Grandpa and Grandma are the grand parents of Julie and Julia, two little twin girls of 8 years old. The relationship between the twins’ parents and Grandpa and Grandma have been difficult for many years. Despite this, they have always made the effort to get along. Grandpa and Grandma are very involved in their grandchildren’s lives: movie nights, picnics in the living room and long phone calls always await. However, the last argument was very serious, to the point where the twins’ parents have since prevented Grandpa and Grandma to have any contact with them.

Did you know that Grandpa and Grandma can request access rights to their grandchildren? The law states that parents cannot prevent grandchildren from having a relationship with their grandparents, unless there is a serious reason. Grandpa and Grandma can ask a judge to allow them to see the twins as often as they did before the problem arose. Obviously, the purpose of this request for visitation rights will have to be to give the twins an opportunity to get to know their grandparents as well as to maintain and develop a strong bond with them.

As for the parents, they will only be able to oppose to the demand by proving that their decision to prevent contact was justified by a serious reason. An argument between the parents and Grandpa and Grandma is not considered a serious enough reason to prevent access.

If you face such a situation and need further advice, you should consult a lawyer…

Marie had a child with Jonathan. They separated after a few years, and Marie obtained custody of the child. Jonathan, for his part, obtained access rights every other weekend. However, he stopped seeing the child when she turned 8, having moved to Western Canada.

For the little girl’s 12th birthday, Marie decided to take her to Walt Disney, Florida. A month before departure, Marie went to the passport office to apply for a passport for the child. She was asked for the father’s signature and authorization to leave Canada. Marie doesn’t understand, as she has been the sole guardian of the child for the past four years.

Did you know that custody doesn’t give Marie all the rights? Under the Civil Code, both parents have parental authority, which means that both must make major decisions about their child.

If Marie is unable to find Jonathan, she will have to file a motion with the Superior Court to obtain permission to travel alone with her daughter. She will also have to ask the Court for permission to obtain a passport for the child without Jonathan’s signature. Otherwise, Marie will not be able to take her daughter to Walt Disney.

Danny is 30 years old and is an only child. He is a civil engineer and earns a good salary in a reputed engineering firm. His mother Gina, 48 years old, just learned from her doctor that from now on, she will not be able to work because of her physical condition related to her disease, multiple sclerosis. Gina’s husband, John, passed away recently in a car accident. Gina was an agriculturist and had no private insurance.

Gina does not know what to do. She can barely afford to pay her mortgage, house insurance, municipal taxes in addition to her groceries with the little money she and John had set aside.

Did you know that even children can be subjected to the obligation to provide support to their parents? While the parents are usually the ones that have to pay an alimentary pension to their children, this obligation is reciprocal. In some cases, namely due to an illness, a handicap or a disability, children may also be required to pay an alimentary pension to their parents. However, the parents in question must be relatives in the direct line and in the first degree of the children. Therefore, this obligation does not apply between grandparents and grandchildren.

Should his mother Gina request so, Danny could be required to provide support for her. Danny could, however, be dispensed from paying alimony to his mother, at least in part, if he offered her to come live with him. Should you face such a situation and need further advice, you should consult a lawyer.

Maria and John have been in a relationship since 1984. They both work as teachers in a neighbourhood school. They live in a small house that John bought for them. As children of divorcees, they wish to build a future together, but without getting married. Some years later, Maria gives birth to two beautiful children. However, one of the children’s medical condition requires that Maria stay at home.

Although little Tim is a very endearing child, caring for him requires time and money from the couple. Consequently, John, who is the family’s principal source of income, works long hours and even gets a second job to allow the couple to pay for all the expenses related to their home, car and Tim’s treatments. As for Maria, she holds occasional receptionist replacement positions and contributes to the costs by paying the grocery bills.

Unfortunately, over the years, the relationship between Maria and John falls apart. When Tim reaches 23 years of age and appears to be more autonomous, the couple decide to separate. However, since the couple never married – and unless John is generous – Maria will be penalized by this relationship. Did you know that although they have lived together for nearly thirty years and have had children, Maria and John will not be able to benefit from certain protections reserved to married couples?

Indeed, Maria will not be entitled to any share in the family residence since it is owned by John. She will not be able to keep the family car nor any other property that she does not own. Furthermore, she will not be entitled to any spousal support, despite having left the job market to take care of their son Tim over the years. Finally, she will not be entitled to any share in John’s pension fund. In other words, Maria will have to begin her new life by relocating, at her own expense, and by finding a new job to support herself.

It is possible to prevent such a situation with a cohabitation agreement signed at the beginning or at any time during the course of a relationship. Should you need further advice in this matter, you should consult a lawyer.

Liang has been in a relationship with Karen for more than 10 years. Before becoming a couple, they had cherished a long-lasting friendship since the end of their studies. When Liang finally decided to declare his love to Karen 10 years ago, she was, at the time, pregnant with another man’s baby, following a one night stand. Liang has always supported Karen’s choice to bring her pregnancy to term.

At the time of delivery, the couple decided to register the name of Liang on the birth certificate, as the father of the little Jade. Today, the couple care for the happiness and well-being of Jade. Liang is very involved in her life, just as if she were his biological daughter. He assists her in homework, brings her to volleyball practices and tournaments and ensures that she has everything she needs.

Last week, during a walk in her neighborhood park along with Jade, Karen ran into Gustavo, her one night stand romance from whom she had never heard back. Throughout the conversation, Gustavo realized he was the biological father of Jade. Being divorced himself and the father of a little boy, he then asked Karen if he could occasionally make contact with his daughter to reconnect with her. Liang is worried about the return of Gustavo, especially since, although Jade is not his biological offspring, he has developed over the years a strong relationship with her, and has always considered her to be his own daughter.

Did you know that the biological father may not be the “real” or legal father. Liang does not have to worry about the return of Gustavo. Indeed, it is important to understand that in matters of filiation, the interest of the child and the stability of families are given more weight than biology. This is why the law states that no one can challenge the filiation of a child and a parent whose name appears on the birth certificate and who has uninterrupted “possession of status”. In fact, Liang had constant possession of status because he has always acted as Jade’s father, since her birth, that is, for more than nine years, and his friends and family have always considered him as such. Furthermore, his name appears on Jade’s birth certificate. In the end, although he is not Jade’s biological father, the filiation between Liang and Jade will always be considered a father-daughter relationship.

If you face such a situation and need further advice, you should consult a lawyer.

Flora’s grandmother, with whom she was very close, passed away from a generalized cancer. Her grandmother’s will, Flora learns, has appointed her executor of the estate. Flora does not know what the role of an executor or liquidator entails and wonders about the process of estate settlement.

Did you know that the opening of a file on an estate (succession) and its distribution involve multiple steps provided by law? Indeed, whether or not the deceased had a will, the opening of a file and the distribution of the property in the estate, known as the “liquidation” of the estate, must comply with the law.

As the liquidator of the estate, Flora will have to follow these steps.

(1) Firstly, she will have to obtain her grandmother’s death certificate. She will have to conduct a will search with the Chambre des notaires and the Barreau du Québec.

(2) She will have to identify and contact the heirs to inform them of their rights in the estate.

Flora will then have to determine the content of the estate by preparing an inventory of the assets and debts. The inventory will have to be signed before a notary or two witnesses, and notices will subsequently have to be published on the RDPRM (Register of Personal and Movable Real Rights) and in a local newspaper.

(4) She will also be responsible for collecting amounts owing to her grandmother, paying her debts and completing tax return forms within six months of her death.

(5) Moreover, Flora will have to obtain the certificate authorizing the distribution of the assets from Revenue Quebec and the clearance certificate from the Canada Revenue Agency.

(6) Finally, after all these steps, she will have to render a final account of the liquidation to inform the heirs of her administration of the estate, the operations that were performed and the assets still remaining in the estate. Finally, she will publish a notice of account closure on the RDPRM.

Should you face such a situation or need further advice, you should consult a lawyer.

For more information, please do not hesitate to contact them at: (514) 326-4553 or toll-free at 1-855-505-1515 or by email at info@brunetassocies.com.

Joseph and Renée have been married for 15 years. Joseph is a compulsive gambler and alcoholic, and this creates big problems in their marital union. For years, he has been promising his wife that he will stop gambling and do something about his drinking problem. This year, the situation deteriorates: Renée finds out that her husband has been spending all his afternoons at the Casino de Montréal, and that he has withdrawn $40,000 from his RESP during the last 6 months. This makes her decide to quit Joseph for good. Renée has $20,000 in her RESP, but Joseph does not have a penny left in his. She wonders if she would have to share what is in her RESP with Joseph after their separation.

As a rule, during a divorce or separation, the value of the family patrimony is divided equally between the spouses, and the RESPs are part of the patrimony. However, in exceptional situations, one of the parties may request an unequal division of the value of the family patrimony. In the given situation, Renée would be justified to request that the RESPs be divided unequally. Indeed, Joseph’s irresponsible and reckless behaviour of squandering his RESP at the Casino should not penalise Renée.

Renée must show that Joseph did not respect his obligation of contributing to the fructification and maintenance of the family patrimony, and that an equal division of the RESPs of both parties would lead to an injustice.

Renée could equally request that the Tribunal issue a judgment for a compensatory payment, considering that Joseph deprived her of her share in his RESP that used to contain $40,000.

If Renée demonstrates properly the elements mentioned above, the Tribunal could order Joseph to pay her $10,000, which would have been her rightful share, had Joseph not squandered his RESP.

For more information, do not hesitate to contact us at 514-326-4553, or toll-free at 1-855-505-1515, or by sending an e-mail to info@brunetassocies.com

Thomas’s mother passed away last spring. According to her last will, she left all her possessions to her son, Thomas, and appointed him as liquidator. His mother also held a $100,000.00 life insurance for which she designated her son as sole beneficiary.

When preparing his mother’s estate inventory, Thomas finds that she owned a 2003 Toyota and possessed a bank account, for a total value of $25,000.00. He however realises that owed a considerable amount of debt – approximately $75,000.00 in credit card and personal loans. Thomas is worried because he cannot afford to pay off his mother’s debts since the estate is insolvent.

He remembers that he received a $100,000.00 check by mail from the insurance company. The check was issued under his personal name. He is wondering, since he is the sole heir to his mother’s estate, if he must include that amount in the inventory’s list of assets. This amount, he tells himself, would pay off his mother’s debts, but limit his inheritance.

Did you know that a life insurance may not considered an asset in the estate? If specific beneficiary is designated in the policy, said beneficiary will be able to cash in this amount – with no responsibility and obligation towards the estate’s debts. Therefore, unless otherwise provided for in the insurance policy or the will, a life insurance with a designated beneficiary will not be part of the estate and does not have to be accounted for in the estate’s assets.

Consequently, since Thomas’s mother had appointed him as beneficiary to her life insurance, he will simply refuse the insolvent estate by renouncing it through a notarial document while still being able to use the $100,000.00 amount (which is non-taxable) as he pleases without having to repay any debt whatsoever.

It is essential to point out that if no specific beneficiary were appointed for in the policy, the insurance will be paid directly to the estate. Since the amount would then go in the estate’s bank account, it would also have to be accounted for in the estate’s assets and thereby, be used to pay off the debts.

Should you be facing such a situation and need advice, do not hesitate to contact us.

Normand, a septuagenarian in his prime, is putting off the task of drawing up his will and mandate of protection.
He knows very well that these documents are essential and useful, but he tells himself that he’s still young and that he’ll still have time to do them later.

As the years go by, Normand begins to show the first signs of cognitive loss associated with Alzheimer’s disease.
At first, it’s just a matter of forgetting things, but soon the situation deteriorates.
Before it was too late, Normand’s son made an appointment for him at the notary’s office.
After an initial meeting with Normand, the notary demands a medical certificate confirming that Normand is fit to sign and understand a legal document before proceeding with the signing.

Did you know that you shouldn’t wait too long before drawing up your will or mandate of protection?
A notary can only receive a person’s signature if that person is capable of giving free and informed consent.
Consequently, notaries must verify their clients’ capacity to give such consent.
However, as the notary is not a physician, it is sometimes difficult to detect a cognitive illness that could impair the client’s ability to give free and informed consent.

The fact that Normand suffers from Alzheimer’s is not a reason for the notary to refuse to make the will, as this depends on the stage of the disease.
In fact, it’s the doctor who will have to decide whether Normand is capable of understanding and signing his will and mandate.
So it should come as no surprise that, if necessary, the notary will request a medical assessment to ensure his client’s ability to sign these documents.
This is a precaution that ensures the validity of the deed and makes it more difficult to contest.

If you are faced with such a situation or need advice, please do not hesitate to contact our notary.

By definition, a holograph will is a handwritten will (without a computer).
This type of will can be drawn up anywhere, at any time, on any type of paper medium, provided of course that it bears your signature.
It is not necessary to sign this type of will in the presence of witnesses.

What’s in a holograph will?

As with all wills, in a holographic will you must, among other things, list your assets, clearly designate your heirs, as well as the liquidator of your estate (and his or her successor).
You can also use your will to designate a guardian for your children, as well as your wishes regarding your funeral.
It is also important to specify that you revoke any wills previously made or written, to avoid ambiguity.

Even if the date and place are not necessary for a holograph will, it is strongly recommended that you specify them, especially if the will is drawn up outside Quebec.
This will avoid any confusion as to when the will was drawn up, should you have drawn up other wills in the past or intend to draw up a new one at a later date.

As well as being the simplest form of will, drawing up a holographic will is completely free of charge.
However, please note that a holograph will must be probated by the court or a notary before the liquidation of the estate can begin.
This means that your heirs will have to pay a considerable amount to have your holographic will probated.

Don’t hesitate to contact us if you would like legal advice on drawing up your will.
Our notary will review your will and advise you on which clauses to include (and which not to!).