Separation and Divorce
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What are some considerations to take into account when getting separated or divorced?
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Do considerations change when children are involved?
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Are there legal differences between separation and divorce?
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What is family mediation?
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Are there resources for a grandparent, parent, teenager or child experiencing difficulty coping following a separation or divorce of parents?
Find the answers to these questions on this page. We provide resources including legal advice for every family member requiring help in regards to family break-up situations. Below, there are several case studies explaining the technicalities of several different situations that we have helped with in the past.
*If you or someone you know requires assistance in regards to a related issue, consult our help-line page and contact us.
Case Studies
Youth Oriented • Choosing a Parent to Live With Following Separation or Divorce
SITUATION:
Miss C. is a 13-year-old girl, with a 10-year-old brother. Her parents are married and have announced that they will be getting divorced. She is sad and needs to talk to someone. Her father will be keeping the family house and her mother will be moving into a new home. Her parents decided that the mother would have custody of the children. However, Miss C. does not want to leave her house or her friends, and would prefer to stay with her father.
QUESTION:
Miss C. wants to know what to do, and wonders whether she has the right to choose which parent to stay with.
TIPS & ADVICE:
She should take time to sit down with her parents to discuss the situation. She should explain to them what her wishes and fears are, and they might be able to help her make a decision. Just as when we purchase new clothes, many factors need to be considered before making a final decision. The most important criterion, to establish that the conditions of custody are in the best interest of the child. To determine the best interests of the child, a judge will analyze the following factors: the needs of the child; each parent’s capacity to answer these needs; the emotional relationship between the child and each parent; the emotional relationship between the child and the members of the family; the child’s stability; the physical and mental health of the child and of the parent wanting custody; the actual availability of each parent; the lifestyle of each parent and whether it has a direct impact on the child; the non-separation of siblings; each parent’s will to maintain a link between the child and the other parent; the child’s age; and the child’s opinion.
Separation and divorce are very difficult situations for children. When a parent is in such a situation, a few factors can help the child better cope with the news and adapt to new circumstances. The parents must prepare the child ahead of time by explaining to him/her the general reasons for the separation, all the while reassuring the child of their love for him/her. It is also preferable to maintain a level of stability in the child’s life, in his/her daily routine as much as in his/her relationships with and visits to other family members. Beyond everything else, the parents must respect the child’s rate of adaptation and set aside time to be alone with him/her to listen to his/her needs and reservations.
*If you or someone you know is in need of assistance, consult our help-line page and contact us.
Child Support Technicalities
Mrs. C has been divorced for five years, and has a seven-year-old son with her ex-husband. Mrs. C has full-time custody of her child, and the father, Mr. X, has visitation rights every second weekend. According to the divorce settlement, Mr. X must pay child support to Mrs. C., however, his income was rather low at the time of settlement. He recently found new employment and his income has significantly increased.
QUESTION:
As a result of Mr. X’s increased income, Mrs. C would like to know if she can ask for an increase in the amount of child support he pays her.
ANSWER:
Yes, considering the increase of her ex-husband’s income, Mrs. C is entitled to ask for an increase in the amount of child support she receives from him. In fact, the Court establishes the amount of child support based on the child’s needs, the amount of time the child is in custody of each parent, and in proportion to the respective income of each parent. So when the paying parent’s income increases, the receiving parent can request an increase in support. Conversely, then the paying parent’s income decreases, he/she can request to lower the amount of support being paid to the other parent.
In situations where both parents can still discuss issues and have a healthy relationship, it is possible (and highly recommended) for them to settle the amount of child support by way of family mediation. Family mediation is a voluntary process which avoids involvement in judicial proceedings. In this case, the parties can contact a mediator to negotiate an agreed amount of child support. Evidently, this process can limit the negative effects on the child, and is in the best interests of all parties involved.
*If you or someone you know is in need of assistance, consult our help-line page and contact us.
Post-Separation: Are There Still Marital Obligations?
Are spouses, who have separated but remained married, still bound by the rights and obligations of marriage? Is it necessary to obtain a divorce?
ANSWER & ADVICE:
Before answering the question, it is necessary to know that there are two types of separation: a physical separation and a legal separation (or separation from bed and board). In both cases, the couple remains married but decides to lead “separate lives”. Although the couple lives separately, the individuals are still married, which means the rights and duties ensuing from the marriage still apply. Indeed, it is important to understand that marriage establishes rights and obligations between spouses such as fidelity, help and assistance, and the obligation to live together. The physical separation, just as the legal separation, does not result in the dissolution of the marriage even after numerous years. In the case of a physical separation, such as that in Mrs. L.’s situation, all the rights and duties of the couple are still imposed on the individuals. The physical separation has no consequence on a legal level. On the other hand, the legal separation, which can only be obtained through a judgment of the Court, has effects on the spouses. Even if the separation from bed and board does not break the bonds of marriage, it frees the couple of the obligation of living together. The other obligations of marriage remain, such as fidelity and providing basic means of subsistence for the other.
Therefore, it is important that a divorce be pronounced to release the spouses of their respective duties, and to settle financial aspects connected to the marriage such as the family residence, household goods and the designation of a beneficiary for the life insurance policy. Indeed, in the case of both a legal and physical separation, it is necessary to know that because the marriage is not dissolved, the spouses remain the beneficiaries of each other’s life insurance policies.
*If you or someone you know is in need of assistance, consult our help-line page and contact us.
Estranged Parent Rights & Responsibilities, Grandparent Rights
Mrs. R. wishes to know if the father has certain responsibilities toward his child, and also wonders if his parents have rights towards their grandchild.
ANSWER & ADVICE:
First, it is necessary to know that, according to the law, children born out of wedlock have all the same rights as other children. Consequently, both parents have obligations toward their child. So, to answer Mrs. R.’s question, the father has financial obligations toward his own child which he cannot escape. Moreover, it is crucial to make the father aware of the importance of maintaining a healthy involvement favourable to the development of the child. If, however, he decides not to be a part of the child’s life, he will nevertheless have to ensure the child’s subsistence and provide support. So, Mrs. R. can demand that the father provide support payments for the benefit of their child.
As for the grandparents, by virtue of the Quebec Civil Code, they have the rights to a relationship with their grandchild. As a matter of fact, the parents cannot, without serious cause, interfere with personal relations between the child and his/her grandparents. If, after a discussion has taken place and after an intervention has been made by a professional such as a psychologist or a social worker, the mother and the parents of the father cannot agree on the subject, the conditions of this relationship can be settled by the Court.
Harmful Parent-Child Relationship, Rights
A grandmother worries about her ex-son-in-law’s behavior. He is in prison again, and she worries about the impact of his very irregular visits on her grandson, who now no longer recognizes him. This man’s means for survival is crime. Moreover, he takes drugs and has never demonstrated any true interest toward his child, neither on a financial or a moral level, nor even by being physically present.
QUESTION:
Can we limit the rights of access to a father who contacts his child on an inconsistent basis, often abandoning the child for months at a time for narcissistic reasons, only to occasionally see the child under dubious conditions?
ANSWER & ADVICE:
In this current situation, the father is acknowledged by the birth certificate and the paternity is therefore undisputed on both sides. The child, a 2-year-and-4-month-old little girl saw her father sporadically during supervised visits following a Court order. These visits lasted only 2 hours, once every 3 weeks. They were often cancelled by the father without any justification, seemingly on impulse. This individual has a checkered history laden with violence, consumption of drugs and alcohol, as well as theft. He spent his formative years in an immoral environment, and crime had been his trade for more than 15 years. It seems that, he doesn’t demonstrate any true interest toward his daughter; suddenly materializing in her life spontaneously, only to continue the conflict with the mother, his ex-spouse.
The child is apparently troubled during these irregular visits, since she does not recognize this man as her father. He is, in fact, a pure stranger to her. The mother relies on the grandmother as an intermediary to question herself about the means at her disposal to remedy a situation that upsets her daughter. She wishes to offer her a stable home, notably with her new spouse.
This situation implies various legal notions. There is a notion of parental authority which both biological parents possess. A parent can lose the privilege of this authority or all rights in certain circumstances by means of a motion to the Court for serious motives, provided that the interest of the child justifies such measures (article 606 C.C. Q.). The case of abandonment appears among these circumstances. However, it will be necessary to demonstrate that this situation has subsisted over several years before parental rights can be taken away. Once they are taken away, this parent’s consent would no longer be required if, for example, the mother wanted her child to be adopted by her spouse (art. 552 C.C. Q.). This would be possible provided that the mother lived with her spouse for at least 3 years or if they were married. Another alternative is that the parent who has legal custody can obtain, according to the facts and the supporting evidence, a diminishment of the rights of access or even a cancellation of these rights (withdrawal of an attribute of the parental authority). Yet, in spite of this, the natural father can always ask that his access rights be restored by claiming that there are new circumstances. This is subject to the governing adoption. It is always a matter of facts and every case is unique.
*If you or someone you know is in need of assistance, consult our help-line page and contact us.
Difficult Parent-Child Relationship Advice
SITUATION:
The father of an 8 year-old girl needs advice. A father has not seen his 8-year-old daughter for 6 months and is about to give-up on this challenging situation. His little girl doesn’t want to see him anymore.
This man loses hope while experiencing this difficult state of affairs at a very emotional level. In addition to disrupting his work, this upsetting situation affects his everyday life. He tells himself that she might eventually express the urge to see him again when she will be a little older, perhaps during her adolescence. He tells himself that a father is more useful during this period and that his role, at the moment, isn’t that important. This saddens him because ever since her birth, he has taken very good care of her. Unfortunately, his ex-spouse left him when his daughter was only two and a half years old. At this point, he continued to pay attention to his daughter and particularly likes to take her camping.
Even though he doesn’t have shared custody, he obtains extended rights of access through legal measures and sees his daughter according to an established schedule over two weeks; that is to say 3 days/week and 4 days/week. This situation is convenient for him because he really wishes to be involved in his daughter’s life in terms of education, care and supervision. As he says it so well, “I don’t want to be a Sunday dad”. He also continues to provide financial support to his ex-spouse for this child. However, the situation deteriorated a year ago when his daughter went to Europe with her mother and her step father for a month during the summer holiday. The father wasn’t able to communicate with his daughter during this period for a number of reasons (she was too busy) and when they returned to Quebec, she was suddenly more withdrawn, perhaps wondering why she hadn’t received any news from her dad. Then, as the weeks went by, the behavior of his daughter changed without warning. While his daughter normally enjoyed spending time with her father, she cried and demanded her mother at bedtime. This father’s questions remained without answers. Then, around Christmas, his daughter wrote to him to inform him that she no longer wished to see him because he had been late from time to time when coming to pick her up at school. Following that note, he did not see her again for many months.
QUESTION:
He wonders if he should relinquish his rights to the mother of his daughter in order to avoid any further conflict.
ADVICE:
In a context where parental conflicts are all-pervading, it is certainly difficult to maintain strong bonds with children while they are torn between their two parents, even as their greatest desire is to be with both and please them equally. During a separation, children will experience feelings of distress and anger at varying degrees according to their age, maturity and family situation. These feelings are amplified when conflicts between two parents are exposed openly. Even in the best of worlds, children that undergo this type of ordeal can reject a parent because they experience unfamiliar emotions that are impossible to understand. This predicament becomes twice as challenging if a parent is, for example, so vindictive that she/he will act, more or less consciously, so as to destroy the image of the other parent in the eyes of the child, with the intent of erasing that person from the child’s life entirely. This is referred to as parental alienation. One parent denigrates the other parent, trivializes that person’s role, making it arduous to apply access rights, and offers little or no information regarding the schooling or medical situation of the child. This is an example of the behavior that underlies the estrangement of a parent. As a common rule, relationships that exist between children and their parents are essential and must not be compromised impetuously.
Although this situation can be painful for the parent that is forced to stay on the sidelines while the child drifts away, it is in that child’s best interest that contact be maintained, particularly when the child is very young. More often than not, the child is only expressing private emotions or reacting to the indoctrination of the other parent. In any given case, it is necessary to intervene. The child sends out alarm signals that we must pay special attention to.
As for this man’s situation, he has access and visitation rights that were established by a Court order. Nothing should stand in his way if he wishes to remain in contact with his daughter. The child is still too young for her to make such a far-reaching decision. Moreover, nothing should lead this man to believe that he is not important to his daughter. She might very well be confused and has difficulty accepting the separation of her parents, especially in a context where the mother has a new spouse. It is up to the parent to take his place and to remind his daughter that he loves her and that he wishes to be present and will always be present in spite of this separation. Without any doubt, this situation can be uneasy for any parent. Nonetheless, it is not easier for a child that cannot understand complex feelings and fears of abandonment. It is up to the parent to take a stand and keep up the parenting role by supporting the child through this tough situation. When a child rejects a parent without any visible motive, the parent must not give up. In this case, the child expresses anger and it is the parent who must demonstrate maturity and persevere.
Thus, we advised this man to maintain, at least, minimum contact, either by telephone, by mail or e-mail, at the risk that his ex-spouse might intercept some of these attempts to communicate. If repeated, these attempts will eventually make their way to the child. In this situation, the parent must maintain as much contact as possible with the child because time will play against him if he distances himself for too long. A simple gesture such as writing how much he loves her can have a very positive effect. The little girl must know that her father will not abandon her even if she rejects him.
We encourage him to try to restore the access rights which he is legally entitled to (since they were terminated without justification), while taking into consideration how young the child is. He could renew contact through a third person, such a C.L.S.C. counselor.
On the other hand, we encourage him to communicate with the mother. They should discuss this situation from the point of view of the child and how relevant it is for her to see her father, with whom she is used to spending quality time. If communication remains strenuous, they can contact the C.L.S.C. to obtain the support of a social worker or a psychologist that will accompany them through this situation and help them reach an agreement.
Furthermore, the father could contact the C.L.S.C. that will offer support, lend a good ear and guidance in connection with the approaches that he could use with his daughter in such a context.
What’s more, although this man had no intention of going to Court yet again, we informed him that he could consult either a mediator, if the mother agreed to it, or hire a lawyer to defend his rights, even obtain shared custody or full custody of his child.
A HAPPY ENDING:
After several conversations over the phone with this individual regarding the progress of the situation, we received a message from him. “I’m calling to thank you for listening, offering advice and encouragement. I saw my daughter again. I spent three days with my 8-year-old daughter last weekend. I hadn’t seen her for the last 6 months. She is enthusiastic and agrees to pick-up our previous schedule where we left off. I would like to express my deepest gratitude. Have a nice day and thank you for my daughter.”
This was the case of a father who called us to find support and made efforts not to forsake his daughter in a disheartening context where communication with his ex-spouse was and remains tense. After 6 months of waiting in a state of intense anxiety, he finally saw his daughter again! He made the right choice and his daughter will never be able to hold it against him, on the contrary. We hope that a happy ending is in the making for this family. Nonetheless, as this father expressed it sowell during a last conversation over the phone, nothing can be taken for granted; certain intervals are still pervaded by small tensions. In retrospect, for the well-being of his daughter, he is glad that he refused to go away. Once again, during his follow-up over the phone, this father thanked us for truly having the interest of his child at heart.
*If you or someone you know is in need of assistance, consult our help-line page and contact us.
