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Family Law

Instituting legal proceedings

It has become clear that your separation is going to involve court proceedings. Any day now, you expect to hear a knock on the door from a bailiff serving you with court documents from your ex. You wonder how long the proceedings will last and what sort of rights you have. You have even started feeling a little overwhelmed by all the unanswered questions you have…

In this Infosheet, Éducaloi discusses the first steps to take in family law proceedings, what you can do to protect yourself, precautionary measures, and behaviour to avoid.

How do I open a court file?

You must file a motion to institute family law proceedings whether or not you are married. A motion is a document signed by the spouse listing his demands related to the separation, such as custody of the children, child support, spousal support, division of property, etc.

The motion usually asks the court to declare married spouses separated from bed and board or divorced. If the spouses are joined in a civil union, the motion asks that the union be dissolved. And finally, if the spouses are a de facto (“common-law”) couple, the motion generally asks the court to settle child custody and child support. Where necessary, a separate proceeding (called an application for partition) must be used to divide property co-owned by de facto spouses.

A motion can be “joint,” meaning that both spouses sign the document. This can happen if they have come to an agreement on the consequences of their separation.

What do I do once I have received a motion signed by my ex?

First, read the document carefully. It contains not only your spouse’s demands, but important instructions about the legal procedure as well.

For example, a motion between de facto spouses regarding custody and child support will be accompanied by a “Notice of Presentation” indicating the date, time, and room where the hearing will happen at the courthouse.

A motion for divorce, separation from bed and board, or dissolution of civil union will be accompanied by a “Notice to the Defendant” indicating the appropriate time periods for responding, and how to do so.

If you receive a motion for provisional measures, this will have a “Notice of Presentation” attached, just like in the motion between de facto spouses, as described above.

A spouse seeking support must attach certain documents to the motion, as follows:

• the “Child Support Determination Form,” if child support is sought;
  
• a “Statement of Income and Expenditures and Balance Sheet,” if asking for spousal support.

The document you have received might be very long, but you should take the time to read it and re-read it completely, to make sure you understand everything.

If you agree with everything your ex is requesting, you need only let your spouse proceed. But before doing this, you should consult a lawyer to ensure that you fully understand the consequences. If you disagree with any of your ex’s demands, you have to take the proper steps within the time limit provided for by law. You must follow the rules even if you intend to represent yourself – there is no special treatment for people who don’t have a lawyer.

If you do wish to be represented by a lawyer, contact one as soon as possible. You might find that no lawyer is available on the date of your hearing if you wait until the last minute.

What will happen if my spouse and I disagree as to the long-term consequences of our separation?

De facto spouses generally settle matters related to the children (custody, access rights, support) when the motion is heard at the trial. You don’t have to take any other steps unless you need an interim judgment or an examination on discovery (explained below).

If you are married or joined in a civil union, the legal proceedings involve several stages, some compulsory, some not.

Under new rules introduced in January 2003, the spouses must set out a timetable for the various steps of their proceedings. The court will establish a timetable if the parties are unable to agree. All of the steps up to inscribing the case for hearing must be completed within 360 days. This deadline can be extended, for example, in cases where the spouses have entered family mediation.

As a general rule, the compulsory steps are as follows:

• appearance of the “defendant” (the spouse against whom the motion is filed);
  
• defence (written or oral);
  
• inscription (when a party files a document informing the court that the record is complete and asking for a hearing date);
  
• the trial itself, during which each spouse presents evidence and submits arguments.

In addition to provisional and interim measures, other steps may include:

• an examination on discovery, during which a spouse can obtain details about the file and about the documents possessed by the other spouse;
  
• a response, in which the “plaintiff” spouse replies to the other spouse’s defence.

How long will it take to obtain a final judgment?

It all depends on the type of requests presented in the motion and the issues on which the spouses disagree.

If the spouses agree on all the consequences related to their separation, a final judgment can be given in a matter of weeks.

If the parties disagree on one or more issues, it can take several months, or even one to two years (or more) between the time the file is opened at court and the final judgment.

Do I have to wait for a final judgment to be allowed to visit my children, or get support from my spouse?

In theory, no. Either of the spouses can make a “motion for provisional measures” during a proceeding for separation from bed and board, divorce, or dissolution of a civil union. This motion enables the spouse to obtain a judgment that temporarily resolves certain issues. You can obtain such a judgment in several weeks, or months, depending on the file’s complexity and where your motion was filed.

As a general rule, a motion for provisional measures concerns the following issues:

• child custody;
  
• access rights to children;
  
• child support;
  
• spousal support;
  
• use of the family residence;
  
• use of the furniture.

For example, the court will be asked to determine which parent has custody of the children, or who gets to use the family residence and furniture, until a final judgment is made.

But, at this point, the issues aren’t settled permanently. For example, the spouse allowed to use the furniture does not become its owner. Any questions related to the division of property will be addressed in the final judgment if the spouses cannot agree on this subject.

The spouse presenting the motion can include a “provision for costs” if she doesn’t have the financial resources needed to pay legal fees.

The provisional judgment is only valid until the final judgment is rendered. In addition, the judge handing down the final judgment is not bound by the judgment on provisional measures. In other words, his decision can be different, depending on the spouses’ and the children’s situations when the case is heard. Lastly, you can ask to change the provisional measures if there is a change in the spouses’ or the children’s situation during the legal proceeding.

You can also make a motion for an “interim” judgment (an order to protect the rights of the parties) if the situation is so urgent it requires an immediate judgment even before a provisional judgment is issued.

What can I do if I believe my spouse will sell the house and liquidate his RRSPs before the court renders a decision?

You can protect yourself by seeking a “seizure before judgment”. This is a court order preventing the owner of the property (or another person who possesses the property, like a bank) from getting rid of the property before a judgment is rendered or an agreement regarding these assets has been signed.

Note that if you co-own the house or any other asset with your spouse, he cannot sell, hypothec, or otherwise get rid of it without your consent.

You can obtain a seizure before judgment if your spouse is the sole owner of the house, especially if you did not take the precaution of registering a “declaration of family residence”.

In divorce or separation from bed and board proceedings, or when dissolving a civil union, you can have your spouse’s assets seized before judgment if you are entitled to a share in these assets under your matrimonial or civil union regime. This is generally the case with RRSPs, which form part of the family patrimony. Their accumulated value during the marriage must be divided among the spouses, except in certain situations.

You can also have property you own that is in your spouse’s possession seized before judgment (for example, your work tools and personal effects). In such cases, the other spouse is asked to return the property in question to the owner rather than holding onto them throughout the proceedings.

Seizure before judgment is a special measure that is not required in every case. A lawyer can advise you on this subject, and prepare the required documents to ask the court for a seizure if needed.

I’m afraid my spouse will max out my credit card or empty our joint bank account. How can I protect myself?

If you are the one responsible for paying for the credit card used by your spouse, you can contact the issuing institution and cancel the card so your spouse can no longer use it.

Each account holder is generally deemed to own an equal part of the money in a joint account. You can withdraw half the money in the account and ask that it be closed if your spouse is threatening to empty the account, or if you seriously believe he will do so. Contact your financial institution for specific information about your account.

Still, you must act carefully. For example, make other arrangements to pay your hypothec (mortgage) if your payments are automatically deducted from your joint account, which is often the case.

Make sure your actions are interpreted as a means of protecting yourself against potential abuse, and not as “cutting off” your spouse’s means of living. Once again, it may not be wise to add fuel to the fire.

To learn more, consult the Infosheet entitled Main offences against property.