Le Mérite du Barreau de Montréal 2015 décerné à Me Ian M. Solloway

Voici le discours prononcé par Me Ian M. Solloway lors de l’événement.

 

Comme le grand écrivain américain Mark Twain a dit :

“Avec une telle introduction, je peux difficilement attendre pour entendre ce que je vais dire moi-même”.

 

M. le Bâtonnier, Mme la Bâtonnière élue, Messieurs et Mesdames les anciens bâtonniers et bâtonnières, membres du conseil du Barreau de Montréal, distingués invités, chère famille, chers collègues et chers amis,

 

Je veux d’abord remercier le conseil du Barreau de Montréal, le comité de sélection du mérite et le conseil des anciens bâtonniers, pas seulement pour ce grand honneur que vous m’accordez ce soir, que j’accepte avec une énorme fierté et humilité, mais aussi pour votre engagement et dévouement continus envers notre Barreau de Montréal. Merci.

 

Mesdames et Messieurs, pour être mentionné dans le même cercle des récipiendaires distingués de ce prix, qui m’ont précédé, c’est vraiment un grand honneur. Me Gabriel Lapointe, Me Jean-Jacques Gagnon, Me Pierre Fournier, l’Honorable Michel A. Pinsonnault, maintenant juge à la Cour Supérieure, et le grand Me Phillip Casgrain, entre autres, sont des noms illustres dans notre profession, connus et respectés par tous et par toutes pour leurs contributions soutenues et remarquables à la profession et à notre barreau montréalais.

 

J’ai commencé ma pratique en 1975, et j’ai été membre du comité de discipline du Barreau du Québec et du comité de liaison à la Cour Supérieure en matières familiales dans les années 1990 et 2000. Mon implication au sein du Barreau de Montréal a vraiment débuté en 2009, lorsque j’ai pris charge de la Section anglophone du Barreau de Montréal. La Section anglophone était mieux connue à ce temps-là comme “un dead poet’s society”, la seule et unique fonction de laquelle était de se réunir une fois par année en mars, sous une pleine lune, en présence de 6 ou 7 avocats, pour choisir nos 3-4 candidats pour le prochain conseil du Barreau de Montréal”. En prenant charge de la Section anglophone, j’ai décidé que cette culture devait changer, et, je suis fier de dire aujourd’hui, 6 ans plus tard, avec le support, travail et détermination de plusieurs de mes collègues, nous avons atteint notre objectif.

 

I am extremely proud to say that the English-Speaking Section of the Bar of Montreal, which I have been privileged to Chair for the past 6 years, is now a respected, active, visible, and major participant in the Montreal legal community – a participant that is recognized for the excellence of our programming, for the thoughtfulness of our interventions, and perhaps most importantly, for the embodiment of the uniqueness of our Montreal Bar and the diversity that it represents. Je me réjouis de notre participation et contribution dynamique de la section Anglophone à l’évolution de la communauté juridique montréalaise, mais également à l’épanouissement d’un système de justice respectueux des droits et libertés de l’ensemble de nos concitoyens et concitoyennes.

 

En 2009, nous avons inauguré la toute première conférence donnée par la Section anglophone du barreau en presque cent ans d’histoire –

 

le “Trial Practice Do’s and Don’ts: Hot Tips from the Experts”, laquelle est devenue synonyme de la section anglophone. Quand nous avons décidé de mettre en place cette conférence, notre objectif était d’offrir une conférence de la plus haute qualité, menée par des plaideurs les plus chevronnés de notre barreau et des juges les plus respectés de la magistrature, qui participeraient comme conférenciers dans une conférence qui sera reconnue par son excellence et pratique, avec l’application quotidienne pour tous les plaideurs. Je suis fier de vous dire ce soir que le “Do’s and Don’ts ‘’ est devenu une des conférences le plus connues et anticipées du barreau chaque année.

 

C’était en 2011, quand le Bâtonnier de l’époque, Me Nicolas Plourde m’a invité à faire partie du comité organisateur de la “Conférence des présidents des barreaux des grandes villes mondiales” tenue à Montréal, que j’en suis venu à comprendre et à apprécier réellement le très grand respect que les barreaux des plus importantes villes du monde accordent à notre Barreau de Montréal. Et ça ne devrait pas être une grande surprise. Nos avocats Montréalais sont chefs de file de la profession légale du monde par notre bilinguisme, notre tradition bi-jurale, notre polyvalence, et notre expertise dans des domaines divers. Nous sommes capables de représenter des clients québécois, canadiens, américains, européens, bref, des clients à travers du monde de très grande envergure.

 

Mesdames et messieurs, ce soir est une occasion qui me permet d’offrir quelques remerciements.

 

Je veux d’abord remercier, Me Mélanie Dugré, pour son très gentil article sur mon parcours professionnel dans la récente édition de “ l’Infolettre du Barreau “. Comme un de mes collègues m’a dit après avoir lu l’article:

 

“Ian “, he said, “it just goes to prove that if you hang around long enough, they’re bound to give you something”.

 

Je veux reconnaître et remercier aussi pour leurs présences ce soir, mon beau-frère, Me David Linetsky et ma belle-sœur, Hugette, ainsi que mon cher ami Monsieur Richard Wise, et mes associés avec qui j’ai travaillé depuis tant d’années.

 

Mes remerciements et salutations à notre directrice générale du Barreau de Montréal, Me Doris Larivée, pour sa contribution exceptionnelle au fonctionnement quotidien du notre barreau, ainsi que pour son appui continu et soutenu pendant ma présidence de la Section anglophone du Barreau de Montréal.

 

Au nom de la section anglophone du barreau et en mon nom personnel, je veux aussi profiter de cette occasion pour saluer, féliciter et remercier notre Bâtonnier et mon ami, Me Greg Moore pour ‘’son leadership sage et exemplaire ‘’ qu’il a démontré pendant son bâtonnat.

 

Je veux remercier aussi mes collègues du Barreau de Montréal qui ont donné et donnent encore de leurs temps et talents en participant aux comités et aux activités du Barreau de Montréal. Grâce à votre participation, vous avez contribué au rayonnement de notre barreau, de notre communauté légale, et de notre ville de Montréal. Ce sont tous nos membres qui profitent de votre implication au sein de notre barreau.

 

Lastly, but certainly not least, I have been blessed with a wonderful, loving family. Maintenant, j’aimerais souligner la présence de ma chère famille que je veux remercier – my extraordinary wife Louise and my terrific children -

 

my daughter Heather, my son-in-law Adam, and my son, Bryan, all of whom are making their own individual and distinct marks in their chosen fields of endeavour.

 

Louise, although you often refer to the Lord Reading Law Society and the English-Speaking-Section of the Bar of Montreal as “ my other wives”, I thank you so very much for your love, patience and understanding, and for allowing me whatever “time and space” I needed to fulfill my various professional and community responsibilities and commitments. I know that you don’t like the spotlight or being the focus of attention. However, I want to say publicly that you are my love, my inspiration and my best friend.

 

One person who is not present tonight, but whom I wish to recognize publicly for the very first time is my first grandchild, ma petite-fille, Emma Saks, a baby girl and our family’s newest pride and joy, born at the St. Mary’s Hospital on March 18, 2015 to two loving parents, my daughter Heather and my son-in-law Adam.

 

And I want to assure everyone present to-night that it is absolutely untrue that the first words Emma will be taught are :

“ Don’t forget to reserve my rights under Art.54.1”.

 

Mesdames et messieurs, j’ai eu le privilège, durant ma vie d’être membre d’une merveilleuse profession que j’adore, et d’avoir grandement apprécié, au moins la plupart du temps, la pratique du droit de la famille, ainsi que d’avoir eu l’occasion de donner en retour à ma profession et à la communauté dans son ensemble. Ca peut sembler banal et cliché, mais je ne peux m’exprimer autrement, que si j’ai contribué quelque peu à notre profession au fil des ans, je ne pouvais pas le faire sans l’enthousiasme, l’engagement, et de l’aide de beaucoup d’entre vous ici ce soir. Je remercie tous ceux qui m’ont encouragé, soutenu, travaillé avec moi, et qui m’ont donné des conseils au fil des ans. Vous savez qui vous êtes. Je vous remercie beaucoup.

 

En terminant, je veux dire que j’ai toujours essayé de vivre et de me conduire par le mantra de Monsieur Winston Churchill qui a dit:

«We make a living by what we get; We make a life by what we give»

 

Encore une fois, thank you, merci, et en hébreu, “ todah rabah’’, pour ce mérite distingué et privilégié que vous m’accordez ce soir.

 

I shall cherish it forever.

‘’Anee Mo-keer et Zeh La- Nehtzach’’.

 

Je vais le chérir pour toujours.

http://lemondejuridique.com/actualites/le-merite-du-barreau-de-montreal-2015-decerne-a-me-ian-m-solloway/

Me Ian Solloway : Me Gentleman, Par Mélanie Dugré, avocate

La délicatesse, la prévenance, l’amabilité et le dévouement de Me Ian Solloway méritent d’emblée mention. Les manières de cet avocat d’expérience et plaideur aguerri sont respectueuses et remplies d’égards pour ses semblables, donnant ainsi un nom et un visage à la courtoisie professionnelle. Pas étonnant, donc, que le Conseil du Barreau de Montréal, après consultations du comité sur la Médaille et le Mérite et de la Conférence des anciens bâtonniers, ait décidé de lui remettre le Mérite 2015 du Barreau de Montréal, afin de souligner sa contribution exceptionnelle aux travaux du Barreau de Montréal.
Le bâtonnier Greg Moore ne tarit pas d’éloges à l’endroit du récipiendaire du Mérite, précisant « qu’à titre de président de l'English-Speaking Section du Barreau de Montréal depuis sept ans, Me Ian Solloway a insufflé une nouvelle énergie au groupe, alors qu’un nombre sans cesse grandissant d’anglophones participent aux comités et activités du Barreau et de son Conseil ».
L’attrait de Me Solloway pour le droit est né de son intérêt naturel pour l’histoire et la politique, des disciplines dans lesquelles il a obtenu des diplômes avec mention de l’Université McGill, préalablement à ses études en droit. Admis au Barreau du Québec en 1975, il commence sa pratique dans les domaines du droit civil général, mais se concentre rapidement en droit de la famille. Il explique: « J’ai toujours eu une prédisposition pour le droit de la famille, sans doute influencé par celle qui allait devenir mon épouse qui, au cours de ma première année de pratique, complétait sa thèse de maîtrise en travail social sur la question du cours de préparation au mariage ».
Ayant développé une expertise de haut niveau en la matière, il est, au fil des années, consulté par le gouvernement lors de certaines réformes législatives, notamment lors de la refonte proposée à la Loi sur le divorce en 1998. Entre 1993 et 1996, il enseigne le droit de la famille à l'Université McGill et est invité à prononcer au-delà de 75 conférences sur ce même sujet, tout en étant l'auteur de l'infolettre « Family Law Matters ». En 1992, il est élu Fellow de l'International Academy of Matrimonial Lawyers (IAML), un organisme qui souligne l'expertise des avocats en droit de la famille à travers le monde.
La dimension humaine du droit de la famille est ce qui nourrit la passion de Me Solloway. “Divorce is one of the most traumatic events in the life of an individual. The client is seeking the professional assistance of his lawyer in the dismantling of / reconstitution of the family unit which will have lasting, life-changing effects not only financially, but also emotionally and psychologically on the client and his/her children, if any. This presents, at one and the same time, both an enormous challenge and responsibility to the lawyer”, souligne-t-il.
À titre d'anglophone montréalais, la fiche de Me Solloway fait également état de sa nomination, renouvelée à trois reprises par la communauté juive de Montréal et le gouvernement du Québec, à titre de membre du tribunal administratif « La commission d'appel sur la langue d'enseignement (CALE) », destiné à entendre des demandes d'appel reliées au droit de recevoir un enseignement en anglais sous la Charte de la langue française. Pendant ses trois mandats à la CALE, Me Solloway participe à la rédaction de plus de 650 décisions.
Soucieux de s'impliquer au sein de sa profession et des divers comités des barreaux, Me Solloway agit comme membre du comité de discipline du Barreau du Québec de 1993 à 1997 et il est membre du comité de liaison avec la Cour supérieure en matière familiale entre 1998 et 2001, puis de 2004 à 2007. Il est également membre de l'Association des avocats et avocates en droit familial et un participant actif des sections de droit de la famille des associations des Barreaux canadien et américain depuis plus de 30 ans, de même que de la Lord Reading Law Society depuis 38 ans, qu’il a présidée en 2002-2003. C'est à ce titre qu'il réussit, en 2002, à convaincre l'honorable Beverley McLachlin, juge en chef de la Cour suprême du Canada, de livrer le discours de la Lord Reading Law Society destiné à célébrer les 20 ans de la Charte canadienne des droits et libertés.
Entre 2009 et 2015, Me Solloway crée un précédent en présidant l'English-Speaking Section du Barreau de Montréal pendant six mandats consécutifs. Parmi ses réalisations au cours de cette période, on note la création, en 2009, de la conférence « Trial Practice Do's and Don'ts : Hot Tips from the Experts », un événement qui revient désormais annuellement et qui s'avère l'un des plus courus du barreau. En 2011, Me Solloway est invité par le bâtonnier du Barreau de Montréal à joindre le comité organisateur de l'événement « The World City Bar Leaders Conference », rassemblant les présidents de 25 barreaux des plus grandes villes du monde. En 2013, il crée la première récompense à être attribuée dans l'histoire de l'English-Speaking Section du Barreau de Montréal, le « Lifetime Achievement Award », dont Me J. Vincent O'Donnell est le premier récipiendaire. En 2014, la Lord Reading Law Society remet à Me Solloway sa plus grande distinction, la « Past Presidents' Medal », afin de souligner son excellence dans la profession, sa plus haute intégrité et sa contribution exceptionnelle à la communauté.
Plusieurs causes sociales et humanitaires font en effet vibrer Me Solloway. Au cours des 25 dernières années, il se démarque par son implication constante et soutenue au sein de la communauté juive, en agissant comme gouverneur ou membre des conseils d'administration de diverses organisations. Il est très actif auprès de la congrégation Shaare Zion, en agissant notamment comme coprésident de son comité des règlements, en produisant le vidéo soulignant le 75^e anniversaire de la congrégation, en révisant le texte de leur constitution et en occupant le poste de vice-président entre 2002 et 2005. Son expérience à titre de mentor reste néanmoins celle qui lui apporte la plus grande satisfaction. “Hearing years later that what I may have said or how I may have influenced or impacted an individual’s career decision or path in a positive fashion is something one never forgets”, témoigne-t-il.
Le bâtonnier Moore se dit également fort impressionné par l'énergie et la détermination investie par Me Solloway au cours d’années de lobbying qui ont permis de mettre fin à la politique du Journal du Barreau qui interdisait la publication de textes en anglais. Avec le même enthousiasme, Me Solloway a sollicité des bénévoles et grâce au travail et aux efforts de toute une équipe, ils ont suggéré des corrections à la version anglaise du nouveau Code de procédure civile, lesquelles ont inspiré un travail semblable sur le nouveau Code de déontologie des avocats, ce qui a permis de corriger certaines ambiguïtés relevées dans les deux versions des textes.
Relativement à son implication au sein du Barreau de Montréal, Me Solloway précise: “As a result of my involvement in the Montreal Bar, I have a far greater understanding of how fortunate we are as lawyers to be able to practice our wonderful profession in a wonderfully unique and diverse world city that is Montreal and in a legal community that is unlike any other. I am truly proud to say that the English-Speaking Section, which I have been privileged to Chair for the past 6 years, is now recognized as an active, major, respected participant in the Montreal legal community and the embodiment of our Montreal Bar’s uniqueness and the diversity that it represents”.
Le parcours de Me Solloway témoigne de son intérêt pour la collectivité et l'avancement du droit, tout en mettant en lumière l'homme de cœur et de famille qu'il est. D'ailleurs, Me Solloway ne pourrait être plus heureux alors qu'il vient d'accueillir, le 18 mars dernier, son premier petit-enfant, une petite fille prénommée Emma, qui fait la joie de son grand-papa et lui donne foi en l'avenir et en la force des valeurs familiales auxquelles il croit tant. Ce Me Gentleman brille dans toutes les sphères de sa vie professionnelle, tant au niveau des mandats réalisés, que de sa contribution à la profession ou encore à la communauté. Loin de pâlir, son étoile continuera assurément de scintiller longtemps dans le ciel de notre profession.

http://www.barreaudemontreal.qc.ca/avocats/me-ian-solloway

The Challenges and Rewards of Practicing Law in Montreal

Dear Colleagues and Friends,

It gives me great pleasure to have been invited by M. Andre Gagnon to write a few words for this inaugural edition of “The Montreal Lawyer”, the first legal magazine to be published in English in Quebec.  I would venture to say that almost every anglophone lawyer in Montreal has, at one time or another, been asked how / why he or she chose to practice law in a French environment.  To answer that question, I think it is important to understand what it is to be a Montrealer and an “Anglophone lawyer” practicing in this city.  Notwithstanding the present Charbonneau Commission hearings and our seemingly omni-present infrastructure problems, we, Montrealers, have been and remain justifiably proud of our city and its history.  Indeed, Montreal has long been recognized as one of the world’s great cities- a bilingual, world- class, international metropolis, with a richness and diversity of cultures, languages and vitality that makes it unique, not only in Canada and in North America, but throughout the world.

This uniqueness also extends to the practice of law in our city, particularly by members of the anglophone legal community. 

Firstly, the English-speaking members of the Montreal Bar are not only highly bilingual - the highest of any Bar anywhere – but arguably the most “polyvalents” juridically.  Indeed, for almost a generation now, a significant number of Montreal’s anglophone lawyers and an ever increasing number of francophone lawyers have had the benefit of being trained trans-systemically in an integrated fashion, both in the two great legal traditions of the civil and common law.

A large proportion of our Bar’s lawyers are thus able to draw upon their bijural background and serve their clients in French and/or in English, in areas of private and public law that transcend boundaries.  Our lawyers are to-day able to seamlessly offer clients a bilingual, comprehensive and multidisciplinary expertise in such matters as mergers and acquisitions, securities law, tax matters, class actions, civil/corporate and commercial litigation, labour, employment and human rights, infrastructure, intellectual property, aerospace, environmental issues, technologies, bio-medical law, and the pharmaceutical industry, both on a local, provincial, national and international level.  This represents a distinct advantage to our clients, be they native Quebecers or clients from another province or country.  The active presence of bilingual, bijural lawyers in Montreal (anglophone and francophone) will continue to allow us to attract to our city, clients who might otherwise choose to litigate or do business in an “anglophone jurisdiction”, knowing that their Montreal lawyer can handle any of their legal concerns.

The foregoing having been said, there are challenges that do remain.

One such challenge involves judgments of the Quebec Court of Appeal, which unfortunately are not officially translated into English.  Without an official English translation, significant judgments of our province’s highest Court on Charter and constitutional issues, litigation involving federal statutes and other matters having national implications are not accessible and are rarely referred to in other Canadian jurisdictions.

En effet, fournir une traduction officielle en anglais des jugements importants de notre Cour d'appel permettra de mieux servir l'administration de la justice au Québec et partout au Canada.  Non seulement ceci renforcera le prestige et la crédibilité du plus haut tribunal de notre province aux yeux de tous les Québécois, mais ceci permettra également aux autres juridictions de bénéficier de l'excellence de notre jurisprudence québécoise.

Improving access to justice is another ongoing challenge in Montreal, as it is in virtually every major metropolitan jurisdiction. Innovative solutions have been and will be introduced here.  We will have more to say about this and other matters in future issues of this magazine. 

We have a “first-class” legal community in Montreal.  It is my hope that “The Montreal Lawyer” magazine will be able to capture and communicate to its readership, the uniqueness ,vibrancy and excellence which is the Montreal legal community, and the sense of both challenge and justifiable pride for the anglophone members of the Montreal Bar to be able to practice their craft in one of the world’s great cities.

On behalf of the English-Speaking Section of the Bar of Montreal, I extend to “The Montreal lawyer” our sincerest “félicitations” on your new endeavor and our very best wishes for your success.

The Montreal Lawyer

How to Live Happily Ever After, in the Practice of Family Law

Shaare'ing Our Stories

Me. Ian M. Solloway, Chair of the English-Speaking section of the Bar of Montreal is sharing his story from the Bimah.  Shaare Zion Congregation, Saturday, October 13, 2012 at 11:00 am.  No reservations necessary.  Question period following.  Free and open to the public.  5575 Côte Saint Luc Road, Montreal, Quebec H3X 2C9.

Equalization Claim Released Upon Bankruptcy

The Supreme Court of Canada handed down an extremely important decision this week in Schreyer vs. Schreyer essentially stating that existing Canadian law (Bankruptcy and Insolvency Act) operates to release a debtor spouse who has been discharged from bankruptcy, from any equalization claim owing to his creditor spouse upon the division of the net value of family assets. Mr. Schreyer (the bankrupt) not only ended up with the farm (exempt property in a bankruptcy), but the entirety of the equity therein, effectively wiping out Mrs. Schreyer’s equalization claim under the Manitoba Family Property Act.

Writing for a unanimous Court, Mr. Justice Lebel recognized what some would perceive as the inequity of the outcome of this case and what it could mean to other “equalization creditor spouses” when confronted with the bankruptcy of their “equalization debtor spouses”. The Supreme Court sounded a clear message in reluctantly applying the letter of the law as it now stands while suggesting that Parliament bring the required legislative changes to ensure that the principles of bankruptcy law and family law are compatible rather than being at cross-purposes.

Indeed, the Schreyer case underscores the necessity of amending the Bankruptcy and Insolvency Act without further delay, to provide at least as a general rule, that bankruptcy will not stay or release any equalization claim or division of exempt assets under provincial legislation regarding the equalization and/or division of marital property. However, until the law is changed, lawyers have to find “creative solutions” for their creditor spouse clients in such situations. Such “creative solutions” could involve the appropriateness of a spousal support award or a variation (increase in quantum) in an existing award to mitigate the inequities arising from the bankruptcy of the debtor spouse and his release from the payment of an equalization claim or his retention of an exempt asset, the value of which was moreover taken into account in determining the very equalization claim which he no longer has to pay.

Me IAN M. SOLLOWAY

Disclaimer:

The information contained in Family Law Matters is intended to be informative only and not to be understood as constituting legal advice. The information should therefore not be used as a substitute for the advice of qualified legal counsel which must necessarily be tailored to the individual’s particular set of circumstances.

Ruling will impact common-law couples

This week's landmark ruling in the much-publicized Eric v. Lola case will have an impact on the legal obligations of common-law Quebec couples -and the practice of family law in Quebec.

The groundbreaking Quebec Court of Appeal decision declares as "constitutionally invalid' article 585 of the Quebec Civil Code on the basis that it is discriminatory against couples in common-law relationships.

The code article states only that "married or civil union spouses ... owe each other support," shutting the door to alimony payments for common-law couples.

Wednesday's ruling by Quebec's highest court changes that, but two of the judges on the three-judge panel -justices Julie Dutil and Lorne Giroux -said the ruling of "constitutional invalidity" should be suspended for 12 months to allow Quebec legislators time to make changes to the code.

Marc Beauregard, the third judge, said in his statement in the ruling that the code should be interpreted to include common-law couples immediately while the legislator prepares to codify change.

The Quebec government has said it is studying the decision, but a suspension of the invalidity ruling undoubtedly stops what would be "a flood of cases tomorrow if it were enforced," said veteran Montreal family lawyer Ian Solloway.

Given that the Quebec Court of Appeal ruling allowed for alimony but not for the division of financial assets as petitioned, it is still unclear whether lawyers for "Lola" will head to the Supreme Court of Canada to seek a full victory for "Lola," Solloway said. That could have further implications.

How Quebec legislators actually define common-law couples is another question.

Elsewhere in Canada, it is "defined by time. You have to be together three years, or one year if there is a child born issue of the relationship."

The Quebec Court of Appeal ruling noted that some common-law couples already have social rights -in the case of benefits if a spouse is in a car accident, for example - and also threw cold water on what it termed were skewed statistics indicating that common-law relationships are less enduring and stable than those of married or civil union couples.

Solloway said that in addition to opening up a whole new area of possible litigation, family law lawyers will now move to encourage clients who are living in common-law relationships to sign the equivalent of a prenuptial agreement spelling out rights and obligations in the event of a split.

Such "cohabitation agreements," which do not preclude common-law spouses from "contracting out" of a financial support obligation, have been rare up to now because there were no rights or obligations because of common-law couples explicit exclusion from the civil code.

At least one-third of Quebecers are estimated to be living in common-law relationships.

Lawyers working alongside lawyer Anne-France Goldwater for "Lola" in the landmark case at the Quebec Court of Appeal were Marie-Helene Dube, both of the law firm Goldwater, Dube and Borden Ladner Gervais LLP's Guy Pratte and Mark Phillips.

Representing "Eric" in the case were Ogilvy Renault LLP's Pierre Bienvenu, working with Azimuddin Hussain and Andres Garin, and lawyers Suzanne H. Pringle and Johanne Thibodeau, from Suzanne H. Pringle, Avocats.

Lawyers Benoit Belleau and Hugo Jean acted for Quebec's attorney-general.

Eric Lapierre, manager of investment funds for the Autorite des marches financiers (AMF), is leaving the Quebec market regulator to practice securities law with the investment management group at the Montreal office of Borden Ladner Gervais LLP (BLG) starting next Monday. Before joining the AMF in 2008, Lapierre was director and legal counsel for Investors Group.

Fraser Milner Casgrain LLP has scooped two corporate lawyers from Colby Monet Demers Delage & Crevier to add bench strength to its national commercial group. Julie D. Gagnon and Catherine M. Peacocke, who often worked together on business acquisitions and corporate financing files at Colby Monet, have joined the firm as partners based in the Montreal office. Both have corporate counsel experience. Gagnon worked with the legal department of Laurentian Bank of Canada and Peacocke is a past assistant general counsel for BCE Inc.

McCarthy Tetrault LLP has added four lawyers to its Quebec ranks -three litigators who will specialize in medical liability and a business law lawyer. The new hires, brought on the past few months include: Pierre-Jerome Bouchard, Antoine Brylowski, Veronic Meilleur, David Tournier.

The Lawyer of the Week featured on Legal Matters, the Gazette's online legal page at www.montrealgazette.com/legalmattersis Marie Giguere, who is the new lawyer responsible for all of the legal activities of the Caisse de depot et placement du Quebec. Giguere was appointed executive vice-president, legal affairs and secretariat, earlier this week, taking over from Claude Bergeron, who has been appointed as executive vice-president chief risk officer.

By Kathryn Leger, Freelance

November 5, 2010

strictlylegal@ymail.com

© Copyright (c) The Montreal Gazette

Abbott v. Abbott: Removal Of Child From Home State

U.S Supreme Court in Abbott v. Abbott decision this week

Removal of a child from home state ( here, Chile) to U.S. by custodial parent without seeking '' ne exeat" visitation parent's consent is a breach of a right of custody under the Hague Convention on Civil Aspects of International Child Abduction giving rise to the "return remedy" under the Convention.  See Full Document.

Supreme Court Delcares Bill 104 Unconstitutional... But by Ian M. Solloway

In a unanimous 7-0 decision handed down on October 22, 2009, the Supreme Court of Canada struck down Bill 104 adopted by the Quebec government in 2002 to close a loophole in Quebec’s Charter of the French Language that had enabled some students, who were not otherwise eligible, to gain access to English school.

The Charter of the French Language enshrines the principle that French is the official language of instruction in elementary and secondary schools in Quebec. Section 73 (2) of the Charter however provides that “a child whose father or mother is a Canadian citizen and who has received or is receiving elementary or secondary instruction in English in Canada, and the brothers and sisters of that child” may receive instruction in English in Quebec “provided that the instruction constitutes the major part of the elementary or secondary education received by the child in Canada”.

English non-subsidized private schools are not subject to the Charter of the French language insofar as eligibility of students for English language instruction in Quebec are concerned. Prior to 2002, allophone and francophone parents were therefore able to circumvent the obligatory French school provisions for their children by sending their children to a non-subsidized English private school (the so-called “bridging schools”) for one year. These parents were thereby able to invoke S. 73 (2) (“a major part”) and obtain a certificate of eligibility for their child allowing that child to continue his education in English in an English language public or subsidized private school in Quebec.In 2002, the Quebec government amended S. 73 (2) of the language law to close this loophole and prevent parents from invoking time spent in a “bridging school” for the purpose of quantifying the “major part” of their child’s primary or secondary education.

Bill 104 established the same exclusionary rule with respect to English language instruction received pursuant to a special authorization granted by the Quebec Minister of Education in cases involving a serious learning disability, temporary residence in Quebec or a serious family or humanitarian situation. Time spent in an English school in such cases would have to be disregarded for the purpose of qualifying the child’s siblings for instruction in the publically funded English language school system.

In the Nguyen case, a number of parents who were Canadian citizens had enrolled their children in a non-subsidized English private school (“bridging schools”) for very short periods of time. The parents then requested that their children be declared eligible for instruction in English in the English public or subsidized English private school system. The Quebec Minister of Education denied their request based on the Bill 104 amendments.

In the Bindra case, Mr. Bindra had previously obtained special authorization from the Minister of Education to allow one of his two children to attend English school. He then applied for a certificate of eligibility on behalf of the second child based on the authorized English language instruction being received by his first child. His request was similarly denied by the Minister of Education, pursuant to the Bill 104 amendments. The decisions of the Minister were challenged by the parents on constitutional grounds. After seven years of litigation and judgments rendered by the Administrative Tribunal of Quebec, the Quebec Superior Court and the Quebec Court of Appeal, the Nguyen and Bindra cases reached the Supreme Court of Canada.

In its unanimous ruling, Mr. Justice LeBel, writing for the Supreme Court, upheld the constitutional challenge of the parents and declared Bill 104 unconstitutional as drafted, in that it violated S. 23 (2) of the Canadian Charter of Rights and Freedoms. Mr. Justice LeBel recognized that while the so-called “bridging schools” have been used by some parents to bypass the obligatory provisions of Quebec’s language law restricting access to public English education, the response of the Quebec government in enacting Bill 104 was “excessive in relation to the seriousness of the identified problem” and that “the absolute prohibition on considering an educational pathway (of the student) in an “unsubsidized private school” was overly drastic.” Essentially, what the Court said was that the Quebec government’s response to the problem posed by the so-called “bridging schools” was disproportionate to the problem itself. Although the Court acknowledged, as it has done in past decisions, that Quebec could validly limit freedom of choice in the language of instruction in the province, translating the primacy of the French language into a complete ban of the use of unsubsidized private English schools as a way of obtaining access into English public schools or subsidized English private schools, went too far and surpassed the acceptable “minimal impairment of constitutional rights.”

The Supreme Court reiterated that in its prior 2005 ruling in the Solski case, it had decided that the “major part” of a child’s education is no longer a “quantitative measurement”, but rather a “global qualitative assessment” to be viewed on an individual case by case basis. The Quebec Minister of Education could not therefore simply disregard English education received by a child in a non-subsidized English private school in its analysis. The Court did allow, however, by way of an obiter, that if the intent in attending the “bridging school” is simply to circumvent the law and to create an “artificial educational pathway” to allow access to a public English school, the “qualitative analysis test” in Solski may not be met. The door has therefore been left open for the Quebec Minister of Education to continue to reject requests for eligibility even though time spent in a “bridging school” cannot now be legally disregarded.

Finally, to the chagrin of many, because of the difficulties that its declaration of invalidity of Bill 104 might entail, the Supreme Court suspended the effects of its judgments for one year to enable the Quebec National Assembly to enact remedial legislation.

The victory of the claimants before the Supreme Court therefore would appear to be a partial one. Only one child, Satbir Bindra, was declared by the Court to be eligible immediately for English language instruction. However, the Supreme Court did not make a similar order of immediate eligibility with respect to the children of the Nguyen claimants, whose files were rather ordered by the Court to be returned to the Quebec Minister of Education to be reviewed again in light of its judgment and the principles established in Solski.

Therefore, the ball has now been squarely placed back in the hands of the Quebec government to come up with a legislative solution which would maintain the relative linguistic peace which has existed in the province for most of the last decade. The Quebec government is once again being challenged to recognize its obligation to protect the primacy of the French language in Quebec while, at the same time, to respect the principles enunciated by the Supreme Court.

We will know, in short order, whether the government has the political will to meet this challenge.

Consequences Not Misconduct Still The Focus by Ian M. Solloway

Leskun vs. Leskun Re-Visited

On June 21, 2006, the Supreme Court of Canada handed down a decision, which, at the time, raised certain eyebrows and provoked some concern in family law circles.

Sherry Leskun and Garry Leskun were married in 1978. During their 20-year marriage, Ms. Leskun financially contributed to Mr. Leskun’s continuing education by cashing in her R.R.S.P.’s and supporting her husband while he pursued an M.B.A. and became a Certified General Accountant. The couple had a daughter together.

During the 1990’s, Sherry Leskun suffered a significant back injury and the elimination of her job. Shortly thereafter, Mr. Leskun announced that he was leaving her and wanted a divorce in order to marry another woman and move to Chicago. The parties divorced in 1999.

At trial, Sherry Leskun was awarded one-half of the family assets as well as spousal support of $2,500.00 per month to be paid “until (she) returned to full employment, when both entitlement and quantum would be reviewed.”

In 2003, Mr. Leskun asked the Court to review his ex-wife’s support payments, claiming that in the four years that had elapsed between the marital break-up and the review application, Ms. Leskun had made no effort to seek employment and therefore attain her own economic self-sufficiency, one of the objectives of a spousal support order under the Divorce Act.

In upholding the spousal support order, the British Columbia trial court found that the adulterous conduct of Mr. Leskun during the marriage had left Ms. Leskun so consumed by bitterness over what she saw as her husband’s betrayal and duplicity, that she was unable to return to work despite her many years of experience in the banking industry. The British Columbia Court of Appeal agreed with the trial judge.

The issue on appeal before the Supreme Court of Canada was whether the lower courts erred in taking into account spousal misconduct in determining entitlement to spousal support. In dismissing Mr. Leskun’s appeal, Mr. Justice Binnie, writing for a unanimous Supreme Court, took pains to distinguish the economic consequences of spousal misconduct from the misconduct itself. The Supreme Court held that while the 1985 Divorce Act specifically eliminated spousal misconduct as a relevant consideration in making spousal support orders, it did not eliminate the consideration of the consequences of such misconduct, here, the emotional trauma suffered by the jilted spouse rendering her unable to return to work. Mr. Justice Binnie seemed to foreshadow the debate which the Leskun decision provoked when he admonished: “Misconduct should not creep back into the Court’s deliberation as a relevant “condition” or other circumstance which the Court is to consider in making or varying a spousal support order; misconduct, as such, is off the table as a relevant consideration.”

However, is spousal misconduct still really “off the table” or did the Supreme Court open the flood-gates in Leskun to new spousal support applications based on the pre-1985 days when the Court was specifically directed by the former Divorce Act to consider “spousal fault” in making support awards?

Although the Leskun decision may have framed the question a little differently than in the past by focusing on the “consequences” of certain behaviours, it has not really altered the legal landscape. The physical, psychological and/or emotional condition of the claimant spouse at the time of the original spousal support application or at the time of the application to vary that support, rendering her/him unemployable and thus unable to become financially autonomous, has always been a relevant factor in the Court’s determination of spousal support, its duration and its amount. If, for instance, spousal abuse during the marriage triggered a depression and/or physical condition so serious as to make a claimant unable to work, the Court would be obliged to take such spousal misconduct into account in its deliberations.

It may be true that following Leskun our courts may now allow more evidence to be led as to the genesis of the claimant’s condition or circumstance. However, it is still the condition or circumstance itself or a change in that condition or circumstance, having regard to such non-exhaustive factors as the length of the marriage, health problems, age, the narrowness of the claimant’s work experience, marketable skills, and the economic advantages or disadvantages to the spouses arising from the marriage or its breakdown, which have remained the focus of the Court in determining entitlement or continued entitlement to spousal support.

It is submitted that the cries of those who viewed the Leskun decision as re-introducing “fault” pure and simple through the back door in spousal support litigation was a misreading of the Supreme Court’s judgment. Moreover, the predictions of a “legal tsunami” of new spousal support review or variation applications in the wake of Leskun have proven to be, at the very least, premature, if not unduly alarmist.

Links:

www.divorcesource.com/

www.avocat.qc.ca/avocat/davocatE.asp?id=650

The Hartshonre Pre-Nup: Limited Impact in Quebec by Ian M. Solloway

It has now been over 5 years since the widely-reported decision of the Supreme Court of Canada in Hartshorne v. Hartshorne, in which our country’s highest Court upheld the enforceability of a British Columbia pre-nuptial agreement wherein the future wife waived her right to any equal division of the family assets under British Columbia law in the event of marriage dissolution.

The Parties, who were both lawyers, began to cohabit in 1985 and their first child was born in 1987. They married in 1989, a second marriage for both, and a second child was born later that year. Nine years later, they separated. From the time of the birth of their first child, the wife withdrew from the practice of law to remain at home to raise the children. The husband brought assets worth approximately $1.6 million into the marriage, including his law practice, while the wife entered the marriage with no assets and heavily in debt. The husband had made it clear to the wife before the marriage that given the partition of property that occurred after he and his first wife separated, he would never again allow a division of his property.

Prior to their wedding, the husband insisted that the wife sign a pre-nuptial agreement stipulating that they would be separate as to property, but with a provision that the wife would be entitled to a 3% interest in the matrimonial home for each year that the parties were married up to a maximum of 49%. The wife had obtained a legal opinion prior to signing the pre-nuptial agreement that the said agreement was grossly unfair. However, she nonetheless signed the agreement with a few amendments, including a clause confirming her right to spousal support.

Pursuant to the pre-nuptial agreement, Ms. Hartshorne was entitled to property valued at $280,000.00 upon separation while Mr. Hartshorne was entitled to property worth $1.2 million.

In their divorce proceedings, Mr. Hartshorne relied upon the pre-nuptial agreement to avoid the operation of the statutory partition of family assets under British Columbia law, while Ms. Hartshorne argued that the pre-nuptial agreement should be set aside because the agreement was “unfair” under the British Columbia Family Relations Act (“FRA”). The trial Court and the Court of Appeal both concluded that the Hartshorne pre-nuptial agreement was “unfair” and ordered the reapportionment of the family assets. The Supreme Court of Canada disagreed, concluding that the Hartshorne pre-marital agreement was substantively fair under the FRA and therefore valid and enforceable. In its “fairness analysis”, the Supreme Court concluded that private arrangements that spouses make for the division of their property on the breakdown of their marital relationship should be respected particularly where the agreement in question was negotiated with independent legal advice. In this case, the implications of the pre-nuptial agreement were understood by the Parties, Ms. Hartshorne having specifically reviewed its shortcomings with her lawyer. Moreover, the explicit preservation of a right to spousal support was an amendment made to the draft agreement at the insistence of Ms. Hartshorne, supporting an understanding on her part that her future needs could be met through alimony. Furthermore, by signing the pre-nuptial agreement, the Hartshorne’s entered into their marriage with certain expectations on which they were reasonably entitled to rely.

What is the impact of the Hartshorne decision in Quebec? Does Hartshorne mean that spouses marrying in Quebec are able to make similar types of pre-marital agreements?

Since July 1, 1970, under Quebec law, spouses who marry in the Province of Quebec without a Marriage Contract, are deemed to have adopted as their Matrimonial Regime (i.e. the law governing their property relations during the marriage) that of Partnership of Acquests. Simply stated, under the legal regime of Partnership of Acquests, the property owned by each spouse as at the date of marriage is his or her private property as the case may be and the property acquired by each spouse during the marriage is his or her acquest, save and except for gifts and legacies which remain private property. All interest and / or revenues generated from a spouse’s private property or acquests are his or her acquests. At the time of marital dissolution, each spouse has the right to accept or renounce the partition of the other spouse’s acquests.

The Parties can contract out of or alter the legal regime of Partnership of Acquests in Quebec by signing a Marriage Contract wherein they can adopt the matrimonial regime of Separation as to Property. Under a separation regime, any property acquired by either spouse prior to or during the marriage is his or her sole and exclusive property. It is to be noted, however, that in executing a Quebec Marriage Contract electing to be separate as to property, the spouses are not signing a divorce contract under Quebec law. Neither spouse can be considered as having contracted out of his or her rights to any claims, rights or entitlements that each may have against the other spouse as a matter of public order upon marital dissolution.

In 1989, the Quebec legislature introduced the concept of “family patrimony” into Quebec law. As of July 1, 1989, all marriages in Quebec entail the establishment of a family patrimony, which comprises six (6) categories of assets, namely:

1. 
   
   the principle and secondary family residence(s)
   
   
   
2. 
   
   household furniture used by the family
   
   
   
3. 
   
   vehicles used for family travel
   
   
   
4. 
   
   private pension plan contributions during the marriage
   
   
   
5. 
   
   retirement plan contributions during the marriage (RRSP’s / LIRA’s)
   
   
   
6. 
   
   registered earnings of each spouse during the marriage under the Quebec Pension Plan
   
   
   

Quebec law provides that regardless of where the spouses were married, whether in Quebec or elsewhere, irrespective of their matrimonial regime and regardless of which spouse owns the aforementioned assets comprising the family patrimony, spouses who are domiciled in Quebec at the time of the institution of their divorce proceedings are subject to the imperative rules of family patrimony and thus have the right to partition equally the net value of the family patrimony assets. Moreover, and most importantly, inasmuch as the rules relating to family patrimony are of public order in Quebec, the Parties cannot contract out of them prior to or during the marriage, whether by Marriage Contract or otherwise. Any such agreement outside the context of marital dissolution proceedings whereby the spouses express their wish to exclude the operation of the rules of family patrimony is illegal and would be unenforceable by the Courts in Quebec. It is only after separation or divorce proceedings have been taken can the Parties “contract” with regard to their respective family patrimony rights.

Therefore, a Quebec pre-nuptial agreement or marriage contract could not remove the spouse’s right to demand an equal partition of the net value of the family patrimony upon divorce. The Hartshorne decision would thus seem to have changed little if anything insofar as the Quebec marriage contract and the applicability of Quebec’s family patrimony rules are concerned.

Damages For Breach of Ghet Undertaking In Divorce Settlement re: Supreme Court by Ian M. Solloway

In a 7-2 decision issued on December 14, 2007, the Supreme Court of Canada ruled in a landmark judgment that civil courts are capable of adjudicating the contractual breach of religious undertakings.

The relevant facts of the case are as follows:

In their divorce settlement agreement (“Consent to Corollary Relief”), the husband Mr. Jason Marcovitz and the wife, Ms. Stephanie Bruker agreed to appear before the rabbinical authorities for the purpose of obtaining the traditional religious Jewish divorce (“the Ghet”) immediately upon the Decree Nisi of divorce being granted. The civil divorce of the Parties pronounced by the Quebec Superior Court became final in 1981 when Mr. Marcovitz was 48 years of age and Ms. Bruker was 31 years of age. Shortly after their divorce, Ms. Bruker, personally and through various Rabbis, called upon Mr. Marcovitz to comply with his obligation to give her the “Ghet” which Mr. Marcovitz refused to do on the grounds that Ms. Bruker’s behaviour since the divorce constituted harassment and an attempt by her to alienate him from his children.

Under Jewish law, a wife cannot obtain a “Ghet” unless her husband voluntarily agrees to give it. Without a “Ghet”, a Jewish woman cannot re-marry religiously. She remains an “aguna”, a woman who is “chained” to her ex-husband.

Moreover, Jewish law considers that any children of an “aguna” who subsequently re- marries civilly to be illegitimate. Despite Ms. Bruker’s repeated requests, Mr. Marcovitz consistently refused to provide a “Ghet” for 15 years following the divorce of the Parties, by which time Ms. Bruker was almost 47 years of age. Ms. Bruker eventually sued Mr. Marcovitz, originally for $500,000.00. She later increased her damage claim to $1,350,000.00, alleging that her ex-husband’s failure to give her a “Ghet” for 15 years constituted a breach of contract which ruined her ability to re-marry within the Jewish faith and to fully proceed with her social and religious life. At trial, the Superior Court judge ruled that the obligation undertaken by Mr. Marcovitz to provide the “Ghet” to Ms. Bruker was one of a civil contract notwithstanding its religious undertones and awarded damages to Ms. Bruker in the amount of $47,500.00, $2,500.00 for each of the 15 years between her civil divorce and the “ Ghet’’ and $10,000.00 for Ms. Bruker’s inability to have children considered “legitimate’’ under Jewish law.

On appeal, Hilton, J.A., writing for the Quebec Court of Appeal, stated that compelling the appearance of an ex-husband before a rabbinical tribunal to obtain a “Ghet” was not within the power of a civil court to properly order. The Court further held that the undertaking of the husband to give a “Ghet” to the wife was a religious or at best a moral rather than a civil obligation which is not justicable by the secular (i.e. civil courts) whether by way of injunctive order for specific performance or by way of an award of damages in the event of a breach.

In overturning the judgment of the Quebec Court of Appeal and restoring the judgment of the trial court, the Supreme Court of Canada ruled that the fact that a dispute has a religious aspect does not in and of itself make the matter non-justicable. The high court held moreover that the promise by the ex-husband to provide a “Ghet” was part of a voluntary exchange of commitments intended to have legally enforceable consequences, negotiated between two consenting adults, each represented by counsel. In short, the said undertaking in a divorce settlement agreement was a valid and binding contractual obligation under Quebec law. The Court was not being asked to determine doctrinal religious issues. Moreover, there was nothing in the Quebec Civil Code preventing someone from transforming his or her moral obligation into a legally valid and binding one which, according to Madame Justice Abella, writing for the majority of the Supreme Court, “puts the obligation appropriately under a judicial microscope”.

The Supreme Court also held that Mr. Marcovitz was not entitled to immunity from damages for his unilateral contractual breach under s.3 of the Quebec Charter of Human Rights and Freedoms. The claim to religious freedom must be balanced and reconciled with countervailing rights, values, and harm, including the extent to which it is compatible with Canada’s fundamental values. The majority of the Court did not accept Mr. Marcovitz’s contention that his refusal to provide Ms. Bruker with a “Ghet” was a result of his religious beliefs. The majority was further of the view that any impairment to Mr. Marcovitz’s religious freedom was significantly outweighed by the harm both to Ms. Bruker personally and to the public’s interest in protecting fundamental values such as equality rights and autonomous choice in marriage and divorce.

What then are the implications of the Supreme Court judgment in the Bruker case? There is no doubt that the landmark judgment represents a watershed in the advancement of the rights of Jewish women who now have the assurance that the failure of a Jewish husband to follow through in a timely manner with his “Ghet undertaking”, agreed to in a divorce settlement may expose him to civil damages.

Jewish women may also seriously wish to consider a “Ghet clause” in their marriage contract, which would afford them the same protection that a “Ghet undertaking” now provides in a divorce settlement Agreement as a result of the Supreme Court decision in Bruker, but obviating the necessity of negotiating such an undertaking in the event of a future divorce.

Similarly, women of other faiths who remain at the behest of their husbands to provide them with a religious divorce should also now ensure that “a religious divorce undertaking” be stipulated in their pre-nuptial marriage contract.

Same Sex Marriage Debate Over by Ian M. Solloway

Same Sex Marriage Debate Over In Canada, But Questions Still Remain

On December 6, 2006, by a vote of 175 to 123, Parliament defeated a Motion by the Conservative Government calling for a restoration of the so-called “traditional definition” of marriage, thereby effectively putting an end to the debate over same-sex marriage in Canada. Since June, 2003, when the Ontario Court of Appeal struck down the then federal ban on same-sex marriages as a violation of the equality rights of gays and lesbians under The Canadian Charter of Rights and Freedoms, there have been over 12,400 same-sex marriages performed in Canada. In December, 2004, the Supreme Court of Canada, in a reference case put before it by the then Liberal Government, held that the proposed new definition of marriage to include same-sex couples was constitutional.

Notwithstanding the legality of same-sex marriages from a domestic law point of view in Canada, there remains a very practical problem facing same-sex couples who marry in Canada and wish to relocate to a foreign jurisdiction. The problem involves the question of extra-territorial recognition of their union. Under the rules of private international law, the form of marriage is governed by the law of the place of solemnization of the marriage. However, the status or capacity of the couple to marry is governed by the law of the couple’s ante-nuptual domicile.

So, for example, the marriage of two same-sex spouses in Quebec, who were domiciled in Quebec at the time of their marriage, should be recognized outside Canada under private international law since both spouses had the status or capacity to marry under the law of their ante-nuptual domicile. The marriage would certainly be recognized in The Netherlands, Belgium, Spain, South Africa and Massachusetts, the only jurisdictions which, apart from Canada, presently allow for same-sex marriages.

However, were the couple to relocate to one of the other 49 U.S. states which do not permit same-sex marriages, no recognition of the marriage would be afforded to their union. The federal Defence of Marriage Act adopted by the U.S. Congress in 1996, relieves American states of any obligation to recognize same-sex marriages that are lawful in other jurisdictions. Therefore, because the foreign (here, the Canadian marriage) would not be recognized in 49 U.S. states, the couple would not be entitled to the rights and benefits conferred upon opposite-gender married spouses, including, the right to divorce.

Could the couple return to Canada in order to obtain a divorce? The answer is “yes”, provided that the plaintiff spouse can show that either one of the spouses had re-established “ordinary residence” in the particular province for at least one year immediately preceding the filing of the divorce application. The plaintiff spouse would, of course, have to be able to prove one of the grounds set forth under section S.8 of the Divorce Act (i.e. a one year separation, or mental or physical cruelty, or adultery). However, the ground for divorce need not necessarily have occurred in Canada to be invoked.

The question of a U.S. same-sex couple, who wish to come to Canada to take advantage of our law permitting marriage between people of the same gender and then return to United States, is likewise problematic. Given that this type of marriage would not presently be recognized in their home state (except for Massachusetts), the couple might want to reflect on the implications of such a decision before making it a reality.

Therefore, although the same-sex marriage debate may be over in Canada, the extra-territorial legal fall out is still far from settled. We will continue to keep an eye on this matter which is certain to evolve over the months and years to come.

Legal Fees And Marriage Breakdown by Ian M. Solloway

What's deductable and what's not

The question of the deductibility of legal fees in marital dissolution proceedings is, for obvious reasons, of significant interest to most clients and typically one of the first questions asked of a family law attorney.

Up to 2002, the answer that we family law practitioners almost invariably gave to clients was that virtually none of the legal costs (legal fees and disbursements) incurred in connection with spousal or child support proceedings were deductible, whether federally or provincially.

The position of Canada Customs and Revenue Agency (“CCRA”, then known as “Revenue Canada”), had long been that legal fees incurred to establish spousal and/or child support and/or a variation thereof were non-deductible for federal income tax purposes. CCRA’s position had been based on the decision of the Federal Court - Trial Division in the case of The Queen vs. Burgess, 8DTC 5192 (1981) CTC, 258. In the Burgess case, the Court reasoned that the legal fees were incurred for the purpose of bringing into existence the right to support and that the right was considered capital property. Since the expenditure was incurred on account of capital, it was therefore not deductible for tax purposes.

However, as a result of the decision of the Tax Court of Canada in Gallien vs. The Queen, (2001) 2CTC 2676 (TCC - Information Procedure), the CCRA reconsidered its position. Since October, 2002, the CCRA considers legal costs incurred by the spouse seeking a spousal or child support Order under the Divorce Act or under applicable provincial legislation in a separation agreement, to have been incurred for the purpose of enforcing a pre-existing right to support and therefore deductible for federal income tax purposes. The CCRA also now accepts that the legal costs of seeking an increase in support (whether spousal or child support) or making the child support non-taxable under the Child Support Guidelines are similarly deductible for federal income tax purposes.

For its part, the position of the Quebec Minister of Revenue as to the non-deductibility of legal costs to obtain an initial spousal or child support Order remained unchanged until December 12, 2003. On that date, the MRQ announced that commencing with taxation year 2003 and for taxation years prior thereto not otherwise prescribed (i.e. generally 2000 - 2002), a taxpayer who incurs legal costs to obtain an initial spousal support and/or child support Order or to increase such a support Order will be able to deduct his/her legal costs for Quebec income tax purposes.

Insofar as legal fees paid to enforce or collect support payments are concerned where the right to support has already been established (by written agreement or Court Order), these fees are likewise deductible both federally and provincially.

Unfortunately, it would seem that only the recipient of the spousal and/or child support (i.e. the alimentary creditor) is the beneficiary of the federal and provincial taxing authorities’ newly-found “souplesse”. The payor of spousal and/or child support (i.e. the alimentary debtor) is still not allowed to deduct the legal fees he or she incurs to contest an initial spousal or child support application or an application to increase said support. Similarly, the alimentary debtor will not be permitted to deduct legal fees incurred in the event that he/she seeks an Order to decrease the existing support.

Other situations where legal fees are not deductible either federally or provincially are fees relating to:

1. the custody and/or access to children
2. obtaining a divorce judgment
3. the establishment or enforcement of a lump sum payment in lieu of spousal support
4. the partition of other financial or property interests between the spouses.

For ease of reference, a summary of the federal and Quebec positions with respect to the tax treatment of legal costs incurred in marital dissolution proceedings is attached hereto.

Finally, it must be underscored that the onus will always be on the taxpayer to establish the portion of legal fees that pertains directly to deductible issues. For that reason, the client should instruct his/her family law attorney to record and bill time and disbursements related to spousal and child support issues separately or in such a fashion that this onus can be satisfied.