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Mediation
Litigation
Language of Proceedings
Separation or divorce
In Quebec there is a requirement that parties to a contested divorce become acquainted with the mediation process by attending an information session with a qualified mediator.
Mediation is a viable alternative when the best interest of the family is given priority. An optimal solution is always possible, but proves to be elusive when one party is dishonest and puts his or her own interests first, as is unfortunately often the case.
If you choose mediation you should always consult an attorney for independent counsel before signing any agreement negotiated with the help of a mediator.
If you know in advance that mediation will not work or you try mediation and it fails, you will have no choice but to litigate. If this happens the following will provide you with a brief overview of some of the issues that may form part of your case.
The courts in Quebec function in both French and English. The Superior Court is a federal court with federally appointed judges, and both French and English are official languages before it.
Almost all judges that hear family cases in the Superior Court are bilingual.
During a hearing the language spoken will most often depend on the language of the witness, or the person who is testifying. The witness chooses which language to speak. The lawyers are expected to conduct their questioning in either English or French as chosen by the witness. Lawyers who practice litigation in Quebec, particularly in Montreal where the English population is concentrated, are expected to be able to function adequately in both languages.
When a witness speaks neither French or English, he or she will be expected to testify through an official interpreter.
The administration of justice is a matter that falls within provincial jurisdiction. The people who work at the various Courthouses in Quebec are provincial civil servants. It has been commonly accepted that the working language of the civil servants who administer the courts in Quebec is French.
You will find that many court forms, such as writs of seizure, are published in French only.
In the event of the breakdown of a marital relationship there are two types of proceedings which may be taken under the Civil Code of Quebec – an action for a legal separation (governed by articles 496 to 515) or divorce (referred at articles 516 to 521 but governed by The Divorce Act 1985).
A legal separation relieves the parties of the obligation to live together. It does not break the matrimonial bond and the parties stay married. It may be requested without having to prove anything other than that one party no longer desires to co-habit.
A divorce ends the marriage. It may be obtained without establishing any fault on proof that the parties have lived separate and apart for at least one year prior to the pronouncement of a judgment of divorce, or upon proof of marital breakdown caused generally by the other party’s marital fault consisting of adultery, physical or mental abuse etc.
It is important to understand that divorce proceedings may be started on the basis of separation for one year even prior to the expiry of the one year period, as long as one year will have elapsed at the time that the judgment of divorce is rendered.
Generally speaking legal separation and divorce both produce the same effects – there will be decisions on custody, access and financial support, and a division of property will take place.
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