Québec Child Custody Court Process: 8 Steps Explained
Before going to court, parents in Québec must consider an alternative dispute resolution (ADR) process to address family disagreements. If the ADR process is unsuccessful or parents decide it is not a realistic way for them to resolve their differences, they can go to court.
You'll start the court process by filing an application for divorce, legal separation or child custody. If you aren't able to reach an agreement with the other parent sometime during the process, you'll eventually go to a trial where a judge will make the final judgment.
While anyone can contend for custody of a child, this article focuses on parents.
The process you'll follow will look something like this.
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Step 1: Prepare for court
Before you start a court case, ask yourself these questions.
What will I ask for?
If you want to end your marriage, you'll ask for a divorce. If you want to remain married while living apart and dividing parenting duties, ask for a legal separation. Both types of cases include child support and the division of assets and property.
If you never married the other parent, you can simply ask for a custody judgment. You can also ask for child support. Before you ask for either, you'll need to establish that you are the child's legal parent (more below) if you haven't already.
Québec allows parents to raise single child-related issues, too. For example, you can ask the court to decide where your child will go to school.
Will I need legal representation?
Some parents forego a lawyer and do everything themselves. If you choose to represent yourself, you must follow the same rules as a lawyer and do your research.
You should hire a lawyer if any of the following is true:
- You have a complicated case.
- You have trouble with public speaking.
- The other parent has a lawyer.
- You'll require the help of an expert witness like a psychological expert.
What paperwork will I need?
Get a head start on gathering documents you'll likely need for your case. These can include:
- Income tax records
- Your child's school and medical records
- Your child's act of birth
- Your marriage certificate
Does the court recognize me as the child's legal parent?
Establishing parenthood (also called filiation) means becoming the child's legal parent. You must do this to get parental rights.
The child's birth mother is automatically a legal parent. Her male spouse or civil union partner is automatically the other legal parent when:
- The child was born during the marriage or civil union
- The child was born within 300 days of its end
- The child was born more than 300 days after its end but while the ex-spouse or ex-partner lived with the child's mother
In any other case, a person who wants to be a legal parent can write a voluntary acknowledgment of parenthood along with the mother, or they can ask the court to test their paternity or decide if they have acted in parental role.
If two people have a child via assisted procreation, they're both considered the child's legal parents.
Step 2: Open a case
To start your case, draft and file a Motion to Institute Proceedings. This application sets out the facts of your case and explains what you're asking for.
To add more detailed requests, create and submit a parenting plan as well. More detail can help prevent disputes and confusion after your court case.
Now or later, you can motion for temporary judgments if you have matters that can't wait until the final judgment.
Whoever starts the case is the plaintiff or applicant. The other parent is called the defendant or respondent.
You'll hand in your motions and parenting plan at the Superior Court of Québec location in the judicial district where at least one parent resides.
Your case won't officially begin until the court receives proof that the other parent was served court documents. Typically, a bailiff will serve the documents upon your request.
Possible: Get a temporary judgment
A safeguard order addresses urgent issues before they cause harm. You might need to request one if the other parent is threatening to remove your child from the province or if you need a judge to decide who can stay in the family home during your case.
Provisional measures address nonemergency matters in divorce and separation cases. They can cover parenting time, child support and divorce matters not related to the child.
If you motion for a safeguard order or provisional measures, you will need to attend a hearing for a judge to issue it.
The hearing for a safeguard order generally takes place soon after you submit the motion. If you prove that it needs to happen especially quickly, you may be exempted from notifying the other parent so it can happen within days.
The hearing on provisional measures happens a few months after the other parent receives notice of the request. This is usually still several months before the final judgment is ready.
Step 3: Attend a co-parenting session
Before a judge will hear your case (except to address a motion for a safeguard order), you must attend a virtual session about co-parenting.
Overseen by two mediators, the session will teach you:
- Ways mediation could help you settle disagreements
- How to deal with your breakup
- How to prepare questions for court or an alternative dispute resolution process
You don't have to attend the same session as the other parent in your case, but you can request to. The session will last at least two hours. Afterward, you'll receive proof that you attended.
Parents who have been to a session before or who tried mediation for their current dispute less than one year prior usually don't have to attend. However, the judge can still order a parent to attend.
If the case involves family violence, both parents are often exempt.
Step 4: Prepare your case protocol with the other parent
A case protocol (French: protocole de l'instance) is like a schedule that sets out what parents must do during the court process and when and how they'll do it. It covers things like:
- Whether parents have asked or will ask for temporary judgments
- Deadlines for filing exhibits for trial
- How much in legal costs parents expect to incur
- If there will be discovery (more below)
Case protocols are not always required for custody-only cases.
Parents are expected to collaborate on a case protocol. You can use Québec's case protocol template (a Word-document download) to create one.
The protocol has to be filed within 90 days of service in a divorce proceeding or within 45 days of service in a custody proceeding.
Twenty days after you turn in your protocol, it becomes binding, as long as the court finds it feasible. The court may call you to a case management conference if it determines there are things in your protocol to fix.
If you and the other parent can't fully agree on the protocol, the court will decide. You each can turn in a proposed protocol. If only one parent turns in a proposal and the other parent doesn't respond within 10 days, the filed proposal becomes the case protocol.
You (both parents together) or the court can make changes to the case protocol as your case progresses. You must file all changes with the court.
If you don't follow the case protocol, you might have to reimburse the other parent for legal costs they pay because of your disobedience.
Step 5: Go to a settlement conference
In a settlement conference, a judge guides parents in a conversation about the possibility of settling. It can take place in person or virtually.
Parents can request a settlement conference together any time before the court sets a trial date.
The conference is free and confidential. Lawyers can attend with their clients. Other people can only attend if parents and the judge agree that their presence will aid in the process.
If the parents reach an agreement, they sign a written version, and they can ask to have it made into a court order.
If there's no agreement, the case progresses toward trial. The judge who presided over the settlement conference cannot preside over the trial.
Step 6: Get ready for your trial (merits hearing)
Go to a case management conference
Leading up to trial, you might have case management conferences to make sure the case progresses smoothly. The court can order a case management conference with or without a parent's request.
Among other reasons, a conference may be called to:
- Issue safeguard orders
- Make changes to the case protocol
- Issue orders for psychosocial expertise
- Consider moving the trial back to give parents more time to prepare
- Stay (pause) the proceedings so parents can work on a settlement
The defendant can ask for the case to be dismissed at the conference. They can also make their case here — orally or via written statement. If the defence is oral, the court could go ahead and hear the entire case as they would at a trial if both sides state that they are ready. If this happens, the case jumps to Step 8 afterward.
Participate in discovery
Discovery is the process of gathering information before trial. During discovery, parents might exchange documents or interview one another.
A judge is not present at interviews (called pretrial examinations). An official stenographer, paid for by the parent who requests the examination, records and transcribes everything. You can use this testimony as evidence at trial.
The examination could be written instead. Parents would exchange a list of questions they must answer within a certain time frame.
Request a trial date
Generally, the court requires the plaintiff to request a trial date no more than six months (for custody) or a year (for divorce) after the original service in the case — or that amount of time after the court accepts the original case protocol.
If you're not ready within that time frame, you'll have to file a motion with the court explaining why. You'll have to file a new case protocol with your motion. Make sure you get all this to the court at least 30 days before the time expires.
To request a trial, file an Application for Setting Down for Trial and Judgment. The court must also have all of the following on file:
- Proof of attending a co-parenting session
- Three of your latest pay slips (if you are employed) or financial statements (if you're self-employed)
- Federal and provincial income tax reports and Notices of Assessment
- Child Support Determination Form
- Statement Required Under Article 444
- Statement of Income and Expenditures and Balance Sheet if either parent has requested spousal support
If your record is incomplete, the clerk will send you a notice that you have 30 days to complete it.
If your record is complete, you or your lawyer will receive a letter assigning you to a provisional roll call, where you'll appear before the chief justice of the Superior Court, a judge or a clerk to get a trial date.
Attend a pretrial conference
Some judges call parents and their lawyers for a pretrial conference to shorten the trial.
Any evidence that you want to present at trial that hasn't already been filed with the court must be presented here.
Step 7: Attend your trial
At a trial (also called a merits hearing), a judge hears each side's case, then makes a judgment.
Usually, the fewer issues in dispute, the sooner the trial date. If you're divorcing, you may be nine months to a year into your case before your trial starts. If you're just asking for custody, your trial may begin within two to six months of the start of your court case.
On average, a trial involving unmarried parents lasts one to two days, while a trial involving divorcing spouses lasts two to three days. The judge usually makes their decisions on the last day of trial, though they have up to one month to do it.
Step 8: Get a final judgment
The judge writes their decisions into the final judgment, which covers custody (called parenting time in divorce cases), visiting rights and any other matters they were asked to address. If requested, a parenting plan will be part of your judgment.
The court process could still continue after the final judgment — for example, if one parent appeals the decision or asks for a modification. You have 30 days to file an appeal. A change in circumstance is necessary for the court to hear a request to modify a final judgment.
For more information: Superior Court directives
The court procedure may differ slightly based on your judicial district. For an in-depth look at the court process, consult the Superior Court directives of your judicial district.
- Beauharnois (Salaberry-de-Valleyfield)
- Iberville (Saint-Jean-sur-Richelieu)
- Pontiac & Labelle
- Terrebonne (Saint-Jérôme)
Throughout your case
The Custody X Change app enables you to do all of this in one place.
Take advantage of our technology to stay on top of all the moving parts of your case.
Custody X Change is software that creates parenting plans and schedules you can present in court.