In a significant number of divorces, the spouses are unable to resolve their differences. These disagreements may concern issues such as the partitioning of property (family patrimony and partnership of acquests), child custody, child support or spousal support, among others. If the spouses agree on all matters related to their divorce, it is recommended that they file a joint application for divorce. A joint application for divorce, also known as an “amicable divorce” or "uncontested divorce", is the fastest and most cost-effective procedure compared to contentious divorce proceedings.

 

However, if at least one disagreement persists, the divorce will be subject to contentious proceedings. This means that the initiator of the contested divorce, whether the husband or wife, will have to file for divorce against the other party.

 

Our experienced family law lawyers are here to assist you throughout the divorce proceedings. They can prepare and file all the necessary documents to initiate the proceedings on your behalf, such as the originating application for divorce, sworn statements, supporting documents, summons, and any other required documents. Additionally, our divorce lawyers can support you throughout the process and represent you in court. Fill out the online form or call us at +1 (514) 600-6025 to schedule an appointment with one of our family lawyers in Montreal, or to arrange a telephone or videoconference consultation. Our family lawyers work in an office conveniently located in Montreal, in close proximity to the town of Westmount and near the Guy-Concordia and Atwater metro stations

Beginning of divorce proceedings / Urgent Measures / Safeguard orders

A contested divorce can last several months or even years, depending on the circumstances. Given the length of the process, the law allows for the rapid resolution of certain pressing issues (temporary child custody, spousal support during the process, provision for costs, determination of the right to use the family residence, among others).

To address these pressing issues, which cannot be postponed, the law allows for the filing of a demand for safeguard order with the Superior Court of Quebec. This application for safeguard order allows you to request a court decision on urgent matters such as:

 

- With whom the children will live during the divorce process,

- How parental time will be divided,

- Who will pay child support, and

- In what proportion the parents will cover the children's special expenses (daycare, summer camp, dental expenses, glasses, etc.).

 

Typically, a safeguard order application can be presented to the court within ten days from the date of service of the demand to the opposing party. However, in extremely urgent situations, it is possible to ask the court to shorten this timeframe and obtain a hearing within just a few days. Your lawyer will prepare the application for safeguard order, attach the necessary supporting documents, your detailed sworn statement, and a notice of presentation indicating the hearing date. If you are requesting an urgent decision regarding child custody, your lawyer will also prepare the Child Support Determination Form (“Schedule I”) and the declaration required under Article 444 of the Code of Civil Procedure.

 

In general, the judge delivers safeguard orders immediately after the hearing, although in some cases, it may be issued in the following days.

It is important to note that the demand for safeguard order can be filed not only by the plaintiff but also by the defendant. Therefore, if you have initiated divorce proceedings without requesting a safeguard order, the opposing party still may do so. In such a case, you may wish to contest this motion.

Preparation for Trial on the Merits

During a divorce, complex legal issues often need to be resolved by matrimonial lawyers: division of family patrimony, division of the partnership of acquests, claims for compensatory allowances, establishment of parental time, establishment of alimentary support for children and/or spousal support.

To prepare the case for the final trial, the parties must complete the case file and submit all the evidence and other documents required by law. Within the first three months following the service of the divorce application to the opposing party, the attorneys of both parties must prepare a Case Management Protocol in Family Matters, a document that outlines the steps to be taken and the deadlines for completing them.

The Case Management Protocol may set deadlines for the filing of evidence in support of the claim and defense, written statements, pre-trial examinations (written or oral), expert reports, and the necessity and deadlines for filing preliminary motions.

Once the Case Management Protocol is accepted by the court, you generally have one year to complete your case file and request the court to set a date for the final hearing, where a judge will resolve the dispute. Trial preparation includes preparing the Statement of Family Patrimony, the Statement of Partnership of Acquests, the Child Support Determination Form (“Schedule I”), if both parents reside in Quebec, the declaration required under Article 444 of the Code of Civil Procedure, as well as the certificate of participation in the parenting and mediation information session. Expert reports may also be necessary, for example, to assess the value of a family residence, and often a psychosocial assessment may be required in cases where one party alleges parental alienation or child abuse by the other party.

Once the case is ready, the parties usually file a Request for setting down for trial and judgment by way of a joint declaration and obtain the final hearing dates.

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Final judgment

The last step is the final trial. After the trial, which can last one or several days, the judge renders a judgment. Usually, the judge does not issue the decision immediately but rather takes the case under advisement and delivers the judgment within the following weeks or months. The divorce judgment takes effect on the thirty-first day following the date of judgment. The court informs the parties that the judgment has been rendered by a notice of judgment. Each party may appeal this judgment if they disagree and believe that the judge made a palpable and overriding error in assessing the facts or an error of law. The notice of appeal must be served on all parties, notified to certain other persons and the registry of the Superior Court, and filed with the Court of Appeal of Quebec within 30 days from the date of the notice of judgment.

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Special case: International divorces

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It is not uncommon for clients to ask whether it is possible to initiate divorce proceedings in Quebec when their spouse lives in another country. The answer is generally yes. In fact, if one of the spouses has been residing in the province of Quebec for at least one year, that person can file for divorce before the Quebec courts.

However, divorces involving a spouse who lives outside Canada come with certain procedural particularities.

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One of the key issues is the service of the originating application on the defendant. While in Quebec, service is carried out by bailiff, the process becomes more complex in an international context.

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It is first necessary to determine whether the country where the spouse resides is a signatory to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (commonly known as the Hague Service Convention). If so, the application must be served in accordance with the mechanisms provided by that Convention, which vary from one State to another.

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If, on the other hand, the country in question is not a party to the Convention, service must be carried out in accordance with the provisions of Book I of the Code of Civil Procedure of Quebec, or according to the applicable procedural rules in the country where the documents are to be served.

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Moreover, the deadline to respond to a divorce application depends on the defendant’s place of residence. If the defendant resides in Quebec, they have 15 days to respond. If they live abroad, the deadline is extended to 30 days.

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Aside from these procedural differences, the divorce process itself is generally similar to that of a local case. With the court’s permission, the defendant may also participate in the hearing by videoconference.