According to the most recent available statistics, divorce affects nearly out of two married couples in Canada. The decision to divorce or separate involves many legal questions and consequences that should not be overlooked.
When you decide to divorce or separate from your spouse, there are numerous important legal consequences for you and your family. For instance, you must make difficult decisions regarding parenting time (child custody), decision-making (parental authority), child and spousal support, and the division of the family assets, all within the limits imposed by the law.
Getting married involves rights and obligations for spouses, including respect, fidelity, succour and assistance. Spouses are also required to live together. If one of the spouses does not respect the legal obligations imposed on married couples, this opens the door to a divorce application.
There are three grounds for divorce accepted in Canada under the Divorce Act. You may file for a divorce if :
Separation from bed and board is granted when the will to cohabit is gravely undermined. This option allows spouses to cease cohabitation and to settle all the consequences related to their separation without severing the bonds of marriage. Reconciliation after a separation terminates the proceedings.
In a standard court proceeding, one of the spouses will petition the courts for a divorce by filing a Divorce Application and serving it to the other spouse. This document details all the conclusions and measures the spouse wishes to obtain to settle the consequences of the divorce. These measures may relate to custody of children, access rights, child or spousal support, the division of family assets and the liquidation of the matrimonial regime. The other spouse will then have the opportunity to respond by indicating whether or not he or she is challenging the application. He or she will also be able to make the case for the measures he or she wishes to obtain.
The procedure is usually done in three stages: the interim measures (or Safeguard order), the provisional measures and the trial on the merits.
In urgent situations either spouse can petition the courts within a short time period and obtain a safeguard order. The regular delay to obtain a safeguard order is 10 days following the service of the proceeding to the other party. This is usually the case in situations involving minor children where custody and child support need to be determined urgently. At this stage, it is also possible for a spouse to request exclusive usage of the family residence and exclusive usage of the furniture garnishing the residence, the vehicles, etc.
This first hearing will result in a safeguard order to be determined by the Court that will decide on all urgent matters unless the parties reach an agreement. Sometimes these issues are negotiated before the hearing date and the parties are successful in signing an interim agreement.
After obtaining a safeguard order, the parties complete their case and set a trial on the provisional measures.
If the parties do not reach an amicable agreement, the provisional hearing usually ends with a judgment that determines all important issues other than the family patrimony and matrimonial regime.
At this hearing, the judge will re-evaluate the safeguard order and issue a new order if necessary on unresolved issues relating to custody, child support, spousal support and certain pressing matters relating to the parties’ immoveable or moveable property. The judgment on provisional measures is therefore not a final judgment.
The court adjudicates on all consequences related to the divorce in the final trial. At this hearing, the parties may testify or call experts on complex issues of law, financial or property-related issues. The spouse seeking divorce begins the presentation of his evidence first (exhibits, testimony, witnesses, etc.). He or she can be cross-examined by the opposing party or his attorney. Both parties have an opportunity to testify and present their evidence.
After hearing all the evidence, a final divorce judgment is rendered.
Following the divorce judgment, a divorce certificate will be issued and the bonds of marriage are officially terminated.
For individuals who represent themselves before the family court, a guide prepared by the Barreau du Quebec is available.
Our lawyers are here to help you understand how the family laws apply to your case and what the legal consequences of separation are. When you schedule a first consultation with a lawyer, we will discuss the facts of your case and determine what are your options under Quebec family Law.