HOME  

|

  OFFICE PROFILE  

|

  SERVICES  

|

  LAW COLUMN  

|

  NEWS  

|

  TEAM  

|

  CONTACT US  

|

  FRANÇAIS  

Law Column

January 2010 Law Column

FAMILY LAW

2009 Retrospective

Houle v. Forand, 2009 QCCS 1626 (CanLII)
Can common-law spouses who decide to voluntarily enter into a contract regarding their family assets expressly exclude certain rules, including the impossibility of renouncing their family assets before a judgement of divorce or separation? The Court’s answer to the question was yes, since there would not be a divorce or separation ruling in the case of common-law spouses. In fact, in the case of common-law spouses, family asset clauses lose their “public policy rule” nature.

 

Rick v. Brandsema, 2009 CSC 10, [2009] 1 R.C.S. 295
Approximately one year after their divorce, the wife asked to rescind her accord, citing her husband’s abusive nature. The trial judge ruled in favour of the wife, concluding that the husband had exploited his wife’s mental fragility during negotiations and willingly concealed the actual value of certain assets and that the wife had received significantly less than her entitlement. The Supreme Court of Canada upheld the judgement, citing that separating spouses were obligated to provide full and honest disclosure of all relevant financial information in order to reach an acceptable and definitive agreement. If not, the agreement could be deemed abusive and therefore null and void.

Family law — 09358, 2009 QCCA 332 (CanLII)
After living with his spouse, having a child together, separating and seeking custody, a man learned from a stranger that he was not his child’s biological father – a fact confirmed by a DNA test. The man then decided to stop all contact with the child and filed a claim disputing the child’s filiation. The trial judge dismissed the claim, citing that the possession of status corresponded to the birth certificate and that filiation was therefore unalterable. The Court of Appeal confirmed the decision, reaffirming that the involuntary possession theory was not admissible and that when the conditions of the Civil Code of Québec were met, filiation could not be contested. The filiation rules therefore reveal the legislators’ intent to advocate family stability, regardless of biological fact.

Family law — 09408, 2009 QCCA 397 (CanLII)
A couple married in 1993 and lived together until 2004. Together, they have two children. The husband works as a financial analyst and the wife is an engineer who also holds a master’s degree in applied science. Like her husband, the wife began her career shortly after the wedding. During the marriage, the wife went on maternity leave twice. For six months, she worked as a professor in a private college. She later realized that the teaching position was exhausting and, from then on, only taught occasionally. When the couple separated, the wife did not seek new employment. She decided to embark upon a new career in design and, in 2007, enrolled in a three-year college program.

The parties could not come to an agreement on the wife’s spousal support. The matter was brought before a judge, who granted the wife indefinite spousal support. The Court of Appeal reversed the decision, citing that a creditor of support who makes no effort to gain financial independence risks the loss, reduction or limitation of his/her support and that sharing the financial consequences of the marriage and the challenges arising out of its failure does not imply that the economically disadvantaged spouse can expect his/her needs to be indefinitely met by his/her former spouse, irrespective of his/her own working and income earning capacities. The Court of Appeal set a term of six months following the end of the wife’s college studies.

 

Family law — 09746, 2009 QCCA 623 (CanLII)
A father decided to appeal the decision of a Superior Court judge who authorized his daughter to take part in a year-end trip with her class (to which the father was opposed) on the grounds that the trip was safe, organized by the school and supervised by adults. In this matter, the daughter had contacted her own lawyer to assert her rights before the court. The Court of Appeal upheld the decision, citing that minor decisions were to be taken by the custodial parent and that important decisions pertaining to matters such as medical treatment and the choice of school were to be jointly made by both parents, who would otherwise be brought before the Superior Court. The Court of Appeal also urged the Superior Court to show restraint before interfering in such cases in order to provide parents with as much leeway as possible.

Family law — 091332, 2009 QCCA 1068 (CanLII)
Shortly after separating, a spouse with French citizenship filed for custody of her two children (ages 4 and 2 years old), spousal support and the permission to move back to France with the children, who were living in Québec at the time. Her former spouse opposed the request. The trial judge granted custody to the children’s mother and prohibited her from leaving Québec with the children, except for a maximum vacation period of one month. The Court of Appeal reversed the decision and authorized the mother to move to France with the children, citing that the rights and freedoms stipulated in the charters did not allow a court of law to prohibit a custodial parent from relocating.