Understanding the Homologation of a Consent to Judgment in Divorce
When the Divorce Act was amended in 2019, the Canadian legislature aimed to improve the accessibility and efficiency within the family justice system to better aid families in transition1. One key change was a push for greater use of family dispute resolution processes, such as negotiation, mediation, collaborative law, and settlement conferences. These processes can help parties resolve their issues without the need of a lengthy trial, fostering more amicable and cost-effective solutions. As a result, many divorcing couples now find themselves drafting a settlement agreement – referred to as a Consent to Judgment – which can either be temporary (Interim Consent to Judgment) or final (Consent to Judgment on Accessory Measures). These agreements are often the product of negotiation or mediation and can cover various aspects of the divorce, such as parenting time, child support, spousal support, or the division of assets. Once a Consent to Judgment is drafted, reviewed, and signed by both parties and their lawyers, it typically moves forward as a straightforward process. After completing the necessary paperwork, the agreement is submitted to Court for review, where a judge will ideally issue a final judgment of divorce. However, complications can arise if one party changes their mind after signing the Consent to Judgment but before it is formally homologated (i.e., made official by the court). In some cases, a party might claim they were under duress when signing or argue that they did not fully understand the implications of the agreement – especially if they were unrepresented at the time. In such situations, the court must carefully consider these allegations before deciding whether to homologate the Consent to Judgment. This can raise difficult questions, particularly when it comes to determining the appropriate stage in the divorce process where the Consent can be homologated or rejected. For example, what happens if a Consent to Judgment on Accessory Measures
which typically addresses ancillary issues such as the division of assets or spousal support – is presented during an interim hearing, where immediate or urgent decisions are made? This issue was addressed by the Superior Court of Quebec in Droit de la famille – 152212. In this case, the wife sought an order requiring her husband to pay a compensatory allowance based on a Consent to Judgment the parties had signed over a year earlier. The husband, however, contested the Consent, arguing that it was unfair and asking the court to reject the wife’s request until the merits of the case could be fully examined at a final hearing.
The Consent had been signed in May 2014, but the husband did not seek legal advice until July 2014, at which point his lawyer advised him that the agreement was highly unfavorable. As a result, the husband refused to sign the affidavit needed to homologate the Consent, and, in response, the wife filed a motion to have it homologated. In this judgment, the Court outlined the conditions under which an interim order, also known as a safeguard order, could be issued. For such an order to be granted, the Court must assess the following criteria: 1. 2. 3. 4.
Clear and Possible Claim: The plaintiff must demonstrate that their right appears to be clear and achievable. Necessity of the Order: The court must be satisfied that the order is essential to prevent serious or irreparable harm to the plaintiff. Balance of Inconvenience: If the plaintiff risks harm, the court will weigh this harm against the potential inconveniences for the defendant. Urgency: The plaintiff must show that the situation is urgent and requires immediate action, even if the case is not fully complete3.
In this case, the Court concluded that while the wife’s claim was possible, it did not meet the threshold for serious or irreparable harm. Furthermore, the balance of inconveniences did not favor granting an interim order, and the wife did not demonstrate sufficient urgency. As a result, the Consent was not homologated, and the matter was left to be decided on the merits. This case highlights an important lesson in family law: when requesting safeguard measures, demonstrating true urgency is crucial. As the Court noted in Droit de la famille – 211678, safeguard orders are not intended for issues that are more appropriately addressed at a final hearing4. They are designed for situations where immediate action is necessary to prevent harm. For those navigating a divorce, it is essential to understand both the procedural requirements and the strategic considerations involved in drafting and homologating a Consent to Judgment. Seeking experienced legal advice can help ensure that your rights are protected, and that any agreements are properly executed and homologated by the Court.
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