So you know that getting a divorce in Quebec is a long and bumpy process, same as in Canada on the whole. Why not going for divorce in some other country? It might be significantly faster and cheaper. But will it be valid in Canada? It depends.
A “Quickie” Divorce
Dominican Republic is not the only country known for fast and easy divorce procedures. There are others, why don’t you go there? The answer would lie in the section 22 of the federal Divorce Act, which specifically requires that at least one of the spouses live in the country granting such a divorce for at least one year. Canadian divorce requirements are quite consistent about this one-year period. A couple should be separated for one year to apply for divorce, and at least one of them should be a one-year resident of the province where the application is made.
This one-year period is meant to protect families from rush decisions and — importantly — to bar the “quickie” divorce jurisdictions.
Evidently, such a strict prohibition might lead to unfortunate or even absurd situations, so the third paragraph of the same art. 22 of the Divorce Act refers to “other rule of law” with respect to divorce recognition to avoid unnecessary harshness.
Quebec rule of law
The Civil Code of Quebec, repeating the one-year residence requirement of the Divorce Act, adds however other grounds to recognize a foreign divorce. Particularly it speaks of a divorce granted in a country where one of the spouses is a citizen. Despite of being seemingly in contradiction with the Divorce Act (which should take precedence if this were true), the Civil Code provision, as the Court of Appeal of Quebec explained, is exactly that “other rule of law” an therefore in force. Indeed, reasoned the Court, the country of origin, where someone spent significant part of his or her life and still holds citizenship, is not a “quickie” divorce place. A divorcing spouse has particular close ties with that country and one cannot say that it was chosen only to go around Canadian divorce requirements.
Of course, such a divorce should not go against public order, “as understood in international relations.”
Is this it?
So yes, a husband or a wife can go to a country where they hold citizenship and get a divorce there. Is this the end of story? Well, it depends again.
If either of them stays in or returns back to Quebec, the questions of child custody and support payments may be brought up, as it is possible to modify those arrangements after the divorce. An application itself for such a modification will not put the fact of the divorce in question. Yet the family obligations of ex-spouses could still resurface. Neither a foreign Court decision, nor signing a “bulletproof” agreement to renounce any future claim can save from a possible application to the Superior Court of Quebec for modification of so-called “accessory measures.”
What can help? Your foreign lawyer might obtain in advance an advice from a Canadian lawyer and prepare divorce documents in the way that the foreign decision about custody and support payments would be in line with Canadian rules. After all, an application for modification might succeed not because the divorce was granted abroad, but because your ex-spouse (and, possibly, your children) are back in Quebec, so that Quebec rules are in force now. If, though, a judge in Quebec would find your accessory measures to be in line with Quebec guidelines and practice, then, probably, nothing would change.
Family patrimony rules
Equal division of family patrimony (common property of the family) is public order (meaning you cannot change this by marriage contract). Family property value is usually calculated at the time of application for divorce.
What is normally included:
— Family residences (property, where the family lived on permanent or temporary basis);
— Furniture in those residences;
— Cars used by the family to move around (as opposed to business vehicles);
— Retirement plans accumulated during the marriage.
Property given as a gift from somebody else or inheritance to one of the spouses are not included though.
Each spouse can renounce his or her share in family patrimony, but only after the application for divorce is granted. This is usually done during the same hearing in Quebec, but if your divorce was granted in another country, this renunciation can happen after. It should be notarized.
It’s worth mentioning that the renunciation of the share in the pension plans should be done explicitly and separately from the general family patrimony renunciation.
Such a renunciation might be in exchange for some amount of money or increased support payments — and this should be reflected in the text of an agreement.
Support payments
The Courts choose child support amounts according to provincial guidelines if the family resides in Quebec, and according to federal guidelines if one parent (with children) is abroad or in a different province. Those amounts are minimal, and the parties are free to give more, but they cannot go below.
Spousal support is a less regulated area. The spouses’ age, necessary expenses, duration of marriage and family roles assumed in the household, possibility to maintain the same lifestyle as during the marriage, ability to earn their living, their education level, professional experience and chances to successfully re-enter the job market, respective financial situation of the spouses, health conditions, custody of minor children — are the factors taken into account when calculating an appropriate spousal support amount.
The idea to keep in mind is that a divorce should not leave your spouse in a desperate financial situation. The starting point in this reasoning is that a divorce has harsh economic impact, and it takes time for a vulnerable spouse to get back on track. For this exact reason, the spousal support is usually granted for a period of time, sufficient for the other spouse to start earning his or her own living.
In the same way as with children, spousal support can be modified by another Court judgment later.
To sum up, if your foreign divorce judgement and accessory arrangements take into account the family patrimony question, regulate other property issues to your mutual satisfaction and allow decent support payments, you can feel rather confident in case if those decisions would be legally challenged in Quebec.
