child and spousal support montreal

Child & Spousal Support

Our firm specializes in helping you get an agreement. We are experienced in the art of negotiating family law cases and in drafting of complete agreements resolving the entirety of the most common disputes in family law, including child and spousal support in Montreal. 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, you may want one of our lawyers to represent you in these difficult matters to ensure that you are properly heard.

Child Support

In Canada and the Province of Quebec, determination of the support payable to a child of the marriage is simplified with the introduction of tables used to calculate the exact amount of the support payable for the benefit of the children.

In a situation where both spouses are residing in the Province of Quebec, child support is established in conformity with the 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 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 the Federal Child Support Guidelines are only applicable in Divorce proceedings in the Province of Quebec

Often, the difficulty in determining the amount of child support payable for the children of the marriage does not concern the calculation of the support payments but is more related to the establishment of the exact income of the parties at the basis of the calculation.

Spousal Support

Contrary to the situation existing with child support, there are no mandatory guidelines in Canada or in Quebec that may be used in order to determine the exact amount of spousal support when it comes to Divorce proceedings. Therefore, the amount of spousal support will be determined in accordance with the means, needs and other circumstances of each spouse, including

  1. The length of time that the spouses cohabited;
  2. The functions performed by each spouse during cohabitation;
  3. Any order, agreement or arrangement relating to support of either spouse;

The goal of a spousal support order rendered by virtue of the Divorce Act is to take into consideration the following:

  1. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
  2. Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
  3. Relieve any economic hardship of the spouses arising from the breakdown of the marriage;
  4. Insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Support Following a Separation

Although the accessory measures pertaining to custody and alimentary support is 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), the general principles are similar to the ones prevailing in the Divorce Act. 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 including, amongst others, the question of the retroactivity of alimentary support claims and the notion "in loco parentis" existing solely in cases of Divorce proceedings.

Execution of U.S. Support Judgments in the Province of Quebec

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).

A) The procedure 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:

State In Force Since

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.

B) The general procedure applicable to the States not enumerated in the Reciprocal Act

For the American States not enumerated in the Reciprocal Act , the institution of a Motion before the Superior Court is required and U.S. Support Judgments will be declared enforceable 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.

C) The Execution of Foreign 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 to 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 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 paid. The references regarding this special mode of seizure are available upon request.

KALMAN SAMUELS, Avocats / Attorneys Inc.
1 Westmount Square, Suite 711
MontralMontréal, Qubec Québec H3Z 2P9
t: (514) 939-1200
f: 514-939-1201