cases, couples are not entering into common law agreements which detail what shall occur in the event of a rupture of their relationship.
Our office is more than capable of meeting with you and discussing your situation and verifying what options are available to you in the event of a rupture of your relationship. Ofelia Lamanna, Attorney Azran & Associés Avocats Inc.

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