First of all, any measures taken at the beginning of the breakup will have an influence throughout your procecdures for separation from bed and board or divorce. It is therefore important to think things through and inform yourself as best you can beforehand.

If you leave the family residence and leave the children in the care of your spouse, you can expect the court to grant child custody and use of the residence to your spouse during the separation. Even though you have left, if you are financially able a judge could order you to pay the same maintenance costs for the residence as you did before – in addition to spousal and child support if necessary.

Perhaps you and your spouse agree on every term of your separation, but you must still make sure that any division of property complies with your marriage contract, matrimonial regime, and the provisions on the family patrimony. If you have children, you must ensure that your decisions concerning them are made in their best interest.

If that is the case, your agreement can be drawn up in a document called a “draft agreement.” This document must then be submitted to a court for approval. The court will verify whether your application is admissible and whether the consent is authentic. The court may ask you or your lawyer to provide further details about the terms of the agreement and, for the most part, it will make sure that both spouses’ rights are well protected.

The court can reject your application for divorce or separation, or adjourn until the draft agreement is modified, if it finds that your draft agreement inadequately protects the interests of the children or your ex-spouse. For more information on this topic, consult the Infosheet entitled “Joint application for divorce."

Where communication is difficult with your spouse and the climate is not conducive to negotiation, it is best to consult a lawyer as soon as possible in order to protect your rights. Your lawyer is obliged to inform you about your right to family mediation. For more information, consult the Infosheet entitled Free family mediation.

You may commence divorce or separation proceedings if family mediation or negotiation is refused or fails. A bailiff will serve the proceedings on your spouse and your spouse may then decide to represent him/herself or hire a lawyer. Hiring a lawyer does not mean you can’t settle your divorce or separation amicably! On the contrary, your respective lawyers can continue the negotiations on your behalf. This is actually how most divorces are settled.

If divorce or separation from bed and board proceedings are contested, some issues will not be able to wait until the final ruling for determination. Indeed, some issues will need to be determined by a provisional order in the interim. You may ask the court to render a provisional order in the following matters:

• who gets to live in the family residence during the proceedings;
  
• child custody and support;
  
• spousal support;
  
• provision for costs;
  
• conservatory seizure;
  
• who gets the furniture;
  
• restraining orders;
  
• etc.

Provisional measures remain in effect for the duration of the proceedings and end when the divorce or separation from bed and board is granted. However, it is possible to ask the court to modify provisional measures during the proceedings if significant changes occur in the parties’ situations.

Of course. The urgency of some situations requires immediate action by a judge, even before provisional measures can be heard. Just think of the following possibilities:

• a parent has taken a child against the will of the other parent and does not allow the other parent access;
  
• a parent endangers the health and safety of a child;
  
• a spouse is violent toward the other spouse;
  
• both spouses want to live exclusively in the family residence;
  
• a spouse tries to sell the family residence and furniture;
  
• a spouse has no income and is unable to live decently;
  
• etc.

Decisions must be taken without delay in these urgent situations in order to avoid irreparable damage. An urgent situation is grounds for seeking interim measures as it may take a while to get a hearing date for provisional measures before the court. The court should be guided first and foremost by the urgency of the situation, be it for child custody, exclusion from the family home, or use of furniture.

It is simply a question of preparing a written document and presenting it to the judge so that she can learn about the situation quickly. The judge may then render any order necessary in order to preserve the rights of the parties for the time being and according to the conditions she determines. These interim orders stay in effect until the case can be fully heard before the court.

Divorce or separation proceedings usually involve three separate steps: 1) interim measures that allow you to obtain an urgent judgment when the situation so requires; 2) provisional measures that allow you to obtain a temporary judgment for the duration of the proceedings; and 3) corollary relief which is final and applies once the judgment for divorce or separation from bed and board has been pronounced.

First of all, if you have little or no income at all, you should make an appointment with your local legal aid office to find out if you are eligible for legal aid. These offices are listed in the yellow pages or on the website of the Commission des services juridiques. You can meet with a lawyer who will review your financial situation and advise you whether or not you are entitled to free services offered by the government.

If you are ineligible for legal aid, you must contact a lawyer in private practice. Your lawyer can ask the court to award you costs if your spouse files for divorce or separation from bed and board. Costs will be paid to you in advance and will cover your lawyer’s fees and any legal costs. Your local community centre or the Barreau du Québec may be able to help you locate free or low-cost legal services.

The court may issue either an interim or provisional order awarding one ex-spouse the use of the family residence, ordering the other spouse to leave the household, and setting the time frame within which he or she must leave. The court will consider and weigh the inconvenience to the family as well as the interests of the children and the physical and financial ability of the spouses to live elsewhere during the proceedings.

The parent who has custody of the children is almost automatically granted use of the family residence during proceedings. The courts try to preserve the stability of the children’s lives and take into account any harm that could result from having to move, especially during the school year. The courts also consider that it is easier to move one person, in this case the non-custodial parent, than to move several.

Moreover, as mentioned earlier, a spouse’s chances of obtaining exclusive use of the residence during the proceedings is reduced if he voluntarily left the family residence, unless he can explain good reasons for leaving later in court. The court’s decision is not influenced by the fact that one spouse is the legal owner or tenant of the family residence because by law both spouses are legally entitled to live in, and enjoy, the home.

Lastly, the spouse who is granted exclusive use of the family residence is usually granted the use of the furniture as well, especially if the children continue to live there during the proceedings.

You can register a declaration of family residence against the building if your spouse is the sole owner and tries to sell or mortgage the family residence.

A declaration of family residence will prevent your spouse from selling or mortgaging the building without your consent or without the court’s authorization. You have rights in this residence and it is important to protect these rights, even if you are not the registered owner.

You must take necessary measures to protect your rights if your spouse tries to quickly get rid of the furniture you acquired together during the marriage, as well as the furniture that belongs to you personally.

You can seize, before judgment, any furniture that personally belongs to you as well as any furniture acquired during the marriage according to your share.

In many cases, your furniture may have a sentimental value that is much greater than any monetary value obtained if sold. Do not hesitate to act quickly.

To learn more about the procedure for seizing goods before judgement, you can contact the clerk of the Court of Quebec, Family Division.

Many couples separate under difficult conditions and threats and intimidation often occur. If this happens to you, you can ask the court to issue an order guaranteeing your peace, safety, and the respect of your fundamental rights during the proceedings.

The court can issue an interim or provisional order prohibiting one of the spouses from molesting, threatening, disturbing, harassing, or annoying the other, as well as calling, following, or having the other spouse followed at home or at work. You can even file a criminal complaint in more serious cases. You can, if you truly fear that your ex-spouse will physically harm you, your child, or damage your property, ask that a criminal court judge order:

• your (ex-)spouse to undertake, with or without a security, not to disturb the public order and to behave properly for a period of up to twelve (12) months.
  
• your (ex-)spouse to spend a maximum of twelve (12) months in prison if he neglects or refuses to sign an undertaking.

Your divorce or separation proceeding may drag on for several months – even years – especially if it is highly contested by your ex-spouse! Unless a settlement is reached along the way, you must prepare your legal proceedings and your file so that you are ready to go to court.

Even though the parties may have been bound during the proceedings by an interim order followed by a provisional order (consult the earlier sections in this Infosheet), the court will have to render a final judgment on the following matters during the divorce or separation proceedings:

• the use of the family residence following proceedings;
  
• child custody;
  
• access rights for the non-custodial parent;
  
• child support;
  
• spousal support;
  
• division of the family patrimony;
  
• liquidation of the matrimonial regime;
  
• payment of a compensatory allowance;
  
• payment of a lump sum;
  
• gifts made under a marriage contract;
  
• etc.

The judge who hears your case must make decisions on many issues that concern you, your children, and your property. These are called corollary relief.

You have 30 days from the date of judgment to appeal if you are dissatisfied with one or more of the decisions. If there is no appeal, the divorce judgment becomes final on the 31st day after the date of judgment and a divorce certificate is issued.