An adult or members of a family who wish to receive assistance must exercise their rights and avail themselves of any benefits to which they may be entitled, including the RIGHT to SUPPORT. If a person cannot exercise his or her recourses by reason of health or domestic violence, the Income Security Officer may help to do it.
It is the right to support that must be exercised; an action for separation or divorce or dissolution of civil union need not be brought.
In the event that a person REFUSES to exercise rights WITHOUT PROVIDING REASONS, the Income Security Officer may refuse an application or terminate the payment of a benefit.
For the purposes of an action for support, the obligation of support continues even if there is DEPRIVATION OF PARENTAL AUTHORITY.
When the recipient or a member of his or her family is a support creditor, he or she must inform the Income Security of any legal action regarding this obligation at least five days before the application set out in the procedure is brought before the court. The recipient must also inform the Income Security of the content of any support agreement at least ten days before it is brought before the Court.
The recipient must also inform the Minister in the case of a joint procedure to dissolve a civil union, at least 10 days prior to the date on which the agreement will be received before the notary.
LEGAL ACTION is NOT REQUIRED:
- where the recipient's former spouse or the parent of a minor child is DECEASED;
- where the recipient's former spouse or the parent of a minor child is himself or herself a RECIPIENT;
- where there is a possibility of RECONCILIATION within 3 months;
- where the separation has lasted for 3 YEARS or MORE and there is NO MINOR CHILD of the marriage;
- where a CHILD has NOT been LEGALLY RECOGNIZED by its father or spouse of the mother who is the spouse of the civilly united mother (see detailed birth certificate);
It is important to specify that a written VOLUNTARY RECOGNITION of paternity, insofar as it is not challenged, has effect in regard of parentage and the possibility to obtain support. In the case where there is such a recognition, the creditor party must be asked to exercise her recourse even when the name of the father or spouse of the mother who is the spouse of the civilly united mother does not appear on the birth certificate.
- where there is a VALID AGREEMENT (not ratified by a judgment) between the recipient and his or her former spouse or the parent of the minor child concerning payment of support and the debtor is IN COMPLIANCE with the agreement.
Note : if the ex-spouse of the beneficiary leaves outside Québec, the agent must verify the relevance to exercise an action for support.
- Where an agreement between the parties is the result of mediation.
- When a judgement ratifies the decision of one or both spouses to surrender support for the future and for themselves.
- When parents share custody and the parent recipient has custody for less than 41% of the time. As per the Regulation respecting the determination of child support payments, when a parent assumes more than 60% of the custody time, he is considered to have sole custody and the other parent is not entitled to support payments.
RECONCILIATION FOLLOWED BY ANOTHER SEPARATION
- Where the parties have reconciled and another separation occurs, if a divorce or dissolution of their civil union judgment fixing support was rendered prior to the reconciliation, this judgment becomes effective again. The support fixed at the judgment is always valid and it is not required to request another recourse.
- When the parties reconcile, that another separation occurs and a decree in judicial separation was rendered, the creditor will return for the fixing of support.
- In the case of common-law spouses, when there is reconciliation followed by another separation and that a judgment was already rendered, the creditor will return for the fixing of support.
- It is forbidden to require or urge a person to break the bonds between him or her and another person; rather, the person must simply be asked to take action to ensure that the spouse or the parent of a child honour the responsibilities he or she freely assumed.
- A reasonable ATTEMPT at RECONCILIATION is considered to be equivalent to exercising a right to support, if satisfactory evidence is provided.
SATISFACTORY EVIDENCE is the assurance given in writing by the person acting as mediator (marriage counsellor, lawyer, etc.) between the spouses that there is a possibility that they will reconcile, and that it is therefore inadvisable to institute legal proceedings for the moment.
This ASSURANCE is considered to be valid for 3 MONTHS, at the end of which period a check is made to determine whether reconciliation has occurred. If not, the recipient must exercise his or her rights.
When a recipient has signed an agreement that is not ratified by a judgment, he or she need not exercise his or her recourses in court when:
- there is compliance with the agreement (the debtor pays the amount for which provision is made);
AND
- the monthly amount set out in the agreement, even in the case of shared custody is equal to or greater than the amounts set out in the Table to determine the basic parental contribution - 2015 from the Ministère de la Justice.
If the amount set out in the agreement is lower than the amount provided as a guideline, the recipient must make a reasonable attempt to exercise his or her rights unless he or she provides a statement from an attorney or a person authorized to act as a mediator to the effect that the amount of support was set in accordance with the rules established under the Framework Policy prescribing child support payments in effect since May 1, 1997. In all cases, the amount paid by the debtor is taken into account in calculating benefits.
AGREEMENTS RESULTING FROM MEDIATION
The mediation process provides up to 6 free sessions with a view to achieve an agreement between parties.
The amounts of support provided for in these agreements will usually comply with the grid for fixing support.
Where the grid is not complied with, the parties may have their agreement certified by the special registrar or ratified by the Court.
Where the agreement is certified by the special registrar or ratified by the Court, it has the value of a judgment and the exercise of subrogation is possible.
However, when the agreement resulting from mediation is not certified or ratified, the exercise of subrogation will not be possible and in the event of a default in payment, the creditor will have to exercise an action for support.
It is important to specify that where the agreements resulting from mediation do not comply with the guidelines previously mentioned, the exercise of recourse is not required. It is considered that the mediator has determined the relevance of the amounts.
In the case of a SEPARATION that has lasted 3 YEARS where there is no minor child of the marriage, or of an AGREEMENT where there is COMPLIANCE, an affidavit must be signed by the recipient confirming the accuracy of the facts alleged and promising to report any changes that may occur in the situation of the person who owes him or her support, in so far as he or she is aware of such changes.
The AFFIDAVIT constitutes SUFFICIENT EVIDENCE of the facts alleged, unless there are serious reasons to doubt the truth thereof. In that case, the applicant shall provide more precise evidence, or obtain confirmation from a lawyer that it is not advisable to institute proceedings, for the reasons stated.
Where the recipient's lawyer concludes that LEGAL ACTION is NOT POSSIBLE or desirable, this conclusion shall be confirmed in writing, stating the reasons on which the decision is based. It is the recipient's responsibility to obtain written confirmation from the lawyer.
The Civil Code of Quebec recognizes the continuation of the OBLIGATION OF SUPPORT even after the DEATH of the support debtor, whether the succession is legal or testamentary.
The financial contribution:
- is a fixed sum payable in cash or by instalments;
- is equivalent to 12 months' support for a spouse or former spouse or 6 months' support for any other creditor;
- may not exceed 10 % of the value of the succession.
A support creditor MUST EXERCISE HIS OR HER RIGHT where he or she:
- was receiving support from the deceased;
- was not receiving support, is not an heir of the deceased and has not renounced support (see judgment).
The assistance received between the date of death and the date of receipt of the financial contribution is not reimbursable; the financial contribution is considered to be proceeds of the succession and section 106.1 of the Act applies.
The amount of the financial contribution is considered to be liquid assets.
The Civil Code of Quebec also provides that the spouse of a person who has DISAPPEARED and of whom it is unknown whether he or she IS STILL ALIVE may exercise his or her rights to liquidate the patrimonial rights of the spouses or civilly married spouses. A recipient in this situation may be asked to bring action, where exercising the right may have an effect on eligibility for assistance or reduce the benefits.
In this case, the assistance is reimbursable as of the date when a court authorizes liquidation of the assets.
Support payments for a person eligible for the 66/72 benefit
The person eligible for the 66/72 benefit must exercise his or her rights or avail himself or herself of the benefits available to him or her, including the right to support payments.
The band council is asking to exercise the right to support payments, and not a remedy for separation, divorce or dissolution of a civil union.
If a person eligible for the 66/72 benefit refuses to exercise his or her remedies without just cause, the band council may stop paying this person the benefit.
The support payment is the result of a mediated agreement or decision, and the amount received is considered as annual income, earnings or pecuniary benefits for the purposes of calculating the amount paid to the person eligible for the 66/72 benefit.
Note: The person eligible for the 66/72 benefit is not required to exercise a right to obtain a support payment for a dependent child. Support payments for a dependent child are not an included financial resource when the person is eligible for the 66/72 benefit.