No. Unlike the claims of a married person who wants a divorce, requests made by a partner are not all heard by the same Court.

Child custody and child support

Any request regarding child custody or child support payments should be made to the Superior Court – before a judge who deals specifically with family matters.

Child custody has to do with the amount of time each parent spends with his children.

Child support is the sum of money payable by one parent to the other in order to meet the children’s needs.

Other requests

For other types of requests, partners are treated as if they were two individuals (strangers) without any family ties. Depending on each partner’s requests before the court as well as the sums of money in question, each of them must make their requests to one or more of the following courts:

• Court of Québec, Small Claims Division, and / or
  
• Court of Québec, Civil Division, and / or
  
• Superior Court - before a judge who handles civil cases.

A partner must therefore find out to which of these courts he should address his other requests.

When partners can’t agree about child custody and child support, here are the main steps followed:

1. Motion for Child Custody and Child Support, Affidavit and Notice of Presentation: This document is your official application for custody of the children and a sum of money from the other partner to meet their needs. It can be written by one of the partners or his lawyer.
   
   
2. Child Support Determination Form (often called "Annex I"), Sworn Statement Under Article 827.5 of the Code of Civil Procedure (often called an "827.5") and proof of income of the partner making the application.
   
   
3. Detailed Affidavit of the partner making the application (optional).
   
   
4. Detailed Affidavit of the other partner: It is the answer of the partner who received the application.
   
   
5. Child Support Determination Form (often called "Annex I"), Sworn Statement Under Article 827.5 of the Code of Civil Procedure (often called an "827.5") and proof of income of the partner who received the application.
   
   
6. Report from a mediator confirming the presence of both partners in a free family mediation information session: This document confirms that each partner has attended a family mediation information session, or has been given special permission not to attend. To learn more, consult our Infosheet Free Family Mediation.
   
   
7. Presentation of the motion to the Court
   
   
8. Obtaining a trial date: Partners can obtain a trial date when the file is complete (all of their respective documents have been filed) and all the other steps they agreed together upon have been completed (for example, obtaining an expert’s advice on child custody).
   
   
9. Trial: The trial determines child custody and the amount of child support that must be paid by one of the partners.

Read the following questions to understand these steps.

The partner seeking child custody and child support must make an application to the Superior Court, which is generally called "Motion for Child Custody and Child Support Payments". This document contains:

• A header: the header indicates the name of the country, province, district and the Court before which the trial will take place. The file number given by the office of the Court (the “greffe”) must also be included. Finally, the names and addresses of the partners must be entered correctly with the word "plaintiff" under your name and address, and "defendant" under the name and address of your partner;
  
  
• A brief description of the history of your relationship.
  
  
   
  For example: “1. The parties are not married. They have lived together for 17 years.";
   
  
  
  
• Information about your children.
  
  
   
  For example: “2. The parties are the parents of two children, namely:
  
  McIsland, Connor, M, 14 years old, born October 3, 1997.
  McIsland, Eileen, F, 12 years old, born October 15, 1999.”
   
  
  
  
• What you are asking for and the reasons supporting your request.
  
  
   
  For example: “3. The plaintiff is seeking sole custody of his children;
  
  4. The children have shown their desire to live with him and to see their mother every second weekend. Given their age and level of maturity, the plaintiff believes that their wishes must be followed; "
   
  
  
  
• If you require an urgent and temporary ruling on child custody and child support (called "Safeguard Order") and why you think it is urgent that the judge make a ruling on your request. See the question "I cannot wait until the trial. I need an immediate ruling on child custody and child support. What can I do?”.
  
  
• What you want the judge to do in his ruling.
  
  
   
  For example, “ For these reasons, may it please the court:
  
  Grant Plaintiff sole custody of the children...”
   
  
  
  
• The place, date and your signature or that of the law firm representing you.

Your motion must include:

• An Affidavit
  
  An Affidavit is a statement that you make under oath. You must solemnly declare in front of a qualified official (called “a commissioner of oaths”), that everything written in the motion is true. Then you sign the affidavit.
  
  
• A Notice of Presentation
  
  A Notice of Presentation is a notice addressed to your partner to let him know when and where the motion will be presented to a judge.

Some other documents must or can be sent along with your motion. Refer to the question "Are there any other documents to be written at the same time as my motion?”.

Yes. The following documents must be included with your Motion for Child Custody and Child Support:

• A Child Support Determination Form (often called “Annex I")

  
  
  Once this form is correctly completed, you will know the exact amount that your partner will have to pay you in order to meet the children’s needs. (In other words, the amount of child support).
  
  You must attach proof of your income.

• A Sworn Statement Under Article 827.5 of the Code of Civil Procedure (often called an "827.5")

  
  
  You will find a copy of this form by clicking here . This form contains information about your job and your employer. Unlike other documents/forms, you are not obliged to give a copy of your "827.5" to your partner.

The following document may be included with your motion:

• A Detailed Affidavit

  
  
  This document is particularly useful if you are requesting a "safeguard order" (i.e. asking the judge to make an urgent, temporary ruling on child custody and child support). See the question "I cannot wait until the trial. I need an immediate ruling on child custody and child support. What can I do?”

In general, you must:

• Make copies of your documents and go to court to pay fees at the office of the court (“greffe”). This allows you to open your file at Court.
  
  
• Send your partner copies of your documents by using the services of a bailiff.
  
  
• Submit the original documents to the Court including the bailiff report that indicates that your partner received the documents. In fact, the bailiff must draft a report indicating that the documents have actually been received.

It depends. If your partner agrees with what you are asking, you can both sign an agreement and have it homologated (confirmed) by the Special Clerk or a judge. Your agreement will be then be considered a judgment. If you follow this procedure, it may take only a few weeks to resolve everything.

However, if your partner does not agree with what you are asking, you will need to obtain the proof you want to show the judge (for example, proof of your partner’s income). When your file is complete, you may request a trial date. It usually takes several months before you are heard by a judge.

Meanwhile, you may ask a judge to make an urgent and temporary ruling on the issues of child custody and child support. This is called a "safeguard order" or "interim judgment." Refer to the question "I cannot wait until the trial. I need an immediate ruling on child custody and child support. What can I do?”

First, read everything you received carefully. Especially take the time to read and reread the "Motion for Child Custody and Child Support" to understand it.

In addition to the requests made by your partner, the paperwork you received contains important information regarding the judicial process: for example, if your partner is seeking an urgent and temporary ruling. (Refer to the questions "What happens on the day the motion is presented?”and "I cannot wait until the day of the trial. I need an immediate ruling on child custody and child support. What can I do?".)

The document entitled "Notice of Presentation" is of particular importance. The notice of presentation indicates when and where your partner's motion will be submitted to the Court.

Briefly, here are your options when you receive this type of motion:

• Ask a lawyer to represent you. If this is what you want, begin your inquiries as soon as possible. If you wait too long, you may not find one that is available when needed.
  
  
• Try to negotiate with your partner so as to come to an agreement. You can also do this with the help of a lawyer.
  
  However, be aware that the negotiations do not change the date on which the motion will be presented before the Court. Only your partner or his lawyer may change the date on which the motion will be presented.
  
  Therefore, if your partner agrees to negotiate with you, you may ask that he confirms, in writing (or his lawyer confirms in writing), that he will not present his motion to the Court on the date originally indicated on the Notice of Presentation. He can also confirm that he will send a new notice with a new date if he decides to re-present his motion despite the negotiations.
  
  
• You may choose to do nothing. Note that if you are not present on the date indicated on the notice, your partner (or his lawyer) may seek a temporary or final ruling in your absence. To protect your rights, it is important to be present at the date indicated on the notice. Before deciding to do nothing, it may be prudent to consult a lawyer to make sure you are well informed of the consequences of this decision.
  
  
• Draft or have an attorney draft the appropriate legal documents to address the content of your partner’s motion. See question "What documents can I write to respond to my partner’s motion?”.
  
  
• Show up at the time and place indicated in the Notice of Presentation to protect your rights or ask for a "postponement". A postponement is a request to your partner (or his lawyer, if represented) that the motion be presented to the Court on a day other than the one chosen in the Notice of Presentation because, for a valid reason, you are not available or cannot defend yourself properly. You must come to an agreement with your partner or his lawyer in order to obtain a postponement.

You have several options. A lawyer can advise you on what course is best in your situation. Here are your options:

• Your own motion in response to your partner’s: Note that it is generally inappropriate to respond to a motion with your own motion concerning the same issues (child custody and child support). However, if your motion is primarily to ask for something else, it can be both your request for that other thing and an appropriate response to his motion.
  
  
• A detailed affidavit: An "affidavit" is a statement made under oath of being truthful. It is written in first person singular ("I") and signed before a qualified officer (called a "Commissioner for Oaths"). This type of affidavit is used to explain your point of view and respond to your partner’s motion or affidavit.
  
  
   
  For example: "7- Contrary to the claims of the plaintiff, the children have no clear preference regarding custody. He is the one creating a conflict of loyalty. Yesterday, he even said to Eileen: "It's up to you Eileen. You want to be with me or your mom?".
   
  
  
  
• A Child Support Determination Form (often called “Annex I") with proof of your income: This document is a form which, when properly completed, states the exact amount a partner must pay the other to meet the children’s needs (child support).
  
  You must complete this form but remember that it can also be used to respond to your partner. For example, your partner indicates in his Annex I that you earn $50,000 while you have proof that you earn only $30,000. By writing that you earn $30,000 in your Annex I and by including proof of your income, you increase your chances that the amount calculated for child support will be based on your earning $30,000 instead of $50,000.

Remember that you will eventually have to fill out a Sworn Statement Under Article 827.5 of the Code of Civil Procedure (often called "827.5") even if it does not serve to defend you.

The word "presented” does not usually mean that a trial will take place on that day nor that a judge will make a final ruling on child custody and child support.

• If the partner who received the motion is present (or is represented by a lawyer), the partners (or their lawyers) try to agree on a timetable. A timetable is somewhat a calendar indicating what needs to be completed by each partner and when it must be completed (for example, the preparation of legal documents, obtaining an expertise, examinations, etc.). It serves to ensure that the file will be ready so that the partners can obtain a trial-date. If the partners (or their lawyers) are unable to agree, they can ask the judge to decide their timetable.
  
  
• If the file is already ready on that day, the partners may ask for and obtain a trial date.
  
  
• If the partner who received the motion does not show up, the other partner or his lawyer may ask the officer of the Court (special clerk) to record his absence. If the file is ready, it is possible to request that a judgment be made in the other partner’s absence. * (Practices may differ depending on the courthouse. Get informed!)
  
  
• If a "safeguard order" is sought in the motion, the partners (and/or their lawyers) will go before a judge. The judge makes an immediate ruling on child custody and child support to be paid. This ruling is valid for 30 days, and can be renewed. (See question "I cannot wait until the trial. I need an immediate ruling on child custody and child support. What can I do?".) An absent partner may have a ruling rendered against him in his absence.

Remember that it usually takes several months for your file to be ready and for a judge to hear your case. In some cases, it takes even longer. But what’s to be done with the children in the meantime when you are unable to agree? How do you determine which of you must pay child support and in what amount?

Each partner has the opportunity to request what is called a "safeguard order". A "safeguard order" is a ruling made quickly by a judge on certain issues. This ruling is valid for 30 days and can be renewed.

Be careful! It is not a trial. The judge makes a ruling based solely on the documents in your file and your explanations (or those of your respective lawyers) about what is in your file.

Since there are normally no witnesses, each partner has the right to prepare a "detailed affidavit”. A "detailed affidavit" is a statement made under oath to tell the truth. It is written in first person singular ("I") and signed before a qualified officer (called a "Commissioner for Oaths").



The detailed affidavit allows you to express your views or respond to your partner’s motion or affidavit.



Your detailed affidavits must be communicated (sent to each other) before the date of presentation of the motion. You can have a bailiff deliver it (unless your partner is represented, in which case there is a specific way in which the documents can be faxed to his lawyer).

If your partner responds to your affidavit by raising other issues, you have the right to answer his affidavit by another affidavit.

On the day the motion is presented, the judge takes into account your respective detailed affidavits, the motion, and any other relevant paperwork in the file. She listens carefully to your representations (or your respective lawyers’, who will speak in turn). The judge can ask either of you (or your lawyers) questions before making a judgment based on what she has read and heard.

As there are many types of requests that partners can make, it is impossible to explain the particular process of each request in this Infosheet. You can consult a legal professional who will tell you what to do in your particular situation and to which court you must apply.

For your information, here are some requests which are often made by partners:

• A Motion for the Partition of Property Held in Joint Ownership;
  
  
• A Motion for the Surrender of Property;
  
  
• A Motion for Unjust Enrichment;
  
  
• A Motion for Dissolution of a Tacit Agreement;
  
  
• A claim to the Court of Québec, Small Claims Division.

You can also visit Côtécour to obtain information on the types of cases heard by different courts.