What to know about safeguard orders in 5 questions

A safeguard order is a court judgment settling an urgent issue that can’t wait until the final hearing, sometimes called a “trial”. This decision is usually temporary.

Either spouse or de facto partner can ask a judge for a safeguard order at any point in the legal proceedings. But the person asking for the order must show that the situation is urgent.

Here are examples of situations that, if urgent, could lead a person to ask for a safeguard order:

• One of the spouses or de facto partners wants to establish or modify child custody.
• One of the spouses wants to request or modify spousal support payments.
• One of the spouses or de facto partners wants to request or modify child support payments.
• One of the spouses or de facto partners wants a decision on the exclusive use of the family residence.
• One of the spouses or de facto partners wants to request a provision for costs.
• One of the spouses or de facto partners wants authorization for a trip with a child that the other spouse or partner opposes.

Temporary Decisions About Child Custody and Child Support (Éducaloi)

Asking for a Temporary Decision Before a Divorce Trial (Éducaloi)

You need to ask a judge for a safeguard order. This is usually done in a written document called an “application for safeguard order”.

In your application, you need to state what you want and explain why the situation is urgent.

For example, you could state that you’d like the judge to:

• order your ex to pay you spousal support or child support
• grant you custody of your children (also called parenting time)
• order your ex to leave the home so that you can stay there without him or her. You’re then said to be requesting “exclusive use of the residence”

If you have several urgent requests to make in relation to your separation, you can attach them to the same document.

The hearing is short 

A hearing to ask for a safeguard order is shorter than the final hearing. It is usually only a matter of minutes, while the final hearing can last hours or even days.  

There are usually no witnesses 

The judge decides based on documents in the case file, including written testimony from the spouses or de facto partners, called “affidavits”. The judge can also consider explanations by the parties’ lawyers, or the parties’ own explanations if they don’t have a lawyer.

The decision is usually temporary 

With some exceptions, the judge’s decision after the hearing will only be valid for a limited time. The judgment usually says how long the order will last, but it can’t be more than 6 months. The time period can also be extended.

The safeguard order won’t necessarily be the same as the final judgment. The judge who presides over the final hearing may adjust the order or make an entirely different decision.

Once a safeguard order expires, the spouses or de facto partners no longer have to follow the order.

There are two ways to avoid this situation, both of which must be done before the order expires:

• If the spouses or de facto partners agree to extend the current order: They can ask the court to renew the safeguard order. We sometimes use the term “renewal request’’, or “demande de reconduction” in French.
• If the spouses or de facto partners don’t agree to extend the current order: The person who wants to extend the order can ask a judge for a new safeguard order. This person must once again show that the situation is urgent enough to justify the request.