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Superior Court - Family Matters

In Quebec, the Superior Court (Family Division) has jurisdiction - that is, it's permitted by law - to hear requests for divorce, separation from bed and board, annulment of marriage, dissolution or annulment of a civil union, child custody, and disputes over support payments.

When granting a divorce or dissolution of a civil union, the Superior Court must also decide on accessory measures, such as the division of the family patrimony, child custody, access rights, and support payments.

What happens if one of the parties lives outside of Quebec? The Superior Court still has jurisdiction, or authority, to settle the family dispute if one of the spouses is residing in Quebec when the proceedings begin. In the case of divorce or dissolution of a civil union, the spouse must have resided in Quebec for at least one year.

In child custody cases, the Superior Court will hear the dispute provided that the children reside in Quebec. In rare situations, the court can refuse to hear a case if it feels that the judicial authorities of another province or country are in a better position to settle the litigation.

Where a claim relates to adoption or to child protection under the Youth Protection Act, the Court of Québec's Youth Division has exclusive jurisdiction.

Please Note

The rules presented in the section entitled Step-by-step guide to procedure summarize the rules applicable to judicial proceedings filed as of January 1, 2003. However, the text is not a detailed explanation of every single step a file may go through before a judgment is rendered.

Please also note that the peremptory (mandatory) time limit of one year only applies to proceedings commenced as of July 17th, 2004.



Judicial characters and concept

Judge

When I started practising as a lawyer, I was what they called a “generalist”. But with the coming into force of the family patrimony provisions in 1989, I became a specialist in family law and devoted myself to it for the last eight years of my practice. What makes this field of law so interesting is that it brings issues from many other spheres into play: finance, successions, contracts of all kinds, and more. It takes a lot more than good common sense to understand all the rules.

When I was appointed a judge, I felt a great deal of pride, but tinged with a little bit of anxiety. I was conscious of the enormous responsibilities that I would have to assume, but I couldn’t really imagine the magnitude of the job I had to do. Now I wish that there were more than 24 hours in a day! You see, I not only sit in the Family Division but also in the other divisions of the Superior Court: Civil, Administrative, Bankruptcy. Between trials, conferences and continuing education courses, I participate in many committees that try to make improvements to the legal system. I regularly give speeches before different groups and associations. Add to that my deliberation – the time that I have to devote to consider cases that I have heard and to write my judgments – and you can see that my days are full.

My functions vary depending on the circumstances. For example, during a settlement conference I become a facilitator: I try to help people formulate their objectives, clarify the reasons behind their demands and find common ground for the resolution of their disputes. I am conscious of the fact that sitting at a table in my presence might be intimidating for the parties, but, at the same time, this encourages honest discussions and realistic demands, especially since everything that is said during this conference is confidential. The lawyers participate actively at the conference by helping their clients express themselves and by suggesting ways to resolve the case.

When I preside at a hearing, my role is more to ensure that it runs properly and that the proceedings are fair. One of the most difficult aspects of my work happens during trials on child custody: I sometimes have to “choose” between two good parents because of the specifics of their case. Before their separation they exercised parental authority together and I believe that it is important for the children to maintain this link with their parents after separation as well. I therefore take the time to explain to the parents that while I can only award custody to one of them, the other will keep his parental rights. I also make sure to give the non-custodial parent ways to play an active role in the education of the child.

If I have to hear a child’s testimony, I usually ask his parents to leave the courtroom and I have the lawyers take off their robes (I take mine off too), so that the child will feel less intimidated. I realize sometimes that, without actually lying, the child has been strongly influenced by one parent or the other. This shows in his attitude, what he says, his choice of certain words… I take this into account in my decision. In addition to the child’s testimony, I must weigh many other elements, such as his age and maturity. I also have to take into account the parenting abilities of each party, their relative roles in the child’s life when they all lived together and since the breakup, their lifestyles, etc. When the child has his own lawyer, I pay particular attention to the lawyer’s suggestions and recommendations because she has been able to meet the young client and speak with him, often several times.

Family law must adapt to the constant evolution of society. This is a challenge that judges, like everyone else involved, try to meet every day. This fascinating, demanding profession brings me great satisfaction. At the end of a case, I always hope that my decision will be well-received by the parties and that it will allow them to have a good future.



Recording

Every courtroom is linked to the courthouse’s central audio recording system, which consists of a network of microphones, tape recorders and speakers. The role of this system is to make recordings of each hearing, which are then available to judges, lawyers, journalists and the public. To do this, two independent systems are used at the same time – one makes a recording of each individual hearing, and the other makes a master recording.

The individual recording system is made up of a series of tape recorders, each of which is linked to a single courtroom. The court recorder starts the individual tape at the moment when the clerk of the court telephones him to say that the hearing is beginning. He stops the recording when the clerk lets him know there is a break in the hearing or that it has ended.

The master recording is a backup copy in case the individual system doesn’t work properly. The sound quality of this system is not as good as the individual system, but it allows the recording of sound in 20 courtrooms at once. It starts in the morning as soon as the courthouse opens, and doesn’t stop until the last hearing of the day ends.

Because the master system is constantly recording, private conversations, such as those between lawyers and their clients, may be picked up on it. For this reason, no one may listen to the master recording without the permission of the Chief Justice of the Court. This prohibition even applies to the court recorders.

Let’s come back to the individual recording system and how it can be used. Using the speakers in the courtroom, the judge and the people in the room can hear what had been said earlier in the proceedings, if needed. This can be useful when a witness says something and denies saying it a moment later. The clerk can rewind the tape to the right place at the request of the judge. Then, the court recorder plays the tape recording on the speakers.

In addition, the tapes are available at a certain cost to anyone who is interested. For example, sometimes journalists come to listen to a trial that they couldn’t attend in person. That being said, the public doesn’t have access to recordings of cases that happen in closed hearings, like those of the Family Division of the Superior Court, or those of the Court of Québec, Youth Division.

To use this service, all that is necessary is to give the date of the trial, the room number and the file number to the attendant responsible for the recordings at the courthouse. It is even possible to ask to hear exactly what was said at a specific time because there is a track that records the time on the tape.

It is also possible to obtain a written version of the recording. This is called a transcript. The tape is sent to an official stenographer who types out what is heard on the tape. This rather costly service can be useful when a person is involved in several legal proceedings related to the same events. For example, a person may be sued over a contract both in Small Claims Court and before a criminal court. During the criminal trial the person might say that the cat was red. In the Small Claims documents she said that the cat was blue. It could be useful to show the judge there are two versions of the story, in order call this person’s credibility into question.

If the recording system didn’t exist at the courthouse, the lawyers would have no choice but to hire an official stenographer to ensure that everything said during the trial was properly recorded. In fact, this was the method used in the past, before someone had the brilliant idea to install a tape recording system



Court usher

I am the most senior court usher at the courthouse. Twenty-four years of service! People often ask me what exactly I do at the court. So here you have it – a little overview of my role during a trial.

The word “usher” was originally used to describe a servant who was in charge of doors and allowing people to pass through them. But I’m not just a doorman! One of my responsibilities is to make sure that the courtroom is ready for the trial. For example, I have to make sure that the judge, the lawyers, and the parties have water available to them during the proceedings. If the court file is large, I am the one who transports it from the judge’s chambers to the courtroom. In some important cases, I have seen files that filled many boxes. I also make sure that any law books the judge will need are handy.

Once the room is ready, all we need are the lawyers, the parties and the judge. It’s up to me to coordinate everybody, as the judge only makes his appearance once everyone else is present and ready for the trial to begin. When it’s time to begin the proceedings, I have to go find the lawyers if they are not already in the room. Generally, they’re not too far away, waiting either in the hallway or in one of the nearby conference rooms. I must ensure that only those people authorized to be in the courtroom are present. As a rule, hearings in the Family Division are held in camera, that is, they are closed to the public. However, lawyers, even those not representing any parties involved in the case, may remain in attendance.

The hearing usually starts on time. The judge may nevertheless delay it to allow the parties time to negotiate an out-of-court settlement. In such a case, I act as the messenger and let the judge know how the negotiations are going. If the parties come to an agreement, everyone will meet in the courtroom where the judge will ratify the settlement by pronouncing a judgment that is in line with it. On the other hand, if no settlement is reached, the trial goes ahead as planned.

I make sure that decorum is respected in the court. When the judge enters, I ask everyone to stay quiet; once the judge sits down, I pronounce the famous line, “Court is now in session.” I then invite everyone to take their seats. During the trial, I often have to spend long hours seated and motionless. I spend the time listening to the testimony and to the lawyers’ arguments, while keeping an eye out for situations that may require my services. I might be called to go photocopy documents, to meet witnesses waiting in the corridor or, in hearings that are closed to the public, to ask people other than the parties or lawyers to leave the courtroom.

In my work, it is important to exercise a great deal of discretion. If I am ever assigned to a case that involves people I know personally, I ask another court usher to replace me. I am well aware that it’s difficult and intimidating enough to find yourself in court, never mind also having to tell your story in front of an acquaintance.

Having attended so many trials during my career, I have picked up a lot about the law, but I have also learned about people’s lives and about human nature, in general. In the first few months of my work, I remember being quite affected hearing a woman recount how her child had died. I have listened to many sad stories, but I have also seen some pretty crazy situations.

So there you have it, that’s my role in court. The court usher is in some ways the person who makes the whole thing work. Discreetly, he makes sure everything is in order so as to make life easier for the judge, lawyers, witnesses and parties.



Court clerk

They also call me the clerk or the legal secretary. Someone once asked me the origin of the word “clerk.” I told him that it was derived from the word “cleric.” During medieval times the clergy were some of the few who could read and write, and so were often employed to do bookkeeping and other similar work. Does this give you a hint about my job?

I work alongside the judge. I was his secretary when he was a lawyer and I followed him here when he was appointed. Part of my work involves writing his correspondence, typing his judgments, taking his phone calls and organizing his schedule – in short, all the tasks that are assigned to a judge’s secretary. My training as a legal secretary helps a lot for this aspect of my job. The other part, really the essence of my role as a court clerk, I had to learn on the job.

It is not exaggerating to say that my role as court clerk is indispensable during the trial. I am the one who takes notes for the judge so that he can devote all of his attention to the lawyers and the witnesses. Even if I usually work for him, I am occasionally assigned to other judges. Today, for instance, I am the court clerk in a case presided over by another judge, who, while extremely polite, is very fussy about courtroom decorum. He also speaks very quickly when rendering decisions during the trial, to the point where I have had to ask him to slow down because I am sometimes unable to keep up when taking my notes. Like most court clerks, I wish I could remember my shorthand. But it’s not the end of the world, as I can always use the tape recording of the hearing to listen to what the judge said a second time.

A typical day as a court clerk begins with administrative tasks. Following that, I make my way to the courtroom with the file for the case that is to be heard. When there are many cases scheduled for the same day, I post a list at the entrance to the courtroom or I send a copy to the lawyers to let them know the order in which the cases will be heard. When the judge arrives, I ask by telephone that the audio recording be started. Then I formally open the proceedings by stating the number of the case, the names of the parties, and by asking the lawyers to identify themselves.

Once the hearing begins, I try to be as discreet as possible for the benefit of the lawyers, their witnesses, and the judge. I may look like I’m twiddling my thumbs, but don’t be fooled: I am listening attentively to everything that is being said in order to record the minutes of the hearing. Sometimes I interact with the witnesses and lawyers; this is the part of my job that I enjoy the most. At the request of the lawyers, I call the witnesses to the stand and have them sworn in. I am also the one who collects the documents and exhibits of evidence submitted to the court record by the lawyers. I write a reference number on each of these, which I record in the minutes of the hearing, and I later hand them over to the judge.

The minutes of the hearing, which I keep mentioning, are a series of forms that I could probably fill in with my eyes closed because I know them so well. I take note of the principal phases of the trial, such as the examinations and cross-examinations, the names of the witnesses, and the arguments of each lawyer. I also record each motion submitted to the judge and each objection raised by the lawyers, as well as the decision rendered by the judge. These minutes come to form a kind of roadmap of the trial. They make it easier to find particular parts of the trial on the audio tape recording, as the name of every speaker and the exact time at which he or she began speaking are recorded.

I have been doing this fascinating job for 10 years. During this time, I have seen all kinds of trials. Fraud cases, divorce hearings, disputes between multinational corporations; believe me, I’ve seen it all! So there you have it: that is what I do as a court clerk. It is definitely a job that requires a great deal of precision and attention to detail.



Defendant

My wife and I hadn’t been getting along very well for a few months, but I didn’t think that she was seriously considering a divorce. So it was a shock when a bailiff rang at my door to hand me a copy of a divorce declaration and a copy of a motion for provisional measures. A work colleague suggested that I consult the lawyer who represented him in his divorce: I called her right then and there. She made an appointment with me for the next day. Since meeting with her, I have felt more comfortable. At the meeting, she listened to me attentively, read the proceedings, asked me questions and took lots of notes. She explained the contents of the proceedings to me, as well as the phases in a divorce case. She even talked with me about the possibility of reconciliation! At that point, I didn’t really know how to answer… After thinking about it, I realized that my relationship had been going downhill fast and that maybe it would be better to bring it to a close.

My lawyer talked about the available ways to help me and my wife to agree on the consequences of our breakup. I agreed to go to family mediation, especially since we are entitled to six free sessions. Finally, my lawyer assured me that she would communicate with my wife’s lawyer to notify him that she was representing me, and to begin negotiations. Coming out of her office, I understood the situation better and was reassured by the fact that an experienced lawyer had taken on my file.

A few days later, my lawyer told me that my wife had also accepted to try mediation. This is how we both found ourselves in the office of an accredited mediator. At the first meeting, the mediator told us about his role and how the mediation would unfold. He insisted on the confidentiality of the process and on our right to consult our lawyers as needed. We finished by agreeing on almost all points, except the question of custody of our son. Since our separation, my wife and I have shared custody 50-50: our son spends one week with his mother and the next week with me. He seems to have adapted very well to the situation, despite the distress that our breakup caused him.

But now my wife’s employer has offered her a higher-paying job outside Quebec. She has always wanted to have this kind of experience. I don’t exactly blame her for taking the position, but one of us will have to be separated from our son and I don’t want that. Obviously, she is asking for custody so that she can bring our son to live with her. But I am asking for him to stay with me, which would avoid the difficulty of having to get used to a new country and social sphere. Plus, there will be the high cost of transportation to pay if he is to continue having contact with both his parents and we don’t agree on how these expenses should be shared.

When my lawyer suggested that another lawyer be chosen to represent our son, I hesitated at first because of the extra fees that would be charged, but, in the end, it was a good idea. This way, our son was able to confide in an independent lawyer who would help him at the trial. I believe that our son would have preferred not to have to choose between his two parents and that he is torn by this. I try as much as possible not to talk to him about it, but I can see that it troubles him. I am happy that he is able to talk to his own lawyer.

My lawyer prepared me for the trial by explaining what would happen during the hearing. In addition, she gave me several pointers on the way I should address the judge and how to answer questions that she and my wife’s lawyer would ask. All the same, I can’t wait until all this is finished and the court has made the decision that it believes to be in the best interest of our son. Whatever happens, I will always be his father and his mother will always be his mother, even if she and I no longer form a couple. Divorce doesn’t change that…



Plaintiff’s lawyer


The plaintiff retained my services to guide her through the steps of seeking a divorce. We now find ourselves at the final step, the trial at court. Despite my efforts and those of the other lawyer, and even with family mediation and negotiation, it was impossible for us to arrive at an agreement on all the consequences of the breakup. We have to ask the court to decide the points in dispute. The most important among these is the question of custody of the parties’ son.

My work began with the first meeting with my client, who explained the difficulties in her relationship and told me about her intention to divorce. I talked with her about the possibilities for reconciliation and then I told her about the consequences and objectives of divorce law, as well as the services that could help her find common ground with her husband. Often we forget that a divorce has serious consequences in people’s lives; this is why it is important not to take it lightly. I also talked with my client about the available tools, like negotiation and mediation, that might allow her to arrive at a settlement on the details of the divorce out of court.

When I prepare a divorce declaration, I take meticulous care in presenting the facts, motives and requests of my clients. One of my duties is to give a clear picture to my clients, meaning that I must inform them about the state of the law and give them my legal opinion on how realistic their expectations are. People are sometimes disappointed, but it is probably better to experience this in the lawyer’s office than to lose at trial!

The trial is the culmination of a long process of research, exchange of proceedings, discussions with my clients and the other lawyers, examinations, requesting expert reports, etc. When I enter the courtroom, I know my file like the back of my hand. My objective is to explain the facts to the judge as clearly as possible. This work requires concentration at all times. I take many notes to adapt my arguments to the evidence submitted.

Don’t believe that I can win a case by relying only on my abilities as a speaker! Maybe because they see it in movies and on television, many people believe that court argument is just a debating contest upon which the result of the trial depends completely. This is false: the judge must make a decision not based on the performance of the lawyers, but based on the facts presented before him and the law applicable to the case.

I believe that what makes family law cases unique is the highly emotional state of the parties. Anger, sorrow, anxiety and a sense of failure are reactions that we often see, and they are normal under the circumstances. Even though I am not insensitive to the emotions felt by my clients, I have to distance myself from them in order to advise and represent my clients. Believe me, it isn’t always easy – especially when the dispute concerns their children.

Very often, the conflict between the parties subsides over time and an agreement that at first seemed impossible becomes a realistic option. This is why most family law cases settle out of court. I try to make use of all the resources that encourage this, including a settlement conference facilitated by a judge. I am happy when my efforts result in a fair agreement, but if this is impossible, I work to represent my clients as well as I can within the limits of the mandate that they have granted me, using all of my knowledge and experience.

I think that this short summary explains my role as the plaintiff’s lawyer well. What I like the most about my work is that it is never dull and there is a lot of human contact. It is my duty to complete my task with integrity and professionalism without giving my clients false hope. I represent my clients with determination so that the result will be as satisifactory as possible for them.



Defendant's lawyer


My client called me the day he received a copy of a proceeding introducing a divorce application. The first thing I do in such a case is obtain certain information from the client (like the exact nature of the proceeding) and I arrange to meet him in person soon after. At our first meeting, I must tell the client about the consequences and objectives of divorce law, as well as the services that could facilitate reconciliation. If reconciliation between spouses is impossible, I then have to talk with my client about ways to help them come to an agreement on the consequences of the divorce.

These are often difficult times for my clients and the prospect of appearing in court worries them. I explain the various steps in the file to them and we identify the most important issues. This usually helps to reassure them. I believe it is important to deal with each subject on its own: it is important to avoid linking financial questions to those of child custody, for example. Taking care of the problems one by one, we design a solution for each of them and this way we reduce the number of issues in dispute.

It is not easy to tell a client that the law can’t necessarily provide him with what he wants. For example, a client who wants to ask for shared custody of his son to avoid having to pay child support, will be very disappointed by what I have to say if his income is greater than that of the mother. This is because even if his request for custody is accepted, he will still have to pay support (adjusted as a consequence). Beyond the obligation to advise my client well, I also must represent him – even if he chooses a path that goes against my advice. However, when I am convinced that the client’s expectations aren’t realistic, I may refuse to follow certain instructions.

My work takes patience and precision. I have to be sure to understand the situation well, take the time to think about it, and do the necessary research to cover all the possible aspects of the case. My client will live with the consequences of my advice, so I have to weigh all of the pros and cons carefully before giving it to him. Generally, the client would like the dispute to be resolved very quickly, but it is necessary to go through the steps in a file one at a time. Also, the passage of time often helps spouses to overcome their difficulties communicating and this encourages negotiation and settlement.

In family law cases, I represent clients who are plaintiffs as well as defendants. Even though every case has its own particularities, the same questions are regularly debated in this kind of dispute. To have a good understanding of the file as a whole, I not only have to keep my client’s point of view in mind, but the other party’s as well. It is impossible for me to predict the result of a trial: decisions don’t come from me, but from the judge. So I think it is necessary to prepare my client for the possibility that the judgment that is given might not favour him on every point.

Family law brings me great satisfaction when the result obtained, whether by settlement or at the end of a trial, appears to me to be fair and is satisfactory for my client. It is a field of law that affects people in their personal lives and I am proud to be able to help them get through these difficult times.



Plaintiff


After 15 years, my marriage was deteriorating more and more every day. My husband and I weren’t speaking anymore and we each have our own pastimes and circles of friends. We hardly do anything together anymore. We have even begun sleeping in different rooms. I finally realized that all that was keeping me from leaving was our son. I brought the subject up several times with my husband but nothing really changed. I went to spend two weeks with my sister to think and I came to the sad conclusion that it was time to put an end to this relationship.

I don’t know a lot about the law, which is why it seemed like a good idea for me to consult a lawyer before doing anything. I have confidence in the lawyer I met and he has been representing me throughout the process. First of all, he asked what my intentions were, went over the possibilities for reconciliation with my husband and talked about the things that I could do to come to an agreement with him about the consequences of the divorce.

I decided not to return home and to begin divorce proceedings. Because of the indifference that my husband showed every time I tried to talk to him about it, I gave my lawyer a mandate to serve him with a divorce application, so that he would understand that our relationship was finished as far as I was concerned. My husband reacted better than I expected; in fact, he recently told me that he found living together unbearable too..

Since the beginning of the proceedings, we have agreed to share time with our son, who was 10 years old at the time, equally. He would spend half his time at his father’s place and the other half with me in my new home.

On the recommendation of my lawyer, and knowing that my husband had agreed to it, I opted to use family mediation. With the help of the mediator and the advice of our respective lawyers, we came to an agreement on the financial consequences of our breakup, including the division of property. I sincerely believed that we could continue to share custody of our son, but then I got a surprise: my employer made me an offer that I had dreamed about for years – a job abroad, in a marvellous country and under great conditions.

I hesitated a great deal before accepting this offer, knowing that it would affect the custody arrangements for our son. I talked about it with my son and my lawyer. I weighed the pros and cons. I couldn’t pass it up and, after considering all of the factors carefully, I said yes.

I understand that my husband is very disappointed at the turn of events and that, for his part, our son is undecided: he wants to enjoy this exciting opportunity with me, but he also wants to stay with his father and would rather avoid having to move away from his friends. My husband is an excellent father but I am sure that my relationship with our son is much stronger…This makes sense, since I stayed at home for five years after his birth. I am worried about missing him too much if we are separated and he told me he has the same concern.

To avoid upsetting my son unnecessarily, I try not to ask him any questions. He has his own lawyer with whom he can be honest about his wishes and his worries. She seems to have carefully explained her role and what will happen in court to him. As a result, he doesn’t seem too worried about the prospect of appearing in court.

My lawyer also described to me in detail how the trial would unfold. I have spent several hours in her office preparing my testimony. We want to be sure that the judge understands my position and my arguments. I hope that the decision will come quickly because I have to leave in two months. The urgency of my situation is one of the elements that we will explain to the judge.

Deciding to seek a divorce is far from easy. To do so is to resolve to turn an important page in one’s life. All the same, when we have children we cannot make all these changes without thinking about their well-being and needs. I sincerely think that the new life waiting for us could make me and my son happy. Now we just have to convince the judge!



Child-witness


I’m 11 years and 3 months old. Soon I’ll be going to the courthouse because my parents are arguing over whether I will stay with my father or go with my mother when she moves to another country. I tried to hide my sadness when my mother left the house, but I knew that it wasn’t working between her and my father anymore. Luckily, they decided to share custody fifty-fifty, so I see them both the same amount. At my school, lots of kids’ parents are separated. Sometimes there’s a big fight in their family, like with my best friend who hasn’t seen his father since fourth grade. I’m happy that it was different at our house. My father lives three blocks from my mother. One week I live with him, the other with her, so I have two houses. If I want to, or if I forget something, I can go to my other house anytime. It’s cool!

But soon it’s all going to change. My mother explained that her boss gave her a promotion, but that she will have to live and work in another country, far away. She showed me the place on the internet and in some books. I’d really like to go with her because it’s really different there, and it’s very beautiful. Plus, I’m used to living with my mother because when I was little, she stayed at home with me. She is less strict than my father, too. But I do cool stuff with my father, like playing basketball, building a doghouse or fixing his car. It’s fun to be alone with him, just us guys.

I have lots of friends and some are even girls. Of course, if I leave with my mom, I’ll make other friends, but I’m afraid I’ll miss the ones I have here. School won’t be a problem because I’m going into secondary school soon, so I would have to change schools whether I stayed here or not. Since my mother’s company pays for children’s studies in the other country, I’d go to a private school there, in English.

Sometimes I have trouble sleeping when I think about all this. I talked about it with my lawyer. I was pretty surprised when I found out I had my own lawyer: I didn’t know this was even a possibility. The first time I went to her office, I was a little shy. She promised me she wouldn’t tell my parents anything I said unless I gave her permission. I met her often and she reminded me that I could do things like use the internet. It’s true that even if my mother or father lives far away, we can write to each other every day and even see each other using a webcam. My lawyer told me that I didn’t need to choose between my mother and father and that it was up to them to agree on where I would go, or, if they couldn’t, for the judge to decide. Good thing, too, because I love them both. She also said that if I left with my mother and it didn’t work out in the other country, I could come back. In other words, I won’t have to stay there forever!

My lawyer will go in front of the judge with me and she will ask me some questions. All I will have to do is answer honestly, tell the truth. Other people might ask me questions too, like my mother’s lawyer, my father’s lawyer, or the judge. I hope that I don’t get mixed up. If that happens, my lawyer says she will help me.

It still makes me a bit nervous. I can’t wait for it to be over. Of course, I would have preferred that my parents stay together, but, well, that’s not possible. They don’t love each other anymore. We’ll see… If I go to live with my mother, I will come back to be with my father as often as possible, like in the summer, over holidays and during school vacation. Same thing if I stay with my father: I will go see my mother in the other country.



Child’s lawyer


I have been a lawyer specializing in family law for 15 years and I often represent children at the Superior Court. As a general rule, I am appointed to represent a child at the suggestion of the parties’ lawyers in a family law case, but the judge might also appoint me herself. In all cases, the goal is to ensure the protection of the child’s interests. Of course, a young person can contact a lawyer himself and ask to be represented, but when I receive such a request I have to be sure that neither of the parents is trying to gain an advantage from it.

It’s normal for a parent to try to influence his child, but sometimes some of them go a little too far. I occasionally find myself before a young person who is standing up for one of his parents. I try to present the situation to him from another angle, so that he realizes that there are two sides to every coin. These efforts often work, allowing for proper negotiations and a settlement between the parties. Sometimes, however, my attempts are in vain and the child persists in wanting to take his mother’s or his father’s side. In such a case, my role as lawyer can vary depending on the age and the maturity of my client. If he is able to understand all the issues of the case (generally, this is the case for children 12 years or older), I have to tell the judge the child’s wishes, even if I am convinced that they are not necessarily in his best interest and more in the interest of the overly influential parent. If the child is younger, I have to defend what I believe to be the best solution for the well-being of my client, according to the evidence presented in court.

Sometimes a child will tell me a secret that he asks me not to tell to his parents. I remember, among others, a little girl who was sexually assaulted by her stepfather and who asked me not to tell her parents about this situation. She agreed to let me tell the judge, though. So, I spoke to the judge in the absence of the parents and their lawyers and explained the problem to him. I am certain that he took it into account in making his decision, but he didn’t mention a word about it in his judgment. Of course, he had many other reasons to decide the way he did.

The courthouse is not a place where children exactly dream of being! I do everything in my power to keep them from having to testify. When there is no way to avoid it and my client is called to the witness box, the parents are asked to leave the courtroom while I stay at his side. Presently I am representing an 11-year-old boy who is very articulate and mature. He understands all of the aspects of the problem. At our first meeting, I could tell he was on the defensive, which is quite understandable. I was soon able to establish a climate of trust that allowed him to share his thoughts and feelings. Like many children, his first wish was for his parents to reconcile; his second, that he not have to choose between his father and mother; his third, that the dispute end as quickly as possible. All this made perfect sense to me. I reassured him on at least one point, telling him that he would not have to choose between his father and his mother. His parents need to decide which of them he will live with. If they cannot, then it will be for the judge to decide. I also took the time to explain to my client how the hearing would work. What matters most is that he tells the judge the truth and speaks from his heart.

I am always awed to see the maturity and generosity that children display during events as difficult as the separation of their parents. Most parents want happiness for their children, but they sometimes need advice to make the right decision about custody. One part of my role is to provide ideas to help their reflection along. If, in the end, it is a judge who must decide, I know that he will pay special attention to what I say in my client’s name. It is a role that demands rigour, empathy and sensitivity, and I am honored to be able to fill it regularly.



The proceedings, step by step

This section is meant to introduce you to the main steps surrounding the presentation of a file in court. The idea is not to turn you into a legal expert, but simply to make sure you’re informed!


1. Introducing a claim

The motion

The document that allows a case to be initiated in court is called a “motion”. The motion sets out the reasons why a claim is being made and the accessory measures desired (such as child custody, support payments, division of the family patrimony, etc.). The “plaintiff”, or her attorney, prepares the motion. The other spouse is called the “defendant”. The motion should identify the spouses and their children, and, if necessary, indicate the date of marriage, the matrimonial regime, and where each spouse lives. The motion must also include the reasons for starting the proceedings, and advise the defendant of the time within which he has to appear to contest the claims. To start proceedings and open a file with the court, the plaintiff must pay the applicable fees. The motion is then served on the defendant. This means that a bailiff will deliver a copy of it directly to the defendant.

Presenting a motion

A notice must be attached to the motion, indicating the date on which it will be presented before the court. If the document is served on the defendant in Quebec, the motion must be presented to the court after at least:


Please note: The deadline for presenting a motion differs from the deadline to appear (see below). Therefore, the defendant must pay particular attention to the dates and deadlines contained in the notice.

The joint motion

If the spouses are in agreement on all the consequences or effects of their separation, they can present a joint motion. In this case, the spouses should file a copy of a signed agreement at the same time as the motion, as well as all other required documents, such as birth and marriage certificates, the marriage contract, and the Child Support Determination Form.



2. Peremptory time limit: One year

Counting from the day the defendant receives a copy of the motion (date of “service”), all stages of the case up to inscription (described below) must be completed within one year. This time limit is “peremptory”, which means that it is mandatory and cannot be extended without the permission of the court. A court will only extend the deadline if it is justified by the complexity of the case or by special circumstances, or if it is impossible for one of the parties to act within the one year limit.



3. Appearance

If the other spouse wants to contest one or more points in the motion by making a written defence, he or she must make an appearance.

Written or verbal appearance

Generally, the appearance must be made in writing. However, it may be made orally in the following cases:


To appear in writing, the defendant must produce a document called an “appearance”, signed by himself or his lawyer, indicating his intention to present himself before the court to argue his case. If the appearance is signed by a lawyer, that lawyer will be responsible for the case, and all subsequent communication and procedures should be addressed to her. Normally, a lawyer may not communicate, either verbally or in writing, with another party who is also represented by a lawyer. However, the parties themselves may speak to each other.

Time limit to appear

The defendant must make an appearance within a certain time period beginning the day he receives a copy of the motion (called the “date of service”). If the document was served in Quebec, the time limit is 20 days for motions for divorce, separation from bed and board, and dissolution of a civil union. It is important to note that the time limit to appear expires before the motion can be presented in court. For example, the defendant must make his appearance within 20 days of being served the motion, and the motion can’t be presented in court until 40 days after the service.

For motions between de facto spouses, for provisional measures, and for modifications to accessory measures, the appearance is usually made on the same day that the motion is presented. In these specific cases, the defendant’s appearance may be made orally.

Judgment by default

If the defendant does not appear within the time limit, the plaintiff can request that the court render a judgment by default. The plaintiff makes this request when she presents the motion. A judgment by default is made without notifying the defendant. The court renders this judgment if it is satisfied with the evidence submitted. In most of these cases, the judge studies the file in her office and grants the plaintiff’s requests. This is done without hearing arguments in court, unless the judge feels that a hearing is necessary. If a judgment by default is rendered, the defendant will normally have to abide by it. The defendant may have the judgment revoked or annulled if he can show that he was prevented from appearing to defend himself, for one of the exceptional circumstances provided by law.



4. Case management

Case management by the parties

Before presentation of the motion, the spouses must negotiate a timetable for the proceedings. This timetable is basically a calendar of the different stages in the case, all of which must be completed within a one-year time limit. The agreement between the spouses will affect such aspects as the preliminary exceptions, safeguard measures, the procedure and time limit for communicating documents, examinations on discovery, expert appraisals, and the deadline for filing a defence.

Case management by the court

If the spouses cannot agree on a timetable, the court can establish one when the motion is presented. At this stage, the court has a number of options for how to proceed. The judge can render a judgment by default if the defendant does not appear. Or she can proceed to a hearing of preliminary exceptions and render an order to safeguard the rights of the parties. In addition, she can determine how to simplify or speed up the procedures and shorten the trial. In fact, from this stage of the file onward, the court plays an active role in managing the case. The parties must comply with the court’s decisions at this stage, or face sanctions.



5. Family mediation

In all family proceedings where the interests of children are at stake, the parties must attend an information session on family mediation. The court will not hear the case until the parties have been to the session. However, a spouse may be exempted for serious reasons; for example, because one is a victim of conjugal violence, because there is unequal bargaining power between the parties, or because of the psychological state of one of the parties following separation. To obtain a certificate of exemption, a spouse must inform an accredited mediator of the reasons for the request. These reasons are kept confidential.

After attending the information session, the parties are free to either use mediation or not. Each party can ask the court to draft safeguard measures to settle an urgent problem (for example, temporary custody of children) while mediation is underway. The family mediation service pays the fees of an accredited mediator for a given number of sessions only in cases where children are involved.



6. Provisional measures

In proceedings for divorce, separation from bed and board or dissolution of a civil union, many issues such as child custody, access rights, support payments and the right to use the family residence require a temporary solution while awaiting the final judgment,. Each party can request the court to render a provisional judgment in those areas that need to be resolved in the interim period. The plaintiff can request a provisional judgment in the same motion as the request for divorce, separation from bed and board or dissolution of a civil union. Either party can also request a provisional judgment in a separate motion.

A request regarding provisional measures must be accompanied by a notice of the presentation date and, if necessary, other supporting documents. The motion must also be served to the opposing party. When the motion is presented, the court sets the date for the hearing if all the required documents have been filed and the parties are ready to proceed. The additional documents that may be necessary, depending on the case, are:


Please note that the request for provisional measures can be presented before the expiry of the time limit to appear. The request can be presented 10 days after the motion is served, while the deadline to appear is 20 days. It is therefore really important to read the procedures carefully and to pay particular attention to the attached notice of presentation.



7. Order to safeguard the rights of the parties

Also called an “interim judgment,” this order can be rendered at the request of either spouse. For such an order, the situation should be of such urgency that it cannot wait for the judgment on provisional measures or for the parties to come to an understanding through negotiations or mediation. The issues most frequently at the centre of these orders include child custody, access rights, support payments, and use of the family residence.

Normally, a request for this order is made on the same day as the presentation of a motion for provisional measures (or a motion for child custody and support payments between de facto spouses). The file is then referred to a judge who evaluates the urgency of the situation based on a review of the proceedings contained in the file and any testimony of the parties. Safeguard measures are a short-term tool aimed at protecting the rights of the parties and children prior to the final judgment. In a later decision, the judge can either confirm any agreement or settle contested issues after hearing the whole case.



8. Examination on discovery

Either party can question the other about any statements made in the proceedings filed with the court. This is called an “examination on discovery.” Usually, this examination takes place at the courthouse in a room reserved for this purpose. There is no judge present, but everything is tape-recorded and transcribed by a court stenographer. If the party being questioned is represented by a lawyer, he also attends the examination. The questions posed during the examination help clarify the facts listed in the proceedings and in any related documents. The examination also allows the defendant to prepare a defence or to consider the possibility of a settlement with more of the facts on the table.

In cases where the defence must be made in writing, once it has been submitted, each party can proceed with an examination on discovery. The questions at this stage can relate to all the facts of the case and any contested issues, as long as they are relevant to the file. If the defendant has already held an examination before drafting her defence, she must obtain authorization from the judge before questioning the plaintiff a second time. Each party may also question any third person, such as the other party’s employer. The questioning takes place in the presence of both parties and, if they have representation, their lawyers.

The purpose of the examination on discovery

The party who carried out the questioning can choose to file a transcript of the examination session (transcribed by the stenographer), either in whole or in part, with the court. The questions and answers then form part of the evidence that the court must consider. It is therefore important to prepare yourself well in advance for an examination on discovery! The answers have the same impact and relevance as if they were made before the judge when the court is in session.



9. Appointing the child’s lawyer

Either party can ask the court to nominate a lawyer to represent a child or children involved in the proceedings. This request is usually made as a motion and can come at any stage in the process. If the motion is granted, the court sets the lawyer’s fees and who will pay those fees. If the child has reached an appropriate age and level of maturity, she can retain the services of a lawyer herself. The child’s lawyer then submits a document called an “intervention” and the child becomes a party to the court proceedings.

By its own initiative, the court can decide that it is necessary for a child to be represented by a lawyer if that child’s interests are at stake. Once appointed, the child’s lawyer may intervene at all subsequent stages in the case where the interests of the child arise, including in an eventual trial.



10. Defence and cross demand

In General

In a defence, either written or oral, the defendant spouse responds to the allegations (facts and arguments) contained in the plaintiff’s motion. The defendant may admit or contest any of these facts or arguments, or state that he has no knowledge of them at all. In addition, the defendant can set out the facts and arguments that support his position. In family matters, this procedure will usually include a section where the defendant outlines his claims regarding accessory measures. This section is called the cross demand. For example, if the plaintiff requests custody of the couple’s child, the defendant can contest this request and submit a cross demand for child custody herself.

Oral or written defence

The defence must be made in writing in the case of divorce, separation from bed and board, separation as to property, nullity of marriage, determination of filiation or of the surviving spouse's compensatory allowance. Unless the court or the parties decide otherwise, the defence is normally presented orally.

When the defence is in writing, it must be served on the plaintiff and filed with the court.

Time limit to produce the defence and cross demand

In most cases, the defence must be produced within the time limit established in the timetable. An extension of the time limit is possible, with either the consent of the plaintiff or the authorization of the court. However, the parties must keep in mind the mandatory one year time limit for the entire process.

Judgment by default to file a defence (or by default to plead)

If the defendant fails to file a defence within the prescribed time limit, the plaintiff may obtain a “judgment by default.” The plaintiff has to produce an “ex parte” inscription that must be served on the opposing party or her lawyer, as well as complete the other procedures and documents needed to render a final judgment. Once she is served with the inscription, the defendant can request that she be “relieved of her default to produce a defence” by the court through a motion outlining the reasons why she failed to act within the time limit. If she fails to do so, or if the motion is rejected, she must accept the conclusions of the judgment by default, unless she can have the decision revoked because she was unable to produce a defence for a serious reason provided by law.



11. Response and inscription

The response allows the plaintiff to respond to the statements set out in the defence. The inscription is the document used by either of the spouses to notify the court that the case is ready to be heard by a judge.

The response

The response step is optional. This procedure allows the plaintiff to respond to statements made in the defence by adding new elements or facts to her claim. If the defence was accompanied by a cross demand, the response will include a section where the plaintiff sets out her own defence to the counter claims of the defendant. In the conclusion of the response (and the defence against the cross demand, if applicable), the plaintiff repeats how she would like the court to settle the disputed points. She can add new conclusions, if necessary. Usually, the response is served and filed at the same time as the inscription.

Inscription “on the merits”

By filing and serving this procedure, the party who “inscribes” advises the court that the file is complete and that the case is ready to be heard. The inscription should be filed along with the following other documents:


Time limit to file the inscription

Remember that the inscription must be filed within one year, unless this deadline is extended by the court for a reason provided by law.



12. Provisional roll and pre-trial conference

Simply put, the provisional roll is the court’s agenda. On the indicated date, the parties present themselves before a judge who ensures that the file is complete and ready to be heard. If necessary, the judge sets the trial date. For certain more complex cases, a judge may also hold a “pre-trial conference,” which aims to simplify and shorten the trial.

Provisional roll

Once the file is considered complete, the court summons the parties to a “provisional roll” call. The judge verifies that the case is ready to be heard by the court. If the file is incomplete, the judge indicates which documents or procedures need to be added to the file. In this case, the judge will postpone the hearing until a later date and register the file on a subsequent provisional roll. The judge can also determine how to simplify the file and shorten time limits (for example, by holding a pre-trial conference). Finally, she estimates the duration of the trial and sets a trial date.

Pre-trial conference
Once a party inscribes the case (the previous step), a judge may summon the parties to a pre-trial conference. Normally, this step is reserved for complex cases that may require several days for the hearing. The pre-trial conference allows for discussion of ways to simplify and shorten the trial, in a more in-depth manner than at the provisional hearing. During this conference, an agreement may be reached to modify certain procedures, to define the real issues in dispute, and to determine the accuracy of certain facts or documents. All decisions made during the pre-trial conference are recorded in the minutes that are passed on to the judge who will preside at the trial.



13. Settlement conference

At any stage in the file, the parties can agree to attend a settlement conference presided over by a Superior Court judge. This is not a pre-trial conference (although it can become one with the parties’ consent), nor is it a preliminary mini-trial. At the settlement conference, certain decisions can be made, the parties approve the terms of an agreement or draw up “minutes of settlement” if the meeting turns into a pre-trial conference.

As with mediation, everything said or written during a settlement conference remains strictly confidential and cannot be mentioned by anyone if a trial ensues (unless the meeting becomes a pre-trial conference). Although the judge actively intervenes to facilitate exchanges between the parties in order to encourage them to come to an agreement, her role remains different from that of a mediator. To have access to a settlement conference, the parties must simply file a short motion setting out their mutual consent to the conference and listing the contested issues to be discussed.



14. Trial

In general

At any stage in the proceedings, the parties can decide to negotiate informally and arrive at a partial or complete agreement. Therefore, a trial is only held when the parties cannot agree on one or several particular issues. If a question about support needs to be debated at the trial, each party must serve the following forms to the other party at least 10 days beforehand:


These documents are given to the judge at the trial to allow her to determine the financial situation of the parties at that precise moment in time. This is necessary because the situation may have changed since the earlier interim judgment on provisional measures.

How the trial unfolds
In family matters, the trial unfolds in camera. This means that the trial is not open to the public. The only people allowed in the courtroom are the judge, the clerk, the courtroom bailiff, the parties and the attorneys, including the child’s attorney, if required. Witnesses may also be present. The judge studies the file beforehand, and the hearing begins with the presentation of the plaintiff’s case. The plaintiff has her witnesses testify, submits her documents and other material evidence. The plaintiff must also testify. If the plaintiff is represented by a lawyer, the lawyer questions her on her testimony and also questions her witnesses. While the judge can intervene at any point during questioning, she normally only asks questions in order to clarify a point or to ensure she properly understands. In other words, it is not up to the judge to question a party’s witnesses, even if that party is representing herself. During the examination of a party or witness, the party or lawyer is not allowed to ask leading questions. That is, the questions cannot point to what the answer “should” be. A question is often considered leading when it can only be answered with a yes or a no response. Once the examination of a witness is finished, the opposing party or his lawyer can “cross-examine” the same witness, with a view towards placing the credibility of that witness in doubt or getting him to contradict himself. Leading questions are allowed during this cross-examination. Once the plaintiff declares her evidence complete, it is up to the defendant, or his lawyer, to present his own evidence, using the same rules.

The child’s testimony

If a child’s interests are at stake, the court can give that child the opportunity to be heard, as long as his age and maturity allow it. For example, a 14-year-old can request that his point of view be heard at the trial, even if he is not represented by a lawyer, and the judge must allow this. However, when the testimony of the child seems useful or necessary, the child is usually represented by his own lawyer. The child’s lawyer carries out the examination and can also cross-examine the other witnesses and the parties themselves, just like the parents’ lawyers. Sometimes the child’s lawyer, with the consent of the parties, will request that the child testify without his parents present. This is done to try to reduce the child’s stress and discomfort at having to testify. The parties can also agree to let the child’s lawyer summarize her young client’s wishes and point of view. This allows the lawyer to act as the child’s spokesperson, making it possible for the child to avoid testifying directly.

Closing address

Once the parties have finished presenting their evidence, they make their final address to the judge. This address is a summary of the facts and the legal arguments of the party concerned. The point of the address is to convince the judge that a party’s case is valid and legitimate.



15. Deliberation and judgment

Once the trial wraps up, the court must render a decision on all of the contested points. The judge may make a decision from the bench, meaning that he delivers the judgment orally on the same day as the trial finishes and in front of the parties. Otherwise, the judge can reserve judgment and deliberate, allowing himself the time necessary to render the judgment.

Deliberation

Often, the judge is not ready to make a decision immediately following the final pleadings. He might instead go to his chambers and reflect, then return to the courtroom and render a decision before the parties. When the issues raised in a case require more time to consider, the judge announces that he shall take the record under advisement. He may take many weeks or even months before preparing a judgment, which is then communicated to the parties.

The judgment

When drafting a judgement, the court must take numerous factors into account, such as:


The judgment must explain the reasons for the court’s decision and settle each of the issues in dispute. The judge bases his decision only on the evidence presented before him in the proceedings and is not required to settle the issues in the same way as they were decided in any of the provisional judgments rendered earlier in the case.

Publication of the judgment

To protect the privacy of those involved in family law cases, information that could identify them cannot be made public or diffused in the media (except in rare exceptions). If the judgment is published, the names and addresses of the people concerned will first be removed.



16. Appeal and execution of a judgment

If one of the spouses believes that the judgment contains a serious error, they can appeal the decision and try to have it changed by the Quebec Court of Appeal. If no appeal is made, the judgment takes effect 30 days after being rendered by the judge (except for decisions on child custody and support payments, which take effect immediately). The ministre du Revenu du Québec is responsible for collecting support payments and begins the necessary steps for collection as soon as it receives a copy of the judgment.

The appeal

Being dissatisfied with the Superior Court decision is not enough to warrant an appeal: it must be shown that the judge has made a mistake in assessing the law or the facts of the case. This mistake must be serious and it must have influenced the outcome of the trial. The appeal is not a second trial, even though it is sometimes possible (but difficult) to present new evidence that was not available at the first trial.

The following types of decisions can be appealed without having to seek permission of the court: judgments in divorce, separation from bed and board, annulment of marriage, dissolution of a civil union, judgments on child custody, and child support and access rights involving de facto spouses.

As the Court of Appeal does not hear any witnesses, the lawyers must submit all the evidence that was presented in the court of first instance (the Superior Court). The judge of the Superior Court is considered to be in a better position to evaluate the facts because she had the advantage of hearing all the testimony and evidence. As a result, when a party appeals on the basis that the Superior Court judge made a fact-related mistake, that party must prove that this error was a major factor in the judge’s final decision.

It is also possible to appeal provisional measures, although the Court of Appeal would only intervene in an exceptional case at this stage. This is because judgments on provisional measures are only temporary, and they do not bind the judge who makes the final decision in the case.

The appeal process is simplified in family matters: the “factum” on appeal is replaced by a written argument that can be a maximum of five pages long.

The execution of a judgment pending appeal

Executing a judgment means taking all necessary measures to ensure that the judgment is respected. When a case is appealed, the execution of the first decision will usually be suspended, unless the judge decides otherwise. However, all decisions regarding child custody or support payments automatically come into effect even if one of the parties appeals the judgment. An exception may be possible in the latter cases with the court’s permission — the party who appeals must present a motion to “suspend execution” at the Court of Appeal.

Different ways to execute a judgment

In Quebec, the ministre du Revenu executes judgments involving support payments. It does so, first, by taking the necessary steps as soon as a copy of the judgment is received. The parties can agree, under certain conditions, that support payments will be made directly between them without the intervention of the Ministre. However, if the party that must pay the support stops doing so, the other party can then ask the ministre du Revenu to step in and collect what is due. For other orders involving a sum of money (division of family patrimony, compensatory allowance, etc.), if one party does not pay voluntarily, the other can have his furniture, property or salary seized.

To do this, the collecting party must prepare a document called a “writ of seizure.” The court clerk reads the writ to ensure it is legal and then, if it is, signs it. Once signed, the writ is “issued” and grants permission to seize the property of the party who owes money under a court order. There are costs associated with this procedure and a party will need the services of a bailiff to proceed with the seizure. Be aware that there are specific rules limiting what can and cannot be seized: you cannot seize every asset of the other party, even if the judgment orders him to pay you a large sum.

If a party refuses to respect a court order on child custody or access rights, the opposing party can present a motion for contempt of court. A party can also do this for judgments for the payment of money if the other methods of execution have failed. If a party is found guilty of contempt of court the punishment may be a fine or even imprisonment.



17. Certificate of divorce

The judgment of divorce takes effect on the 31st day after it is rendered, unless the court shortens this delay. For example, if a spouse dies on the 13th day following judgment, and therefore before the divorce takes effect, the marriage is considered to have been dissolved by death rather than by divorce. This can have a great impact on the rules of succession (inheritance). The finality of the divorce is confirmed by the “certificate of divorce,” which constitutes proof of the dissolution of the marriage and the new civil status of the ex-spouses.