Droit+de+la+famille—841

//Droit de la famille – 841, Cour supérieure, 1990// __Facts__: Couple marries in 1957. In 1989, husband petitions for divorce, claiming breakdown of the marriage justified by the fact that they have been living separately for at least a year. Wife rejects his petition, claiming they have been living under the same roof, and counterclaims for various forms of economic support. __Issue__: Can Court grant divorce? What terms? __Decision__: Court grants divorce. See below for terms. __Reasoning__: The Divorce Act states, in s.8 that divorce can be granted where the marriage has broken down, which is the case if the spouses have lived separately for at least one year before the decision on the action for divorce is given, and they lived separately at the time of the introduction of the action. Wife claims that the couple still lived together at the time of the introduction of the action for divorce (23 January 1989), and that her husband only moved out a month later. Husband moved into a separate room in the house in Oct. 1988 (“il s’est retiré du lit conjugal”), thus terminating their community of life/cohabitation (vie commune) (at least from his perspective). Even though the spouses lived in the same physical house at the time of the introduction of the action, husband claims they no longer shared a common life. Wife claims that since husband made no outward, public claim to third parties that they were separated, they were not in fact separated. __Court holds that public perception is not the important criteria, but that rather the spouses’ intentions (of both or one) is relevant__. Since husband no longer had intention of sharing common life with wife, their common life ended as of the moment he moved out of their room and started going out (socializing) alone. Court grants the divorce. Pecuniary consequences of divorce: - Marriage Contract: stipulates that the wife will have ownership of the movables in the house and that the husband will pay her $10 000 upon judgment for divorce (not contested) - Compensatory Allowance (prestation compensatoire): Court rejects wife’s claim because she fails to show a causal link between her contributions and the growth of the husband’s patrimony (her contributions were staying at home and taking care of the house and kids, and occasionally working and contributing her paycheque to the family) - Lump Sum (somme globale): wife claims a lump sum payment of $50 000 from husband so that she will be financially secure (since it is unlikely that she can go back to work at age 55, having not worked for so many years). Court defines “security” to mean the attitude of someone who is calm knowing they are safe from danger and assurance that one will not find themselves without financial resources. This is an alimentary need, and it would be unfair if one spouse had it and the other did not. Risk that the husband dies before the wife, which causes the support payments to end, and she is left with no security. The Court of Appeal has recognized the lump sum payment as an alimentary need during retirement years in D.F. – 754 (and doctrine agrees). Divorce Act, s.15(2) and (7) provide for the possibility of a lump sum payment. S.15(7)(a) seeks to take account of the economic advantages or disadvantages that resulted from the marriage or its breakdown: the wife had to quit her job when they got married, so she could not accumulate her own retirement fund; (b) consequences of taking care of children: she could not return to work for many years. Court grants wife $35 000 lump sum. - Alimentary Support (pension alimentaire): Wife does not have regular employment and might not find any due to her age. Court orders $300/week.