Safeguarding Family Interests: A Guide to Legal Orders

Family matters often involve complex legal proceedings where protecting the interests of loved ones becomes paramount. Understanding the legal mechanisms available to safeguard family interests is crucial. This guide provides insights into various legal orders that can play a pivotal role in ensuring the well-being and stability of families.



Child Custody Orders


In situations of divorce or separation, child custody (parenting time) orders determine the living arrangements and responsibilities of each parent. Courts consider the child’s best interests when issuing these orders, aiming to provide a stable and nurturing environment.


If you share a child with your spouse or partner, whether through marriage or a common-law relationship, it is a legal obligation to meet the financial needs of your child.


Child support refers to a monetary contribution from one parent to the other to support the child’s financial requirements following a separation.


The law provides specific guidelines for calculating child support, with two sets of rules depending on the parents’ locations, their respective income and percentage of the parenting time. In Quebec, the guidelines established by the provincial government apply when both parents reside in the province. Conversely, the federal guidelines come into play if one parent lives outside Quebec, in another Canadian province.


Child support aims to cover the child’s essential needs, including food, shelter, communication, household expenses, and personal hygiene, clothing, furnishings, transportation, and leisure activities.


It is important to note that child support payments are not taxable. The receiving parent does not pay taxes on child support, and the paying parent cannot deduct it from their overall income. This ensures a fair and transparent financial arrangement for the well-being of the child.


Spousal Support Orders


Spousal support refers to the financial assistance that one spouse may be required to pay the other in cases of legal separation, dissolution of a civil union, or divorce.


If spousal support is ordered in the context of a divorce, the governing law is the Divorce Act. Article 15.2(1) of the Divorce Act empowers the Court to make orders for periodic payments or lump sums for the support of the other spouse.


In cases of legal separation or dissolution of a civil union, the Civil Code of Quebec applies. Article 511 of the Civil Code allows the Court, when granting separation from bed and board, to order one spouse to pay support to the other. For civil union cases, Article 521.17 of the Civil Code provides the authority to order spousal support.


Under the Divorce Act, certain factors must be considered by the Court in determining spousal support, including the duration of cohabitation, the functions performed by each spouse, and any existing orders, agreements, or arrangements related to support. Importantly, the law excludes marital misconduct as a basis for ordering spousal support.


It is   crucial to note that spousal support is not automatically granted and must be specifically requested. The requesting spouse needs to provide an income statement detailing their financial situation for the Court to assess their needs and make an informed decision.


Restraining Orders


In cases of domestic violence or the threat of harm, restraining orders can be crucial. They prohibit an individual from approaching or contacting family members, providing a legal safeguard against potential harm.



Who is Eligible to Apply?


To seek a restraining order, individuals typically approach criminal proceedings and/or family court. In most instances, you can file for a restraining order if there are serious risks of harm or domestic violence.

You might also consider approaching the criminal court to request a peace bond (Art. 810 Criminal Code). A peace bond, or a promise not to disturb public order, can be sought against anyone, not necessarily someone with whom you had a relationship. For instance, you could seek a peace bond against a neighbor or co-worker if there is a serious risk of violence.


Establishing the Need for the Order


To obtain a restraining order, you must demonstrate reasonable grounds to fear for your safety or the safety of any child in your care. You need to articulate the reasons for your fear and how it pertains to yourself or any child involved.


Restraining orders can be either temporary or permanent, with most initially issued as temporary measures.


Emergency Protection Orders (EPO)



An Emergency Protection Order (EPO) is a legal measure designed to provide immediate safety in cases of family violence. It restrains a family member from being nearby, contacting, or attending the workplace or study location of the person seeking protection. In certain circumstances, children may also be subject to EPOs. Breaching an EPO is a serious offense that may lead to criminal charges and arrest.


Issued by a Judge or a Justice of the Peace, an EPO is granted when immediate protection is deemed necessary due to family violence. The Protection against Family Violence Act defines family violence to include property damage, intimidation causing reasonable fear of property damage or injury, forced confinement, sexual abuse, and stalking.


A Restraining Order, on the other hand, protects the complainant from harassment or interference by another party, regardless of their relationship. Breaching a Restraining Order can result in financial penalties, a finding of contempt, or imprisonment.


After an EPO is granted, the responding party has nine days to respond to the allegations during a review in the Court of King’s Bench. The court may decide to vacate or extend the EPO and has the authority to impose less intrusive orders like a Restraining Order or No Contact Order, which do not lead to criminal charges for breach. Both Emergency Protection Orders and Restraining Orders carry severe legal consequences if violated.


Exclusive Possession Orders


An Exclusive Possession Order is a legal directive granting an individual the right to reside in the family home exclusively, thereby requiring others currently living there to vacate. This order is commonly issued in family matters and in situations such as domestic violence, where the court may provide exclusive possession to the victim while instructing the individual causing harm to relocate.


An Exclusive Possession Order outlines the following:


  • The removal of your spouse or partner from the home.
  • Prohibition of your spouse or partner from entering or approaching the home.
  • Granting you exclusive possession of the family vehicle, pets, and essential household items necessary for your well-being and that of your children.



If your relationship has deteriorated, and living together peacefully is no longer possible, you have the option to seek an exclusive possession order. This applies whether you rent or own the home, even if your name is not on the lease or home title.


An Exclusive Possession Order is a temporary arrangement and does not necessarily grant permanent rights to the family home. The duration of the order is determined by the judge based on the specific circumstances, such as until the finalization of your divorce or until your children complete their schooling.


Grandparent Visitation Orders



Experiencing a divorce is a challenging process not only for the couple and their children but also for grandparents who may have enjoyed unrestricted access to their grandchildren during the marriage. In Canada, grandparents do have rights, but these rights are contingent upon what is deemed to be in the best interest of the child.


In essence, grandparents have the right to seek visitation rights with their grandchildren, and the court is inclined to grant such visitation as long as it aligns with the children’s well-being. Ideally, resolving grandparent visitation outside of court is preferred, but conflicts between parents can sometimes necessitate legal intervention.


When a grandparent applies for visitation rights, the court evaluates the reasons for the denial of access and assesses whether the grandparent’s presence could be detrimental to the children. Recognizing the valuable role grandparents often play in a child’s life, the court commonly approves grandparent visitation, especially if they have been integral to the child’s development.


However, there are instances where parents can refuse grandparent visitation, subject to court approval. Refusals may stem from reasons such as the children rejecting visits, irreparable relationships between parents and grandparents, potential danger to the children, or active attempts by grandparents to replace the parents in their parental role.


Property Preservation Orders



When divorcing spouses jointly own property that is sold before trial, the net proceeds are typically held in trust until equalization is determined at a later trial, preventing prejudice to either party. However, Québec Family Law provides an additional measure to safeguard these funds through a “preservation order” (also known as a “non-dissipation order” or in some circumstances, seizure before judgment). This court-issued order expressly prohibits a spouse from selling, encumbering, or disposing of an asset until a comprehensive determination can be made during the trial, essentially placing a “freeze” on any actions that may undermine the other spouse’s rights.


The courts delved into the governing principles and factors influencing the issuance of such an order. These considerations included:


A preservation order should be specific to particular assets.

  • The spouse seeking the preservation order bears the onus of demonstrating prima facie that they are likely to receive an equalization payment equal to the value of those specific assets.
  • The court assesses various factors, including the relative strengths of the parties’ positions, the balance of convenience, and the potential for irreparable harm if the preservation order is not granted.
  • The likelihood of the spouse requesting the order and receiving an equalization payment and the real risk of the equalization claim being defeated without the order are crucial considerations.

This legal mechanism aims to maintain fairness and equity in the treatment of assets during divorce proceedings.


Supervised Visitation Orders


The Service for Supervised Access Rights facilitates children in maintaining relationships with both parents in challenging family circumstances within a secure environment. This service proves beneficial for a parent who ha lost contact rights post-separation, in serious domestic violence circumstances or needs to keep their home address confidential for safety reasons. Accessing the service requires obtaining an order from the Superior Court or establishing a written and signed agreement with the custodial parent. By providing a structured and secure setting, this service prioritizes the child’s well-being while ensuring that both parents can participate in fostering a meaningful relationship, even in complex family situations.


Consent Orders


Consent orders represent a legal agreement between parties involved in a dispute, typically about family matters such as divorce, child custody, or financial arrangements. Instead of relying on a court’s decision, the parties voluntarily reach an agreement, demonstrating their willingness to cooperate and resolve issues amicably. The consents could be for a temporary duration (interim measures) or could be final agreements, also referred to as “Consent to accessory measures of divorce”.


The process involves both parties, often with the assistance of their respective legal representatives, negotiating and coming to a consensus on various aspects of their dispute. This can include matters like division of assets, spousal support, child custody arrangements, and parenting rights. Once an agreement is reached, the terms are documented in a consent order.


Consent orders offer several advantages. They provide more control to the parties involved, allowing them to tailor the agreement to their specific needs and preferences. Additionally, the process is generally faster and less adversarial compared to traditional court proceedings, promoting a more cooperative and less contentious resolution.


To formalize the agreement, the consent order is submitted to the court for approval. If the court finds the terms fair and in the best interest of any involved children, it is likely to approve the order, making it a legally binding document through a judgment. Violating the terms of a consent order can lead to legal consequences, so parties are generally committed to abiding by the agreed-upon terms. Overall, consent orders serve as a flexible and collaborative alternative to litigation in family law matters. To reach the goal of avoiding litigation, the consent agreements should be drafted with special care ensue its execution and to prevent future conflicts of interpretation.

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