Separation

Only three grounds can be invoked in requesting a divorce, in particular that of having lived separately for at least one year.

Divorce must by granted by the courts. The only possible cause of divorce is the breakdown of the marriage, which can be invoked on one of the following three grounds:

• Spouses have been living separately for at least one year
• Adultery
• Physical or mental cruelty

Divorce results in:

• The definitive end of the marriage
• The partition of the family patrimony and the dissolution of the matrimonial regime

Once divorced, the spouses are no longer bound by the obligations of marriage, namely fidelity, succour and assistance. The effects of the divorce begin 31 days after the court grants the divorce. During this period, one of the spouses may appeal against the judgment if they disagree with its conclusions.

Couples cannot decide for themselves the amount of child support, and must comply with the scale established by law.

Several factors are taken into account in the calculation of child support:

• The financial capacity of each parent
• The number of children
• The type of custody chosen
• The children’s needs
• Special circumstances
• The scale established in Quebec

The notary can put down in writing the parents’ agreement on access rights and child support. In the event of disagreement, a mediating notary can help you to resolve the conflict.

How is the child support amount established?

In Quebec, child support amounts are established according to a scale. This calculation table takes into account the respective incomes of the parents. In the event of separation, the parent with the higher income must pay child support regardless of the type of custody. Child support is then paid to the other parent for the needs of the children.

Couples cannot determine the amount due for child support themselves. They must comply with the scale.

Special expenses

Child support does not cover certain special expenses, like those related to private school, daycare or sports activities, for example.

The scale establishes the amounts the parents will contribute to their children’s special expenses based on a percentage of their incomes. The mediating notary will explain to you which needs are considered special expenses.

Determining or revising child support

If you want to make changes concerning the custody of a child or the establishment of child support and have been granted a divorce or a judgment for child support, you will have to submit an application to the court.

De facto spouses who are separating, as well as formerly married spouses who wish to review the arrangements originally established when they divorced, must also submit an application to the court.

Have you agreed on all the terms? If that is the case, a notary can draw up the agreement and all the necessary documentation, and then submit an application to the court to have the agreement homologated by judgment. To guide you through the process of setting or reviewing child support payments, please consult:

• The Government of Québec’s guide The Québec model for the determination of child support payments
• Calculation tool to help parents estimate child support payments according to their situation

Couples with children are entitled to several hours of family mediation free of charge.

The objective of family mediation is to help spouses reach a fair agreement with respect to the effects of the separation. It is carried out in the presence of a mediator who will help them reach this agreement. Mediation fosters communication between the parties. Mediation may be limited to the partition of property or the custody of children.

Many notaries have developed this expertise as a result of special training and have been professionally certified to act as family mediators.

The mediation process has many advantages. It makes it possible to establish:

• A spirit of collaboration rather than confrontation
• Greater flexibility with respect to the aim and procedure associated with the agreements
• Spouses actively participate in the solution rather than having it imposed on them by the court
• Higher likelihood of arriving at a win-win solution
• Better communication in the future

Free mediation hours

Family mediation can help you to avoid the traditional legal process and is much more cost-effective. De facto (common law) and married spouses with at least one minor or dependent child are entitled to several hours of mediation paid for by Justice Québec:

• 5 hours for couples with children using mediation for the first time
• 2.5 hours for a review or if a judgement has already been rendered

To find notary mediators accredited by an organization recognized by the Minister of Justice, including the Chambre des notaires, consult the Directory of accredited civil mediators.

Accessible mediation for all couples

It is possible for a couple with no children to use a family mediating notary by covering the professional fees of the notary, which are usually established according to their professional rate.

Separated or divorced spouses who wish to make a change to their agreement or judgment may also benefit from mediation. Please note: If child support has been established, it can be reviewed annually in a family mediation session.

Using a mediating notary is an important advantage, as these professionals are legal specialists and the resulting agreement has a very good chance of being ratified by the court.

The presence of the mediating notary ensures that the solutions chosen are fair and equitable to both spouses and that they comply with the laws in force. The mediating notary does not offer an opinion, but rather provides all the legal information necessary for the parties to make informed decisions.

Once the parties have agreed on the necessary decisions, the mediating notary prepares a draft agreement that addresses their wishes. The notary ensures that the solutions set out in the draft agreement (in the case of separation from bed and board, divorce or dissolution of a civil union before the court) or in the notarial transaction contract (in the case of dissolution of a civil union before a notary) comply with the law and that they reflect the wishes expressed by the parties.

Once the draft agreement has been signed, the next step is to file a joint application with the court for separation from bed and board, divorce or dissolution of a civil union on the basis of the agreement. The draft agreement has a very good chance of being ratified by the court given the precautions taken.

Separation from bed and board can only result from a court judgment which sets out the legal effects of separation, including custody, child support and the partition of certain property.

Separation from bed and board can only result from a court judgment which sets out the legal effects of separation, including custody, child support and the partition of certain property.

When “community of life” (cohabitation) with the other spouse is no longer desired and a divorce is not immediately possible, separation from bed and board may be the appropriate choice. It does not break the bond of marriage since the spouses are still married, but it frees them from the obligation of living together.

The effects of separation are as follows:

• Despite the judgment, the spouses are still legally married and are unable to remarry
• The spouses no longer have to live together, but the other duties and obligations resulting from marriage continue
• The matrimonial regime becomes that of separation as to property

Why request separation from bed and board?

There are different grounds for requesting separation from bed and board, including:

• Religious reasons
• Financial reasons
• There are no grounds for divorce, given that less than a year has passed since the spouses stopped living together and no adultery or physical or mental cruelty has occurred.

Unlike an application for divorce, it is not necessary to state the reasons for the application for separation from bed and board. It is a way of achieving legal separation of property. However, the bonds of marriage remain and the spouses will have to partition the family patrimony in the event of a divorce.

Do not hesitate to consult a family mediator, who can then prepare a draft agreement that addresses your wishes. In this case, the agreement would be a joint application for separation from bed and board. The mediating notary can submit this application to the court, which will render a judgment. Once community of life has ceased for one year, it will then be possible to file a joint application for divorce.

Married spouses can get an amicable divorce, which has several advantages compared to a judgment rendered in an atmosphere of confrontation or contestation. The preparation of the documents by a notary will facilitate their homologation (ratification) by the court.

It is possible to end a marriage in an atmosphere of agreement through an amicable separation. An amicable separation has many advantages when compared to a judgment obtained in an atmosphere of confrontation or contestation. This kind of separation takes less time, reducing costs and professional fees.

However, if the spouses do not agree on all the consequences of the divorce, an accredited mediating notary can meet with them and help them settle their differences in order to reach an agreement. The mediating notary can settle all types of disputes and submit all applications to the court, regardless of whether the agreement is partial or complete.

The draft agreement: Prior to an amicable separation

In order for the notary to obtain a judgment for divorce or separation from bed and board, the spouses must have previously agreed on all the consequences of their separation.

Your notary can draw up this agreement, known as a draft agreement. This document will include the arrangements regarding:

• Child custody
• The obligations resulting from the marriage
• The family patrimony
• The matrimonial regime
• The marriage contract
• Any other matter arising from the marriage

This draft agreement will then be filed with the court when you apply for legal separation or divorce.

Who can submit the joint application for divorce to the court?

Married spouses can submit a joint application for divorce to the court themselves, or they can go through a notary if both of the following conditions are met:

• They have been living separately for more than a year
• They agree on all the consequences of the divorce

Under these conditions, the notary is authorized to represent you before the court, which will save you from appearing in court.

You will also benefit from the notary’s expert opinion in preparing the documents that must be presented to the judge. Since the agreement was drafted by the notary in accordance with the law, this will facilitate its homologation (ratification) by the court.

There will be no winners or losers following the judgment, as it will be the result of negotiations and tailored agreements, freely entered into by responsible people deciding on their future for themselves.

The presence of a mediating notary ensures that the solutions chosen are fair and equitable to both spouses and that they comply with the laws in force. The mediating notary remains neutral, providing all the legal information necessary for the parties to make informed decisions.

Since February 21, 2017, the law has allowed notaries to represent parties seeking an amicable divorce in court. This saves the parties from going to court and also speeds up the process of agreement homologation, especially when the notary has also drafted the terms of the agreement. Indeed, the fact that the draft agreement has been prepared and clearly drafted by a notary in accordance with the law will facilitate the joint application to the court.

In order to be fully aware of your rights and obligations, it is best to use the services of a family law notary. During a preliminary meeting, the notary will be able to help you at a number of levels. In particular, they will:

• Help you find solutions that are sustainable, fair and equitable for all family members
• Explain the different aspects of divorce to you, in particular the compensatory allowance, the partition of the family patrimony and the calculation of child support amounts
• Inform and advise you on your rights and obligations so that you can make informed decisions
• Prepare the application in compliance with the law
• Save you time through knowledge of the practices at the courthouse where the application must be filed
• Make the necessary observations before the court to ensure that the draft agreement is homologated

Litigation Please note that in the event of disputes between the parties, the notary will have to cease involvement in the case. At that stage, however, the spouses can consult a mediating notary who is qualified to settle disputes.

If there is no dispute between the parties, the spouses can be represented by a notary for their divorce application before the court and avoid appearing in court.

Mediation may require from three to five meetings lasting one or two hours each.

Here are the main stages of the process:

1. In the first, informational meeting, the mediating notary explains the process of family mediation and the basic rules. If the parties decide to continue with the mediation at the end of the first meeting, the mediator has them sign a mediation contract. This contract is evidence of their good faith, attests to their intention to cooperate, and establishes the costs of the process.
2. The mediating notary helps the spouses analyze the problems and determine their respective needs and interests, as well as those of their children if applicable.
3. The spouses and the mediator then explore different options to see whether they meet the identified needs.
4. If the spouses have children, the mediating notary will calculate the child support amounts according to the government scale.
5. After the parties have reached an agreement and made the necessary decisions, the mediating notary prepares a draft agreement that fully reflects their wishes. The notary verifies that the solutions set out in the amicable separation agreement comply with the law and reflect the wishes of all parties.
6. Once the amicable separation agreement is signed, the next step is to file a joint application for separation from bed and board, divorce or civil union dissolution based on this agreement. The draft agreement will then be homologated (ratified) by the court.

The mediating notary may represent the spouses before a judge in court for the joint application for divorce or separation from bed and board. The notary will also be able to submit the application for custody and child support to a special clerk.

An amicable separation agreement provides for all the consequences of the separation.

The aim of a mediation agreement or draft agreement is to settle all the points relating to the separation in order to avoid any potential conflicts. It also partitions the assets of the married or de facto spouses.

It will provide answers to the following questions:

• Where will the children live?
• How will custody and access rights be split?
• Who will pay school fees?
• Who will pay for the children’s extra-curricular activities?
• Will child support have to be paid?
• Who will continue to occupy the family residence?
• Will the family residence be sold?
• Who will keep the movable property?
• Who will pay common debts?
• Will alimony have to be paid, and if so, for how long?
• How will the family patrimony be partitioned?
• How will the matrimonial regime be liquidated?
• Will there be a compensatory allowance?

This list is not exhaustive and there are several other elements that can be added by the couple.

De facto (common law) spouses can have recourse to a mediating notary to draw up a draft agreement in the event of separation. This will help them reach an agreement about their children and the partition of jointly acquired property.

Since the dissolution of the union is much easier for childless couples, this often encourages spouses to opt for a civil union.

If the couple is childless, the union can be dissolved through a joint declaration and notarial contract. Spouses who agree on the division of their property and family patrimony may dissolve their union without any further formalities. This is a true amicable separation with no court intervention.

If the couple has children together, the court must intervene as their interests are at stake. An application for dissolution must then be submitted to the court.

Spouses may consent to the dissolution of their civil union simply because their desire for “community of life” has been irretrievably undermined. The civil union is dissolved as soon as the notarized transaction contract is signed or a judgment is rendered.

The effects of the dissolution of the civil union are as follows:

• A joint declaration of dissolution and notarial transaction contract have the same effects as a judgment of dissolution of the civil union
• A judgment of dissolution of the civil union rendered by the court has the same effects as a divorce

There are no legal effects, even if the couple’s “community of life” ceases.

The effects of a de facto separation of married spouses are very limited, since there is no court order to officially settle the legal effects of separation.

The effects of a de facto separation of married spouses are very limited, since there is no court order to officially settle the legal effects of separation. There are no legal effects, even if the couple’s “community of life” ceases.

As a result:

• The bond between the spouses remains
• Spouses retain the same duties and responsibilities (fidelity, succour and assistance) toward each other as during community of life
• Spouses cannot request the partition of family patrimony
• All the effects of the marriage remain
• The date of cessation of community of life may be identified by the parties to determine the net value of the family patrimony and the effects of dissolving the civil union regime
• The date of de facto separation may be identified by the court for the division of the family patrimony if a judgment of separation from bed and board or divorce occurs later

To avoid potential conflicts, you may wish to consult a notary in order to enter into written agreements. Changes may occur as a result of a separation, and a transaction contract is always preferable to an informal verbal agreement.

For more information, visit the Éducaloi website