Me Josée Dufour
A member of the Barreau du Québec since 2012, Josée Dufour practises at Verreau Dufresne Avocats, where she devotes herself to family and youth law. With more than a decade of courtroom experience, she supports her clients in separation, custody, support and adoption matters with rigour, empathy and transparency.
View profileBook an appointmentIn family matters, you can ask the court to make a quick decision on an urgent issue. This is called an application for a safeguard order, which seeks to obtain a safeguard order (also called an interim order). Our family lawyers in Québec City, Lévis and Montmagny explain how this procedure works.
What is a safeguard order?
In family matters, a safeguard order is a decision by a Superior Court judge that sets out the measures to be taken immediately to resolve an urgent situation when the parties cannot agree.
Through an application for a safeguard order, you can ask the court to rule on various family situations, such as:
- Child custody
- Use of the family residence
- Consent to travel with a child
- Consent to urgent medical care for a child
- The need for child support to meet the children’s needs
- Violence in one parent’s home
- Etc.
The urgency requirement
An application for a safeguard order can be made in urgent cases only.
The courts have put it this way:
[27] (…) a safeguard order is not a judgment on the merits of the case, since the judgment on the merits is likely to differ from the judgment rendered by way of a safeguard order. This is because the two judgments are rendered in completely different contexts.
[28] A safeguard order means “urgency with a capital U.” A quick hearing and a summary review of the documents filed in the record describe the context of an application for a safeguard order, whereas the fundamental rule of our justice system is a full hearing of each party and their witnesses, so that the Court can rule in a medium- and long-term context.
[29] In this framework, when a change of custody is sought at the safeguard order stage, the Court must be convinced that it is dealing with an exceptional situation and that the immediate change requested is justified to protect the best interests of the child. The Court must avoid, as far as possible, changing an existing factual situation whose arrangements could be restored by the judge who will have had the benefit of hearing all the evidence.
Decision: Droit de la famille — 112708, 2011 QCCS 4597 (our translation)
In other words, there is urgency when waiting involves a significant risk and failing to act could harm the child’s interests. Because the situation is urgent, the court proceeds quickly on the basis of short written statements from the parties and brief explanations from the lawyers, without hearing any witnesses. It is a short debate, and the hearing is generally limited to 30 minutes.
Not sure whether your situation is urgent enough for a safeguard order? Contact our family lawyers for a straight answer about your situation. And if a safeguard order is not the right remedy, they will suggest other solutions to address the problem.
Quick hearing of the application
Because of its urgent nature, an application for a safeguard order can be heard by the court within 10 days after a bailiff serves the proceedings on the other party. If exceptional circumstances justify it and the court authorizes it, the application can even be heard before the 10 days are up.
Our family lawyers can tell you whether this time limit can be shortened in your case.
How long the order lasts
The order is temporary and is valid for no more than 6 months. As this period nears its end, the parties can, in exceptional cases, ask the court to extend it, but only for a very limited time.
Provisional measures
In divorce cases, proceedings generally take longer, and the issue to be decided does not always meet the urgency requirement for a safeguard order. That is why you can ask the court to rule on certain disputed issues so that the parties and the children can plan their lives until the final judgment.
The appropriate procedure is then an application for provisional measures. But be careful: this procedure is available only to married spouses, and therefore not to de facto spouses.
Like a safeguard order, provisional measures apply temporarily. However, unlike a safeguard order, provisional measures can be ordered for more than 6 months. They generally remain in effect until the final judgment is rendered.
Ask our family lawyers in Québec City, Lévis or Montmagny to learn more about this procedure.
Contact us
If you think your family situation requires quick action by the court, contact our family lawyers in Québec City, Lévis or Montmagny without delay for the right legal advice.
Our lawyers can:
- Assess the urgency of your situation and determine whether you need a safeguard order;
- Recommend alternatives if an application for a safeguard order is not the right remedy;
- Draft your application for a safeguard order;
- Contest an unjustified application for a safeguard order filed by your ex-spouse;
- Prepare your evidence for a court hearing and draft your detailed sworn statement (in other words, your written testimony);
- Negotiate an amicable settlement with your ex-spouse or their lawyer;
- Represent you in court.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
