c-25.01, r. 0.2.4 - Regulation of the Superior Court of Québec in family matters

À jour au 20 mai 2016

Ce document a valeur officielle.

not in force

chapter C-25.01, r. 0.2.4

Regulation of the Superior Court of Québec in family matters

Code of Civil Procedure

(chapter C-25.01, a. 63).

CHAPTER I GENERAL

1. Application: This Regulation applies in all judicial districts of Québec.

Decision 2016-05-20, s. 1.

CHAPTER II APPEALS FROM DECISIONS OR ORDERS OF THE COURT OF QUÉBEC IN YOUTH PROTECTION AND YOUTH CRIMINAL JUSTICE MATTERS

DIVISION I YOUTH PROTECTION

2. Definitions: In this Chapter, “Court” means the Superior Court of Québec and “Court of Québec” means the Court of Québec, Youth Division.

Decision 2016-05-20, s. 2.

3. Introduction of appeal: Appeals are heard by the Court in the Family Chamber, unless referred by a judge to the Criminal Chamber.

Decision 2016-05-20, s. 3.

4. Notice of appeal: In addition to the provisions of section 104 of the Youth Protection Act (chapter P-34.1), the notice of appeal contains the object of the complaint, the conclusions of the decision or order appealed from, and the names of the parties’ lawyers in first instance.

The Court may make any appropriate order under section 112 of the Youth Protection Act.

The notice of appeal is signed by the appellant or the appellant’s lawyer and gives give the address to which any communication may be directed.

The appellant may invoke grounds not stated in the notice of appeal by filing with the clerk of the Court a notice stating such grounds precisely and concisely, together with proof of service upon the respondent or the respondent’s lawyer, before the appeal is heard and not later than 15 days after the filing of the complete transcript of the proceedings.

Decision 2016-05-20, s. 4.

5. Representation statement: A lawyer representing a party before the Court must file a representation statement at the court office within 10 days of the filing of the notice of appeal.

Decision 2016-05-20, s. 5.

6. Preparation of record:

(1)  Upon receipt of the notice of appeal, unless the Court orders otherwise upon application by the appellant, the clerk of the Court of Québec takes all necessary steps to obtain as soon as possible a complete transcript of the proceedings, the evidence adduced and the decisions rendered both in the course of proceedings and at the time of the final decision and, where applicable, the order.

(2)  As soon as the transcript is completed, the clerk of the Court of Québec sends the original to the court office with copies to the parties or their lawyers. Where it appears impossible to obtain a complete transcript, the clerk of the Court of Québec advises the clerk of the Court and the parties, giving reasons.

Decision 2016-05-20, s. 6.

7. Setting down on the roll: Upon the expiry of the time allotted for the answer, the clerk of the Court sets the appeal down on the roll of the Family Chamber, 15 days thereafter or on the first day of the next session, and gives notice to the parties or their lawyers.

On the day fixed, the parties or their lawyers must be present to inform the Court of the nature of the case and the duration of the hearing. The judge then sets a definitive date for the hearing of the appeal, which proceeds on that date without further notice.

If a party is absent or is not represented on the day fixed, the Court may apply the powers provided for in section 11 of this Regulation.

Decision 2016-05-20, s. 7.

8. Argument in writing: Any party who wishes to submit an argument in writing must have it served and file it within 15 days of the deposit of the complete transcript of the proceedings; the written argument must, where applicable, state the relevant facts with appropriate references to the transcript and set out the arguments with reference to the authorities relied upon.

Decision 2016-05-20, s. 8.

9. Depositions: When the Court hears additional evidence, it must be recorded in a way that allows testimony to be stored and reproduced, or recorded by an appropriate independent system that, although not connected to a master system, ensures the integrity of the deposition.

Decision 2016-05-20, s. 9.

10. Powers of the Court: The Court may

(a)  dismiss the appeal, where the appellant is not ready to proceed when the case is called;

(b)  allow the appellant to proceed outside the presence of a respondent who is not ready to proceed when the case is called;

(c)  upon application or on its own initiative, dismiss an appeal initiated in contravention of the formalities prescribed by law or by the rules of the Court.

Decision 2016-05-20, s. 10.

11. Applications: All applications must be served on the adverse party or that party’s lawyer with a notice of presentation of at least 3 days. The judge may, however, change the time limit if the judge considers it necessary.

Decision 2016-05-20, s. 11.

12. Copies of judgments: The clerk of the Court notifies a copy of the judgment to the judge who rendered the decision appealed from and to the clerk of the Court of Québec, as well as to the persons listed in section 94 of the Youth Protection Act (chapter P-34.1). A copy of the judgment may be notified using technological means to parties and lawyers that have provided the required contact information.

Decision 2016-05-20, s. 12.

13. Record: Upon the expiry of the time limit for appeal to the Court of Appeal, the clerk of the Court returns the original record to the clerk of the Court of Québec.

Decision 2016-05-20, s. 13.

14. General provision: The Court may make any decision or order having regard to the best interests of justice.

Decision 2016-05-20, s. 14.

DIVISION II YOUTH CRIMINAL JUSTICE

15. Interim release in the field of youth criminal justice: The Court may, after the filing of the notice of appeal or an application for review of the sentencing decision, upon a written application presented with at least 3 days’ written notice served on the prosecutor and filed at the court office, order the interim release of the appellant and set conditions.

Decision 2016-05-20, s. 15.

CHAPTER III DIVORCE, SEPARATION, ANNULMENT OF MARRIAGE AND FILIATION

DIVISION I PLEADINGS

§ 1 . — General

16. Child custody and tutorship: A party that applies for custody of a child or tutorship to a child must attest that the child is not the object of a court decision or a pending case before a court or of an agreement with the Director of Youth Protection, or, if such is the case, must give the particulars of such decision or pending case or agreement.

Decision 2016-05-20, s. 16.

17. Birth certificates: Providing children’s birth certificates as evidence is not required unless their filiation is in dispute. Photocopies of the parties’ birth certificates are sufficient.

Decision 2016-05-20, s. 17.

§ 2 . — Application for divorce

18. Content: An application for divorce, supported by an affidavit and, where applicable, a notice as to contestation, must be drawn up in accordance with Form I and signed by the applicant.

Decision 2016-05-20, s. 18.

19. Attestation of birth: In every application for divorce, an attestation by each spouse, drawn up in accordance with Form II, must be enclosed with the request for setting down for trial and judgement provided for in article 174 of the Code of Civil Procedure (chapter C-25.01) or, in the case of a joint application, with the application.

A request for setting down for trial and judgment or an application may not be made without such attestations.

The attestation must be attached to the copy of the judgment that is sent to the Registrar of Civil Status.

Decision 2016-05-20, s. 19.

§ 3 . — Other originating applications

20. Content: To the extent possible, any application for annulment of marriage, separation as to property or separation as to bed and board, must include the information required under paragraphs 1 to 7, 10 and 11 of Form I.

Decision 2016-05-20, s. 20.

21. Joint application: All exhibits must be filed with the court office at the same time as the joint application.

Decision 2016-05-20, s. 21.

DIVISION II PERSONAL SUPPORT FOR APPLICANT

22. Sworn statement by applicant: In order to be put on the roll of the Practice Chamber, any application for the purpose of fixing or varying support for the applicant must be accompanied with a sworn statement that reflects the applicant’s financial situation and that of the children in the applicant’s care; the statement must be prepared in accordance with Form III and be served with the application.

Decision 2016-05-20, s. 22.

23. Sworn statement by other party: At least 5 days before the presentation of the application, the other party must serve on the applicant and file in the record a sworn statement of the other party’s financial situation in accordance with Form III, failing which the applicant may, at the Court’s discretion, proceed outside the presence of the other party. The notice of presentation of the application must mention this requirement.

Decision 2016-05-20, s. 23.

24. Admission of ability to pay: A party that acknowledges in Form III being able to pay the amounts claimed by the adverse party is not required to provide a detailed financial statement, unless the judge decides otherwise.

Decision 2016-05-20, s. 24.

25. Consent or draft agreement: The consent or draft agreement of the parties or their affidavits for judgment must describe each party’s financial resources and situation, unless they have completed and submitted a sworn financial statement in accordance with Form III or, as the case may be, with the child support determination form.

Decision 2016-05-20, s. 25.

26. Trial on the merits: Both parties must serve on each other a statement of their financial situation drawn up in accordance with Form III at least 10 days before the date of the trial on the merits, or at the time fixed by the person who presides over the pre-trial conference.

Decision 2016-05-20, s. 26.

DIVISION III FAMILY PATRIMONY

27. Mandatory information: In every application for separation as to bed and board, annulment of marriage, or divorce, the party making the request for setting down for trial and judgement in accordance with article 174 of the Code of Civil Procedure (chapter C-25.01) must include either a declaration by the parties that they are not subject to the rules governing family patrimony, a renunciation of partition, a declaration that partition is not contested, or a sworn statement of the family patrimony made in accordance with article 413 of the Code of Civil Procedure.

Where the other party contests the statement, that party must communicate and file with the request for setting down for trial and judgment in accordance with article 174 of the Code of Civil Procedure a sworn statement of the family patrimony made in accordance with article 413 of the Code of Civil Procedure.

The statement of the family patrimony is prepared using the form established by order of the Chief Justice and published on the Superior Court website.

Decision 2016-05-20, s. 27.

28. Renunciation: A party that renounces the partition of benefits accrued during the marriage or civil union under a retirement plan or the partition of earnings registered in the name of a spouse pursuant to the Act respecting the Québec Pension Plan (chapter R-9) or a similar plan must confirm that he or she knows the extent of the value which may be partitioned and the possibility of being informed of its exact amount.

Decision 2016-05-20, s. 28.

DIVISION IV PARTNERSHIP OF ACQUESTS

29. Mandatory information: In every application for separation as to bed and board, the annulment of marriage, or divorce, the party requesting the setting down for trial and judgment in accordance with article 174 of the Code of Civil Procedure (chapter C-25.01) must include a sworn statement of the partnership of acquests.

If the other party contests the statement, that party must file with the request for setting down for trial and judgment in accordance with article 174 of the Code of Civil Procedure a sworn statement of the partnership of acquests.

The statement of partnership of acquests is prepared using the form established by order of the Chief Justice and published on the Superior Court website.

Decision 2016-05-20, s. 29.

DIVISION V PSYCHOSOCIAL EVALUATION

30. Application: Referrals to the Service d’expertise psychosociale attached to the Superior Court of Québec are made only in cases involving minor children.

Decision 2016-05-20, s. 30.

31. Order: In any family case involving the interests of a minor child, the Court may, on initiative or on request, order the Service d’expertise psychosociale attached to the Superior Court to designate an expert to shed light on any question connected with child custody or concerning the child.

Where applicable, consent, drafted in accordance with Form IV and signed by the parties and their lawyers, is filed in the record.

Decision 2016-05-20, s. 31.

32. Forwarding of expert report: In the order made, the judge indicates whether the report is to be forwarded to the Chief Justice or a judge designated by the Chief Justice, or returned to the judge if the judge remains seized of the matter.

Decision 2016-05-20, s. 32.

33. Order issued during hearing: The order is issued from the bench, in the presence of the parties.

The clerk notifies the decision and all other relevant documents to the Service d’expertise psychosociale.

Decision 2016-05-20, s. 33.

34. Content of order: The order, drawn up in accordance with Form V, indicates the specific object of the expert report. The name of the expert, the expert’s profession, or the manner in which the evaluation should be carried out, if mentioned in the order, constitute recommendations to the Service. The Court may, if applicable, issue an order in accordance with section 19 of the Act respecting health services and social services (chapter S-4.2) and article 429 of the Code of Civil Procedure (chapter C-25.01), using Form VI.

Decision 2016-05-20, s. 34.

35. Submission of report: The expert submits the report to the Service d’expertise psychosociale, which forwards it to the clerk of the Court. The clerk then forwards it to the judge who ordered the expert report or, if the judge is no longer seized of the matter, to the Chief Justice or the judge designated by the Chief Justice, and to the parties. The judge or the clerk places the report in the record in a sealed envelope.

Decision 2016-05-20, s. 35.

36. Expert report and testimony of the expert: The report of an expert stands in lieu of the expert’s testimony. However, the expert may be called to testify in accordance with article 294 of the Code of Civil Procedure (chapter C-25.01).

Decision 2016-05-20, s. 36.

DIVISION VI SUPERVISED ACCESS BY A NATURAL PERSON OTHER THAN A SUPERVISION RESOURCE

37. Supervised access rights: Every request or offer to exercise supervised access rights with respect to a minor child, made by a natural person other than a supervision resource, must include a written commitment by that designated person.

Failing this, the order fixing supervised access rights must be served on the designated supervisor and include the notice set out in Schedule A of this Regulation.

Decision 2016-05-20, s. 37.

DIVISION VII APPLICATION FOR VARIATION

38. Mandatory information: Any application to vary, rescind or suspend corollary relief must be supported by an affidavit and contain the following information:

(a)  the current marital status of the parties;

(b)  the address of the residence of the parties and their dependent children’s address, age and sex;

(c)  the current terms and conditions of any child custody and access arrangements;

(d)  the current amount of support and the amount requested;

(e)  the amount of arrears, if any;

(f)  the changes in circumstances that support the application.

Decision 2016-05-20, s. 38.

39. Previous order issued in another case: In the case of an application for the variation of an order issued in another case, copies of prior judgments and of the pleadings on which judgment was rendered must be filed in the record unless they have already been included.

Decision 2016-05-20, s. 39.

DIVISION VIII CLERK

40. Judgment or Court order: The clerk prepares and signs every judgment or order issued by the Court or by a judge, unless such judgment or order has been prepared and signed by the judge.

A divorce judgment must be prepared in accordance with Form VII and bear the date on which it was rendered.

Decision 2016-05-20, s. 40.

41. Extract of judgment: Upon request, the clerk may issue an extract of a judgment that is limited to the conclusions.

The filing of the judgment at the office of the Court must be accompanied by a partial copy that includes the style of cause, the title “Extract of Judgment” and the disposition beginning with the words: “For these reasons...”.

Decision 2016-05-20, s. 41.

DIVISION IX DIVORCE OFFICE

42. Duties of the clerk: In each of the judicial districts of Québec, the Divorce Office is administered by the clerk. The duties of the clerk are as follows:

(a)  to file separately the divorce records and to keep registers, an index, a court ledger and a special register available to the public where every divorce judgment is entered without delay;

(b)  to receive and register applications after ascertaining that they comply with the requirements of the Divorce Act (R.S.C. 1985, c. 3 (2nd Suppl.)) and of the Rules of Practice;

(c)  to keep a register of pleadings containing;

i.  with respect to each application, the names and addresses of the parties and the date of filing;

ii.  with respect to each divorce judgment, the names and addresses of the parties and the date it was rendered;

(d)  to fill out the forms required by the Rules of Practice or the regulations made pursuant to the Divorce Act;

(e)  once the divorce has taken effect, to issue a certificate of divorce in accordance with Form VIII, upon request;

(f)  in accordance with subsection 17(11) of the Divorce Act, to forward, when the Court has issued an order varying a support order or custody order of another court, a certified true copy of the variation order to the other court or to any other court which had varied the original order;

(g)  to forward, in the case of a provisional order, the documents provided for in subsections 18(3) and 18(6) of the Divorce Act;

(h)  to serve upon the applicant or the applicant’s lawyer the notice provided for in subsection 18(5) of the Divorce Act at least 10 days before the date fixed for submitting further evidence;

(i)  to serve upon the parties the notice provided for in subsection 19(2) of the Divorce Act, prepared using Form IX, accompanied by a copy of the documents received from the court which issued the provisional order;

(j)  as required by subsection 19(12) of the Divorce Act, to send a certified true copy of any order issued under subsection 19(7) of the Divorce Act;

(k)  to forward to the competent court, following a transfer order issued under section 6 of the Divorce Act, a true copy of the record and the order;

(l)  to hire the personnel necessary for the performance of the clerk’s duties, including deputyclerks, according to the number of cases filed in the Divorce Office for which the clerk has complete responsibility.

Decision 2016-05-20, s. 42.

DIVISION X FINAL PROVISIONS

43. Coming into force. This Regulation replaces the Rules of practice of the Superior Court of Québec in family matters (chapter C-25.01, r. 6).

Decision 2016-05-20, s. 43.

SCHEDULE A

NOTICE TO THE SUPERVISOR OF ACCESS RIGHTS IN ACCORDANCE WITH SECTION 37 OF THIS REGULATION

You have agreed to act as a supervisor of access rights. An access right is an Order of the Superior Court permitting a parent to see his or her child(ren) under certain conditions. The “exercise of access rights” is the time during which a parent sees his or her child(ren).

The Court has ordered supervised access rights and you have been named to act as the supervisor.

As a result, you must

□ be present for each and every exercise of access rights;

□ be present for the entire duration of the exercise of access rights.

You cannot choose to stop acting as the supervisor of access rights or have yourself replaced at your own convenience or discretion.

If you are no longer willing or able to act as the supervisor of access rights, you must advise both parents within a reasonable time, in other words well in advance of the next scheduled exercise of access rights.

This notice must be accompanied by the order for supervised access rights.

Decision 2016-05-20, ann. A.

FORM I

  

Decision 2016-05-20, form. I.

FORM II

  

Decision 2016-05-20, form. II.

FORM III

  

Decision 2016-05-20, form. III.

FORM IV

  

Decision 2016-05-20, form. IV.

FORM V

  

Decision 2016-05-20, form. V.

FORM VI

  

Decision 2016-05-20, form. VI.

FORM VII

  

Decision 2016-05-20, form. VII.

FORM VIII

  

Decision 2016-05-20, form. VIII.

FORM IX

  

Decision 2016-05-20, form. IX.