:: DIVORCE - WE'VE GOT ANSWERS ::

+ Before starting divorce proceedings, here is what you need to know.

The end of a relationship means many emotional and financial consequences. In legal terms, the divorce will attempt to resolve three fundamental questions:

(1) How do you go about dividing the assets?

(2) How do you determine child custody and visitations rights?

(3) What will be the amount of spousal/child support?

In reality, all these questions are rarely resolved uncontested, where both spouses will agree on all the components of a divorce application. However, disagreement on certain aspects does not necessarily imply a Court battle. Insofar as the spouses are able to reach a consensus without resorting to the Courts, it is possible to present a draft agreement for divorce (consent agreement). Such a process makes it possible to complete several steps without needing to go before a Judge (such as interim and provisional hearings for custody and alimony), allowing both spouses to save thousands in legal fees.

On the other hand, for certain situations where there is undeniably a lack of common ground, you should file for what is known as regular divorce proceedings (also referred to as a “contested divorce”).  In these cases, each spouse will be represented by their own lawyer to insure their respective interests are protected.  The so-called ‘’contested’’ divorce is presented before a Court where an impartial judge will render a ruling on the divorce application after taking into consideration the arguments of each party.  Occasionally, the parties will reach an agreement during the proceedings which will accelerate this process.

Moreover, before the final judgement, certain interim (also known as safeguard or emergency orders) and/or provisional measures may be obtained concerning questions of custody, child support, the family residence and alimony, depending on the particular circumstances of each case. The goal of these temporary measures is to maintain same the standard of living the family enjoyed prior to beginning divorce proceedings. All in all, it is strongly recommended to consult a lawyer as soon as the relationship with the spouse shows no possibility of resolution through consent agreement.

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+ What is the first step?

If you are considering a divorce, the first step is to try to come to an agreement on the three above-mentioned points.  You may also download and print our Divorce Questionnaire which will serve as checklist of issues to discuss and include in the three categories of assets, children and support payments.

(Joint Divorce Questionnaire is approximately 900 KB; if your browser experiences difficulty loading it, right-click on the link, select "Save target as..." and open the file after it has downloaded.)

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+ What are the differences between a joint divorce and a contested divorce?

(1) JOINT DIVORCE

Faster, less costly
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Our drafting services ensure your divorce proceedings are completed and filed correctly, thus avoiding delays and, in most cases, the need to testify at Court.  We can review the assets to be divided and the fiscal impact of spousl support payments with you.

We also offer Joint Divorce Kits for clients who prefer to draft their own proceedings.

With a joint request for divorce (uncontested divorce), a lawyer is not required at every step. Certain proceedings can be eliminated entirely (such as examination on proof of revenue, interim motions and temporary requests for custody, support payments or use of the family residence).  Basically, the entire process is faster and less costly.

Some experts believe there are certain emotional and psychological benefits to going  before a tribunal (such as vindication and monetary rewards in some cases) but the majority  agree that couples who undertake  legal battles end up inflicting more unnecessary  pain on their children and themselves.

(2) CONTESTED DIVORCE

Benefit  from our expertise

If your divorce presents complex issues or you simply want to make sure your agreement covers all your assets and adequately protects your children, please contact us for a consultation.
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Our firm specializes in family law and has extensive experience handling interjurisdictional (cross-border) issues in other provinces and countries in custody, support payments, international child abductions, and the execution of foreign judgements. With partnerships and affiliated offices in Quebec City, Gatineau, Ottawa, Toronto, New York, California, and many European countries, we provide you with a trusted network of professionals to efficiently handle you case.

St-Clair & Associates is also a founding member of the Carpe Diem Network, providing our clients with immediate access to pre-screened experts for family law such as therapists, family counsellors, psychologists, social workers, mediators and coaches.

When should you contest a divorce?

Aside from considerations of time and money, there are many reasons a spouse may choose to contest a divorce:

Hope for reconciliation: One of the spouses wants to continue the marriage for emotional, financial, social or health reasons.

Vengeance: A spouse deliberately prolongs divorce proceedings or takes advantage of their financial resources to pay legal costs.

Religious beliefs: A spouse’s religion sanctions or does not recognize divorce

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+ How can I reduce my costs?

We understand that the cost of contested divorce proceedings can be difficult, especially when the break-up of the marriage arrives unexpectedly, and we have implemented transparent billing policies to help our clients through the process. Our firm does not compete for clients by announcing low hourly rates because the quality of your legal services and the outcome should typically be the main focus.  Be sure to visit our section on our transparent billing process for important information on evaluating legal services.

If a divorce is highly contested, there are numerous ways you can assist in lowering the costs. For example, providing your lawyer (and later your spouse’s lawyer) full financial disclosure can help avoid long and costly examinations and possibly reduce the amount of time required at Court, or eliminate it altogether. We have a team of negotiation lawyers to help you properly structure offers of settlement, and put the proper elements in place to obtain maximum leverage in negotiations.  For more information on the negotiation process, be sure to read the interview with Me Alain Lessard, the head of our negotiations team.

Our firm maintains a minimum of two articling students and researchers on rotation to properly prepare complex cases and maintain an up-to-date database on new case law.  When costs are a concern, you may also request that a portion of your file be assigned to junior lawyers or articling students to reduce your fees.  Meet with us to discuss other possibilities, such as our unbundled services where we provide the necessary backup to assist you for self-representation.  You can benefit from a higher quality service and expertise for the portions of the file that require it the most, while respecting your budget for legal costs.

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+ What are the prerequisites for filing for divorce?

Under the Federal Divorce Act, the law governing divorce in Canada, the appropriate Court can grant a divorce upon request by one or both spouses for the breakdown of a marriage. A marriage is deemed to have broken down when:

(1) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding;

(2) the spouse against whom the divorce proceeding is brought has committed adultery; or

(3) the spouse against whom the divorce proceeding is brought has treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

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+ Can I file for divorce even if I was married outside of Quebec?

Yes, as long as you or your spouse has lived in Quebec during the last twelve months (or maintained residency in the province of Quebec).

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+ What is the timeframe for a joint divorce?

AT OUR END: It takes us approximately 3 to 4 weeks to draft your divorce proceedings and assemble the required documents for filing. The actual time before we begin your file depends on the volume of cases that are waiting in queue for drafting. If there are specific deadlines you are aiming for, we also offer an accelerated 48-hour option with a request at Court for priority processing (additional fees apply).

AT COURT: If your joint divorce application is filed in the judicial district of Montreal, the typical processing times at Court are 3 to 4 months. For other districts in Quebec, we typically see processing times of 2 to 3 months, depending on the number of files in queue at the Court you are filing in.

OTHER INFORMATION: A joint divorce application does not have to be served to your spouse which reduces the initial delays and results in saving bailiff costs.  Furthermore, this type of application does not require a Notice of Presentation as in the case of a contested application, where there is a standard minimum 40-day wait before the next step in the file (or 60 days, if your spouse lives outside the province of Quebec).

The divorce file must be complete, with all the documents listed in our checklist before your file is transferred by the Court clerks to a Judge who will render a judgment of divorce. 

* It is also important to remember that although you may start your joint divorce application before being separated for twelve months, the Court will not grant the judgment of divorce until you have reached your twelth month of separation.

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+ What is the timeframe for a contested divorce?

After your spouse has been served the divorce proceedings, he or she must file an appearance within 20 days (or 40 days, if he or she lives outside the province of Quebec). If no appearance is filed, we can then ask the Court to proceed ex-parte (ie. to continue the file and request a hearing in the absence of your spouse).

If an appearance is filed, an initial Court presentation date can be scheduled 20 days after the deadline for filing an appearance. Any preliminary requests (such as contestations on the jurisidiction, requests to transfer the file, issues on duplicate proceedings, etc.) are decided at a hearing on the presentation date. If there are no preliminary requests, both sides can establish a list of deadlines for the remaining steps for the file either on the presentation date, or do it beforehand and file a copy of the deadlines at Court to skip the initial presentation date.

Once the defendant has been served, all steps to complete the file including inscription (indicating the number of hours/days required for the final hearing and requesting a trial date) must be completed within one year, with certain exceptions.  In the case of a contested divorce, the case management will vary from one file to another according to its complexity and specific procedures. For example, if custody is highly contested and psychosocial evaluations are required to determine parental capacity and the best environment for the children, additional time for the expertise reports should be anticipated. Thus, a contested divorce could take over two years to finalize.

It is important to note that at any time during the file, both sides can decide to come to an agreement (in full or on certain issues) in order to speed up the process and reduce the number of hours required for the final hearing. Our litigation team will advise you at the beginning at the case as well as with the evolution of your file on the best strategy to follow - based on your priorities on specific issues (eg. custody, family residence) or the desire to settle the file as quickly as possible.

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+ Can we determine child custody and support at the same time as the divorce?

Absolutely.  The Court can render an interim judgment (also known as a safeguard order - during an "urgent" hearing that can be held typically 10 days after your spouse receives a copy of the divorce proceedings) which will determine child custody and support. Interim judgments are executory and usually valid for 30 days, unless both sides agree to a longer period or decide to renew the interim judgment. A provisional hearing can also be held to determine certain isses until the final judgment is rendered and the divorce is granted. To determine these temporary measures, the Court will usually maintain the status quo (the situation prior to the break-up) unless the current circumstances demand otherwise to protect a spouse or the children.

For more information, also read our website sections on establishing custody and determining child support.

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+ Can a spouse also request alimony (spousal support)?

Yes.  The Court can render an order requiring one spouse to make lump sum or periodic payments to the other spouse in order to meet his or her financial needs.  To determine spousal support, the Court will take into consideration the situation and needs of each spouse including the length of time the couple lived together, the role of each spouse during cohabitation and any previous agreements or judgments. The Court may also render an interim judgment to address any urgent needs.

For more information, also read our website section on determining spousal support (alimony).

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+ What can I do if my spouse harasses or threatens me during divorce proceedings?

For many people, the breakdown of a marriage is very difficult to accept, particularly when spouses have a relationship fraught with frustration and anger.  This negative dynamic can lead one or both spouses to resort to threats, rudeness and intimidation despite their better judgment.  If your spouse is harassing you or threatens you during divorce proceedings, it is possible to request a Court order to ensure peace of mind, safety and the respect of your basic rights for the duration of the proceedings.  In the most serious cases, it is possible to file criminal charges for harassment. The Court can then order sanctions to put an end to the harassment or threats. 

For family law files involving harassment or threats of violence, contact Me Alain Lessard who can put the necessary measures in place to protect you.

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+ What is included in family patrimony?

The laws on family patrimony are based on the principle that two people who are married enjoy an equal legal and economic partnership, and are entitled to an equal share in several categories of items accumulated during the marriage when their partnership ends. The family patrimony includes items in the following categories:

The division of the family patrimony can be completed by distributing items, the value of the items, or a combination of both. Sworn statements need to be filed indicating the market value of all the family’s property at the time of the divorce proceedings (or the separation, in certain cases) dissolution of a civil union.
In calculating the net value of the family patrimony, the following amounts are typically subtracted:

• - amounts that were owned by one of the spouses before the marriage, and the additional value it has acquired during the marriage.

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+ What is excluded from the family patrimony?

The following property is excluded from the family patrimony:

• - property that was a donation or inheritance to one of the spouses either before or during the marriage;
• - any increase in the value of such property during the marriage;
• - certain property used exclusively by one of the spouses (computer, musical instrument, artwork, etc.);
• - businesses and farms (except the residential portion);
• - cash and bank accounts;
• - savings bonds, treasury bonds, shares and other investments (except RRSPs);
• - profit-sharing plans;
• - supplementary pension plans for high-income earners; and ·
• - non-registered annuity contracts.

* Note that although the above items do not fall under the family patrimony, they may still be subject to partition depending on your matrimonial regime. For details, consult with one of our lawyers specializing in family law.

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+ What can I do if my spouse is uncooperative?

You can inform your spouse of the additional time and money involved in a contested divorce.  When one spouse seeks a divorce and the provincial conditions are met, the divorce will be granted eventually. A spouse may initially be uncooperative due to emotional, social or financial issues, or because of the children involved.  Despite these issues, we can help you prepare your divorce proceedings to establish all the elements under litigation in a more neutral fashion which may give the other spouse a perception of fairness and facilitate cooperation.

When negotiations with your spouse are no longer possible and mediation is not providing the desired results, you may initiate contested divorce proceedings. We can arrange to have a bailiff serve divorce proceedings to your spouse who may decide to represent himself or herself or retain the services of a lawyer.

If certain issues cannot be resolved, you may try arbitration or mediation before requesting a trial.  If you have children, mediation is free of charge in Quebec.  In most cases, arbitration and mediation prove to be less costly than a full hearing, particularly when considering lawyer and Court fees and time spent away from work. The collaborative aspect of arbitration and mediation can also help reduce hostility after the divorce. You may ask to be represented during the arbitration or mediation process to ensure your rights are well protected.

(Please note that arbitration and mediation are not substitutes for a lawyer as arbitrators or mediators cannot provide you with legal advice solely in your favor.)

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+ Let the judge decide?

If you are faced with a disagreement that you are unable to resolve with arbitration or mediation, a trial before a Judge could be the solution.  It is important to remember however that by letting a Judge make the decision, you risk getting a less favorable outcome than you would have by collaborating with your spouse. 

For example, a judge may choose to divide your assets 50/50 but the 50% you end up with may not be what you wanted.  The judge may also disregard fiscal consequences if he/she does not have a complete analysis of your financial situation, all of which can be avoided with adequate planning and a fair agreement with your spouse.

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:: Marriage and common law relationships ::

If you wish to learn more about the different types of legal unions, please consult our Marriage and Common Law relationships section".

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