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:

• 40 days in the case of a motion for divorce, separation from bed and board, or dissolution of a civil union;
  
  
• 10 days in the case of a motion between de facto spouses, a motion for provisional (temporary) measures, or a motion to modify accessory measures (i.e. custody of children, etc.).

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.

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.

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:

• Motion between de facto spouses (child custody, child support);
  
  
• Motion for provisional measures (interim orders);
  
  
• Motion for modification of accessory measures (i.e., spousal support).

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.

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.

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.

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:

• The Child Support Determination Form, filled in and signed by each party;
  
  
• The declaration required of each party regarding eventual support payments;
  
  
• The revenues and expenses, as well as a statement of account, of each party, if spousal support is requested;
  
  
• The income statement of each party for the preceding year and their notice of tax assessment;
  
  
• The certificate of exemption from family mediation, or proof of participation in the mandatory information session.

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.

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.

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.

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.

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.

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:

• attestation in respect of the registration of births;
  
• a declaration for entering on the hearing roll:
  
• a declaration which states that the parties are not subject to the rules of family patrimony or their renunciation of the division of family patrimony, or a declaration by which division is not contested, or finally a completed statement of family patrimony signed by the party who inscribed the case;
  
• a declaration regarding eventual support payments, if not already filed.

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.

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.

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.

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:

• in the case of spousal support: the spouse’s revenues and expenses as well as a budget;
  
• in the case of child support: the completed Child Support Determination Form.

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.

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 evidence presented by the witnesses and the parties;
  
  
• the documents put in evidence before the judge;
  
  
• the burden of proof: family law is a civil matter, so the case is decided on a balance of probabilities. This means the judge must decide which of the opposing versions of the facts seems most likely to be true. If both versions seem equally probable, he must reject the demands of the party who had the burden of proof;
  
  
• the applicable law;
  
  
• the case law (or jurisprudence), which is the history of decisions made by higher courts on a given issue (notably, those of the Superior Court, the Quebec Court of Appeal and the Supreme Court of Canada).

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.

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.

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.