Spouses sometimes want to get a temporary decision before a divorce trial. To do this, they must make a formal written request for “a safeguard order and provisional measures” and send it to the other spouse. What can the person who receives this formal request do about it?
Understanding the Request
It is important for the spouse who receives the request to understand what it says. A formal request usually includes the following information:
- what the spouse wants and is asking the court
- the reasons the spouse believes he should get what he is asking for
- the date on which the other spouse has to appear in court (usually appears on the page called “Notice to Appear”)
A spouse can make a formal request for different kinds of things. Here are some examples of what a spouse can ask for:
- custody of the children
- child support
- financial support for the spouse
- right to live in the family house
Divorce: Vocabulary Change in the Law
Since March 1, 2021, the Divorce Act no longer uses the terms “custody” or “access”. The law now uses the term “parenting time” to describe a divorced parent’s relationship with a child of the marriage. For more information, see our article Divorce: What Is “Parenting Time” and What to Do When Moving.
The title of the request gives important information about what it asks for.
If the request says:
(sometimes called “interim measures” or “interim judgment”)
The spouse wants a judge to hear the request for an emergency decision on the date shown in notice to appear.
The judge’s decision is valid for up to six months.
The spouse wants a court date as soon as possible to get a decision by a judge.
This trial is not the divorce trial; it is a court hearing before the divorce trial.
The decision made at this hearing is temporary, and it can be valid until the divorce trial.
This is what happens at the Montreal courthouse. Due to the high number of cases, the spouses have to schedule a date and time to be heard by a judge. What happens in other courthouses can be different: judges there can sometimes hear a request for provisional measures on the date shown on the notice to appear. It is important to find out whether this applies to your situation.
Agreement With the Other Spouse
The spouses (or their lawyers) can negotiate with each other to reach an agreement. But these negotiations do not change the date on which the request will be presented to the court.
Presenting a Defence
It is important for spouses who receive this kind of request (or their lawyers) to show up in court on the date shown in the notice to appear to
- defend their positions, and
- be sure a judge does not make a decision in their absence.
What if you are not available on the date shown in the notice to appear?
You or your lawyer, if you have one, can ask for a “postponement”. This means asking for the request to be presented in court on a different day than the date on the notice to appear. You can ask for a postponement if there is a good reason preventing you or your lawyer from being in court that day or from presenting a proper defence.
The other spouse (or that person’s lawyer) does not have to accept the request for a postponement. Also, the person asking for the postponement should try to get written confirmation that the other spouse agrees to the change of date.
Documents to Prepare as a Defence
The documents that can be used as a defence depend a lot on what the request for a safeguard order and provisional measures asks for.
Here are a few examples:
- detailed affidavit (an official written statement by a person)
- Child Support Determination Form (often called “Schedule I”) with proof of income
- Form III – Statement of Income and Expenditures and Balance Sheet with proof of income
A lawyer can give advice about the best way to prepare a defence in light of the facts of the case and what the other person is asking for.