Starting a Custody, Separation or Divorce Case in Québec

When you start a case for custody or for separation or divorce affecting a child, you're asking the court to make a judgment regarding disagreements with the other parent or to approve an agreement.

You should at least consider an alternative dispute resolution method, such as mediation, before starting a case. In Québec, if you have a child, you're entitled to five free sessions with a mediator.

Step 1: Determine your case type

The kind of case you'll open depends on your family's circumstances.

Apply for child custody if you and the other parent never married. A custody case determines where the child should live. You'll be required to ask for a child support order as well.

Apply for a divorce if you want to end your marriage. One spouse must have resided in Québec for at least a year, and you must have a legal reason to divorce. You can apply for divorce anytime after you separate, but it won't be granted until you've been separated for at least one year.

Apply for separation from bed and board if you want to be legally separated from your spouse and divide your assets without divorcing.

Both divorce and separation cases determine parenting time (aka custody), spousal and child support, and how parents will split property.

In any of the above case types, you can ask the court to decide parental authority matters like where the child will go to school.

Before you apply, make sure your child is a resident of Québec and that you're their legal parent.

Step 2: Create your application

While Québec does not have an official application form, government-supported organization Éducaloi provides an application template (Word document download). If you have a custody or separation case, change or remove all the divorce references.

Alternatively, you can hire a lawyer to draft an application (required if you're not the child's parent), contact your nearest legal aid office for help, or create an application yourself.

Anytime you create or fill in an application without legal help, have a lawyer review it.

Your application — also called a motion to institute proceedings — should focus on what you want and why your custody proposal is best for your child. It can be in English or French, and you're free to change to the other language in later documents.

You should identify yourself as the plaintiff or applicant and the other parent as the defendant or respondent, though your application will be valid if you don't use these terms. If you agree on every matter, create a joint application with the other parent and label each person a coplaintiff or coapplicant. To apply jointly for a custody case, include a sentence asking the court to homologate your agreement.

Always state whether or not your case involves a civil protection order (or an application for one), the Director of Youth Protection or criminal matters. If it does, attach related records.

Attach a Notice of Presentation (Word document download) to your application to specify when you'd like your first court date. Enter your application title (e.g., Application for Custody) after "TAKE NOTICE that." The first court date is usually a hearing for a safeguard order. However, if you're applying jointly, it will be a hearing to present your agreement, and you'll prepare your notice with the other parent.

To find an available date, check the excerpts from hearing rolls. The date must be at least 10 days after you serve the other parent (Step 4), unless there's an emergency or you don't serve the other parent because you're filing jointly.

In addition, any non-joint application needs a Notice of Presentation, which tells the defendant when they need to be in court. You can usually find this form on your judicial district's website.

Sign and date your documents, and make at least two copies. You'll give the originals to the court, copies to the other parent and keep copies for your records.

Finally, prepare the following to hand in with your application:

• Official documents confirming the birth dates of parents and children (e.g., birth certificate, act of birth)
• Any terms (e.g., a parenting plan) that you propose or have agreed on
• Statement Required Under Article 444
• Child Support Determination Form
• Three of your latest pay slips (if you're employed) or financial statements (if you're self-employed)
• Federal and provincial income tax reports and Notices of Assessment
• Divorce and separation only: Your marriage certificate
• Divorce and separation only: Your marriage contract (if you have one)
• Translations of any attachments not already in English or French

The Superior Court has more details on what to include with your application.

Step 3: Give your application to the court

You'll hand in your application at the Superior Court in the judicial district where at least one parent lives. You can locate your court online. Alternatively, your court may allow you to file electronically.

If you file in person, you'll go to the court office and give your forms to the court clerk. They'll stamp your forms with your court number and keep the originals.

You'll have to pay a filing fee of $325 for divorce or separation (or $108 if you're filing a joint application) and $163 for custody. If you're divorcing, you'll also have to pay a $10 registration fee so the Central Registry of Divorce Proceedings can verify that no other active divorce cases involve you or your spouse.

If you have an agreement, this is the final step in the application process for you.

Step 4: Serve copies to the other parent

If you filed a joint application, skip this step.

Service notifies the defendant of the case. You must serve the defendant within three months of submitting your application, but you should do it as soon as possible so your case can progress.

The service packet must include copies of your:

• Application
• Summons
• Notice of Presentation
• Statement Required Under Article 444
• Child Support Determination Form
• Three latest pay slips (if you're employed) or financial statements (if you're self-employed)

Most commonly, a bailiff serves the other party. Bailiffs are officers of the court. They have independent offices, and you'll have to hire them yourself.

After serving the defendant, the bailiff will write a certificate of service. You'll hand this in at the court office.

If there aren't any bailiffs within 75 kilometres of where the defendant lives, with permission from a bailiff, an adult living within that distance can serve. They'll also need to write up a certificate of service.

You can personally serve the defendant if they agree to it. You'll have to create an acknowledgment form for them to sign, then give it to the court as proof of service.

If necessary, you can get the court's permission to serve the other parent via registered mail, email or public notice.

Information for defendants

When you're served with an application, it means someone has started a court case against you. If the documents are written in a language you're not proficient in, you'll have to pay for a translation. You can find a translator online.

The suggested course of action is to contact a lawyer.

If you agree with everything the other parent is asking for, you don't have to respond. However, the other parent can then ask for a default judgment, meaning you won't have a say in the terms of the final judgment. It's best to draft an agreement with the other parent to ensure you are comfortable with all the terms.

If you disagree with anything the other parent is asking for, you have 15 days (30 days if you live outside of Québec) to file an Answer with the court listed on the application. Your response can be in English or French. You'll need to serve a copy to the other parent. (See Step 4.)

Preparing for what comes next

The next step in the court process depends on your case. Maybe you need a temporary judgment. Either way, you'll face months of conferences and information gathering before ultimately going to trial, unless you settle.

Take advantage of technology to be fully prepared.

The Custody X Change online app offers custom parenting calendars, parent-to-parent messaging, an expense tracker and more. You can use it to put together proposals for the other parent, negotiate, prepare court paperwork or organize evidence.

Be prepared for every step of your case with Custody X Change.