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Ending a marriage is never easy, but when divorce is the only option, having the right legal guidance is essential. Our experienced divorce lawyers help you navigate the process with clarity, professionalism, and care, making a difficult time as smooth as possible.
Under the Divorce Act, either spouse may file for divorce if they have resided in Québec for at least one year. There are three legal grounds for divorce: one year of separation (including under the same roof), adultery, or physical or mental cruelty.
Spunt Carin is a leading family law firm in Montreal. We guide you through every step of the divorce process efficiently while protecting your rights and interests.
It might very well be the most difficult time in your life. However, it is important to remember that you are moving closer to a new beginning, the next chapter in your life. It is a very emotional time, as pent up anger and sadness pours out, but it is a part of the process, therefore if you embrace it, it will make it much easier. During the process, we suggest that clients meet with a psychologist to provide them with the necessary tools to cope and to guide them on co-parenting if there are children involved. It is best to remain as objective as possible (easier said then done, yes) and to have fair expectations. Compromise, even if it did not work during your marriage is a must, to reach an amicable and speedy resolution.
If you do not know what your spouse earns and /or owns as assets, do not panic. During the court process both parties have the obligation to be fully transparent and forthcoming with financial disclosure. However not everyone follows these rules.
If your spouse does not collaborate to provide the necessary documents, the court can order that they provide them. We can send the party subpoenas with a detailed list of documents that are needed and outstanding. If your spouse does not comply with the subpoena, we can also send them to all the financial institutions where they do their banking. A subpoena is a court order. Therefore, if the documents requested are not provided there are consequences to a breach of a court order. The necessity to have to take these additional measures to obtain what should have been provided, can lead to an opening to request a provision for cost. A provision for cost is a sum to cover portion of your legal fees.
It can be difficult to estimate the total length of the divorce process. However, the process begins when one of the parties files a proceeding in court called an Application for divorce, which can include requests for safeguard or provisionals orders such as custody. You can also file a formal request for a safeguard order for emergencies and a formal request for provisional measures, such as custody. The other spouse is then served(receives) the application with all of the requests.
The other spouse has 15 days to file an answer in the court record. The spouses then go to court if a safeguard order or provisional measures are requested, but this is not the trial, this is in order to obtain temporary order from the court while waiting for trial. Requests for provisional measures must be made 10 days or more after they have beenserved, however this delay can be reduced if there is something urgent, which is called an Application for safeguard order or Application for interim request.
The next step is to outline a timetable with deadlines of when certain procedural stepsneed to be completed, which is called a case protocol (examinations out of court – questioning of witnesses, deadline to file an expert opinion, etc.). The case protocol must be filed in court within 3 months of service. The judge will then have a hearing on provisional measures such as child custody, child support etc. The decision is temporary. The parties must fix a date for trial. To get a trial date, all documents must be ready within 1 year after the judge accepts the case protocol. The trial can then be scheduled for a duration based on the case, it can be any length between a few hours to a few days. After the trial, the judge usually has 6 months to render their judgement. However, if you and your spouse agree with all the points of your case and sign a consent agreement at any point, a document called a Consent to Judgment on Accessory Measures will be drafted for both parties to sign.
One option is a joint Application for divorce. The spouses are referred to as joint applicants. You can do a joint request for divorce in the following situations: if the spouses agree on all the consequences of their divorce, including the custody of their children, child support, support payments to the other spouse, how their property will be divided, etc. The spouses must also agree on all points, such as the date they stopped living together. The grounds (reasons) for the divorce are that the spouses have been living separate and apart for at least one year. Adultery or physical and mental cruelty cannot be used as the grounds in a joint request for divorce. If the spouses hire the same lawyer or notary to prepare their divorce agreement and other paperwork, they must give both parties the same advice and look out for their interest jointly. However, the spouses do not have to apply for the divorce together, even if they agree on everything. Spouses can collaborate, but they can apply for the divorce separately.
Here are a few examples:
1. The spouses want their own lawyers to represent them and receive independent legal advice;
2. One spouse already applied for divorce, and the spouses reached an agreement later on in the divorce process or
3. The spouses don’t agree on all the consequences of the divorce. For example, they agree on who will have custody of the children but not on how to divide their property.
Spouses can put all the points they agree on in a written agreement called a Consent to judgment on Accessory Measures. Then this will then be homologated by the court which means it becomes a judgment of the court.
Two spouses may wish to remain married but no longer live together. In this case, one of the spouses, or the two spouses together, may apply to the court for a legal separation, technically known as a separation from bed and board. This option is not available to spouses in a civil union.
Unlike divorce, a legal separation does not break the bonds of marriage, therefore the consequences of marriage remain in effect. The spouses still owe each other respect, fidelity, assistance and may also remain bound by some additional clauses in their marriage contract.
Unless you have a marriage contract or you married outside of Quebec and Quebec was not your first common domicile, spouses married in the province of Quebec are subject to the rules of Partnership and Acquests.
However, the rules of the Family Patrimony apply to all couples living in Quebec despite where they married or the location of their first common domicile. The Family Patrimony is partitioned 50/50. There are some exceptions, which are deductions and exclusion, and in particular circumstances, it is possible to ask for an unequal partition. The Family Patrimony is composed of the following property in accordance with section 415 of the Civil Code of Quebec:
Primary residence or the rights which confer use of them;
Secondary residence (country home, cottage, owned not rented);
Objects furnishing or decorating the Family residences (furniture, major appliances, small appliances, electronics, artwork);
Owned motor vehicles used for family transportation;
Registered Retirement saving plans (RRSP) contributions during the marriage;
Private Pension Plan, accrued during the marriage;
Quebec Pension Plan, accrued during the marriage;
Canadian Pension Plan, accrued during the marriage.
The composition of the family patrimony has the following exceptions:
The gains accrued under a pension plan governed or established by an act granting a right to death benefits to the surviving spouse when the marriage is dissolved as a result of death are excluded from the family patrimonySecondary residence (country home, cottage, owned not rented);
Property invested by one spouse by gift or inheritance before or during the marriage are also excluded from the family patrimony. Furthermore, there is a value added (plus value) component, which is a calculation that is done of the growth of that gift or inheritance on the total value of the property;
Movable and immovable property not included in the family patrimony, or when the family patrimony does not apply, is subject to the rules pertaining to the spouses’ matrimonial regime.
