In Canada, a breakdown of the marriage is grounds for divorce. Breakdown of the marriage may occur in three ways:
The spouses have lived apart for at least one year before the divorce is finalized and were living apart at the time that the divorce petition was filed.
The respondent (this means the person being divorced) has committed adultery since the date of the marriage.
The respondent has treated his or her spouse with physical or mental cruelty of such seriousness that it is impossible for the two to continue to live together.
Separation as to bed and board is granted when the will of the spouses to live together is gravely undermined. Such is the case in the following particular circumstances:
When the spouses or one of the spouses reports the proof of accumulated facts that renders further living together highly intolerable;
When, at the institution of the proceedings, the spouses are living apart from each other;
When one of the spouses has seriously failed to perform an obligation resulting from the marriage: however, the spouse may not invoke his or her own failure.
Any kind of stipulation may be made in a marriage contract, subject to the imperative provisions of law and public order.
Spouses who, before the solemnization of their marriage, have not fixed their matrimonial regime in a marriage contract, are subject to the regime of partnership of acquests.
A matrimonial regime, whether legal or conventional, takes effect on the day when the marriage is solemnized.
A change made to the matrimonial regime during the marriage takes effect on the day of the act attesting the change.
In no case may the parties stipulate that their matrimonial regime or any change to it will take effect on another date.
The family's main residence forms part of something called the "family patrimony". The patrimony is made up of several assets, including the residence (regardless of whether it is owned by one or both spouses), provided the owner spouse did not inherit or receive the house as a gift.
The family patrimony is divided when the spouses separate, get divorced, or dissolve their civil union, as well as when the marriage or civil union is annulled, or when one of the spouses dies.
In reality, the market value of the residence minus any related debts (the net value, in other words) is divided, not the residence itself. As a general rule, the market value and the value of the debts are established as of the date procedures were first filed.
The actual division occurs between the ex-spouses once these calculations have been made. The division can be settled by paying a sum of money or by transferring assets.
The family patrimony is composed of the following movable and immoveable property, as indicated in section 415 of our Civil Code:
"The family patrimony is composed of the following property owned by one or the other of the spouses: the residences of the family or the rights which confer use of them, the movable property with which they are furnished or decorated and which serves for the use of the household, the motor vehicles used for family travel and the benefits accrued during the marriage under a retirement plan.
The payment of contributions into a pension plan entails an accrual of benefits under the pension plan; so does the accumulation of service recognized for the purposes of a pension plan.
This patrimony also includes the registered earnings, during the marriage, of each spouse pursuant to the Act respecting the Quebec Pension Plan or similar plans.
The earnings accrued benefits under a retirement plan governed or established by an act which grants a right to death benefits to the surviving spouse where the marriage is dissolved as a result of death are however excluded from the family patrimony.
Property devolved to one of the spouses by succession or gift before or during the marriage is also excluded from the family patrimony.
For the purposes of the rules on family patrimony, a retirement plan is any of the following:
A plan governed by the Act respecting supplemental pension plans or that would be governed thereby if it applied where the spouse works;
A retirement plan governed by a similar Act or a legislative jurisdiction other than the Parliament of Quebec;
A plan established by an Act of the Parliament of Quebec or of an other legislative jurisdiction;
A retirement-savings plan; Any other retirement savings instrument, including an annuity contract, into which sums from any of such plans have been transferred.
Article 16 of the Divorce Act provides that in rendering an order with respect to custody or visiting rights of a child of the marriage, the Court must, amongst other factors, take into consideration only the best interest of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
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.
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.
In Canada and in 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.
There are several situations in which the needs of a child may be met through adoption. The couple or single person without a child, the couple or single person who take care of a child that is not theirs or the person who wishes to establish a legal filiation with the children of his/her spouse may use adoption to bring a child into their family.
Adoption confers the same rights and obligations as blood filiation. The new filiation of the adopted child fully substitutes his/her original filiation.
Exception: a father or mother who is the single parent of a minor child and gives his/her consent to the adoption of the child by his/her legal or common law spouse. Such an adoption does not break the filiation link that already exists between the parent and the child. A condition is however required for common law couples: the spouses must have lived in a common law relationship for at least three years.