Separation and divorce
De facto partners with children: Main steps in obtaining a judgment in a separation
If you’re de facto partners and would like to ask a judge to settle certain aspects of your separation such as custody or child support, read on. Here are the main stages you can expect in a “contested” judicial proceeding – that is, when you and your ex don’t agree on all the elements needed to make a joint application. The steps are the same whether you’re represented by a lawyer or not.
If you have no children or your applications have nothing to do with your children
If you don’t have any applications concerning your children or if you don’t have any children, the rules are different, and the information on this page doesn’t apply to your situation.
Talk to a lawyer or a notary, or visit a legal clinic to learn more.
1) One of the partners prepares a written application
At this stage, also called the “commencement of proceedings,” one of the partners (or their lawyer) prepares the written application, called an “originating application.”
The written application must indicate what that partner wants the judge to decide about custody and child support. The partner can also add other financial requests related to the separation (e.g., division of property, division of co-owned property, financial compensation, etc.)
The partner that prepares the application is called the “applicant” or the “plaintiff” because they’re the one taking the initiative in bringing the legal proceeding.
The partner named in the application is called the “defendant.”
Do you have an urgent request for the judge?
If there are questions that need to be resolved quickly, you can also apply for a safeguard order.
This way you can obtain a temporary decision as you wait for the judge to make a final ruling on your main application.
2) The plaintiff partner opens a case record at the courthouse
The plaintiff partner (or their lawyer) files their application at the courthouse to open a court record.
The plaintiff partner must attach a “notice of presentation” choosing the date the application will be presented before the court.
To avoid additional delays, the partner can also include all other necessary documents, such as the "evidence" they wish to present to the judge.
The originating application, the notice of presentation, and the other documents must then be sent to the other partner, by bailiff. This is called “service”.
The dates an application can be presented to the court vary from one courthouse to another. Contact your courthouse to find out what days are available.
With some exceptions, the date selected must be at least 10 days after service of the application on the defendant partner.
3) The defendant partner can file their own applications (optional)
The defendant partner can also file their own applications in connection with the separation.
In that case, the partner (or their lawyer) prepares their own judicial application, which can usually be dealt with at the same time as the plaintiff partner’s application.
4) The partners file the missing documents
Each partner (or their lawyer) must file the documents required for their type of application at the courthouse.
All the documents may have already been filed – when the plaintiff opened the record at the court, for example, or when the defendant filed their own application.
Deadlines may vary, but as a general rule, documents must be filed in the court record at least five days before the date of presentation.
5) The partners attend court
When the application is presented, the partners (or their lawyers) take part in the calling of the roll. The calling of the roll allows court staff to ensure that the record is ready to be heard by a judge.
If it’s ready, the partners (or their lawyers) can set the date the judge will hear them. In some cases, the judge will agree to hear the spouses that same day (see “The spouses appear before a judge” for more information).
If it isn’t ready – if documents are missing, for example – the spouses may have to attend court again to set the date.
6) The partners call their witnesses and gather the last documents
Calling of witnesses
Once the hearing date is set, the partners (or their lawyer) call their witnesses to ensure they’re in court on the day of the hearing.
The official way to ask someone to come and testify is to send them a document called a “subpoena.” Although this isn’t mandatory, it provides greater protection in the event a witness decides not to attend court.
As a general rule, witnesses must receive their subpoena at least 10 days before the hearing date.
Sending the last documents
During the last weeks before the hearing, the partners (or their lawyers) might have to send each other certain documents and file them in the court record.
For example, if they filed applications for child support, they have to provide documents to update the information on their financial situation.
The deadlines for sending these documents and filing them in court can vary depending on the type of application and the document in question.
7) The partners appear before a judge
The partners then participate in the final hearing, also called the “trial.” This is when they can submit their evidence and their arguments before the judge in charge of the case.
8) The judge renders judgment
9) The partners have the judgment executed (if necessary)
Even if the judgment is rendered, the legal proceedings aren’t over. The judgment will have to be “executed,” i.e., put it into action.
Depending on the situation, execution can be voluntary or forced. If it’s forced, the former partner who wants the judgment executed will have to take certain steps.
A “fast lane” to a court judgment
At any time during the judicial process, you and your ex can speak with a mediator to help you reach an agreement.
The process of obtaining a judgment is usually faster when the partners agree to settle out of court because they don’t have to follow many of the steps necessary in a “contested” proceeding.
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WARNING
The information presented on this page is not a legal opinion or legal advice. This page explains in a general way the law that applies in Quebec. To obtain a legal opinion or legal advice on your personal situation, consult a legal professional.
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